The National Police Service Commission (NPSC) has told the Court of Appeal that the Constitution gives it exclusive powers to recruit, appoint, promote and discipline police officers, challenging a ruling that handed those functions to the Inspector-General.
The commission argues that the Constitution deliberately separated operational command of the National Police Service (NPS) from human resource management to prevent the concentration of power that characterised the previous constitutional order.
The commission urged a three-judge bench to overturn an October 30, 2025 decision by the Employment and Labour Relations Court.
The court had ruled that the commission lacked constitutional authority to recruit or manage police officers, finding that the functions fell under the independent command of the Inspector-General.
The dispute arose after businessman and politician Harun Mwau challenged a September 19, 2025 NPSC advertisement inviting applications for police constables.
In the appeal, the commission said Article 246(3) expressly assigns it responsibility for recruitment, appointments, promotions and disciplinary control, arguing that these powers were created as safeguards to promote professionalism, accountability and institutional independence.
“Any interpretation that draws these functions back into the command structure risks unsettling that careful design,” the commission submitted.
It said its creation was part of reforms undertaken after the 2007-08 post-election violence, following recommendations by the Commission of Inquiry into the Post-Election Violence and the National Task Force on Police Reforms chaired by retired Justice Philip Ransley.
The reforms merged the Kenya Police Force and Administration Police Force into the National Police Service under a unified command headed by the Inspector-General, while transferring human resource management functions from the Public Service Commission to the NPSC.
From left: Deputy Inspector General of Police Gilbert Masengeli, Inspector General of Police Douglas Kanja and National Police Service Commission chairperson Amani Yuda Komora address journalists on police recruitment on October 1, 2025.
Photo credit: Bonface Bogita | Nation Media Group
According to the commission, giving the Inspector-General exclusive control over recruitment and related functions would effectively render Article 246(3) meaningless.
“The Constitution does not create empty institutions. It vests powers and expects their effective exercise,” NPSC told the court.
The NPSC also faulted Justice Hellen Wasilwa for interpreting the Inspector-General’s independent command under Article 245 as extending to recruitment, employment, assignment, promotion, suspension and dismissal.
Justice Hellen Wasilwa at Milimani Commercial Court in Nairobi on January 12, 2017.
Photo credit: File | Nation Media Group
It argued that such an interpretation would exclude the commission from exercising powers expressly assigned to it by Article 246.
The commission further challenged the trial court’s interpretation of Article 238(2)(d), which requires recruitment by national security organs to reflect the diversity of the Kenyan people. It said the provision must be read together with Articles 239, 245, 246 and 249.
It also argued that the Employment and Labour Relations Court wrongly assumed jurisdiction and relied on the Employment Act, which the commission said expressly excludes members of the National Police Service.
Inspector-General Douglas Kanja and the NPS on their part urged the appellate court to uphold Justice Wasilwa’s decision, arguing that recruitment is inseparable from the Inspector-General’s constitutionally protected command.
Mr Kanja, who is also a member of the NPSC, warned that placing recruitment, training, deployment and payroll functions under the commission could expose sensitive security information and undermine police operations.
Inspector-General of Police Douglas Kanja.
Photo credit: File | Nation Media Group
He said such an arrangement could provide unauthorised access to recruitment records, payroll data and training criteria, potentially exposing undercover officers, their families and the structure of specialised units.
According to Mr Kanja, Articles 238, 239, 244 and 245 establish a continuous chain covering recruitment, training, employment, assignment, promotion, suspension and dismissal.
“Personnel and payroll control cannot be divorced from command authority,” Mr Kanja submitted.
NPS argued that the Constitution makes a clear distinction between the NPS, which is a national security organ, and the NPSC, which is an independent constitutional commission.
The service maintains that Article 238(2)(d) reserves recruitment by national security organs to the organs themselves. Since the NPSC is not listed among the national security organs under Article 239, it cannot recruit police constables.
NPS further argued that the commission cannot acquire constitutional recruitment powers through ordinary legislation or regulations where the Constitution has not granted them.
The NPS also distinguished sworn police officers from civilian employees, arguing that constables undergo mandatory security training, exercise police powers and serve under the Inspector-General, unlike civilian staff recruited for administrative, legal, medical and technical roles.
