Deputy Inspector General of Police Eliud Kipkoech Lagat has suffered a major setback after the High Court declined to dismiss a petition challenging his decision to step aside and appoint an acting deputy in the wake of the probe into the death of blogger Albert Ojwang’.
Delivering a detailed ruling on Friday, October 3, 2025, Justice Chacha Mwita dismissed a preliminary objection filed by Lagat and the National Police Service (NPS), ruling that the court indeed has jurisdiction to hear and determine the constitutional issues raised in the case.
Through lawyer Cecil Miller, Lagat had argued that the case was wrongly filed before the High Court and should have instead been lodged at the Employment and Labour Relations Court (ELRC), as it allegedly concerned internal administrative decisions within the police service.
Miller, representing Lagat and the NPS, submitted that the decision by the DIG to step aside for 18 days and appoint his Principal Assistant Patrick Tito to act in his position was an internal human resource matter — purely administrative in nature and not constitutional.
He maintained that under the National Police Service Act and Service Standing Orders, the DIG was within his mandate to temporarily step aside and assign duties to another officer to ensure continuity of command within the police structure.
“The petition raises issues that touch on the administration and internal management of the police service,” Miller argued. “It does not raise constitutional questions but concerns the respondent’s right to exercise discretion within the confines of his office.”
The Attorney General, appearing for the NPS and the Inspector General, supported Lagat’s position, insisting that the High Court lacked jurisdiction since no constitutional right had been violated.
The State Law Office maintained that the petition amounted to interference with the internal management of the National Police Service.
However, the petitioner, Eliud Matindi, a UK-based activist, opposed the objection, insisting that the petition raised serious constitutional questions on whether a Deputy Inspector General can legally step aside from a constitutional office and unilaterally appoint someone to act in his stead.
Matindi argued that Lagat’s decision to step aside and appoint Tito was unconstitutional since the power to appoint or designate an acting Deputy Inspector General is vested only in the President, upon the recommendation of the National Police Service Commission (NPSC),not in the hands of the office holder himself.
In his ruling, Justice Mwita sided with the petitioner, finding that the case raises substantive constitutional questions deserving full hearing.
“I am unable to agree with the respondent that this court has no jurisdiction. I affirm that this court has jurisdiction. The preliminary objection is overruled,” Justice Mwita declared.
He went on to explain that the core issues in the petition were not about employment disputes or workplace grievances but about the interpretation and application of the Constitution, particularly regarding the powers and limits of a constitutional office holder.
“The issues raised do not include determination of employer-employee relationship or related matters,” the judge said.
“Rather, the issues are purely on the interpretation of the Constitution and the law, namely whether the first interested party’s actions were constitutional and legal.”
Justice Mwita further emphasized that the position of Deputy Inspector General is established by the Constitution, not the Employment Act, and therefore carries constitutional, not contractual, responsibilities.
“The position of Deputy Inspector General and the manner of appointment having been created by the Constitution has a constitutional connotation,” he ruled.
“The holder of that office is not an employee in terms of the Employment Act to make this petition fall within the jurisdiction of the Labour Relations Court.”
Citing Article 165(3)(b) of the Constitution, the judge reiterated that the High Court has the express mandate to interpret the Constitution and determine whether any act or omission violates it.
“Under Article 165(3)(b) of the Constitution, this Court is expressly mandated to hear any question on the interpretation of the Constitution, including determining whether anything said or done under the authority of this Constitution or any law is inconsistent with or in contravention of the Constitution,” said Justice Mwita.
He explained that the questions raised — such as whether Lagat could legally step aside and appoint an acting deputy — fall strictly within the High Court’s jurisdiction.
“This Court will have to determine whether anything that was said or done by the first interested party under the authority of the Constitution or the law is inconsistent with or in contravention of the Constitution or the law,” he stated.
“In other words, the petition seeks this Court’s determination whether the first interested party’s actions were within the framework of the Constitution and the law.”
Justice Mwita also quoted Section 9 of the National Police Service Act, which provides that both Deputy Inspector Generals — in charge of the Kenya Police Service and the Administration Police Service — shall be appointed in accordance with the Constitution and upon recommendation by the NPSC.
“The position of Deputy Inspector General and the manner of appointment having been created by the Constitution and reinforced by statute, has a constitutional connotation, and therefore, the holder is not an employee under the Employment Act,” he emphasized.
In his concluding remarks, Justice Mwita dismissed the objection by Lagat and the NPS.
“In these circumstances, I am unable to agree with the Respondent and First Interested Party that this Court has no jurisdiction to hear this petition. Rather, I affirm that this Court has the jurisdiction to hear the petition. Consequently, on the conditions stated above, the preliminary objection is overruled and dismissed with no order as to costs.”
The court has now directed that the case proceeds to a full hearing where the substantive questions will be addressed,including whether the DIG’s step-aside was legally valid and whether his appointment of an acting deputy was within his constitutional powers.
The matter will come up for mention on November 17, 2025, for the parties to file and highlight their written submissions.
