A three-judge bench led by Court of Appeal President Daniel Musinga, Justice Mumbi Ngugi and Justice George Odunga, on Friday stayed the October 30, 2025 judgment of Employment and Labour Relations Court (ELRC) Judge Hellen Wasilwa, which had declared the National Police Service Commission (NPSC) constitutionally powerless to recruit, promote or discipline any member of the police service.

The appellate court specifically suspended the part of Justice Wasilwa’s ruling that vested in Kanja exclusive and independent command over promotions and dismissals of officers.

In a ruling that will send shockwaves through the National Police Service, the bench held that no prejudice will be occasioned if, temporarily, the powers to promote and dismiss members of the National Police Service are suspended pending the hearing and determination of the intended appeal.

The bench was, however, careful to stress that the suspension of Kanja’s powers does not automatically restore them to the NPSC.

“For avoidance of doubt, we are not, by this ruling, reverting those powers to the National Police Service Commission. The exercise of those powers shall await determination of the appeal,” the judges declared, effectively placing the entire human resource machinery of Kenya’s police service in a state of suspension.

The saga began when businessman and politician Hon. John Harun Mwau filed a petition at the ELRC challenging a September 2025 police recruitment advertised by the NPSC.

Justice Wasilwa upheld the petition spectacularly, issuing fourteen sweeping declarations that effectively dismantled the Commission’s role in the service,stripping it of the power to recruit, train, employ, assign, promote, suspend or dismiss any police officer.

The judgment also nullified Legal Notice No. 159 of September 19, 2025, which had published the Commission’s recruitment regulations.

The Law Society of Kenya (LSK), though not a party to the original petition, moved swiftly to challenge Justice Wasilwa’s ruling, filing a notice of appeal and an urgent application for stay.

The Society argued the judgment had upended the constitutional balance between the Inspector General and the Commission, threatening to plunge the police service into institutional chaos.

Kanja fought back hard. Through his lawyers, the Inspector General argued that the Constitution was unambiguous, Article 245(4)(c) expressly prohibits any person from directing him on the employment, assignment, promotion, suspension or dismissal of officers.

His counsel further contended that there had been no police recruitment for three years, staffing levels were critically low, and with the 2027 general election approaching, granting a stay would endanger national security.

His team insisted the application “does not disclose any nugatory aspect should the orders of stay of execution of the judgment be declined.”

One dimension of Friday’s ruling provided cold comfort for Kanja: the Court declined to interfere with the recruitment of police constables that the National Police Service had already conducted in November 2025, ruling it would be futile to stay a process already completed and training already underway.

The bench acknowledged that where the decision sought to be appealed from has been executed, the Court ordinarily does not grant orders of stay since there is nothing to be stayed.

At the heart of the dispute is an apparent constitutional collision between two provisions: Article 245(4)(c), which shields the Inspector General from any direction on police human resources, and Article 246(3), which gives the NPSC the power to recruit, appoint, promote, transfer and discipline officers.

The Court of Appeal bench acknowledged the tension plainly, observing that there are serious constitutional overlaps in the functions of these two entities which require careful consideration and delineation when the appeal comes up for hearing.

Given the enormous public interest at stake, the Court directed that the full appeal be accorded priority and disposed of within three months, meaning a definitive ruling on who controls Kenya’s police force is expected before the end of May 2026.

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High Court Judge Martin Muya on Wednesday directed the two senior security officers to present themselves before him on December 16, 2025, at 11:00 am.

“I have considered the application made by both sides and therefore ordered the 2nd and 3rd respondents to appear in court physically on 16th December to explain the whereabouts of Mbijiwe,” Justice Muya ordered.

The court heard that despite four years passing since the abduction, no satisfactory explanation has been provided regarding investigations into Mbijiwe’s disappearance.

Family lawyer Evans Ondieki told the court that Mbijiwe was arrested by police officers along Roysambu Road, and since then, he has neither been found nor pronounced dead.

Ondieki further informed the court that an investigation report submitted to the Director of Public Prosecutions has not indicated whether Mbijiwe was killed or is still alive.

Mbijiwe’s mother told the court that her son is being held incommunicado by the state.

She testified that she has visited several offices in search of her missing son over the past four years.

The DPP, represented by Zachary Omwenga, informed the court that the Office of the Director of Public Prosecutions intends to forward the file to the magistrate’s court for purposes of opening an inquiry.

Omwenga told the court that the report from the DCI has not indicated who abducted Mbijiwe.

The court was informed that Mbijiwe had declared his interest to run for the position of governor in Meru County before his disappearance.

The judge was also told that the people holding Mbijiwe are very powerful leaders in the country.

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Sheria Mtaani na Shadrack Wambui, a civil society organization, filed the constitutional petition at the Milimani High Court, challenging the Inspector General’s authority over payroll management in the National Police Service.

Through lawyer Danstan Omari, the group argues that payroll functions fall under the constitutional mandate of the National Police Service Commission (NPSC), not the office of the Inspector General (IG), which is limited to operational command.

“This petition is about constitutional accountability,” Omari told the court.

“The IG cannot be allowed to usurp human resource powers through payroll control. That function belongs to the Commission, as clearly provided under Article 246 of the Constitution.”

The petition, which has been certified as urgent, warns that allowing recruitment to proceed under a disputed payroll regime could entrench unconstitutional practices.

“Payroll is not just about salaries. It reflects promotions, transfers, suspensions, and disciplinary actions,” the petition states.

“Allowing the Inspector General to run it undermines transparency and removes civilian oversight.”

According to the lobby group, the timing of the recruitment makes the case especially critical.

They argue that once the 10,000 new recruits are entered into the payroll system, any ruling by the court may become ineffectual.

“If this court does not intervene now, the process will be irreversible,” said Omari. “You cannot recall appointments and payroll entries once they have been activated under an unlawful system.”

The respondents in the case include the Inspector General of Police, the National Police Service, and the Attorney General.

The National Police Service Commission and the Law Society of Kenya have been named as interested parties.

Court records show that all parties were served with the petition on August 14, 2025, but none had filed a response by the time of the court’s preliminary hearing.

“The silence from the respondents only deepens the urgency of this matter,” Omari submitted.

“We urge the court to issue conservatory orders stopping the recruitment pending full determination of this petition.”

The group wants the court to hear the matter during recess, warning that any delay could lead to “constitutional violations being cemented.”

The lobby insists that payroll is a core element of police human resource management and that placing it under the operational command of the IG would create a conflict of interest and weaken institutional checks and balances.

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