REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E479 OF 2024
KATIBA INSTITUTE …………..........………………………… PETITIONER
-VERSUS-
INSPECTOR GENERAL OF POLICE ..............................1 ST RESPONDENT
ATTORNEY GENERAL ................................................ ….2 ND RESPONDENT
HEAD OF JUDICIARY POLICE UNIT ........................... 3 RD RESPONDENT
NATIONAL POLICE SERVICE COMMISSION ............4 TH RESPONDENT
AND
JUDICIAL SERVICE COMMISSION ....................... INTERESTED PARTY
JUDGMENT
Introduction
1. Goal 16 of the 2030 United Nations Agenda for Sustainable Development is about promoting peaceful and inclusive societies, providing access to justice for all and building effective, accountable and inclusive institutions at all levels. It is therefore envisaged that all Governments put in place mechanisms to ensure that people everywhere live free from fear and all forms of violence, feeling safe as they go about their lives.
2. World over, the independence of the judiciary is crucial, and it is essential, for a government to function in a way that allows its organs to be both independent and interdependent. This means that the judiciary, specifically in its role of administering justice, should operate without any coercion or manipulation in favor of the executive, the legislature or any other person or entity.
3. At the opening session of the Asia Pacific Justice Forum (December 8-9, 2022), Professor Margaret Sattherthwaite, UN Special Rapporteur on the independence of judges and lawyers and professor of Clinical Law at the New York University School of Law, outlined the importance of an independent judiciary for countering rising authoritarianism. She stated, inter alia , that:
“Independent judges have never been more important, and to the shame sometimes of the global community. The very independence, competence, and wisdom these judges bring to their work is sometimes the thing that puts them in danger.”
4. The above introduction sets the stage for determination of the petition dated 17th September 2024. The description of the parties is as given by the Petitioner.
5. The Petitioner Katiba Institute, describes itself as a Constitutional Litigation and Research Institution established in 2011 to promote knowledge and understanding of Kenya’s Constitution and Constitutionalism and to defend and facilitate the implementation of the Constitution.
6. The 1 st Respondent, the Inspector General of the National Police Service, is sued in person under the doctrine of command responsibility. The office is a Constitutional office established under Article 245 of the Constitution of Kenya, 2010 and mandated to supervise the investigation of offences or enforce the law against any person or persons.
7. The 2 nd Respondent is the Attorney-General of the Republic of Kenya and a public and Constitutional officer established under Article 156 of the Constitution with well-defined functions, including representing the national government in court or in any legal proceedings to which the national government is a party.
8. The 3 rd Respondent is the head of the Judicial Police Unit and is responsible for the security of Judges and the Judiciary.
9. The 4 th Respondent is a constitutional commission established under Article 246 of the Constitution and oversees the human resource functions of the National Police Service.
10. The Interested Party is a constitutional commission established under Article 171 of the Constitution of Kenya. The commission is tasked with promoting and facilitating the independence of the Judiciary and the efficient, effective and transparent administration of Justice.
11. In this Petition, Katiba Institute challenges what it considers to be the State’s retaliatory withdrawal and disarmament of Hon. Justice Lawrence Mugambi’s security detail after the judge had sentenced the Acting Inspector General of Police, Mr. Gilbert Masengeli, to serve six months imprisonment for contempt of court.
12. The Petitioner asserts that this arbitrary action directly threatens judicial independence, violates Article 160(4) of the Constitution by unlawfully diminishing an accrued judicial benefit to a judge’s disadvantage and abuses police power, in breach of constitutional national values, fair administrative action and non-discrimination principles.
13. The Petitioner seeks formal declarations that the Respondents’ acts violate the Constitution, an order declaring the withdrawal invalid, declarations that Acting Inspector General of Police Gilbert Masengeli and the Head of the Judicial Police Unit are unfit to hold public office, and a permanent injunction prohibiting the withdrawal or disarmament of a judge’s security detail without prior consultation with the Judicial Service Commission.
The Petition
14. The Petition dated 17 th September 2024 seeks the following Reliefs:
(a) A declaration that the Respondents’ actions violate Articles 10, 19, 20, 21, 27, 47, 73, 159, 160, 244 and 245 of the Constitution of Kenya.
(b) A declaration that the 1st Respondent’s action of disarming and withdrawing the security detail of Hon. Justice Lawrence Mugambi violated Articles 10, 19, 20, 21, 27, 47, 73, 159, 160, 244 and 245 of the Constitution of Kenya by suspending a constitutional right.
(c) A declaration that the 1st Respondent’s action of withdrawing and disarming the security detail of Hon. Justice Lawrence Mugambi is unconstitutional and invalid under Article 2(4) of the Constitution.
(d) As a consequence of orders (b) and (c) a declaration do issue that the 1st Respondent, Acting Inspector General of Police, Gilbert Masengeli, is unfit to hold public office.
(e) As a consequence of order (a), a declaration do issue that the 3 rd Respondent, the head of Judicial Police Unit is unfit to hold public office.
(f) A permanent order of prohibition prohibiting the Respondents from withdrawing and/or disarming the security detail of a judge without prior consultation with the Judicial Service Commission.
(g) Any other prayers this Court deems fit.
15. The Petition is premised on the facts on its face and is further supported by the sworn affidavit of Emily Kinama, the Litigation Manager at Katiba Institute sworn on 17 th September 2024 in which she outlines the timeline beginning the 23 rd August 2024, when Hon. Justice Lawrence Mugambi issued ex parte habeas corpus orders in Law Society of Kenya & 3 Others v. Inspector General of Police & 4 Others (Petition No. E436 of 2024) regarding the alleged abduction of Bob Micheni Njagi, Jamil Longton, and Salam Longton.
16. She depones that after the 1 st Respondent repeatedly failed to honor court orders and court summonses scheduled for 3 rd , 5 th and 9 th September 2024, the judge convicted the 1 st Respondent of contempt of court on 9 th September 2024 and sentenced him on 13 th September 2024.
17. The deponent states that during the proceedings, the court highlighted intimidating conduct by a Senior Police Officer Lazarus Opicho, who contacted the judge’s driver and bodyguard to track the Judge’s whereabouts.
18. The deponent swears that over the weekend following the said sentencing for contempt of Court, the State disarmed and withdrew Justice Lawrence Mugambi’s security detail, a fact confirmed by a Judicial Service Commission in its public press statement issued on 16 th September 2024. Ms. Kinama deposes that these actions by the State machinery through the 1 st respondent directly violates Article 160 of the Constitution by stripping away a judge’s accrued security benefit to his disadvantage, in violation of Article 160(4), thereby interfering with judicial independence.
19. Further deposition emphasized that the police leadership has abused its powers to bypass the Bill of Rights and create a chilling effect where judges fear rendering adverse merit decisions against state organs. The deponent warns that unless the court grants urgent relief, the Respondents will continue to intimidate the Judiciary into subservience, threatening to shift Kenya from a constitutional democracy to an executive dictatorship where the executive's word overrides the law.
20. The Petitioner states that delayed remedies would render the Petition nugatory, as leaving the judge without security undermines functional judicial independence, disregards the rule of law and leaves the Inspector General as the sole, unchecked arbiter of judicial security.
21. The Petitioner further averred that the action was brought in the public interest under Articles 3(1) and 258 of the Constitution to protect judicial independence, constitutional values and the rule of law.
Responses
22. In response to the Petition, the 1 st 2 nd and 3 rd Respondents (the Inspector General of Police, the Attorney General and the Head of the Judiciary Police Unit respectively) filed a joint response through a Replying Affidavit sworn by Assistant Inspector General of Police Ibrahim Omar on( date is illegible), citing Articles 245(b) and Article 244 of the Constitution of Kenya, as well as Section 24 of the National Police Service Act , outlining the police mandate to protect life and property while maintaining high standards of professionalism, discipline and compliance with human rights.
23. The deponent also referenced the 2016 Policy on the Provision of Protective Security to VIPs and Other State Officers, which was created to address the ad-hoc and inconsistent deployment of protective security to public officers.
24. He states that under paragraph 5.3 of the 2016 VIP Security Policy , officers selected for VIP protection must undergo a three-week training course or periodic refresher courses to effectively handle emerging security threats. It is his evidence that in accordance with this requirement, the police service recalled the security detail assigned to Hon. Justice Lawrence Mugambi, alongside other officers assigned to VIPs, to attend a refresher course. That subsequently, on 14 th September 2024, the Commandant of the Security of Government Buildings and VIP Protection Unit issued deployment letters assigning new officers, SGT Reagan Okello and APC Francis Mulei, to provide protective security to Justice Mugambi.
25. According to the deponent, Justice Lawrence Mugambi rejected the newly deployed security detail, resulting in his original officers being reassigned to him before they could complete the requisite refresher training.
26. On legal advice, it was deposed that the Petitioner failed to provide evidence of probative value to support its petition and application. Consequently, the respondents urged this Court to dismiss both the Notice of Motion Application and the with costs.
27. The 4 th Respondents filed the Replying Affidavit sworn by Peter Leley, the Chief Executive Officer of the National Police Service Commission in which he outlines the constitutional mandate of the Commission under Article 246 of the Constitution and the National Police Service Commission Act , clarifying that its authority is strictly limited to human resource oversight such as recruitment, appointments, promotions, transfers and disciplinary control. He this statutory human resource function does not extend to the independent operational command of the National Police Service, which falls solely under the Inspector General of Police pursuant to Article 245 of the Constitution .
28. Citing the decision in International Centre for Policy and Conflict v Attorney General & 2 others [2014] eKLR, the deponent highlights that operational matters, including assigning VIP security details, remain within the exclusive domain of the Inspector General. in the premises, the 4 th Respondent contends that it was improperly joined to the petition and urges this Court to exclude it from the proceedings as the Petitioner failed to provide evidence of the 4 th respondent’s involvement in the security detail’s withdrawal.
29. It is deposed further that the Petition and accompanying Application have been overtaken by events and should be dismissed because, during court proceedings on 20 th September 2024, counsel for the 1 st and 2 nd Respondents confirmed that Justice Mugambi’s security detail had already been reinstated.
30. The deponent swears additionally, that in related proceedings Petition No. E436 of 2024, the court accepted the 1 st Respondent’s genuine apology regarding contempt and the withdrawal of the judge’s security detail, thereby purging the sentence.
31. It is pleaded that with a new Inspector General now in office and the Judge’s security restored, no prejudice will be suffered if the court dismisses the Petition with no orders as to costs.
Submissions
32. The Petition was canvassed by way of written submissions.
The Petitioner’s Submissions
33. In its submissions dated 18 th June 2025, the Petitioner, Katiba Institute, urges the Court to protect judicial independence by declaring the retaliatory withdrawal of Hon. Justice Lawrence Mugambi’s security detail to be unconstitutional. Grounded in the factual matrix set out in the initial affidavit of Emily Kinama sworn on 17 th September 2024 and her further affidavit sworn on 18 th November 2024, the Petitioner details how the Inspector General of Police the 1 st Respondent arbitrarily disarmed and removed the judge’s security detail after being summoned and convicted for contempt of court.
34. Counsel for the Petitioner isolated the following five issues for determination:
i. Whether the Respondents violated the principle of judicial independence?
ii. Whether the Respondents violated the normative value-based system under Article 10 of the Constitution?
iii. Whether the 1st Respondent’s actions constitute an abuse of police powers and office?
iv. Whether the Respondents have violated the right to fair administrative action under Article 47 of the Constitution? and
v. Whether the Respondents violated the freedom from non-discrimination under Article 27 of the Constitution .
35. The Petitioner’s counsel submits that judicial security is an accrued, constitutionally protected benefit attached to the office of a judge under Article 160(4) of the Constitution , which strictly prohibits the variation or diminution of benefits to a judge’s disadvantage. To support this, the Petitioner references legal principles from the Zambian Constitutional Court in Sangwa v Attorney-General & Law Society of Zambia CCZ/0012 [2023] ZMCC 6 , and decisions in the cases of Communication Commission of Kenya & 5 Others v Royal Media Services Limited & 5 others [2014] eKLR , Gachuiri v Attorney General & another [2024] KEHC 5836 (KLR), Sollo Nzuki v Salaries and Remuneration Commission & 2 Others [2019] eKLR, and Jonathan Munene v Attorney-General & 2 others [2021] eKLR , all of which are said to establish that accrued judicial benefits serve as a shield against external executive influence.
36. The Petitioner further submits that the Respondents’ actions violated the objective, value-based framework set out in Article 10 of the Constitution , which prohibits the arbitrary exercise of state power and demands strict adherence to the rule of law.
37. Relying on Republic v Kombo & 3 Others Ex Parte Waweru [2008] 3 KLR (EP) 478, the petitioner’s counsel highlights that all administrative and government authority must remain strictly authorized by law. That in the instant case, the 1 st Respondent failed to uphold public trust and constitutional standards as mandated under Articles 73(1)(a), 238(2)(b), 244, and 245 of the Constitution , alongside Sections 8A and 49 of the National Police Service Act, Cap. 84, and Sections 8 and 9 of the Leadership and Integrity Act, Cap. 182 .
38. Reliance was placed on Mutuma & another v Inspector General of Police & 4 others [2025] KEHC 212 (KLR) to reiterate that judicial intervention is necessary whenever state agencies act capriciously or exceed their statutory mandates.
39. Additionally, the Petitioner argues that withdrawing the judge’s security without notice, procedural fairness, or an opportunity to be heard violated the right to fair administrative action under Article 47 of the Constitution and Sections 4(1) and 7 of the Fair Administrative Action Act, Cap. 7L . Drawing from the decisions in Kenya Human Rights Commission & Community Advocacy & Awareness Trust (Crawn Trust) v NGO Co-ordination Board [2018] KEHC 8915 (KLR) , Republic v Fazul Mahamed & 3 others Ex-Parte Okiya Omtatah Okoiti [2018] eKLR, and Kuto v Kenya Magistrates and Judges Association [2023] KEHC 26157 (KLR), the Petitioner reiterated that the rules of natural justice and the duty to give reasons are mandatory safeguards against whimsical public authority.
40. Further submission was that by selectively removing protection from a single judge, the 1 st Respondent committed unjustified discrimination in violation of Article 27 of the Constitution , running counter to the standard of equal protection of the law as was defined in Gichuru v Package Insurance Brokers Ltd [2021] KESC 12 (KLR) and Mohamed Aktar Kana v Attorney-General [2010] KEHC 4146 (KLR
41. Finally , the Petitioner’s counsel submitted that this Court possesses broad remedial powers under Article 23 of the Constitution to craft remedies that prevent future constitutional violations, as affirmed in Communications Commission of Kenya v Royal Media Services Limited [2014], Mitu-Bell Welfare Society v Kenya Airports Authority [2021] KESC 34 (KLR), and Law Society of Kenya v Attorney General & another [2019] KEHC 10881 (KLR).
42. The Petitioner prayed for declarations of unconstitutionality and a permanent order prohibiting the Respondents from withdrawing or disarming the security detail of any judge without prior consultation with the Judicial Service Commission, in order to safeguard the judiciary against retaliatory state action.
The 1 st , 2 nd and 3 rd Respondents’ Submissions
43. The Attorney General’s written submissions are dated 13 th December 2024 , filed on behalf of the 1 st , 2 nd and 3 rd Respondents though its Deputy Chief State Counsel Stephen Terrell. The 1 st to 3 rd Respondents contend that the Petition fails to present a justiciable issue and must be dismissed.
44. They submit that under Article 245(b) of the Constitution , the Inspector General of Police holds independent command over the National Police Service, while Article 244 mandates standards of professionalism, integrity and accountability. That although Section 24 of the National Police Service Act, Cap. 84 outlines the general function of protecting life and property, the Respondents contend that there is no statutory or constitutional duty to assign protective security to judges, nor does security constitute a remuneration benefit protected under Article 160(4) of the Constitution .
45. The three Respondents contend that VIP security is governed administratively by the Policy on the Provision of Protective Security to VIPs and Other State Officers (2016), which empowers the police to deploy protective detail to senior officials based on applications and operational needs. They rely on paragraphs 1.2, 1.3, and 5.3 of the 2016 VIP Policy , and argue that officers assigned to VIP protection must undergo periodic training and that Justice Lawrence Mugambi’s original security was recalled specifically to participate in a required three-week refresher course.
46. Further submission was that the Commandant of the Security of Government Buildings and VIP Protection Unit under the Administration Police Service subsequently deployed replacement officers -SGT Reagan Okello and APC Francis Mulei- on 14 th September 2024. That when the Judge rejected the replacement officers, the original security detail was reassigned to him without undergoing the refresher course, thereby fully resolving the dispute.
47. In support of their contention that the Petition lacks justiciability and is prematurely brought, the Respondents rely on the Constitutional Avoidance and Ripeness Doctrines as articulated in Apollo Mboya v Attorney General and National Employment Authority (Nairobi Constitutional Petition No. E335 of 2023), which adopted the three-judge bench holding from Kiriro Wa Ngugi & 19 Others v Attorney General & 2 Others [2020] eKLR and the Supreme Court decision in Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR . It was submitted that these authorities establish that courts must refrain from deciding hypothetical, premature, or academic constitutional questions when a matter can be resolved through other non-constitutional means.
48. Finally, the 1 st to 3 rd Respondents submitted that the Petitioner failed to prove any violation of constitutional rights or to demonstrate the real danger required for conservatory relief. They relied on Centre for Rights Education and Awareness (CREAW) & 7 Others v Attorney General [2011] eKLR .
49. Invoking the locus classicus Anarita Karimi Njeru v Republic (No. 1) [1979] KLR 154 , which references Keshava Menon v State of Bombay [1951] SCR 228 and Republic v El Mann [1969] EA 357 , the 1 st to 3 rd Respondents argued that any party alleging a constitutional violation must state the specific provisions infringed and the precise manner of infringement rather than relying on abstract arguments regarding the spirit of the Constitution.
50. It was further submitted that the Petitioner failed to tender probative evidence of any constitutional breach and a prayer that the Petition be dismissed with no orders as to costs.
The 4 th Respondent’s Submissions
51. In their submissions filed in 2024, the National Police Service Commission the 4 th Respondent herein isolated two issues for determination being:
i. Whether the 4 th Respondent is privy to these proceedings and
ii. Whether the Applicant is entitled to the orders sought.
52. Counsel for the 4 th Respondent argued that it is not a proper party to the proceedings because its statutory mandate is strictly limited to human resource functions under Article 246(3) of the Constitution and Sections 10 and 11 of the National Police Service Commission Act .
53. The Commission outlines that these human resource functions such as recruitment, appointments, promotions, discipline and training oversight do not extend to operational police command. Instead, that independent command over the National Police Service and the operational assignment or withdrawal of security detail are statutory duties exclusively vested in the Inspector General of Police pursuant to Article 245(2)(b) of the Constitution and Section 10 of the National Police Service Act .
54. Counsel for the Commission further contends that the Applicant failed to demonstrate or provide evidence showing how the 4 th Respondent contributed to the alleged constitutional violations. He pointed out that the Petitioner completely omitted the 4 th Respondent in its Further Affidavit and Submissions dated 18 th November 2024, the Commission urges the Court to disregard all allegations made against it.
55. Relying on the principle established in Anarita Karimi Njeru v The Republic [1976-1980] KLR 1272 , the Commission highlights that a party alleging a violation of constitutional rights must plead the specific provisions violated and the exact manner of infringement, a standard the Applicant failed to meet regarding the 4 th Respondent, similar to the findings in Thomas Odero Dullo .
56. Finally, Counsel for the 4 th Respondent submited that the Petitioner is not entitled to the orders sought, noting that several prayers are already spent and that conservatory orders are inappropriate in this instance. Referring to Justice A.C. Mrima’s ruling in Katiba Institute vs Judicial Service Commission and 3 others (Constitutional Petition No. E128 of 2022) , the 4 th respondent emphasizes that courts must exercise caution with interlocutory conservatory orders so as not to determine the main Petition prematurely, given that the office of the 1 st Respondent has since changed hands without any indication of repeating the conduct. The 4 th Respondent prays that the Application and Petition be dismissed with costs for being meritless and an abuse of the court process.
Analysis and Determination
57. I have considered the petition, the responses thereto and the respective parties’ submissions all citing statutory, constitutional provisions and judicial authorities. I find the following issues emerging for determination:
(i) Whether the 4 th Respondent (National Police Service Commission) is a proper party to this Petition.
(ii) Whether the Petition is moot or non-justiciable under the doctrines of ripeness and constitutional avoidance on account of restoration of security detail for Justice Lawrence Mugambi.
(iii) Whether security detail assigned to a Judge constitutes a constitutionally protected benefit under Article 160(4) of the Constitution and whether the withdrawal and disarmament of Justice Lawrence Mugambi’s security detail violated Judicial Independence, the Rule of Law, Chapter Six, and Fair Administrative Action.
(iv) What appropriate remedies should issue?
(v) Who should pay costs of the Petition?
(i) Whether the 4 th Respondent (National Police Service Commission) is a proper party to this Petition
58. The 4 th Respondent argues that it was wrongly joined to this Petition because, its functions are confined to human resource management under Article 246 of the Constitution , whereas operational deployment sits squarely with the Inspector General of Police under Article 245.
59. Article 245 sets out the command of the National Police Service through the office of the Inspector General of Police while Article 246 establishes the National Police Service Commission. Article 246 stipulates:
246. National Police Service Commission
(1 There is established the National Police Service Commission.
(2 The Commission consists of—
(a) the following persons, each appointed by the President—
(i) a person who is qualified to be appointed as a High Court Judge;
(ii) two retired senior police officers; and
(iii) three persons of integrity who have served the public with distinction;
(iv) the Inspector-General of the National Police Service; and
(v) both Deputy Inspectors-Generals of the National Police Service.
(3 The Commission shall—
(a) recruit and appoint persons to hold or act in offices in the service, confirm appointments, and determine promotions and transfers within the National Police Service;
(b) observing due process, exercise disciplinary control over and remove persons holding or acting in offices within the Service; and
(c) perform any other functions prescribed by national legislation.
(4 The composition of the National Police Service shall reflect the regional and ethnic diversity of the people of Kenya.
60. The constitutional division of authority between the Inspector General of Police and the National Police Service Commission is clear. Article 245(2)(b) stipulates that the Inspector-General shall exercise independent command over the National Police Service. Conversely, Article 246(3) vests the National Police Service Commission with human resource functions such as recruitment, appointment, promotion and discipline.
61. From this Court’s reading of Article 246, operational assignment and movement of officers in VIP security details fall squarely under the command responsibility of the Inspector General of Police and not under the National Police Service Commission.
62. The law on joinder of parties in Constitutional petitions is set out in the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 referred to as the Mutunga Rules . Rule 5 of the Rules, which is also similar to Order 1, Rule 10 of the Civil Procedure Rules, 2010 provides:
5. Addition, joinder, substitution and striking out of parties
The following procedure shall apply with respect to addition, joinder, substitution and striking out of parties—
(a) Where the petitioner is in doubt as to the persons from whom redress should be sought, the petitioner may join two or more respondents in order that the question as to which of the respondent is liable, and to what extent, may be determined as between all parties.
(b) A petition shall not be defeated by reason of the misjoinder or nonjoinder of parties, and the Court may in every proceeding deal with the matter in dispute.
(c)..not material
(d) The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear just—
(i) order that the name of any party improperly joined, be struck out; and
(ii) that the name of any person who ought to have been joined, or whose presence before the court may be necessary in order to enable the court adjudicate upon and settle the matter, be added.
(e) Where a respondent is added or substituted, the petition shall unless the court otherwise directs, be amended in such a manner as may be necessary, and amended copies of the petition shall be served on the new respondent and, if the court thinks, fit on the original respondents.
63. In determining who is the appropriate respondent, the said Mutunga Rules define who a respondent is in Rule 2 on Interpretation as follows:
“respondent” means a person who is alleged to have denied, violated or infringed, or threatened to deny, violate or infringe a right or fundamental freedom;
64. In JMK v MWM & another [2015] eKLR the Court of Appeal, discussing the
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IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E479 OF 2024
KATIBA INSTITUTE …………..........………………………… PETITIONER
-VERSUS-
INSPECTOR GENERAL OF POLICE ..............................1 ST RESPONDENT
ATTORNEY GENERAL ................................................ ….2 ND RESPONDENT
HEAD OF JUDICIARY POLICE UNIT ........................... 3 RD RESPONDENT
NATIONAL POLICE SERVICE COMMISSION ............4 TH RESPONDENT
AND
JUDICIAL SERVICE COMMISSION ....................... INTERESTED PARTY
JUDGMENT
Introduction
1. Goal 16 of the 2030 United Nations Agenda for Sustainable Development is about promoting peaceful and inclusive societies, providing access to justice for all and building effective, accountable and inclusive institutions at all levels. It is therefore envisaged that all Governments put in place mechanisms to ensure that people everywhere live free from fear and all forms of violence, feeling safe as they go about their lives.
2. World over, the independence of the judiciary is crucial, and it is essential, for a government to function in a way that allows its organs to be both independent and interdependent. This means that the judiciary, specifically in its role of administering justice, should operate without any coercion or manipulation in favor of the executive, the legislature or any other person or entity.
3. At the opening session of the Asia Pacific Justice Forum (December 8-9, 2022), Professor Margaret Sattherthwaite, UN Special Rapporteur on the independence of judges and lawyers and professor of Clinical Law at the New York University School of Law, outlined the importance of an independent judiciary for countering rising authoritarianism. She stated, inter alia , that:
“Independent judges have never been more important, and to the shame sometimes of the global community. The very independence, competence, and wisdom these judges bring to their work is sometimes the thing that puts them in danger.”
4. The above introduction sets the stage for determination of the petition dated 17th September 2024. The description of the parties is as given by the Petitioner.
5. The Petitioner Katiba Institute, describes itself as a Constitutional Litigation and Research Institution established in 2011 to promote knowledge and understanding of Kenya’s Constitution and Constitutionalism and to defend and facilitate the implementation of the Constitution.
6. The 1 st Respondent, the Inspector General of the National Police Service, is sued in person under the doctrine of command responsibility. The office is a Constitutional office established under Article 245 of the Constitution of Kenya, 2010 and mandated to supervise the investigation of offences or enforce the law against any person or persons.
7. The 2 nd Respondent is the Attorney-General of the Republic of Kenya and a public and Constitutional officer established under Article 156 of the Constitution with well-defined functions, including representing the national government in court or in any legal proceedings to which the national government is a party.
8. The 3 rd Respondent is the head of the Judicial Police Unit and is responsible for the security of Judges and the Judiciary.
9. The 4 th Respondent is a constitutional commission established under Article 246 of the Constitution and oversees the human resource functions of the National Police Service.
10. The Interested Party is a constitutional commission established under Article 171 of the Constitution of Kenya. The commission is tasked with promoting and facilitating the independence of the Judiciary and the efficient, effective and transparent administration of Justice.
11. In this Petition, Katiba Institute challenges what it considers to be the State’s retaliatory withdrawal and disarmament of Hon. Justice Lawrence Mugambi’s security detail after the judge had sentenced the Acting Inspector General of Police, Mr. Gilbert Masengeli, to serve six months imprisonment for contempt of court.
12. The Petitioner asserts that this arbitrary action directly threatens judicial independence, violates Article 160(4) of the Constitution by unlawfully diminishing an accrued judicial benefit to a judge’s disadvantage and abuses police power, in breach of constitutional national values, fair administrative action and non-discrimination principles.
13. The Petitioner seeks formal declarations that the Respondents’ acts violate the Constitution, an order declaring the withdrawal invalid, declarations that Acting Inspector General of Police Gilbert Masengeli and the Head of the Judicial Police Unit are unfit to hold public office, and a permanent injunction prohibiting the withdrawal or disarmament of a judge’s security detail without prior consultation with the Judicial Service Commission.
The Petition
14. The Petition dated 17 th September 2024 seeks the following Reliefs:
(a) A declaration that the Respondents’ actions violate Articles 10, 19, 20, 21, 27, 47, 73, 159, 160, 244 and 245 of the Constitution of Kenya.
(b) A declaration that the 1st Respondent’s action of disarming and withdrawing the security detail of Hon. Justice Lawrence Mugambi violated Articles 10, 19, 20, 21, 27, 47, 73, 159, 160, 244 and 245 of the Constitution of Kenya by suspending a constitutional right.
(c) A declaration that the 1st Respondent’s action of withdrawing and disarming the security detail of Hon. Justice Lawrence Mugambi is unconstitutional and invalid under Article 2(4) of the Constitution.
(d) As a consequence of orders (b) and (c) a declaration do issue that the 1st Respondent, Acting Inspector General of Police, Gilbert Masengeli, is unfit to hold public office.
(e) As a consequence of order (a), a declaration do issue that the 3 rd Respondent, the head of Judicial Police Unit is unfit to hold public office.
(f) A permanent order of prohibition prohibiting the Respondents from withdrawing and/or disarming the security detail of a judge without prior consultation with the Judicial Service Commission.
(g) Any other prayers this Court deems fit.
15. The Petition is premised on the facts on its face and is further supported by the sworn affidavit of Emily Kinama, the Litigation Manager at Katiba Institute sworn on 17 th September 2024 in which she outlines the timeline beginning the 23 rd August 2024, when Hon. Justice Lawrence Mugambi issued ex parte habeas corpus orders in Law Society of Kenya & 3 Others v. Inspector General of Police & 4 Others (Petition No. E436 of 2024) regarding the alleged abduction of Bob Micheni Njagi, Jamil Longton, and Salam Longton.
16. She depones that after the 1 st Respondent repeatedly failed to honor court orders and court summonses scheduled for 3 rd , 5 th and 9 th September 2024, the judge convicted the 1 st Respondent of contempt of court on 9 th September 2024 and sentenced him on 13 th September 2024.
17. The deponent states that during the proceedings, the court highlighted intimidating conduct by a Senior Police Officer Lazarus Opicho, who contacted the judge’s driver and bodyguard to track the Judge’s whereabouts.
18. The deponent swears that over the weekend following the said sentencing for contempt of Court, the State disarmed and withdrew Justice Lawrence Mugambi’s security detail, a fact confirmed by a Judicial Service Commission in its public press statement issued on 16 th September 2024. Ms. Kinama deposes that these actions by the State machinery through the 1 st respondent directly violates Article 160 of the Constitution by stripping away a judge’s accrued security benefit to his disadvantage, in violation of Article 160(4), thereby interfering with judicial independence.
19. Further deposition emphasized that the police leadership has abused its powers to bypass the Bill of Rights and create a chilling effect where judges fear rendering adverse merit decisions against state organs. The deponent warns that unless the court grants urgent relief, the Respondents will continue to intimidate the Judiciary into subservience, threatening to shift Kenya from a constitutional democracy to an executive dictatorship where the executive's word overrides the law.
20. The Petitioner states that delayed remedies would render the Petition nugatory, as leaving the judge without security undermines functional judicial independence, disregards the rule of law and leaves the Inspector General as the sole, unchecked arbiter of judicial security.
21. The Petitioner further averred that the action was brought in the public interest under Articles 3(1) and 258 of the Constitution to protect judicial independence, constitutional values and the rule of law.
Responses
22. In response to the Petition, the 1 st 2 nd and 3 rd Respondents (the Inspector General of Police, the Attorney General and the Head of the Judiciary Police Unit respectively) filed a joint response through a Replying Affidavit sworn by Assistant Inspector General of Police Ibrahim Omar on( date is illegible), citing Articles 245(b) and Article 244 of the Constitution of Kenya, as well as Section 24 of the National Police Service Act , outlining the police mandate to protect life and property while maintaining high standards of professionalism, discipline and compliance with human rights.
23. The deponent also referenced the 2016 Policy on the Provision of Protective Security to VIPs and Other State Officers, which was created to address the ad-hoc and inconsistent deployment of protective security to public officers.
24. He states that under paragraph 5.3 of the 2016 VIP Security Policy , officers selected for VIP protection must undergo a three-week training course or periodic refresher courses to effectively handle emerging security threats. It is his evidence that in accordance with this requirement, the police service recalled the security detail assigned to Hon. Justice Lawrence Mugambi, alongside other officers assigned to VIPs, to attend a refresher course. That subsequently, on 14 th September 2024, the Commandant of the Security of Government Buildings and VIP Protection Unit issued deployment letters assigning new officers, SGT Reagan Okello and APC Francis Mulei, to provide protective security to Justice Mugambi.
25. According to the deponent, Justice Lawrence Mugambi rejected the newly deployed security detail, resulting in his original officers being reassigned to him before they could complete the requisite refresher training.
26. On legal advice, it was deposed that the Petitioner failed to provide evidence of probative value to support its petition and application. Consequently, the respondents urged this Court to dismiss both the Notice of Motion Application and the with costs.
27. The 4 th Respondents filed the Replying Affidavit sworn by Peter Leley, the Chief Executive Officer of the National Police Service Commission in which he outlines the constitutional mandate of the Commission under Article 246 of the Constitution and the National Police Service Commission Act , clarifying that its authority is strictly limited to human resource oversight such as recruitment, appointments, promotions, transfers and disciplinary control. He this statutory human resource function does not extend to the independent operational command of the National Police Service, which falls solely under the Inspector General of Police pursuant to Article 245 of the Constitution .
28. Citing the decision in International Centre for Policy and Conflict v Attorney General & 2 others [2014] eKLR, the deponent highlights that operational matters, including assigning VIP security details, remain within the exclusive domain of the Inspector General. in the premises, the 4 th Respondent contends that it was improperly joined to the petition and urges this Court to exclude it from the proceedings as the Petitioner failed to provide evidence of the 4 th respondent’s involvement in the security detail’s withdrawal.
29. It is deposed further that the Petition and accompanying Application have been overtaken by events and should be dismissed because, during court proceedings on 20 th September 2024, counsel for the 1 st and 2 nd Respondents confirmed that Justice Mugambi’s security detail had already been reinstated.
30. The deponent swears additionally, that in related proceedings Petition No. E436 of 2024, the court accepted the 1 st Respondent’s genuine apology regarding contempt and the withdrawal of the judge’s security detail, thereby purging the sentence.
31. It is pleaded that with a new Inspector General now in office and the Judge’s security restored, no prejudice will be suffered if the court dismisses the Petition with no orders as to costs.
Submissions
32. The Petition was canvassed by way of written submissions.
The Petitioner’s Submissions
33. In its submissions dated 18 th June 2025, the Petitioner, Katiba Institute, urges the Court to protect judicial independence by declaring the retaliatory withdrawal of Hon. Justice Lawrence Mugambi’s security detail to be unconstitutional. Grounded in the factual matrix set out in the initial affidavit of Emily Kinama sworn on 17 th September 2024 and her further affidavit sworn on 18 th November 2024, the Petitioner details how the Inspector General of Police the 1 st Respondent arbitrarily disarmed and removed the judge’s security detail after being summoned and convicted for contempt of court.
34. Counsel for the Petitioner isolated the following five issues for determination:
i. Whether the Respondents violated the principle of judicial independence?
ii. Whether the Respondents violated the normative value-based system under Article 10 of the Constitution?
iii. Whether the 1st Respondent’s actions constitute an abuse of police powers and office?
iv. Whether the Respondents have violated the right to fair administrative action under Article 47 of the Constitution? and
v. Whether the Respondents violated the freedom from non-discrimination under Article 27 of the Constitution .
35. The Petitioner’s counsel submits that judicial security is an accrued, constitutionally protected benefit attached to the office of a judge under Article 160(4) of the Constitution , which strictly prohibits the variation or diminution of benefits to a judge’s disadvantage. To support this, the Petitioner references legal principles from the Zambian Constitutional Court in Sangwa v Attorney-General & Law Society of Zambia CCZ/0012 [2023] ZMCC 6 , and decisions in the cases of Communication Commission of Kenya & 5 Others v Royal Media Services Limited & 5 others [2014] eKLR , Gachuiri v Attorney General & another [2024] KEHC 5836 (KLR), Sollo Nzuki v Salaries and Remuneration Commission & 2 Others [2019] eKLR, and Jonathan Munene v Attorney-General & 2 others [2021] eKLR , all of which are said to establish that accrued judicial benefits serve as a shield against external executive influence.
36. The Petitioner further submits that the Respondents’ actions violated the objective, value-based framework set out in Article 10 of the Constitution , which prohibits the arbitrary exercise of state power and demands strict adherence to the rule of law.
37. Relying on Republic v Kombo & 3 Others Ex Parte Waweru [2008] 3 KLR (EP) 478, the petitioner’s counsel highlights that all administrative and government authority must remain strictly authorized by law. That in the instant case, the 1 st Respondent failed to uphold public trust and constitutional standards as mandated under Articles 73(1)(a), 238(2)(b), 244, and 245 of the Constitution , alongside Sections 8A and 49 of the National Police Service Act, Cap. 84, and Sections 8 and 9 of the Leadership and Integrity Act, Cap. 182 .
38. Reliance was placed on Mutuma & another v Inspector General of Police & 4 others [2025] KEHC 212 (KLR) to reiterate that judicial intervention is necessary whenever state agencies act capriciously or exceed their statutory mandates.
39. Additionally, the Petitioner argues that withdrawing the judge’s security without notice, procedural fairness, or an opportunity to be heard violated the right to fair administrative action under Article 47 of the Constitution and Sections 4(1) and 7 of the Fair Administrative Action Act, Cap. 7L . Drawing from the decisions in Kenya Human Rights Commission & Community Advocacy & Awareness Trust (Crawn Trust) v NGO Co-ordination Board [2018] KEHC 8915 (KLR) , Republic v Fazul Mahamed & 3 others Ex-Parte Okiya Omtatah Okoiti [2018] eKLR, and Kuto v Kenya Magistrates and Judges Association [2023] KEHC 26157 (KLR), the Petitioner reiterated that the rules of natural justice and the duty to give reasons are mandatory safeguards against whimsical public authority.
40. Further submission was that by selectively removing protection from a single judge, the 1 st Respondent committed unjustified discrimination in violation of Article 27 of the Constitution , running counter to the standard of equal protection of the law as was defined in Gichuru v Package Insurance Brokers Ltd [2021] KESC 12 (KLR) and Mohamed Aktar Kana v Attorney-General [2010] KEHC 4146 (KLR
41. Finally , the Petitioner’s counsel submitted that this Court possesses broad remedial powers under Article 23 of the Constitution to craft remedies that prevent future constitutional violations, as affirmed in Communications Commission of Kenya v Royal Media Services Limited [2014], Mitu-Bell Welfare Society v Kenya Airports Authority [2021] KESC 34 (KLR), and Law Society of Kenya v Attorney General & another [2019] KEHC 10881 (KLR).
42. The Petitioner prayed for declarations of unconstitutionality and a permanent order prohibiting the Respondents from withdrawing or disarming the security detail of any judge without prior consultation with the Judicial Service Commission, in order to safeguard the judiciary against retaliatory state action.
The 1 st , 2 nd and 3 rd Respondents’ Submissions
43. The Attorney General’s written submissions are dated 13 th December 2024 , filed on behalf of the 1 st , 2 nd and 3 rd Respondents though its Deputy Chief State Counsel Stephen Terrell. The 1 st to 3 rd Respondents contend that the Petition fails to present a justiciable issue and must be dismissed.
44. They submit that under Article 245(b) of the Constitution , the Inspector General of Police holds independent command over the National Police Service, while Article 244 mandates standards of professionalism, integrity and accountability. That although Section 24 of the National Police Service Act, Cap. 84 outlines the general function of protecting life and property, the Respondents contend that there is no statutory or constitutional duty to assign protective security to judges, nor does security constitute a remuneration benefit protected under Article 160(4) of the Constitution .
45. The three Respondents contend that VIP security is governed administratively by the Policy on the Provision of Protective Security to VIPs and Other State Officers (2016), which empowers the police to deploy protective detail to senior officials based on applications and operational needs. They rely on paragraphs 1.2, 1.3, and 5.3 of the 2016 VIP Policy , and argue that officers assigned to VIP protection must undergo periodic training and that Justice Lawrence Mugambi’s original security was recalled specifically to participate in a required three-week refresher course.
46. Further submission was that the Commandant of the Security of Government Buildings and VIP Protection Unit under the Administration Police Service subsequently deployed replacement officers -SGT Reagan Okello and APC Francis Mulei- on 14 th September 2024. That when the Judge rejected the replacement officers, the original security detail was reassigned to him without undergoing the refresher course, thereby fully resolving the dispute.
47. In support of their contention that the Petition lacks justiciability and is prematurely brought, the Respondents rely on the Constitutional Avoidance and Ripeness Doctrines as articulated in Apollo Mboya v Attorney General and National Employment Authority (Nairobi Constitutional Petition No. E335 of 2023), which adopted the three-judge bench holding from Kiriro Wa Ngugi & 19 Others v Attorney General & 2 Others [2020] eKLR and the Supreme Court decision in Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR . It was submitted that these authorities establish that courts must refrain from deciding hypothetical, premature, or academic constitutional questions when a matter can be resolved through other non-constitutional means.
48. Finally, the 1 st to 3 rd Respondents submitted that the Petitioner failed to prove any violation of constitutional rights or to demonstrate the real danger required for conservatory relief. They relied on Centre for Rights Education and Awareness (CREAW) & 7 Others v Attorney General [2011] eKLR .
49. Invoking the locus classicus Anarita Karimi Njeru v Republic (No. 1) [1979] KLR 154 , which references Keshava Menon v State of Bombay [1951] SCR 228 and Republic v El Mann [1969] EA 357 , the 1 st to 3 rd Respondents argued that any party alleging a constitutional violation must state the specific provisions infringed and the precise manner of infringement rather than relying on abstract arguments regarding the spirit of the Constitution.
50. It was further submitted that the Petitioner failed to tender probative evidence of any constitutional breach and a prayer that the Petition be dismissed with no orders as to costs.
The 4 th Respondent’s Submissions
51. In their submissions filed in 2024, the National Police Service Commission the 4 th Respondent herein isolated two issues for determination being:
i. Whether the 4 th Respondent is privy to these proceedings and
ii. Whether the Applicant is entitled to the orders sought.
52. Counsel for the 4 th Respondent argued that it is not a proper party to the proceedings because its statutory mandate is strictly limited to human resource functions under Article 246(3) of the Constitution and Sections 10 and 11 of the National Police Service Commission Act .
53. The Commission outlines that these human resource functions such as recruitment, appointments, promotions, discipline and training oversight do not extend to operational police command. Instead, that independent command over the National Police Service and the operational assignment or withdrawal of security detail are statutory duties exclusively vested in the Inspector General of Police pursuant to Article 245(2)(b) of the Constitution and Section 10 of the National Police Service Act .
54. Counsel for the Commission further contends that the Applicant failed to demonstrate or provide evidence showing how the 4 th Respondent contributed to the alleged constitutional violations. He pointed out that the Petitioner completely omitted the 4 th Respondent in its Further Affidavit and Submissions dated 18 th November 2024, the Commission urges the Court to disregard all allegations made against it.
55. Relying on the principle established in Anarita Karimi Njeru v The Republic [1976-1980] KLR 1272 , the Commission highlights that a party alleging a violation of constitutional rights must plead the specific provisions violated and the exact manner of infringement, a standard the Applicant failed to meet regarding the 4 th Respondent, similar to the findings in Thomas Odero Dullo .
56. Finally, Counsel for the 4 th Respondent submited that the Petitioner is not entitled to the orders sought, noting that several prayers are already spent and that conservatory orders are inappropriate in this instance. Referring to Justice A.C. Mrima’s ruling in Katiba Institute vs Judicial Service Commission and 3 others (Constitutional Petition No. E128 of 2022) , the 4 th respondent emphasizes that courts must exercise caution with interlocutory conservatory orders so as not to determine the main Petition prematurely, given that the office of the 1 st Respondent has since changed hands without any indication of repeating the conduct. The 4 th Respondent prays that the Application and Petition be dismissed with costs for being meritless and an abuse of the court process.
Analysis and Determination
57. I have considered the petition, the responses thereto and the respective parties’ submissions all citing statutory, constitutional provisions and judicial authorities. I find the following issues emerging for determination:
(i) Whether the 4 th Respondent (National Police Service Commission) is a proper party to this Petition.
(ii) Whether the Petition is moot or non-justiciable under the doctrines of ripeness and constitutional avoidance on account of restoration of security detail for Justice Lawrence Mugambi.
(iii) Whether security detail assigned to a Judge constitutes a constitutionally protected benefit under Article 160(4) of the Constitution and whether the withdrawal and disarmament of Justice Lawrence Mugambi’s security detail violated Judicial Independence, the Rule of Law, Chapter Six, and Fair Administrative Action.
(iv) What appropriate remedies should issue?
(v) Who should pay costs of the Petition?
(i) Whether the 4 th Respondent (National Police Service Commission) is a proper party to this Petition
58. The 4 th Respondent argues that it was wrongly joined to this Petition because, its functions are confined to human resource management under Article 246 of the Constitution , whereas operational deployment sits squarely with the Inspector General of Police under Article 245.
59. Article 245 sets out the command of the National Police Service through the office of the Inspector General of Police while Article 246 establishes the National Police Service Commission. Article 246 stipulates:
246. National Police Service Commission
(1 There is established the National Police Service Commission.
(2 The Commission consists of—
(a) the following persons, each appointed by the President—
(i) a person who is qualified to be appointed as a High Court Judge;
(ii) two retired senior police officers; and
(iii) three persons of integrity who have served the public with distinction;
(iv) the Inspector-General of the National Police Service; and
(v) both Deputy Inspectors-Generals of the National Police Service.
(3 The Commission shall—
(a) recruit and appoint persons to hold or act in offices in the service, confirm appointments, and determine promotions and transfers within the National Police Service;
(b) observing due process, exercise disciplinary control over and remove persons holding or acting in offices within the Service; and
(c) perform any other functions prescribed by national legislation.
(4 The composition of the National Police Service shall reflect the regional and ethnic diversity of the people of Kenya.
60. The constitutional division of authority between the Inspector General of Police and the National Police Service Commission is clear. Article 245(2)(b) stipulates that the Inspector-General shall exercise independent command over the National Police Service. Conversely, Article 246(3) vests the National Police Service Commission with human resource functions such as recruitment, appointment, promotion and discipline.
61. From this Court’s reading of Article 246, operational assignment and movement of officers in VIP security details fall squarely under the command responsibility of the Inspector General of Police and not under the National Police Service Commission.
62. The law on joinder of parties in Constitutional petitions is set out in the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 referred to as the Mutunga Rules . Rule 5 of the Rules, which is also similar to Order 1, Rule 10 of the Civil Procedure Rules, 2010 provides:
5. Addition, joinder, substitution and striking out of parties
The following procedure shall apply with respect to addition, joinder, substitution and striking out of parties—
(a) Where the petitioner is in doubt as to the persons from whom redress should be sought, the petitioner may join two or more respondents in order that the question as to which of the respondent is liable, and to what extent, may be determined as between all parties.
(b) A petition shall not be defeated by reason of the misjoinder or nonjoinder of parties, and the Court may in every proceeding deal with the matter in dispute.
(c)..not material
(d) The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear just—
(i) order that the name of any party improperly joined, be struck out; and
(ii) that the name of any person who ought to have been joined, or whose presence before the court may be necessary in order to enable the court adjudicate upon and settle the matter, be added.
(e) Where a respondent is added or substituted, the petition shall unless the court otherwise directs, be amended in such a manner as may be necessary, and amended copies of the petition shall be served on the new respondent and, if the court thinks, fit on the original respondents.
63. In determining who is the appropriate respondent, the said Mutunga Rules define who a respondent is in Rule 2 on Interpretation as follows:
“respondent” means a person who is alleged to have denied, violated or infringed, or threatened to deny, violate or infringe a right or fundamental freedom;
64. In JMK v MWM & another [2015] eKLR the Court of Appeal, discussing the
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