Introduction
1. The Petition dated 21 st June 2023 was amended on 12 th April 2024. The Petition is supported by the Petitioner’s Chief Executive Officer, Florence Muturi’s affidavit in support of similar date.
2. The core of the Petition is the legality and constitutionality of the promotion of 514 police officers within the National Police Service by the then Inspector General of Police, the 1 st Respondent herein. It is contended that the promotions were done unlawfully, without the involvement and approval of the National Police Service Commission, the 1 st Interested Party herein, contrary to the Constitution, the National Police Service Act, the National Police Service Commission Act and the applicable regulations and guidelines governing promotions within the Service.
3. Consequently, the Petitioner seeks the following relief against the Respondents:
I. A declaration that the human resource functions of recruitment, appointment, promotions, and transfer of the members of the service are exclusively a mandate and a reserve of the National Police Service Commission and not the Inspector General of Police.
II. A declaration that the 1 st Respondent can only exercise the function of effecting or announcing promotions within the National Police Service to the extent of the rank below that of superintendent, which power can only be exercised subject to express written authorization of the Commission and a further written notification of commencement of promotions where the function of promotion has been delegated.
III. A declaration that the 1 st Respondent’s memo dated 5 th June 2023 purporting to promote 514 Officers to Senior Superintendent of Police, Commissioner of Police, Assistant Inspector General of Police and Senior Assistant Inspector General of Police are null and void and the memo is hereby quashed.
IV. A declaration that the provisions of Article 245(4)(c) of the Constitution are intended to protect and further the role of the National Police Service Commission under Article 246 (3) of the Constitution in a manner to only shield the 1 st Respondent from receiving directions from the Cabinet secretary of any other person or authority, save for the commission on matters of employment, suspension, assignment or dismissal.
V. A declaration that the quorum of the Commission as set out in Section 3 of the Second Schedule of the NPSC Act is unconstitutional for being inconsistent with Article 246, 248(j) and 249 of the Constitution, which establish the NPSC as an Independent Commission and to the extent that the requirements on quorum of six members, shift power to the Inspector-General of Police to cripple the functioning of the Commission.
VI. A declaration be made that Section3 (a)and Section 3 (b) of the Second Schedule of the National Police Service Commission Act, No.30 of 2011 is hereby quashed.
VII. An order of prohibition directed to the 1st Respondent prohibiting him from undertaking promotions in the National police service which role is to be undertaken by the National Police Service Commission
VIII. Costs of the Petition.
Petitioner’s Case
4. By way of background, on 5 th June 2023 the then Inspector General of Police, the 1 st Respondent herein announced that 514 police officers had been promoted in the National Police Service. The promotion was immediate and officers permitted to wear the insignia indicative of the ranks conferred by the purported promotions. Particularly, the ranks conferred ranged from Superintendent of Police (SP) to Senior Superintendent of Police (SSP) , Commissioner of Police (CP) , Assistant Inspector General of Police (AIG) and Senior Assistant Inspector General of Police (SAIG) .
5. She depones that Section 10(2) of the National Police Service Commission Act stipulates that the Commission, the 1 st Interested Party herein, can only delegate to the Inspector General, the recruitment, appointment and promotion of police officers under the rank of superintendent. Accordingly, it is averred that the Inspector General can only exercise this authority to the extent that the mandate is granted by the 1 st Interested Party. Further, the same may only commence after a written request to the 1 st Interested Party and subject to its approval. Even so, it was stated that the 1 st Interested Party can review or revoke promotions where it finds failure in adherence to the Commission guidelines and regulations on promotions.
6. It is deponed that the 1 st Interested Party’s Chairman in a letter dated 6 th June 2023 notified the 1 st Respondent that the undertaken action was unlawful and unprocedural. Equally, the 1 st Respondent was faulted for failing to advertise the positions as required. Additionally, the 1 st Interested Party informed the 1 st Respondent that the promotions are contrary to Article 246 of the Constitution, the National Police Service Commission Promotion Regulations, 2015, Chapter 34 of the National Police Service Standing Orders, 2017 and the National Police Service Career Guidelines. As such, the 1 st Respondent was advised to recall the memo purporting to promote the 514 police officers. It is alleged that the 1 st Respondent in its response dated 7 th June 2023 disregarded the 1 st Interested Party’s concerns.
7. She depones that on 9 th June 2023, the 1 st Interested Party advertised for the irregularly conferred positions and invited applications from qualified police officers. In response to the advertisement, the 1 st Respondent released a memo of even date warning police officers against applying for the advertised positions, otherwise anyone who applied would face disciplinary action.
8. The Petitioner takes issue with the 1 st Respondent’s action as it is not only ultra vires but in contravention of the Constitution, the National Police Service Act and the National Police Service Commission Act. She contends that the irregular promotions set a dangerous precedent that goes against the rule of law.
9. According to the Petitioner, the 1 st Respondent misinterpreted the provisions of Article 245(2)(b) of the Constitution which grants the office of the Inspector General of Police independent command over the National Police Service.
10. Consequently, the 1 st Respondent is accused of therefore violating Article 246(3) of the Constitution as read with Section 10(2) of the National Police Service Commission Act and Sections (3) and (4) of the National Police Service Commission Promotion Regulations, 2015. On the other hand, the 2 nd Respondent is faulted for failing to give a professional review of Sections 10(1)(a), (g), (k), (n), 10(2) and Section 3 of the Second Schedule and their implications on the functions of the 1 st Interested Party as set out in Article 246 of the Constitution.
11. Similarly, the 3 rd Respondent is faulted for violating Articles 1(3), 93(2), and 94(4) of the Constitution by failing to uphold, protect, and defend the Constitution by passing the National Police Service Commission (Amendment) Act, 2014. Essentially, the Act amended Sections 10(1) (a), (g), (k), (n), 10(2) and Section 3 of the Second Schedule of the National Police Service Act which had the effect of improperly watering down the 1 st Interested Party’s constitutional powers. Having regard to the foregoing, the Petitioner urges the Court to intervene to halt any further unconstitutional processing of the irregular promotions.
1 st and 2 nd Respondents’ Case
12. In rebuttal to the Petition, the Respondents filed a Notice of Preliminary Objection dated 9 th September 2023 on the premise that:
This Court lacks jurisdiction to hear and determine the Petition dated 4 th July, 2023 herein since it is a dispute relating to employment and labour relations by virtue of the provisions of Article 165 (5) of the Constitution which provides that the High Court shall not have jurisdiction in respect of matters- (b) falling within the jurisdiction of the courts contemplated in Article 162 (2) of the Constitution.
13. The 1 st and 2 nd Respondents in their affidavit by their advocate, Christopher Marwa sworn on 4 th July 2025 depone that there was a similar matter before the Employment and Labour Relations Court- ELRC Petition No. E101 of 2023: Okiya Omtatah Okoiti & another v. Japheth Nchebere Koome & others which was settled by consent hence this matter is Res-judicata.
14. At paragraphs 4, 5 and 6 of the aforesaid affidavit, he depones as follows:
‘’4. THAT there is a similar matter that was filed determined before the Employmenat and Labour Relations Court being ELRC Petition No. E101 of 2023; Okiya Omtatah Okoiti & Another Vs. Japheth Nchebere Koome & Others , touching on the same subject matter that is currently before this Honourable Court (annexed and marked as MCI is a copy of the Petition dated 12m June 2023)’’
‘’5. THAT when the matter came up for Mention, the Parties agreed to settle the matter out of court on the following terms;
‘That pursuant to Article 252(1)(a) and (b) of the Constitution, the 1st Respondent and the 1st Interested Party as directed by the Court on 22nd June 2023 by Hon. Justice Byram Ongaya held a meeting on the 6th July 2023 and resolved the dispute between the 1st Respondent and lst Interested Parties hence the Petition herein is marked as amicably settled between all the parties herein.’
‘’6. THAT the matter before this Honourable Court is therefore, Res Judicata for reasons that the same matter touching similar parties, similar prayers and cause of action was settled before the Employment and Labour.’’
3 rd Respondent’s Case
15. Opposing the Petition, the 3 rd Respondent through its Clerk, Samuel Njoroge filed a Replying Affidavit sworn on 12 th February 2025.
16. He restated that the 3 rd Respondent was joined in this matter in view of the National Police Service Commission (Amendment) Act, 2014 which amended Sections 10(1)(a), (g)(k), (n), 10(2) and Section 3 of the Second Schedule of the National Police Service Act. He noted that the amendments were deemed to have effectively undermined the 1 st Interested Party’s mandate as espoused under Article 246 of the Constitution. For this reason, he stated that the Petitioner challenges the constitutionality of Section 3 of the Second Schedule of the National Police Service Act for being in contravention of Article 246, 248(j) and 249 of the Constitution and Section 10(2) of the National Police Service Commission Act.
17. He depones that the 1 st Interested Party is mandated under Article 246(3) of the Constitution as read with Section 10(1) of the National Police Service Commission Act to recruit police officers. He states that Section 10(2) of the Act grants the 1 st Interested Party power to delegate to the Inspector General the recruitment, appointment and promotion of police officers under the rank of sergeant. This delegation must however be in writing as per Section 10(5)(a) of the Act.
18. Speaking to the constitutionality of Section 3 of the Second Schedule of the National Police Service Act which provides for the quorum of the 1 st Interested Party, he asserts that a proper interpretation of Article 250(1) of the Constitution which provides for a minimum of three members of a commission and a maximum of nine members, divulges that the framers of the Constitution gave the appointing authority the latitude to appoint a number of commissioners as long as they did not exceed nine or go below three members.
19. As such, he argued that the impugned provision is constitutional, contrary to the Petitioner’s assertion. He further submitted that the issue of quorum of the 1 st Interested Party only arises in the course of conducting the Commission’s business and does not, in itself, render the provision unconstitutional. According to him, quorum can only properly be challenged where policy decisions of the Commission are made without the requisite quorum.
20. That said, he contends that it has been held in numerous decisions that there is a general presumption of law that statutes enacted by Parliament are constitutional and the burden falls on the person who is alleging otherwise to rebut this presumption. He relied in a number of decisions including Law Society of Kenya v Attorney General & 2 others [2013] eKLR .
21. Further to this, he underscored that the Petitioner had an opportunity to petition Parliament under Article 119 of the Constitution as read with the Parliament (Procedure) Act, 2012, however failed to demonstrate that it had approached the 3 rd Respondent and exhausted this mechanism.
22. It was in addition asserted that in view of the doctrine of separation of powers, this court should exercise restraint in determining this matter so as to avoid impeding the Parliament’s legislative mandate. To this end, he argued that the Petition fails to disclose a reasonable cause of action against the 3 rd Respondent.
1 st and 2 nd Interested Parties Case
23. These Parties responses are not in the Court file or Court Online Platform (CTS).
3 rd Interested Party’s Case
24. In support of the Petition, the 3 rd Interested Party filed its Replying Affidavit by its Litigation Manager, Emily Kinama sworn on 12 th July 2024.
25. She avers that the National Police Service Commission Act has undergone a number of amendments since 2011, which are argued to be unconstitutional since undermine the 1 st Interested Party’s independence and oversight role in relation to police human resource management.
26. In particular, it is stated that originally the National Police Service Commission Act, 2011 under Section 4, provided for a Commission comprising of nine members selected through a competitive process, with the chairperson and members serving on a full-time basis, save for ex-officio members. Section 4 was subsequently amended in the 2014 to provide that the chairperson and all the other members of the Commission, including the ex-officio members, would serve on a full-time basis. Paragraph 3 of the Second Schedule provided that the quorum of meetings of the Commission was five members. This was amended in 2014 to be six members.
27. She postulates that while originally the 1 st Interested Party was set to conduct its business without the Inspector General, the 2014 amendments shifted the internal decision-making function within the Commission in favour of the Inspector-General, undermining the Commission’s ability to function independently, contrary to Articles 246, 248(j) and 249 of the Constitution. She relies on the findings of the Maraga Taskforce Report, which identified similar structural challenges affecting the Commission’s effectiveness.
28. Further to this, it is stated that Section 10(1)(a) of the National Police Service Commission Act, 2011 originally mandated the 1 st Interested Party to independently review matters relating to standards and qualifications for members of the Service. However, the 2014 amendments substituted this provision to require the Commission, on the recommendation of the Inspector-General, to develop and review human resource policies for members of the Service. It is argued that this amendment improperly subordinates the Commission to the Inspector-General, contrary to Article 246 of the Constitution, and further contributed to institutional conflict between the two offices. On this basis, she argues that this provision is inconsistent with the Constitution.
29. With respect to disciplinary powers, it is averred that while originally Section 10(1)(g) of the Act empowered the 1 st Interested Party to investigate and summon witnesses, the 2014 amendments introduced a requirement that where disciplinary investigations reveal potential civil or criminal liability, the Commission must recommend prosecution of offenders, while also clarifying that disciplinary proceedings would not be affected by parallel civil or criminal action. She nevertheless contends that these amendments distort the constitutional separation of roles and improperly elevate the Inspector General in the disciplinary proces, in a manner that contravenes Article 246 of the Constitution.
30. She further maintains that despite Article 245(2)(b) of the Constitution vesting independent command of the National Police Service in the Inspector-General, and Article 245(4) prohibiting external direction of the Inspector-General in matters of employment, promotion and discipline, the statutory framework effectively requires the Inspector-General to exercise his functions within the structures and oversight of the 1 st Interested Party, thereby creating constitutional tension.
31. Furthermore, it is averred that Section 10(2) of the National Police Service Commission Act, as amended in 2014, expanded the scope of delegation from the 1 st Interested Party to the Inspector-General in respect of recruitment, appointment and promotion of officers below the rank of superintendent, subject to considerations of equity in gender, county and ethnic representation. It is argued that this provision contravenes Article 246 of the Constitution, which vests core human resource functions in the Commission, and that it also exceeds the intended scope of delegation under the original framework, which was limited to junior ranks.
32. It is asserted that the overall constitutional design was to establish an independent civilian oversight mechanism to curb historical abuses within the National Police Service and to entrench accountability, equality and the rule of law in police administration. Reflecting on the historical context of constitutional reform, it is noted that Kenyans, as made manifest in the Final Report of the Constitutional Review Commission (2005), recognized the risks of politicizing the police and the consequent threats to human rights. It is highlighted that there was a strong public demand for enhanced accountability and insulation of the Police Service from political and institutional interference, with constitutional commissions such as the 1 st Interested Party. It was argued hence that this accountability can only be achieved through the 1 st Interested Party rather than by the Inspector-General.
33. Finally, it is deponed that the 3 rd Interested Party on 29 th August 2023, sought information on the attendance of meetings of the 1 st Interested Party from the Chief Executive Officer, Peter Leley. In his response dated 15 th September 2023, the said request was declined on the basis of exemptions under the Access to Information Act. It is contended that Article 35(1) of the Constitution guarantees the right of access to information held by the State and by any other person where such information is required for the exercise or protection of any right or fundamental freedom.
Parties’ Submissions
Petitioner’s Submissions
34. Okatch and Partners Advocates for the Petitioner filed submissions dated 12 th July 2024 and 25 th November 2024.The key issues for determination were identified as: whether the preliminary objection is merited and whether the Petitioner is deserving of the orders sought .
35. Referring to the 1 st and 2 nd Respondents’ Preliminary Objection, Counsel opposed the 1 st and 2 nd Respondent’s allegation that the instant dispute is employment in nature as defined under Section 12 of the Employment and Labour Relations Act, hence subject to the Employment and Labour Relations Court. Counsel underscored that the Petitioner filed this suit owing to the Respondents’ violation of the Constitution. Essentially, Counsel pointed out that the 1 st Respondent violated Article 246(3) of the Constitution, Section 10(2) of the National Police Service Commission Act and Sections (3) and (4) of the National Police Service Commission Promotion Regulations, 2015 by purporting to promote 514 Police Officers over the rank of Superintendent of Police. Equally, Counsel submitted that the 2 nd Respondent failed to review the provisions of Sections 10(1)(a), (g), (k), (n), 10(2) and Section 3 of the Second Schedule of the National Police Service Commission Act in line with Article 246 of the Constitution. Correspondingly it was argued that the 3 rd Respondent had violated Articles 1(3), 93(2), and 94(4) of the Constitution by failing to uphold the Constitution by passing the impugned sections of the National Police Service Commission (Amendment) Act, 2014.
36. In light of the foregoing, Counsel emphasized that this Petition raises constitutional issues on misuse of the constitutional powers by the 1 st Respondent who misinterpreted Article 245(2)(b) of the Constitution. Counsel submitted that this jurisdiction is vested in this Court under Article 165 (3) (d) of the Constitution.
37. Reliance was placed in Owners of the Motor Vessel “Lilian s Vs Caltex Oil (Kenya) Ltd [1989]eKLR where it was held that:
“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
38. Comparable reliance was placed in Republic Vs Karisa Chango & Another [2017] eKLR .
39. Counsel submitted that while the Inspector General’s scope of mandate is outlined under Article 245(1) of the Constitution as read with Section 10 of the National Police Service Act, Section 10(2) of the National Police Service Commission Act makes it plain that the 1 st Interested Party may delegate to the Inspector-General the recruitment, appointment and promotion of police officers under the rank of superintendent.
40. Restating the Petitioner’s averments, Counsel argued that the 1 st Respondent acted ultra vires in promoting the 514 police officers on 5 th June 2023.This is because as provided, the Inspector General can only exercise delegated power to the extent that the mandate is granted by the 1 st Interested Party, following a written request to the Commission and subject to its approval and ratification. The 1 st Respondent’s action is thus argued to be unlawful and un-procedural as contravenes Article 246 of the Constitution, the National Police Service Commission Promotion Regulations, 2015, Chapter 34 of the National Police Service Standing Orders, 2017 and the National Police Service Career Guidelines.
41. Counsel as well submitted that the 2 nd Respondent was in breach of Article 156 of the Constitution and Section 5(2) of the Office of the Attorney-General Act by failing to review the provisions of the National Police Service Commission Act and failing to issue a professional review of Sections 10(1)(a), (g), (k), (n), 10(2) and Section 3 of the Second Schedule and their implications on the functions of the 1 st Interested Party as set out in Article 246 of the Constitution.
42. On this premise, Counsel affirmed that the Petition has merit and deserving of the sought reliefs. Counsel urged that the Petitioners ought to also be awarded costs.
1 st and 2 nd Respondents’ Submissions
43. These Respondents through Senior State Counsel, Christopher Marwa filed submissions dated 26 th March 2024 to their Notice of Preliminary Objection.
44. Counsel at the outset submitted that this Court does not have jurisdiction to entertain the matter by virtue of Article 162 (2) (a) of the Constitution as read with Section 12 of Employment and Labour Relations Court Act. Counsel submitted that the Employment and Labour Relations is clothed with the power to determine employment and industrial relations disputes not this Court.
45. Counsel submitted that the prayers sought revolve around human resource functions of recruitment, appointment, promotions and transfer of the members of the service which is exclusively a mandate and reserve of the 1 st Interested Party and thus an employment matter. Therefore, Counsel argued that this dispute falls within the ambit of the Employment and Labour Relations Court.
46. Reliance was placed in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012]eKLR where it was held that:
“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.”
47. Further reliance was placed on Peter Gichuki King'ara v Independent Electoral and Boundaries Commission & 2 others [2013] KECA 278 (KLR) , Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour & Travel [2016] eKLR, Boniface Waweru Mbiyu vs. Mary Njeri & Another [2005] eKLR and Daniel N Mugendi v Kenyatta University & 3 others [2013] eKLR .
48. Counsel submitted in view of this that the 1 st and 2 nd Respondents’ Preliminary Objection is merited.
3 rd Respondent’s Submissions
49. The 3 rd Respondent through its Counsel, Abraham Cheboryot filed submissions dated 19 th February 2025 and highlighted the issues for discussion as: whether Sections 10(1)(a), (g), (k), (n), 10 (2), and Section 3 of the Second Schedule of the National Police Service Act are constitutional, what is the quorum of the National Police Service Commission, what is the role of the National Police Service Commission vis-a-vis the role of the inspector general of police and whether the Petitioner has exhausted the remedies .
50. On the first issue, Counsel maintained that legislative authority is vested in Parliament pursuant to Article 94 of the Constitution. In that regard, Counsel relied on Maharashtra State Board of Secondary and Higher Secondary Education and Another vs. Kumarstheth [1985] LRC and Hambarrda Wakhana v Union of India [1960] AIR 554 in support of the proposition that all legislation enjoys a presumption of constitutionality. Counsel as such submitted that the Petitioners had failed to discharge the burden of demonstrating how the impugned provisions contravene the Constitution.
51. Further reliance was placed on Ndayanabo v AG [2001] 2 EA 485, Susan Wambui Kaguru & 4 others v Attorney General & another [2012] KEHC 551 (KLR) , and Olum and Another v Attorney General of Uganda [2002] 2 EA 508 .
52. Turning to the second issue, Counsel referred to Articles 245 and 246 of the Constitution and submitted that the functions of the Inspector General as provided under the National Police Service Act and the National Police Service Commission Act were enacted pursuant to Article 246 of the Constitution and are therefore lawful and constitutional.
53. On the role of the Inspector General versus that of the 1 st Interested Party, Counsel submitted that the impugned amendments were intended to improve efficiency and provide clarity regarding the functional responsibilities of the Inspector General and the Commission. Counsel argued that the amendments do not erode the constitutional mandate of the Commission but rather enable the Inspector General to execute operational functions more effectively. Counsel further elaborated that the Inspector General’s role in the promotion and transfer of officers is an extension of operational command and management, which is distinct from the policy and regulatory functions held by the Commission.
54. With regard to the issue of quorum, Counsel submitted that the framers of the Constitution, particularly under Article 250(1) of the Constitution, intended to grant the appointing authority discretion to appoint commissioners provided that the number does not exceed nine members or fall below three members. Counsel therefore argued that the impugned provision of the Second Schedule cannot be considered unconstitutional, as the question of quorum can only arise where a decision of the Commission is made without the requisite quorum.
55. On the issue of exhaustion of remedies, Counsel submitted that the Petitioner had failed to exhaust the mechanisms provided under Article 119 of the Constitution and the provisions of the Petition to Parliament (Procedure) Act. Counsel argued that the Petitioner had not demonstrated any attempt to petition the National Assembly to address the alleged grievances before approaching this Court, notwithstanding that the mandate to amend or enact laws, including the National Police Service Commission Act, lies with Parliament.
56. On that basis, Counsel urged the Court to exercise judicial restraint in matters touching on the legislative authority of Parliament, in keeping with the doctrine of separation of powers. To buttress this argument, reliance was placed on Justus Kariuki Mate & Another v Martin Nyaga Wambora & another [2017] eKLR where the Court held that:
“Interpretation of the Constitution calls for a delicate balance in the respective mandates of the different arms of government…… From the facts of this case, it is clear to us that the integrity of Court Orders stands to be evaluated in terms of their inner restraint, where the express terms of the Constitution allocate specific mandates and functions to designated agencies of the State. Such restraint, in the context of express mandate allocation under the Constitution, is essential, as a scheme for circumventing conflict and crisis, in the discharge of governmental responsibility.”
57. Further reliance was placed on Pevans East Africa Limited & Another v Chairman, Betting Control & Licensing Board & 7 others [2018] eKLR , in the Matter of the Speaker of the Senate & Another [2013] eKLR and Poverty Alleviation Network & Others v President of the Republic of South Africa (2008) ZACC .
1 st Interested Party’s Submissions
58. The 1 st Interested Party’s Counsel, Rwenji Wairimu, filed submissions dated 4 th July 2025 in which she identified three issues for deter
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1. The Petition dated 21 st June 2023 was amended on 12 th April 2024. The Petition is supported by the Petitioner’s Chief Executive Officer, Florence Muturi’s affidavit in support of similar date.
2. The core of the Petition is the legality and constitutionality of the promotion of 514 police officers within the National Police Service by the then Inspector General of Police, the 1 st Respondent herein. It is contended that the promotions were done unlawfully, without the involvement and approval of the National Police Service Commission, the 1 st Interested Party herein, contrary to the Constitution, the National Police Service Act, the National Police Service Commission Act and the applicable regulations and guidelines governing promotions within the Service.
3. Consequently, the Petitioner seeks the following relief against the Respondents:
I. A declaration that the human resource functions of recruitment, appointment, promotions, and transfer of the members of the service are exclusively a mandate and a reserve of the National Police Service Commission and not the Inspector General of Police.
II. A declaration that the 1 st Respondent can only exercise the function of effecting or announcing promotions within the National Police Service to the extent of the rank below that of superintendent, which power can only be exercised subject to express written authorization of the Commission and a further written notification of commencement of promotions where the function of promotion has been delegated.
III. A declaration that the 1 st Respondent’s memo dated 5 th June 2023 purporting to promote 514 Officers to Senior Superintendent of Police, Commissioner of Police, Assistant Inspector General of Police and Senior Assistant Inspector General of Police are null and void and the memo is hereby quashed.
IV. A declaration that the provisions of Article 245(4)(c) of the Constitution are intended to protect and further the role of the National Police Service Commission under Article 246 (3) of the Constitution in a manner to only shield the 1 st Respondent from receiving directions from the Cabinet secretary of any other person or authority, save for the commission on matters of employment, suspension, assignment or dismissal.
V. A declaration that the quorum of the Commission as set out in Section 3 of the Second Schedule of the NPSC Act is unconstitutional for being inconsistent with Article 246, 248(j) and 249 of the Constitution, which establish the NPSC as an Independent Commission and to the extent that the requirements on quorum of six members, shift power to the Inspector-General of Police to cripple the functioning of the Commission.
VI. A declaration be made that Section3 (a)and Section 3 (b) of the Second Schedule of the National Police Service Commission Act, No.30 of 2011 is hereby quashed.
VII. An order of prohibition directed to the 1st Respondent prohibiting him from undertaking promotions in the National police service which role is to be undertaken by the National Police Service Commission
VIII. Costs of the Petition.
Petitioner’s Case
4. By way of background, on 5 th June 2023 the then Inspector General of Police, the 1 st Respondent herein announced that 514 police officers had been promoted in the National Police Service. The promotion was immediate and officers permitted to wear the insignia indicative of the ranks conferred by the purported promotions. Particularly, the ranks conferred ranged from Superintendent of Police (SP) to Senior Superintendent of Police (SSP) , Commissioner of Police (CP) , Assistant Inspector General of Police (AIG) and Senior Assistant Inspector General of Police (SAIG) .
5. She depones that Section 10(2) of the National Police Service Commission Act stipulates that the Commission, the 1 st Interested Party herein, can only delegate to the Inspector General, the recruitment, appointment and promotion of police officers under the rank of superintendent. Accordingly, it is averred that the Inspector General can only exercise this authority to the extent that the mandate is granted by the 1 st Interested Party. Further, the same may only commence after a written request to the 1 st Interested Party and subject to its approval. Even so, it was stated that the 1 st Interested Party can review or revoke promotions where it finds failure in adherence to the Commission guidelines and regulations on promotions.
6. It is deponed that the 1 st Interested Party’s Chairman in a letter dated 6 th June 2023 notified the 1 st Respondent that the undertaken action was unlawful and unprocedural. Equally, the 1 st Respondent was faulted for failing to advertise the positions as required. Additionally, the 1 st Interested Party informed the 1 st Respondent that the promotions are contrary to Article 246 of the Constitution, the National Police Service Commission Promotion Regulations, 2015, Chapter 34 of the National Police Service Standing Orders, 2017 and the National Police Service Career Guidelines. As such, the 1 st Respondent was advised to recall the memo purporting to promote the 514 police officers. It is alleged that the 1 st Respondent in its response dated 7 th June 2023 disregarded the 1 st Interested Party’s concerns.
7. She depones that on 9 th June 2023, the 1 st Interested Party advertised for the irregularly conferred positions and invited applications from qualified police officers. In response to the advertisement, the 1 st Respondent released a memo of even date warning police officers against applying for the advertised positions, otherwise anyone who applied would face disciplinary action.
8. The Petitioner takes issue with the 1 st Respondent’s action as it is not only ultra vires but in contravention of the Constitution, the National Police Service Act and the National Police Service Commission Act. She contends that the irregular promotions set a dangerous precedent that goes against the rule of law.
9. According to the Petitioner, the 1 st Respondent misinterpreted the provisions of Article 245(2)(b) of the Constitution which grants the office of the Inspector General of Police independent command over the National Police Service.
10. Consequently, the 1 st Respondent is accused of therefore violating Article 246(3) of the Constitution as read with Section 10(2) of the National Police Service Commission Act and Sections (3) and (4) of the National Police Service Commission Promotion Regulations, 2015. On the other hand, the 2 nd Respondent is faulted for failing to give a professional review of Sections 10(1)(a), (g), (k), (n), 10(2) and Section 3 of the Second Schedule and their implications on the functions of the 1 st Interested Party as set out in Article 246 of the Constitution.
11. Similarly, the 3 rd Respondent is faulted for violating Articles 1(3), 93(2), and 94(4) of the Constitution by failing to uphold, protect, and defend the Constitution by passing the National Police Service Commission (Amendment) Act, 2014. Essentially, the Act amended Sections 10(1) (a), (g), (k), (n), 10(2) and Section 3 of the Second Schedule of the National Police Service Act which had the effect of improperly watering down the 1 st Interested Party’s constitutional powers. Having regard to the foregoing, the Petitioner urges the Court to intervene to halt any further unconstitutional processing of the irregular promotions.
1 st and 2 nd Respondents’ Case
12. In rebuttal to the Petition, the Respondents filed a Notice of Preliminary Objection dated 9 th September 2023 on the premise that:
This Court lacks jurisdiction to hear and determine the Petition dated 4 th July, 2023 herein since it is a dispute relating to employment and labour relations by virtue of the provisions of Article 165 (5) of the Constitution which provides that the High Court shall not have jurisdiction in respect of matters- (b) falling within the jurisdiction of the courts contemplated in Article 162 (2) of the Constitution.
13. The 1 st and 2 nd Respondents in their affidavit by their advocate, Christopher Marwa sworn on 4 th July 2025 depone that there was a similar matter before the Employment and Labour Relations Court- ELRC Petition No. E101 of 2023: Okiya Omtatah Okoiti & another v. Japheth Nchebere Koome & others which was settled by consent hence this matter is Res-judicata.
14. At paragraphs 4, 5 and 6 of the aforesaid affidavit, he depones as follows:
‘’4. THAT there is a similar matter that was filed determined before the Employmenat and Labour Relations Court being ELRC Petition No. E101 of 2023; Okiya Omtatah Okoiti & Another Vs. Japheth Nchebere Koome & Others , touching on the same subject matter that is currently before this Honourable Court (annexed and marked as MCI is a copy of the Petition dated 12m June 2023)’’
‘’5. THAT when the matter came up for Mention, the Parties agreed to settle the matter out of court on the following terms;
‘That pursuant to Article 252(1)(a) and (b) of the Constitution, the 1st Respondent and the 1st Interested Party as directed by the Court on 22nd June 2023 by Hon. Justice Byram Ongaya held a meeting on the 6th July 2023 and resolved the dispute between the 1st Respondent and lst Interested Parties hence the Petition herein is marked as amicably settled between all the parties herein.’
‘’6. THAT the matter before this Honourable Court is therefore, Res Judicata for reasons that the same matter touching similar parties, similar prayers and cause of action was settled before the Employment and Labour.’’
3 rd Respondent’s Case
15. Opposing the Petition, the 3 rd Respondent through its Clerk, Samuel Njoroge filed a Replying Affidavit sworn on 12 th February 2025.
16. He restated that the 3 rd Respondent was joined in this matter in view of the National Police Service Commission (Amendment) Act, 2014 which amended Sections 10(1)(a), (g)(k), (n), 10(2) and Section 3 of the Second Schedule of the National Police Service Act. He noted that the amendments were deemed to have effectively undermined the 1 st Interested Party’s mandate as espoused under Article 246 of the Constitution. For this reason, he stated that the Petitioner challenges the constitutionality of Section 3 of the Second Schedule of the National Police Service Act for being in contravention of Article 246, 248(j) and 249 of the Constitution and Section 10(2) of the National Police Service Commission Act.
17. He depones that the 1 st Interested Party is mandated under Article 246(3) of the Constitution as read with Section 10(1) of the National Police Service Commission Act to recruit police officers. He states that Section 10(2) of the Act grants the 1 st Interested Party power to delegate to the Inspector General the recruitment, appointment and promotion of police officers under the rank of sergeant. This delegation must however be in writing as per Section 10(5)(a) of the Act.
18. Speaking to the constitutionality of Section 3 of the Second Schedule of the National Police Service Act which provides for the quorum of the 1 st Interested Party, he asserts that a proper interpretation of Article 250(1) of the Constitution which provides for a minimum of three members of a commission and a maximum of nine members, divulges that the framers of the Constitution gave the appointing authority the latitude to appoint a number of commissioners as long as they did not exceed nine or go below three members.
19. As such, he argued that the impugned provision is constitutional, contrary to the Petitioner’s assertion. He further submitted that the issue of quorum of the 1 st Interested Party only arises in the course of conducting the Commission’s business and does not, in itself, render the provision unconstitutional. According to him, quorum can only properly be challenged where policy decisions of the Commission are made without the requisite quorum.
20. That said, he contends that it has been held in numerous decisions that there is a general presumption of law that statutes enacted by Parliament are constitutional and the burden falls on the person who is alleging otherwise to rebut this presumption. He relied in a number of decisions including Law Society of Kenya v Attorney General & 2 others [2013] eKLR .
21. Further to this, he underscored that the Petitioner had an opportunity to petition Parliament under Article 119 of the Constitution as read with the Parliament (Procedure) Act, 2012, however failed to demonstrate that it had approached the 3 rd Respondent and exhausted this mechanism.
22. It was in addition asserted that in view of the doctrine of separation of powers, this court should exercise restraint in determining this matter so as to avoid impeding the Parliament’s legislative mandate. To this end, he argued that the Petition fails to disclose a reasonable cause of action against the 3 rd Respondent.
1 st and 2 nd Interested Parties Case
23. These Parties responses are not in the Court file or Court Online Platform (CTS).
3 rd Interested Party’s Case
24. In support of the Petition, the 3 rd Interested Party filed its Replying Affidavit by its Litigation Manager, Emily Kinama sworn on 12 th July 2024.
25. She avers that the National Police Service Commission Act has undergone a number of amendments since 2011, which are argued to be unconstitutional since undermine the 1 st Interested Party’s independence and oversight role in relation to police human resource management.
26. In particular, it is stated that originally the National Police Service Commission Act, 2011 under Section 4, provided for a Commission comprising of nine members selected through a competitive process, with the chairperson and members serving on a full-time basis, save for ex-officio members. Section 4 was subsequently amended in the 2014 to provide that the chairperson and all the other members of the Commission, including the ex-officio members, would serve on a full-time basis. Paragraph 3 of the Second Schedule provided that the quorum of meetings of the Commission was five members. This was amended in 2014 to be six members.
27. She postulates that while originally the 1 st Interested Party was set to conduct its business without the Inspector General, the 2014 amendments shifted the internal decision-making function within the Commission in favour of the Inspector-General, undermining the Commission’s ability to function independently, contrary to Articles 246, 248(j) and 249 of the Constitution. She relies on the findings of the Maraga Taskforce Report, which identified similar structural challenges affecting the Commission’s effectiveness.
28. Further to this, it is stated that Section 10(1)(a) of the National Police Service Commission Act, 2011 originally mandated the 1 st Interested Party to independently review matters relating to standards and qualifications for members of the Service. However, the 2014 amendments substituted this provision to require the Commission, on the recommendation of the Inspector-General, to develop and review human resource policies for members of the Service. It is argued that this amendment improperly subordinates the Commission to the Inspector-General, contrary to Article 246 of the Constitution, and further contributed to institutional conflict between the two offices. On this basis, she argues that this provision is inconsistent with the Constitution.
29. With respect to disciplinary powers, it is averred that while originally Section 10(1)(g) of the Act empowered the 1 st Interested Party to investigate and summon witnesses, the 2014 amendments introduced a requirement that where disciplinary investigations reveal potential civil or criminal liability, the Commission must recommend prosecution of offenders, while also clarifying that disciplinary proceedings would not be affected by parallel civil or criminal action. She nevertheless contends that these amendments distort the constitutional separation of roles and improperly elevate the Inspector General in the disciplinary proces, in a manner that contravenes Article 246 of the Constitution.
30. She further maintains that despite Article 245(2)(b) of the Constitution vesting independent command of the National Police Service in the Inspector-General, and Article 245(4) prohibiting external direction of the Inspector-General in matters of employment, promotion and discipline, the statutory framework effectively requires the Inspector-General to exercise his functions within the structures and oversight of the 1 st Interested Party, thereby creating constitutional tension.
31. Furthermore, it is averred that Section 10(2) of the National Police Service Commission Act, as amended in 2014, expanded the scope of delegation from the 1 st Interested Party to the Inspector-General in respect of recruitment, appointment and promotion of officers below the rank of superintendent, subject to considerations of equity in gender, county and ethnic representation. It is argued that this provision contravenes Article 246 of the Constitution, which vests core human resource functions in the Commission, and that it also exceeds the intended scope of delegation under the original framework, which was limited to junior ranks.
32. It is asserted that the overall constitutional design was to establish an independent civilian oversight mechanism to curb historical abuses within the National Police Service and to entrench accountability, equality and the rule of law in police administration. Reflecting on the historical context of constitutional reform, it is noted that Kenyans, as made manifest in the Final Report of the Constitutional Review Commission (2005), recognized the risks of politicizing the police and the consequent threats to human rights. It is highlighted that there was a strong public demand for enhanced accountability and insulation of the Police Service from political and institutional interference, with constitutional commissions such as the 1 st Interested Party. It was argued hence that this accountability can only be achieved through the 1 st Interested Party rather than by the Inspector-General.
33. Finally, it is deponed that the 3 rd Interested Party on 29 th August 2023, sought information on the attendance of meetings of the 1 st Interested Party from the Chief Executive Officer, Peter Leley. In his response dated 15 th September 2023, the said request was declined on the basis of exemptions under the Access to Information Act. It is contended that Article 35(1) of the Constitution guarantees the right of access to information held by the State and by any other person where such information is required for the exercise or protection of any right or fundamental freedom.
Parties’ Submissions
Petitioner’s Submissions
34. Okatch and Partners Advocates for the Petitioner filed submissions dated 12 th July 2024 and 25 th November 2024.The key issues for determination were identified as: whether the preliminary objection is merited and whether the Petitioner is deserving of the orders sought .
35. Referring to the 1 st and 2 nd Respondents’ Preliminary Objection, Counsel opposed the 1 st and 2 nd Respondent’s allegation that the instant dispute is employment in nature as defined under Section 12 of the Employment and Labour Relations Act, hence subject to the Employment and Labour Relations Court. Counsel underscored that the Petitioner filed this suit owing to the Respondents’ violation of the Constitution. Essentially, Counsel pointed out that the 1 st Respondent violated Article 246(3) of the Constitution, Section 10(2) of the National Police Service Commission Act and Sections (3) and (4) of the National Police Service Commission Promotion Regulations, 2015 by purporting to promote 514 Police Officers over the rank of Superintendent of Police. Equally, Counsel submitted that the 2 nd Respondent failed to review the provisions of Sections 10(1)(a), (g), (k), (n), 10(2) and Section 3 of the Second Schedule of the National Police Service Commission Act in line with Article 246 of the Constitution. Correspondingly it was argued that the 3 rd Respondent had violated Articles 1(3), 93(2), and 94(4) of the Constitution by failing to uphold the Constitution by passing the impugned sections of the National Police Service Commission (Amendment) Act, 2014.
36. In light of the foregoing, Counsel emphasized that this Petition raises constitutional issues on misuse of the constitutional powers by the 1 st Respondent who misinterpreted Article 245(2)(b) of the Constitution. Counsel submitted that this jurisdiction is vested in this Court under Article 165 (3) (d) of the Constitution.
37. Reliance was placed in Owners of the Motor Vessel “Lilian s Vs Caltex Oil (Kenya) Ltd [1989]eKLR where it was held that:
“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
38. Comparable reliance was placed in Republic Vs Karisa Chango & Another [2017] eKLR .
39. Counsel submitted that while the Inspector General’s scope of mandate is outlined under Article 245(1) of the Constitution as read with Section 10 of the National Police Service Act, Section 10(2) of the National Police Service Commission Act makes it plain that the 1 st Interested Party may delegate to the Inspector-General the recruitment, appointment and promotion of police officers under the rank of superintendent.
40. Restating the Petitioner’s averments, Counsel argued that the 1 st Respondent acted ultra vires in promoting the 514 police officers on 5 th June 2023.This is because as provided, the Inspector General can only exercise delegated power to the extent that the mandate is granted by the 1 st Interested Party, following a written request to the Commission and subject to its approval and ratification. The 1 st Respondent’s action is thus argued to be unlawful and un-procedural as contravenes Article 246 of the Constitution, the National Police Service Commission Promotion Regulations, 2015, Chapter 34 of the National Police Service Standing Orders, 2017 and the National Police Service Career Guidelines.
41. Counsel as well submitted that the 2 nd Respondent was in breach of Article 156 of the Constitution and Section 5(2) of the Office of the Attorney-General Act by failing to review the provisions of the National Police Service Commission Act and failing to issue a professional review of Sections 10(1)(a), (g), (k), (n), 10(2) and Section 3 of the Second Schedule and their implications on the functions of the 1 st Interested Party as set out in Article 246 of the Constitution.
42. On this premise, Counsel affirmed that the Petition has merit and deserving of the sought reliefs. Counsel urged that the Petitioners ought to also be awarded costs.
1 st and 2 nd Respondents’ Submissions
43. These Respondents through Senior State Counsel, Christopher Marwa filed submissions dated 26 th March 2024 to their Notice of Preliminary Objection.
44. Counsel at the outset submitted that this Court does not have jurisdiction to entertain the matter by virtue of Article 162 (2) (a) of the Constitution as read with Section 12 of Employment and Labour Relations Court Act. Counsel submitted that the Employment and Labour Relations is clothed with the power to determine employment and industrial relations disputes not this Court.
45. Counsel submitted that the prayers sought revolve around human resource functions of recruitment, appointment, promotions and transfer of the members of the service which is exclusively a mandate and reserve of the 1 st Interested Party and thus an employment matter. Therefore, Counsel argued that this dispute falls within the ambit of the Employment and Labour Relations Court.
46. Reliance was placed in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012]eKLR where it was held that:
“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.”
47. Further reliance was placed on Peter Gichuki King'ara v Independent Electoral and Boundaries Commission & 2 others [2013] KECA 278 (KLR) , Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour & Travel [2016] eKLR, Boniface Waweru Mbiyu vs. Mary Njeri & Another [2005] eKLR and Daniel N Mugendi v Kenyatta University & 3 others [2013] eKLR .
48. Counsel submitted in view of this that the 1 st and 2 nd Respondents’ Preliminary Objection is merited.
3 rd Respondent’s Submissions
49. The 3 rd Respondent through its Counsel, Abraham Cheboryot filed submissions dated 19 th February 2025 and highlighted the issues for discussion as: whether Sections 10(1)(a), (g), (k), (n), 10 (2), and Section 3 of the Second Schedule of the National Police Service Act are constitutional, what is the quorum of the National Police Service Commission, what is the role of the National Police Service Commission vis-a-vis the role of the inspector general of police and whether the Petitioner has exhausted the remedies .
50. On the first issue, Counsel maintained that legislative authority is vested in Parliament pursuant to Article 94 of the Constitution. In that regard, Counsel relied on Maharashtra State Board of Secondary and Higher Secondary Education and Another vs. Kumarstheth [1985] LRC and Hambarrda Wakhana v Union of India [1960] AIR 554 in support of the proposition that all legislation enjoys a presumption of constitutionality. Counsel as such submitted that the Petitioners had failed to discharge the burden of demonstrating how the impugned provisions contravene the Constitution.
51. Further reliance was placed on Ndayanabo v AG [2001] 2 EA 485, Susan Wambui Kaguru & 4 others v Attorney General & another [2012] KEHC 551 (KLR) , and Olum and Another v Attorney General of Uganda [2002] 2 EA 508 .
52. Turning to the second issue, Counsel referred to Articles 245 and 246 of the Constitution and submitted that the functions of the Inspector General as provided under the National Police Service Act and the National Police Service Commission Act were enacted pursuant to Article 246 of the Constitution and are therefore lawful and constitutional.
53. On the role of the Inspector General versus that of the 1 st Interested Party, Counsel submitted that the impugned amendments were intended to improve efficiency and provide clarity regarding the functional responsibilities of the Inspector General and the Commission. Counsel argued that the amendments do not erode the constitutional mandate of the Commission but rather enable the Inspector General to execute operational functions more effectively. Counsel further elaborated that the Inspector General’s role in the promotion and transfer of officers is an extension of operational command and management, which is distinct from the policy and regulatory functions held by the Commission.
54. With regard to the issue of quorum, Counsel submitted that the framers of the Constitution, particularly under Article 250(1) of the Constitution, intended to grant the appointing authority discretion to appoint commissioners provided that the number does not exceed nine members or fall below three members. Counsel therefore argued that the impugned provision of the Second Schedule cannot be considered unconstitutional, as the question of quorum can only arise where a decision of the Commission is made without the requisite quorum.
55. On the issue of exhaustion of remedies, Counsel submitted that the Petitioner had failed to exhaust the mechanisms provided under Article 119 of the Constitution and the provisions of the Petition to Parliament (Procedure) Act. Counsel argued that the Petitioner had not demonstrated any attempt to petition the National Assembly to address the alleged grievances before approaching this Court, notwithstanding that the mandate to amend or enact laws, including the National Police Service Commission Act, lies with Parliament.
56. On that basis, Counsel urged the Court to exercise judicial restraint in matters touching on the legislative authority of Parliament, in keeping with the doctrine of separation of powers. To buttress this argument, reliance was placed on Justus Kariuki Mate & Another v Martin Nyaga Wambora & another [2017] eKLR where the Court held that:
“Interpretation of the Constitution calls for a delicate balance in the respective mandates of the different arms of government…… From the facts of this case, it is clear to us that the integrity of Court Orders stands to be evaluated in terms of their inner restraint, where the express terms of the Constitution allocate specific mandates and functions to designated agencies of the State. Such restraint, in the context of express mandate allocation under the Constitution, is essential, as a scheme for circumventing conflict and crisis, in the discharge of governmental responsibility.”
57. Further reliance was placed on Pevans East Africa Limited & Another v Chairman, Betting Control & Licensing Board & 7 others [2018] eKLR , in the Matter of the Speaker of the Senate & Another [2013] eKLR and Poverty Alleviation Network & Others v President of the Republic of South Africa (2008) ZACC .
1 st Interested Party’s Submissions
58. The 1 st Interested Party’s Counsel, Rwenji Wairimu, filed submissions dated 4 th July 2025 in which she identified three issues for deter
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