A constitutional fight over who should control the entry of new police officers is now before the Court of Appeal, with the National Police Service Commission (NPSC) insisting that recruitment is among the powers reserved for it under the Constitution.
NPSC is seeking to overturn a decision that removed its authority to recruit police officers, arguing that the Inspector-General’s control over the National Police Service (NPS) should not extend to human resource functions specifically assigned to the commission.
A three-judge Court of Appeal bench will deliver its decision on October 16 after hearing arguments from both sides.
The dispute followed a challenge by businessman and politician Harun Mwau to a September 19, 2025 advertisement issued by NPSC for the recruitment of police constables.
NPSC is appealing an October 30, 2025 ruling which stripped it of recruitment powers. It maintains that the Constitution created a clear division between the day-to-day command of the police service and the management of its personnel.
The commission has relied on Article 246(3), which it says gives it the responsibility to recruit, appoint, promote and exercise disciplinary control over police officers.
It told the court that these powers were intended to promote professionalism, accountability and independence within the National Police Service.
"Any interpretation that draws these functions back into the command structure risks unsettling that careful design," it submitted.
According to NPSC, the separation of responsibilities was part of reforms introduced after the 2007/08 post-election violence.
The reforms followed recommendations by the Commission of Inquiry into the Post-Election Violence and the National Task Force on Police Reforms chaired by retired Justice Philip Ransley.
Under the changes, the Kenya Police Force and the Administration Police Force were brought together to form the National Police Service under the Inspector-General.
At the same time, responsibility for managing human resources was shifted from the Public Service Commission to NPSC.
The commission argues that returning recruitment to the Inspector-General would effectively weaken the constitutional role assigned to NPSC.
"would render Article 246(3) ineffective, the commission argued."
"The Constitution does not create empty institutions. It vests powers and expects their effective exercise" NPSC told the court.
NPSC has also challenged Justice Hellen Wasilwa's interpretation of Article 245, which provides for the Inspector-General's independent command of the National Police Service.
It argues that the interpretation went too far by treating recruitment, employment, assignment, promotion, suspension and dismissal as part of the Inspector-General's command powers.
The commission says such an interpretation would leave it without the powers expressly given to it under Article 246.
It has also questioned the way the trial court interpreted Article 238(2)(d), which requires national security organs to take Kenya's diversity into account when recruiting personnel.
NPSC says the provision cannot be considered separately from other constitutional provisions dealing with national security and police administration.
It argues that Articles 239, 245, 246 and 249 must also be considered when deciding where recruitment authority lies.
The commission has further challenged the jurisdiction of the Employment and Labour Relations Court, arguing that the court wrongly relied on the Employment Act despite the law excluding police officers.
Kanja and the National Police Service have opposed NPSC's appeal and want the Court of Appeal to retain Justice Wasilwa's decision.
They argue that recruitment is closely tied to the Inspector-General's command and cannot be separated from the running of the police service.
Kanja has warned that giving NPSC control over recruitment, training, deployment and payroll could create risks around sensitive security information.
Among the information he identified are recruitment records, payroll data, training requirements, details of undercover officers and information concerning specialised units.
The Inspector-General maintains that Articles 238, 239, 244 and 245 establish a connected system covering the entire career of a police officer, from recruitment and training to employment, deployment, promotion, suspension and dismissal.
"Personnel and payroll control cannot be divorced from command authority," he submitted.
The National Police Service has also argued that the Constitution treats the service and the commission differently.
It says the National Police Service is a national security organ, while NPSC is an independent commission.
The service argues that because Article 239 does not identify NPSC as a national security organ, the commission cannot have constitutional authority to recruit police constables.
It further maintains that laws and regulations cannot give NPSC a recruitment mandate that is not provided for by the Constitution.
The NPS says sworn police officers must also be treated differently from civilian employees because they undergo security training, exercise police powers and work under the Inspector-General's authority.