Police recruitment dispute heads to Court of Appeal as NPS challenges NPSC powers
The National Police Service argues that the Constitution grants the power to recruit police officers solely to the service and the Inspector-General.
Recruits during a past National Police Service recruitment exercise. (Photo: NPS)
The National Police Service (NPS) has urged the Court of Appeal to dismiss an appeal filed by the National Police Service Commission (NPSC), arguing that the Constitution exclusively reserves the recruitment of police officers to the service and the Inspector-General.
Appearing before the appellate court, lawyer Martin Gitonga defended a ruling by Employment and Labour Relations Court Judge Hellen Wasilwa, who found that the commission had exceeded its constitutional mandate by conducting the recruitment of police constables.
Gitonga argued that the appeal has no legal basis capable of overturning the judgment.
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“It is an invitation to enlarge, by judicial gloss, a constitutional mandate that the framers deliberately confined,” he told the court.
The dispute stems from a newspaper advertisement published by the commission on September 19, 2025, inviting applications for police constable positions. On the same day, the commission issued the National Police Service Commission (Recruitment and Appointment) Regulations, 2025, to govern the exercise.
According to the NPS, both the recruitment exercise and the accompanying regulations were unconstitutional because the commission lacked the authority to recruit members of the police service.
The service argued that the Constitution draws a clear distinction between the National Police Service, which is a national security organ, and the National Police Service Commission, whose role is limited to oversight and other constitutional functions.
“The Constitution deliberately created a clear and watertight distinction between the National Police Service as a National Security Organ and the National Police Service Commission as an independent constitutional commission,” Gitonga submitted.
He further argued that Article 238(2)(d) expressly assigns recruitment responsibilities to national security organs.
“The Constitution deliberately uses the words ‘recruitment by the national security organs’ and not ‘recruitment for the national security organs.’ The preposition ‘by’ is constitutionally decisive,” he said.
Gitonga maintained that because the commission is not recognised as one of Kenya's national security organs under the Constitution, it cannot lawfully recruit police constables.
The NPS also rejected the commission's argument that the Employment and Labour Relations Court lacked jurisdiction to hear the case, contending that the court's mandate extends beyond ordinary employment disputes to include constitutional questions arising from labour and employment matters.
The service further argued that Parliament cannot use ordinary legislation to confer constitutional powers that are not expressly provided for in the Constitution.
The NPS also distinguished between sworn police officers and civilian employees, noting that police constables undergo security training, exercise police powers and serve under the command of the Inspector-General, while civilian staff perform administrative and technical functions without policing authority.
The Court of Appeal is expected to decide whether the National Police Service Commission has any constitutional role in recruiting police officers or whether that mandate rests solely with the National Police Service and the Inspector-General.