Law Society of Kenya v Mwau & 6 others (Civil Application E634 of 2025) [2026] KECA 387 (KLR)
The bottom line
#Kenya's Court of Appeal partially stayed an ELRC ruling on police command powers, freezing only promotion and dismissal decisions until the appeal is decided within three months.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Law Society of Kenya, not having been a party before the ELRC, has locus standi to bring the application
- 2.Whether Florence Muturi had authority to swear the supporting affidavit on behalf of the applicant
- 3.Whether the declaratory and permanent orders issued by the ELRC are capable of being stayed
- 4.Whether the intended appeal is arguable
- 5.Whether the intended appeal would be rendered nugatory if the stay is denied, and if so, what proportionate preservation orders should issue
Key legal issues
#Locus standi of a non-party under rule 5(2)(b) of the Court of Appeal Rules
The objection that the Law Society of Kenya, not having been a party below, lacked locus standi was disallowed; the filing of a Notice of Appeal by any person activates the Court's jurisdiction.
Rule 77(1) speaks of 'a person who desires to appeal', not 'any party'. Once a Notice of Appeal is filed, the applicant may move under rule 5(2)(b); the validity of the intended appeal is a distinct question left to any striking-out application. The Court expressly disallowed the locus objection while noting a striking-out application by the 3rd respondent was pending.
Authority of the applicant's Chief Executive Officer to swear the supporting affidavit
The objection failed; it was for the 1st respondent to prove lack of authority, and on the material before the Court the fact was neither proved nor disproved.
Applying sections 3 and 109 of the Evidence Act, the burden lay on the party alleging absence of a Council resolution. The deponent, as CEO, enjoyed prima facie ostensible authority. Since the fact was not proved, section 3 of the Evidence Act deems it not proved, and the objection collapsed.
Whether the ELRC's declaratory and permanent orders are stayable
The orders, though styled declaratory, were positive and executable because they vested recruitment, employment and related powers in the Inspector General while stripping them from the Commission; the stay application was therefore competent.
The Court distinguished a negative declaratory order incapable of execution from the present orders, which included a permanent injunction restraining the Commission. Read with the declarations on independent command, they conferred and deprived powers and were capable of execution, satisfying the threshold requirement for a stay.
Arguability and nugatory-iness of the intended appeal
The intended appeal was arguable, raising weighty questions on the delineation of functions between the Inspector General and the Commission under Articles 245(4) and 246(3); but the recruitment having been executed and training commenced, a full stay was futile.
Applying the Stanley Kangethe Kinyanjui criteria, the Court found substantial constitutional questions on separation of powers and Chapter Fifteen independence. On the nugatory limb, a stay preserves the substratum and cannot reverse an executed decision; since recruitment had occurred, only a proportionate partial stay could serve the overriding objective.
Proportionate interim relief pending determination of the appeal
The Court stayed the judgment only to the extent that it vested exclusive command over promotion and dismissal of members of the service in the National Police Service and the Inspector General, freezing the exercise of those powers pending the appeal without reverting them to the Commission.
Balancing hardships under sections 3A and 3B of the Appellate Jurisdiction Act, the Court declined to suspend disciplinary powers (risking breakdown of law and order) but found no prejudice in temporarily suspending promotion and dismissal, since reinstatement or stripping of ranks if the appeal succeeded should be avoided. The expedited appeal direction accompanies this.
Legal principles established
#- The jurisdiction of the Court of Appeal is activated by the filing of a Notice of Appeal by any person, not only a party to the proceedings below; at the stage of a rule 5(2)(b) application the validity of the intended appeal is not in question, and entertaining such an application does not preclude a later application to strike out the appeal.
- A person asserting that an affidavit was sworn without authority bears the burden of proving that fact; in the absence of proof, the fact is not proved and ostensible authority prevails.
- Declaratory orders that vest powers in one party while depriving another of them are positive orders capable of being executed and stayed, unlike pure negative orders.
- Where the decision sought to be appealed from has already been executed, the Court ordinarily does not grant a stay because there is nothing left to stay; a stay preserves the substratum of an appeal and is not meant to reverse the decision appealed from at the interlocutory stage.
- In granting stay orders the Court applies the overriding objective in sections 3A and 3B of the Appellate Jurisdiction Act, including the principle of proportionality, balancing the hardships of both parties.
Court orders
#- 1.Stay of the judgment of the ELRC made on 30th October 2025 in ELRC Petition No. E196 of 2025, to the extent only that it declared the Constitution vests exclusive and independent command over promotion and dismissal of members of the National Police Service in the National Police Service and the Inspector General
- 2.Declaration that the stay does not revert those powers to the National Police Service Commission; the exercise of the promotion and dismissal powers shall await determination of the appeal
- 3.Direction that the intended appeal be filed and determined on priority within three months from the date of the ruling
- 4.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court, Nairobi
- ELRC Petition No. E196 of 2025
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules as derived from Article 164(3) of the Constitution; sections 3A and 3B of the Appellate Jurisdiction Act
Relief refused
#A full stay of the entire judgment of the ELRC, including as regards recruitment, training, employment, assignment and suspension powers
The recruitment of police officers had already been executed and training commenced, leaving nothing to stay; and the Court was reluctant to suspend disciplinary powers lest law and order break down
Stay sought in respect of the National Police Service Commission's other human resource functions (recruitment, employment, assignment, suspension)
Proportionality and preservation of public order; the Court limited the stay to promotion and dismissal only
Costs
We make no order as to the costs of this application.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Once any person files a Notice of Appeal, the jurisdiction of this Court is thereby activated, and that person may file an application under rule 5(2)(b) of the Rules.
Prima facie, she has ostensible authority to swear the said afidavit unless proved otherwise.
in our view, constitute positive orders capable of being executed since they vest certain powers on the Inspector General of Police while depriving the National Police Service Commission of the same.
It is clear to us that Rule 5(2) (b) is essentially a tool of preservation. It safeguards the substratum of an appeal, if invoked by an intending appellant
Therefore, where the decision sought to be appealed from has been executed, the Court ordinarily does not grant orders of stay since there is nothing to be stayed.
Consequently, we hereby stay the judgement of the ELRC made on 30th October 2025 in ELRC Petition No. E196 of 2025, to the extent that it declared that the Constitution vests in the National Police Service and the Inspector General the exclusive and independent command concerning promotion and dismissal of the members of the service.
For avoidance of doubt, we are not, by this ruling, reverting those powers to the National Police Service Commission. The exercise of those powers shall await determination of the appeal.
We direct that, in the circumstances of this case, and considering the public interest involved, the intended appeal be filed and be determined on the basis of priority within the next three months from the date hereof
Issues in the judgment
#The 1st respondent's affidavit is described as referring to a recruitment advertised on '31st November 2025', a date that does not exist; likely a typographical error in the record.
The quoted text of Article 246(3) is incomplete on its face, ending mid-provision at sub-paragraph (b) with no sub-paragraph (c).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Law Society of Kenya v Mwau & 6 others (Civil Application E634 of 2025) [2026] KECA 387 (KLR)", Case Analysis (2026). Court of Appeal, Nairobi, Civil Application (rule 5(2)(b)) arising from intended appeal against ELRC Petition No. E196 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/387/eng@2026-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.