Mwau v Inspector General, National Police Service & 3 others; National Security Council & another (Interested Parties) (Employment and Labour Relations Petition E196 of 2025) [2025] KEELRC 2951 (KLR)

The court identified the gist of the petition as recruitment of police officers and the demarcation of responsibility for it. Relying on section 7(a) of the Employment Act defining an employee to include an applicant for employment, the court held that the ELRC can deal with pre-employment matters and therefore had jurisdiction over the police recruitment dispute despite the preliminary objection.

Interpreting articles 244, 245 and 246 holistically, the court found two categories of staff. The Commission recruits, appoints, confirms, promotes, transfers and disciplines persons holding or acting in offices; the Inspector General cannot be directed by anyone on employment, assignment, promotion, suspension or dismissal of members of the service. The Commission, not being a national security organ, cannot recruit officers for the Inspector General.

Having found that recruitment of members of the service vests in the National Police Service under article 238(2)(d) and the Inspector General's independent command under article 245, the court declared the Commission's advertisement of September 19, 2025 and Legal Notice No. 159 of 2025 unconstitutional and permanently restrained the Commission from recruiting members of the service.

The court found that some functions of the Inspector General had been watered down contrary to the Constitution but hesitated to declare the provisions unconstitutional because the issues went beyond the employee-employer arena. To avoid a greater miscarriage of justice, it directed that the two Acts be comprehensively reviewed and aligned with the Constitution.