He Demanded Her Removal: The Court Of Appeal Vindicated Her
An extraordinary thing happened in Kenya’s courts on 16 October 2026. The Court of Appeal delivered a judgment that did more than settle a bitter dispute over who recruits police constables. It gave a powerful, reasoned answer to the public attacks directed at the judge who had decided the case a year earlier.
That judge is Justice Hellen Wasilwa of the Employment and Labour Relations Court. On 30 October 2025, she held that the National Police Service Commission (NPSC) lacked constitutional authority to recruit uniformed police officers. The decision provoked intense disagreement. Among her critics was Senior Counsel Ahmednasir Abdullahi, who publicly announced that he intended to petition the Judicial Service Commission (JSC) to remove her from office.
His words went beyond saying the judgment was wrong. In the social-media post reproduced in the accompanying screenshot, he alleged arrogant and wilful constitutional subversion, questioned her suitability to be a judge, and declared: “She must go home.” Those were serious accusations against the integrity and competence of a serving judicial officer.
Then came the appeal. Justices P. O. Kiage, Jamila Mohammed and J. Lesiit dismissed the consolidated challenges by the NPSC and the Law Society of Kenya in their entirety. Justice Wasilwa’s decision was not overturned. It was upheld. [1]
| The question now is simple: when a judge is condemned personally for a legal position that the Court of Appeal later affirms, who owes the public an explanation? |
First, understand what the case was really about
The dispute began when the NPSC advertised the recruitment of police constables in September 2025 and issued new recruitment regulations. John Harun Mwau challenged the process, arguing that Kenya’s Constitution entrusts recruitment of uniformed members of the National Police Service to the Service itself, under the independent command of the Inspector-General.
The NPSC took a different view. It relied on Article 246(3), which gives the Commission authority to recruit and appoint people to hold or act in offices within the police service, and to perform specified human-resource functions. The central legal problem was whether this extended to sworn, uniformed police officers, or was confined to a different category of personnel.
Justice Wasilwa found that the Constitution distinguishes the sworn members of the police service from people holding administrative and other offices within it. She held that recruitment of uniformed officers belonged to the Service, not the Commission. The NPSC and the Law Society of Kenya appealed. [1][2]
This was not a quarrel about one judge’s personality. It was a genuine constitutional controversy about Articles 238, 239, 244, 245 and 246: how powers are allocated, how police command is protected, and where one institution’s lawful authority ends and another’s begins.
Ahmednasir’s accusation ran ahead of the evidence
In his public statement following the 2025 judgment, Ahmednasir asserted that Justice Wasilwa had effectively treated Article 246(3) as useless and had wilfully subverted the Constitution. He announced a plan to seek her removal. The screenshot establishes that he made that announcement; it does not, by itself, prove that a petition was subsequently filed or upheld.
A lawyer of Ahmednasir’s standing is entitled to criticise a judgment, including strongly. He may say a court has interpreted a constitutional provision badly, overlooked precedent or exceeded its jurisdiction. Those criticisms can be tested through the appeals process. But alleging wilful constitutional subversion is different. It imputes deliberate wrongdoing rather than simply a disputed reading of the law.
There is an enormous distance between “I believe this interpretation is wrong” and “This judge deliberately betrayed the Constitution.” The first is legal disagreement. The second is an allegation about character and professional integrity that calls for evidence. The appellate judgment provides no finding that Justice Wasilwa engaged in such misconduct.
The Court of Appeal answered the substance, point by point
The appellate bench did not casually overlook the NPSC’s arguments. Its 94-page judgment engaged with the jurisdiction of the Employment and Labour Relations Court, earlier case law, the meaning of Article 246(3), the Inspector-General’s independent command and the constitutional distinction between uniformed police and civilian staff.
On jurisdiction, it held that Justice Wasilwa had been right to entertain the dispute. A matter can relate to employment and labour relations even when it raises questions of constitutional interpretation. An employment dispute does not stop being one simply because the Constitution must be interpreted to resolve it. [1, pp. 58–66]
On precedent, it rejected the complaint that she had disregarded a binding earlier Court of Appeal case concerning the Independent Policing Oversight Authority. The earlier decision had addressed the legality of recruitment committees and delegation of recruitment powers; it had not finally decided the precise constitutional question now before the court. The appellate judges concluded that Justice Wasilwa was entitled to determine that question. [1, pp. 66–75]
On the heart of the dispute, the bench carefully distinguished the Constitution’s references to “members of the Service” from its references to people who “hold or act in offices” within the Service. It held that the distinction has real meaning. In the Court’s reading, Article 246(3) retains an important role for the Commission in relation to civilian and support offices, while the recruitment of sworn officers belongs to the Nation