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 National Police Service. [1, pp. 83–87]
That last finding is particularly revealing. It is not true to say the appellate court threw Article 246(3) away. It interpreted the provision and explained the limits of its application. That is precisely what courts are expected to do with disputed constitutional language.
The appellate judges even defended her against an unfair insinuation
One of the most telling parts of the judgment appears on pages 65 and 66. The appellants attacked an incorrect statutory reference in Justice Wasilwa’s ruling, suggesting she had relied on a provision that did not exist. The Court of Appeal checked the law, identified the relevant provision and treated the mistake as an innocent slip in the numbering—not an act of dishonesty.
The bench went further. It expressed discomfort that counsel had not acknowledged the possibility of a simple typographical mistake before advancing criticisms that risked suggesting something more sinister. It then expressly affirmed Justice Wasilwa’s jurisdiction. [1, pp. 65–66]
That matters. Judges are not machines. They can make typographical mistakes or give reasons with which litigants disagree. Appellate review exists to identify and correct legal mistakes. Turning every error—or alleged error—into a theory of deception threatens the very fairness that lawyers are supposed to defend.
| The appellate court affirmed her jurisdiction, her right to decide the dispute, and the substance of her judgment. |
A petition to remove a judge is not an ordinary appeal
Kenya’s Constitution provides a lawful process for seeking the removal of a superior-court judge. Under Article 168, any person may petition the JSC, but removal requires a constitutionally recognised ground, such as incapacity, breach of the prescribed judicial code, bankruptcy, incompetence, or gross misconduct or misbehaviour. A petition must set out the alleged facts. [3]
That process is an important accountability safeguard. It should never be abolished in the name of judicial independence. A judge who acts corruptly or engages in proved serious misconduct must face the consequences. Equally, the safeguard must not be converted into a weapon of personal punishment whenever someone loses a legal argument.
Article 160 protects the independence of the judiciary. Judges exercise judicial authority subject to the Constitution and the law, not the wishes of powerful litigants, politicians or advocates. Article 160(5) also protects judicial officers from suits for acts done in good faith in the lawful performance of judicial duties. This does not place judges above accountability; it protects the space in which they must decide difficult cases without intimidation. [4]
Nothing in the Court of Appeal judgment supplied for this analysis constitutes a finding that Justice Wasilwa deliberately ignored the Constitution, acted in bad faith or committed gross misconduct. And the later appellate outcome makes the accusation that her interpretation was self-evidently unfit for judicial office especially difficult to sustain.
The issue is reputation, not immunity from criticism
Justice Wasilwa does not need a newspaper to declare her perfect. No judge is. What she deserves is the same protection any professional deserves: criticism tied to facts, fair recognition of the record, and freedom from unproved attacks on personal integrity.
The language of vilification can damage a person’s reputation long before any tribunal has weighed evidence. When words such as “wilful subversion” are attached to a judge without proof of deliberate wrongdoing, the public may confuse a constitutional disagreement with a disciplinary offence. That confusion is dangerous.
Whether any particular public statement satisfies the legal elements of defamation is a question for a competent court, not for an editorial to pronounce conclusively. But one does not need a defamation verdict to say that a serious personal allegation ought to be supported by serious evidence. Nor does one need to silence Ahmednasir to ask him to correct the public impression left by his earlier remarks.
The meaning of her vindication must be stated accurately
The Court of Appeal’s decision is a strong vindication of Justice Wasilwa’s handling of this case. It is not a general certificate covering every judgment she has ever written or every aspect of her professional life. The evidence before us does not justify sweeping claims about an entire career—and there is no need for such exaggeration.
The record already says enough. The appeals were dismissed. The legal challenges to her jurisdiction and interpretation failed. The higher court expressly rejected the suggestion that a numbering error was evidence of deception. Her ruling stood after searching appellate scrutiny. These are concrete, verifiable facts, not compliments invented for a headline.
For this dispute, that is an exceptionally strong answer to those who accused her of unfitness merely because they disagreed with her decision.
Ahmednasir should meet the same standard he demands of judges
Ahmednasir Abdullahi is a Senior Counsel. His public standing gives his criticism weight, and that weight carries responsibility. If he believed Justice Wasilwa’s constitutional interpretation was wrong, the appellate process was the place to test the proposition. That process has now produced an answer unfavourable to the criticism reflected in his post.
He remains free to disagree with the Court of Appeal, advance a different constitutional theory, or pursue any lawful remedy available. But responsible advocacy requires acknowledging what the courts have actually decided. If he possesses evidence of independent misconduct, he should present it through the constitutional process, fairly and with particulars. If his accusation rested on the interpretation of this judgment alone, he should reconsider it publicly.
An apology or clear correction would not diminish a prominent lawyer. It would demonstrate the intellectual honesty expected of one. The bigger issue is not whether a senior advocate can be wrong. It is whether public influence comes with a willingness to revise a harsh accusation when the judicial record contradicts its premise.
Kenya cannot demand independent judges and then punish them for judging
Kenyans regularly complain, with reason, when powerful interests appear to influence public institutions. We want courts to interpret the law without fear, to stop unlawful action when necessary, and to give reasons that ordinary people can examine. Yet those demands become meaningless if judges must also worry that every unpopular decision will trigger a campaign to destroy their careers.
Protecting judicial independence is not defending every judgment. It is defending a method: evidence instead of insinuation, appeals instead of intimidation, and constitutional procedures instead of personal verdicts delivered on social media. That method protects everyone—including those who lose cases today and may need a fearless judge tomorrow.
Justice Hellen Wasilwa gave her interpretation of the Constitution in October 2025. It was attacked in unusually personal terms. On 16 October 2026, three appellate judges reviewed the legal dispute and dismissed the challenges to her ruling. That sequence should settle one important matter in the public debate: this judgment provides no basis for branding her a deliberate saboteur of the Constitution.
The final word belongs neither to a furious social-media post nor to this editorial. It belongs, for now, to the court record. And on that record, Justice Hellen Wasilwa has been vindicated.
Read Also: The Court Has Spoken: Justice Hellen Wasilwa Was Right, And The Attacks On Her Integrity Were Unfair