Ojwang murder: Court declines to quash petition challenging DIG Lagat's return to office

 

A profile picture of DIG Eliud Lagat and the late Albert Ojwang. 

Deputy Inspector General (DIG) Eliud Lagat has suffered a setback after the High Court declined to dismiss a petition seeking to suspend him from office over the death of blogger Albert Ojwang’.

Justice Chacha Mwita, sitting at the Constitutional and Human Rights Division of the Milimani High Court, ruled that the petition challenging his return to office pending ongoing investigation by IPOA raises constitutional questions which fall squarely within the jurisdiction of the High Court, and not employment issues as argued by the Attorney General and Lagat.

UK-based activist Eliud Matindi filed the petition challenging Lagat’s return to office after he stepped aside following public uproar over the custodial death.

Attorney General Dorcas Oduor, through State Counsel Christopher Marwa, and Lagat's lawyer Cecil Miller had raised a preliminary objection, insisting the matter belonged before the Employment and Labour Relations Court (ELRC), not the High Court.

But Justice Chacha Mwita ruled otherwise, saying the petition raised constitutional, not employment, questions.

“The issues raised do not include determination of employer-employee relationship or related matters,” Justice Mwita said.

“Rather, the issues are purely on the interpretation of the Constitution and the law, namely, whether the DIG Lagat’s actions were constitutional and legal. As a matter of fact, there is no employer-employee relationship issue in this petition except the constitutionality and legality of Lagat’s actions.”

The judge went on to stress that Article 165 of the Constitution grants the High Court power to interpret the Constitution and determine whether actions taken under its authority are valid.

“Under Article 165(3)(b) of the Constitution, this Court is given express jurisdiction to hear any question on the interpretation of the Constitution, including determination of questions whether anything is said to be done under the authority of this Constitution or if any law is inconsistent with or in contravention of the Constitution,” Mwita stated.

“In other words, the petition seeks this Court’s determination whether Lagat's actions were within the framework of the Constitution and the law, thus falling within the exclusive jurisdiction of this Court,” he ruled.”

In his petition, Matindi argues Lagat’s move to “step aside” was unconstitutional.

“Under Kenyan law, including the Constitution and the National Police Service Act, there are no provisions permitting Lagat to step aside on his own accord,” he told the court.

He further accused the police service of systemic failures, saying: “It is a matter of public notoriety that policing in Kenya is in crisis, with daily reports of unexplained deaths in custody.”

The National Police Service Commission (NPSC), however, defended Lagat.

“The decision by the DIG to step aside was voluntary and aimed at promoting accountability and transparency. It was not an admission of guilt or incapacity,” CEO Peter Kiptanui Leley said:

DIG Lagat himself dismissed the case as “speculative, legally flawed, and driven by misapprehension.”

“Taking authorized leave, which is a statutory entitlement, cannot be construed as unconstitutional. There is no credible evidence linking me to any wrongdoing,” He insisted

Justice Mwita directed all parties to file submissions within seven days ahead of the hearing of the main petition on November 17, 2025.