Michael Sistu Mwaura Kamau v Ethics & Anti-Corruption Commission, Director of Public Prosecutions, Attorney General, Inspector General, National Police Service & Chief Magistrate’s Court, Milimani (Civil Appeal 102 of 2016) [2017] KECA 406 (KLR)
The bottom line
#Kenya's Court of Appeal stopped a corruption prosecution because the EACC lacked commissioners when it investigated, protecting institutional independence.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether in the absence of commissioners the EACC was properly constituted to carry out investigations and make recommendations to the DPP to charge the appellant.
- 2.Whether the President's address to Parliament amounted to an unconstitutional directive to the EACC and the DPP.
- 3.Whether in the circumstances of this appeal the DPP acted on the recommendations of the EACC.
Key legal issues
#Whether the EACC, in the absence of commissioners, was properly constituted to investigate and recommend prosecution
The EACC could not validly investigate, complete investigations and recommend prosecution to the DPP after the resignation of all its commissioners; those functions belong corporately to the Commission and require the sanction of commissioners.
The EACC is a body corporate with perpetual succession under Article 253, but its functions under section 11(1) of the EACC Act are distinct from those of the commissioners under section 11(6). The core function of investigating and recommending prosecution to the DPP under section 11(1)(d) and section 35 of ACECA must be authorised by the commissioners who give strategic direction and oversight. The secretary is an employee, not a member of the commission, and cannot bypass the commissioners.
Whether the President's State of the Nation address amounted to an unconstitutional directive to the EACC
The President's 60-day deadline and direction that files be forwarded to the DPP without delay constituted undue interference with the independence of the EACC contrary to Article 249(2).
While the President may properly champion the fight against corruption under Articles 10 and 132(1)(c), commissions and independent offices under Article 249(2) must not take orders or instructions from outside their ambit. Setting deadlines by the President rather than the EACC could reasonably be perceived as directing the EACC on how and within what period to discharge its mandate, with implications for the quality of investigations.
Whether the DPP acted on the recommendations of the improperly constituted EACC
The DPP's own affidavit showed that his decision to charge the appellant was founded on the EACC report and recommendations rather than independent sources, tainting the prosecution.
Although the DPP is independent under Article 157(10) and may receive evidence from any source, the record showed that the decision to charge was made upon receiving the EACC report and recommendations. No evidence supported the assertion that the DPP relied on other sources, which was mere conjecture. Since the source of his decision was a report by an improperly constituted EACC, the prosecution was tainted with illegality and should have been prohibited.
Legal principles established
#- The functions of investigating and making recommendations to the DPP belong corporately to the EACC and must be authorised and sanctioned by the commissioners; the secretary or secretariat alone cannot perform this core function.
- Where a properly constituted EACC has not sanctioned a report and recommendation to the DPP, and the DPP's decision is founded on that impugned recommendation, the resulting prosecution is tainted with illegality and may be declared and prohibited.
- The President may not set deadlines for independent commissions on how and within what period to discharge their mandates, as this is undue interference inconsistent with Article 249(2).
- The secretary of a commission is an employee and not a member of the commission within the meaning of Article 250(1) of the Constitution.
Court orders
#- 1.Appeal allowed
- 2.Orders of the High Court dated 9th March 2016 dismissing the appellant's petition set aside
- 3.Substituted therefor an order allowing the appellant's petition
- 4.Each party to bear its own costs on account of the public interest issues raised in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya, Nairobi, Constitutional & Human Rights Division
- Petition No. 230 of 2015 (consolidated with Petition Nos. 203, 305 and 324 of 2015)
- Jurisdiction invoked
- First appeal/constitutional appeal against part of the judgment of the High Court in a petition under Articles 47, 79, 249, 250 and 157 of the Constitution
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.
Ultimately we allow the same; set aside the orders of the High Court dated 9th March 2016 dismissing the appellant’s petition, and substitute therefore an order allowing the petition. On costs, we direct each party to bear its own costs on account of the public interest issues raised in the appeal. It is so ordered.
it is inevitable to conclude that the appellant’s prosecution was tainted with illegalities and that the High Court ought to have issued a declaration to that effect and prohibited his prosecution founded on the report and recommendations of the improperly constituted EACC.
He is not a rubber stamp, to mechanically approve the recommendations of the EACC.
the golden thread of rule of law, human rights and constitutionalism that runs through the Constitution demands that the battle against corruption must be waged within the law.
the functions of investigating and making recommendations to the DPP belong corporately to EACC and not to the secretary or the secretariat alone.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ethics and Anti-Corruption Commission & another v Aboo[2026] KESC 44 (KLR)19 Jun 2026
- Charity Kaluki Ngilu v Ethics & Anti-Corruption Commission & 4 others [2017] KECA 377 (KLR)[2017] KECA 377 (KLR)28 Jul 2017
Cite this brief
#Cite this brief
Caselaw, "Michael Sistu Mwaura Kamau v Ethics & Anti-Corruption Commission, Director of Public Prosecutions, Attorney General, Inspector General, National Police Service & Chief Magistrate’s Court, Milimani (Civil Appeal 102 of 2016) [2017] KECA 406 (KLR)", Case Analysis (2017). Civil Appeal No. 102 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/406/eng@2017-07-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.