Ethics and Anti-Corruption Commission & 2 others v Mwithia & another
The bottom line
#Kenya's Court of Appeal confirmed the EACC acted unlawfully when it vetted and fired an employee with only two commissioners, but cut his compensation to one month's salary.
What this practically means
#Executive summary
#Key legal issues
#Whether EACC was properly constituted at the time of vetting and termination
EACC had only two members at the material time and was not properly constituted; its officers had no constitutional or legal capacity to vet and terminate, rendering the process a nullity.
Article 79 clothes EACC with the status and powers of a Chapter Fifteen commission, so its composition must conform to Article 250(1) requiring at least three members. The Court adopted its earlier decision in EACC v Mtwaruchiu, distinguishing the Supreme Court's functional/operational dicta in Mable Muruli from the compositional question. The vetting panel could not be lawfully constituted absent a properly constituted Commission. New evidence of appointments was impermissible on appeal.
Whether the vetting process was procedurally unfair
The Court's finding on improper constitution was dispositive of liability, encompassing the unfairness complaint.
Having held that EACC lacked capacity because it had only two commissioners, the Court found the vetting and subsequent termination unlawful. The trial court's finding that EACC and its officers had no constitutional and legal capacity to act was affirmed, disposing of liability without needing to resolve procedural fairness separately.
Whether the award of 12 months' salary as compensation was excessive
The award was set aside and substituted with one month's salary, since the contract contained a three-month notice clause, dues were promptly paid, and there was no evidence of bad faith or oppressive conduct.
Under section 49(1) of the Employment Act read with section 34(4) of the EACC Act, the contractual termination clause governed. Damages for breach where an exit clause exists are limited to the notice period unless the employer acted with ulterior motives or bad faith. The trial judge's reliance on lapse of time contradicted the evidence of prompt payment, and the award left the employee better off than lawful termination would have.
Legal principles established
#- A commission is duly constituted only when there are commissioners in office subject to the quorum requirement; staff and secretariat alone cannot lawfully act for the commission.
- Where a contract of service contains an exit/termination clause, damages for wrongful termination are limited to wages for the notice period unless the employer acted in bad faith, maliciously, oppressively or callously, or there is a justified, explained reason for more.
- An act done by an improperly constituted body is a nullity and proceedings founded on it are equally null.
Court orders
#- 1.Appeal dismissed on the question of liability
- 2.Appeal allowed on the limb of quantum
- 3.Award of damages by the trial court set aside and replaced with an award of one month's salary subject to statutory deductions
- 4.Each party to bear their own costs of the appeal
- On appeal from
- Employment and Labour Relations Court of Kenya at Nairobi
- ELRC No. 30 of 2016
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Employment and Labour Relations Court Act / Appellate jurisdiction (judgment and decree of the ELRC)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ethics and Anti-Corruption Commission & 2 others v Mwithia & another", Case Analysis (2024). Civil Appeal 41 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1956/eng@2024-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.