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Court of AppealPartially AllowedNot stated in the judgment (Court of Appeal, Nairobi)

Ethics and Anti-Corruption Commission & 2 others v Attorney General & another (Civil Appeal 143 of 2019) [2025] KECA 1199 (KLR)

Court of Appeal of Kenya
4 July 2025
FTF. TuiyottAMA. O. MucheluleGOG. V. Odunga
2,626 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed an EACC employee's termination was unlawful because the Commission lacked quorum, but cut his compensation to one month's salary.

What this practically means

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Executive summary

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The Court of Appeal at Nairobi (Tuiyott, Muchelule and Odunga, JJ.A) partly allowed the Ethics and Anti-Corruption Commission's appeal against a decision of the ELRC (M. Onyango, J) which had found the termination of Soita Wasike's employment in 2013, following vetting after EACC replaced the defunct KACC, to be unfair and awarded him 12 months' salary as compensation. The Court determined the appeal on written submissions, no party attending the plenary hearing. On liability, it held the challenge could not succeed because the Commission was not quorate when it acted: a commission is duly constituted only when the requisite commissioners are in office, and staff and secretariat alone have no legal functionality. Drawing on its recent decision in EACC v Mwithia, which in turn relied on EACC v Mtwaruchiu and Michael Sistu Mwaura Kamau, the Court found that the vetting panel could not be lawfully constituted in the absence of a properly constituted commission, and that the vetting policy itself could not be developed by anyone other than commissioners sitting in quorate meeting. On quantum, applying Mwithia, the Court held that where an exit clause exists, damages are limited to the notice period absent bad faith, malice or oppression; no such conduct was shown, the employee had already been paid notice pay, gratuity and leave, and the trial judge gave no reasons for the 12-month award. One month's salary was held to be adequate compensation. The appeal partially succeeded: the 12-month award was set aside and substituted with one month's salary subject to statutory deductions, with each party bearing its own costs. The judgment binds subordinate courts and tribunals on both the nullity of non-quorate commission actions and the measure of damages.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the liability finding on unfair termination could stand given that the EACC was not quorate at the time of vetting and termination
  2. 2.Whether compensation under section 49(1)(c) of the Employment Act was deserved in the circumstances
  3. 3.What quantum of compensation would be reasonable

Key legal issues

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01

Validity of actions taken by a non-quorate commission

Holding

The vetting and termination were null and void because the Commission was not properly constituted; liability for unfair termination was therefore unassailable

Reasoning

The Court adopted its reasoning in Mwithia and Mtwaruchiu, holding that commissioners qua commissioners constitute the commission; without them the secretariat and staff have no legal functionality. The EACC's own vetting policy required the vetting panel to be constituted by a properly constituted commission, and policy formulation is a commissioner function under section 11(6)(a) of the EACC Act.

p. 4
02

Quantum of compensation for unfair termination where an exit clause exists

Holding

Damages should be limited to the contractual notice period absent bad faith or oppression; one month's salary was adequate

Reasoning

Following Mwithia and Mtwaruchiu, the Court held that where the employee has been paid notice pay, gratuity and leave, an award of 12 months' salary leaves him better off than lawful termination would. No bad faith, malice or oppression was shown, and the trial judge gave no reason for 12 months' pay. One month's salary adequately compensates the infraction.

p. 6

Legal principles established

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  • A commission is duly constituted only when the requisite number of commissioners is in office; actions taken in the absence of a quorate commission are a nullity
  • Where there is an exit clause, damages for wrongful termination are limited to wages for the notice period unless a justified reason for more is stated and explained; an award cannot leave the employee better off than lawful termination would

Court orders

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  1. 1.The award equivalent to 12 months' salary is set aside
  2. 2.In its place, an award of one month's salary, subject to statutory deductions
  3. 3.Each party to bear their own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

FT
majority
AM
majority
GO
majority
On appeal from
Employment and Labour Relations Court at Nairobi
Petition No. 31 of 2016
Jurisdiction invoked
First appellate/second-appeal jurisdiction of the Court of Appeal over the ELRC (not expressly cited in the judgment)

Relief refused

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EACC's challenge to liability for unfair termination

The Commission was not quorate at the time it acted; the termination was by an ill-constituted body

p. 2

Costs

The parties to bear their own costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Subject to quorum requirement, a Commission is duly constituted when there are Commissioners in office.
p. 2Composition of a commission
an award of damages that leaves the grieving employee in a better monetary position than he would have been had the employment been lawfully brought to an end must be well anchored, logically and clearly explained
p. 5Measure of damages for unfair termination
The appeal partially succeeds. The award equivalent to 12 months’ salary is hereby set aside and in its place we make an award for one month’s salary which shall be subject to statutory deductions. The parties to bear their own costs.
p. 6Final orders and disposition

Issues in the judgment

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minor

The judgment names the employer as 'Kenya Anti-Corruption Communication' and 'Ethics and Anti-Corruption Communication', apparently typographical errors for 'Commission'

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ethics and Anti-Corruption Commission & 2 others v Attorney General & another (Civil Appeal 143 of 2019) [2025] KECA 1199 (KLR)", Case Analysis (2025). Not stated in the judgment (Court of Appeal, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1199/eng@2025-07-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.