Ethics and Anti-Corruption Commission v Nicholas Mwenda Mtwaruchiu & 8 others [2018] KECA 435 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed the EACC acted without proper quorum when it vetted and fired staff, but limited compensation to one month's salary per affected employee.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 7th Respondent, whose contract had lapsed by effluxion of time, had any valid contractual or statutory claim against the Appellant
- 2.Whether the Ethics and Anti-Corruption Commission was properly constituted at the time of vetting the Respondents and at the time of making the decision to terminate their contracts of employment
- 3.Whether the Court of Appeal decision in Michael Sistu Mwaura Kamau was decided per incuriam of the Supreme Court decision in Mable Muruli
- 4.Whether the 1st, 2nd, 3rd, 4th, 5th, 6th and 8th Respondents were entitled to reinstatement or to compensatory relief
- 5.Whether the sums paid to the Respondents were adequate, and what compensation for unprocedural termination is payable under Section 49(1)(c) of the Employment Act
- 6.Whether the claims for salary, leave, medical cover and NSSF contributions until retirement age can be maintained
- 7.Whether the Respondents proved violation of their fundamental rights and freedoms
Key legal issues
#Whether the EACC was properly constituted at the time of vetting and termination
The Commission was not properly constituted with only two Commissioners in office, rendering the vetting and the consequent terminations null and void
Guided by its own earlier decision in Michael Sistu Mwaura Kamau, the Court held that composition of a Commission is a constitutional question. Article 250(1) requires at least three members; section 4 of the EACC Act provides for a Chairperson and two members. With only two Commissioners in office (the Chairperson having not assumed office pending litigation), the Commission lacked the requisite composition, and the vetting exercise and all decisions flowing from it were nullities.
Whether Michael Sistu Mwaura Kamau was decided per incuriam of Mable Muruli
The decision was not per incuriam; the Supreme Court dictum concerns the functional and operational aspects of a Commission, not its constitutional composition
The Court distinguished between the compositional (constitutional) dimension of a Commission, determined by the number and qualification of appointed members, and the institutional/operational dimension, where duly authorized staff act for the Commission. Mable Muruli concerned IEBC staff routinely performing functions; it did not deal with compositional questions. Hence the two authorities are reconcilable and the Kamau decision stands.
Whether the 7th Respondent had a valid claim
His contract lapsed by effluxion of time on 30th April 2013; he had no legitimate expectation of renewal and no valid claim
A fixed term contract terminates naturally on its expiry date. Renewal depends on mutual agreement. There was no express or implied representation that the contract would be renewed; the Commission expressly notified him it would not be renewed. He was paid service gratuity and commuted leave, which was not challenged. The trial court erred in entering judgment in his favour.
What relief flows from the nullity of the vetting process
Reinstatement is impractical; the appropriate remedy is compensatory relief for unprocedural termination, fixed at one month's salary per Respondent
Remedies must be grounded in the contracts of employment. Since all contracts had lapsed, reinstatement is not feasible and a court cannot write a contract for parties. Each Respondent had already been paid salary in lieu of notice, service gratuity and commuted leave. Taking into account the fixed-term nature of the contracts and the absence of evidence of diminished employability, one month's salary is sufficient compensation under section 49(1)(c) of the Employment Act.
Whether the 4th and 6th Respondents can claim against the Appellant despite pleading they were employed by the Ministry of Justice
Being bound by their pleadings, they cannot disown the Appellant as employer yet claim against it; however, under Section 34(2) of the EACC Act the 2nd, 4th and 6th Respondents were deemed employees of the Appellant
The Petition averred that the 4th and 6th Respondents' contracts were renewed by the Ministry of Justice, not the Appellant. A party is bound by its pleadings and cannot blow hot and cold. Further, from 12th September 2012 there was no properly constituted Commission able to employ or ratify employment. Nevertheless, Section 34(2) deems Government employees attached to KACC to be employees of the Commission, capturing these Respondents.
Whether the Respondents proved violations of fundamental rights and freedoms
No violation was proved; the operative instruments were the individual contracts of employment under Section 34(1) and (2) of the EACC Act
Although the Petition alleged violations of Articles 27, 28, 29(f), 31, 35, 41, 43(2)(e) and 47 of the Constitution, the Respondents did not adduce evidence establishing these violations. Given the statutory transition scheme, the individual contracts of employment were the operative instruments governing the relationship.
Legal principles established
#- A Commission is duly constituted when there are Commissioners in office subject to the quorum requirement; staff and the Secretariat alone cannot lawfully perform the Commission's functions
- The composition of a Commission is a constitutional question distinct from the functional and operational aspects of a Commission; the Supreme Court dictum in Mable Muruli addresses the functional aspect only
- A party is bound by its pleadings and cannot approbate and reprobate - it cannot disown the employer in pleadings yet claim against that employer
- A fixed term contract lapses by effluxion of time and an employer is not obliged to give reasons for non-renewal absent a contractual clause or legitimate expectation
- Reinstatement is a discretionary remedy governed by section 49(4) of the Employment Act and the common law principle that specific performance in employment contracts should not be ordered except in exceptional circumstances
- No damages are awardable for unlawful termination of a contract of employment until the age of retirement
Court orders
#- 1.A declaration that the Appellant was not properly constituted at the time of vetting the Respondents and making the decision to terminate their contracts of employment
- 2.A declaration that the Appellant unprocedurally and unlawfully terminated the employment contracts of the 1st, 2nd, 3rd, 4th, 5th, 6th and 8th Respondents
- 3.Judgment entered for the 1st, 2nd, 3rd, 4th, 5th, 6th and 8th Respondents for one month salary compensation each: Mtwaruchiu Kshs. 393,000; Moffat Kshs. 163,482; Muneeni Kshs. 363,714; Nguthu Kshs. 321,000; Wanjere Kshs. 182,000; Mwaniki Kshs. 228,644; Chabari Kshs. 228,643.70
- 4.All statutory deductions to be effected; all other claims by the Respondents against the Appellant dismissed
- 5.The 7th Respondent's claim against the Appellant dismissed in its entirety
- 6.Compensation awarded to accrue interest at court rates from the date of judgment by the High Court, namely 14th September 2014
- 7.Each party to bear his/its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court at Nairobi
- Petition No. 36 of 2013
- Jurisdiction invoked
- First appeal to the Court of Appeal against the judgment of the Employment and Labour Relations Court (statutory first appeal)
Relief refused
#Reinstatement of the Respondents to their employment
Reinstatement was impractical because all contracts had lapsed by effluxion of time and no contract existed to be reinstated
Twelve months' salary compensation for unfair termination
Only one month's salary awarded as adequate compensation given the fixed-term contracts and payment already made
Claims for unpaid salary, leave allowance, medical cover and employer's NSSF contributions until retirement age
No damages are awardable for unlawful termination of a contract until the age of retirement
Claim by the 7th Respondent (Johnstone K. Chepkwony)
His contract lapsed by effluxion of time on 30th April 2013 and he had no legitimate expectation of renewal
Claim for damages for violation of fundamental rights and freedoms
The Respondents failed to prove violation of any of their fundamental rights and freedoms
Costs
Both the Appeal and Cross-Appeal having partially succeeded, each party is to bear his/its own costs.
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.
A declaration be and is hereby issued that the Appellant was not properlyconstituted at the time of vetting the Respondents and making the decision to terminate their contracts of employment.
A declaration be and is hereby issued that the Appellant unprocedurally and unlawfully terminated the employmentcontracts of the 1st, 2nd, 3rd, 4th, 5th 6th and 8th Respondents.
Both the Appeal and Cross-Appeal having partiallysucceeded, each party is to bear his/its own costs.
In our view, the Secretariat and staff of the Commission by themselves are not the Commission, but the Commissioners without the Secretariat and staff is the Commission.
The Respondents cannot blow hot and cold, in one instance arguing that the Appellant was not properly constituted to undertake the vetting exercise and in another arguing that the Appellant could legally and properly enter into an employer-employee contract with them.
It is impractical to reinstate a person to a contract which does not exist and a court cannot initiate and write an employment contract for parties.
Issues in the judgment
#The judgment records the trial judgment as dated 15th September 2014 and delivered on 16th September 2014 by Hon. Lady Justice L. Ndolo, but also states it was delivered by Hon. Justice Mathews Nduma Nderi; the interest order also refers to 'judgment by the High Court namely 14th September, 2014', a date that conflicts with both stated dates
The judgment cites a list of authorities in support of the Respondents' submissions but the appellate court itself does not state its treatment of several of them; the transcription of case names contains inconsistencies (e.g. 'Margaret A. Ochieng' and 'Margaret, A Achieng' appear as separate entries for what appears to be the same case)
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.
- Kenya Power and Lighting Company Limited v Lydia Chepkosgei Mutai [2019] KECA 753 (KLR)[2019] KECA 753 (KLR)21 May 2019followed
- National Social Security Fund v Grace K. Kazungu & another [2018] KECA 55 (KLR)[2018] KECA 55 (KLR)20 Dec 2018
Cite this brief
#Cite this brief
Caselaw, "Ethics and Anti-Corruption Commission v Nicholas Mwenda Mtwaruchiu & 8 others [2018] KECA 435 (KLR)", Case Analysis (2018). Civil Appeal No. 346 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/435/eng@2018-07-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.