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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal 41 of 2019

Ethics and Anti-Corruption Commission & 2 others v Mwithia & another

Court of Appeal
20 December 2024
5,124 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This first appeal challenged an ELRC judgment (Abuodha, J) that found Henry Murithi Mwithia's termination by the Ethics and Anti-Corruption Commission unlawful and awarded him 12 months' salary as compensation. Mwithia, a former KACC senior forensic investigator, was vetted and terminated in March 2013 when EACC had only two commissioners. The Court of Appeal framed three issues: whether EACC was properly constituted during vetting, whether the vetting was procedurally unfair, and whether the damages were excessive. On liability, the Court held that under Article 79 EACC bears the status and powers of a Chapter Fifteen commission, so its composition had to conform to Article 250(1). With only two members, EACC was not properly constituted; following its own decision in EACC v Mtwaruchiu, the Court distinguished the Supreme Court's functional dicta in Mable Muruli and affirmed that the vetting panel and the termination were a nullity. The appellants' attempt to introduce evidence of later appointments was rejected as impermissible on appeal. On quantum, the Court held that where a contract contains an exit clause, damages are limited to the notice period unless the employer acted in bad faith, maliciously, oppressively or callously, or gives a justified, explained reason for more. The trial judge's reliance on the lapse of time contradicted the evidence of prompt payment of dues, and no bad faith was shown. The Court set aside the 12 months' award and substituted one month's salary subject to statutory deductions. The appeal was dismissed on liability but allowed on quantum, with each party bearing their own costs of the appeal.

Questions the Court framed

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

  1. 1.whether the appellant was properly constituted when the vetting process was undertaken
  2. 2.whether the vetting process was procedurally unfair
  3. 3.whether the damages awarded at trial were excessive

Key legal issues

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01

Whether EACC was properly constituted at the time of vetting and termination

Holding

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.

Reasoning

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.

p. 6
02

Whether the vetting process was procedurally unfair

Holding

The Court's finding on improper constitution was dispositive of liability, encompassing the unfairness complaint.

Reasoning

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.

p. 6
03

Whether the award of 12 months' salary as compensation was excessive

Holding

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.

Reasoning

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.

p. 9

Legal principles established

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  • 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

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  1. 1.Appeal dismissed on the question of liability
  2. 2.Appeal allowed on the limb of quantum
  3. 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. 4.Each party to bear their own costs of the appeal

The bench

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

majority

Wrote the judgment

majority

Wrote the judgment

Wrote the judgment

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)

Relief refused

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Appellants' challenge to the finding that EACC was not properly constituted and that the vetting and termination were a nullity

EACC had only two members at the material time; the Court affirmed the trial court's finding on capacity

p. 6

Respondent's entitlement to 12 months' salary as compensation

Damages limited to the contractual notice period absent bad faith or justification for more

p. 9

Costs

As there has been both success and failure on each side, parties shall bear their own costs of the appeal.

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.

the panel could not be lawfully constituted, in the first place, in the absence of a properly constituted Commission.
p. 6Composition of commissions - capacity to act
Caselaw has been consistent that where there is an exit clause, the damages ought to be equivalent to wages that would have been paid during the notice period unless there is justifiable reason, to be stated and explained, for awarding more.
p. 8Measure of damages where contract has termination clause
the trial court manifestly misapprehended the evidence and considerations available to it when it exercised its discretion in the award of damages equivalent to 12 months’ pay and the award is therefore susceptible to interference and setting aside by us.
p. 9Appellate interference with discretionary awards
we dismiss the appeal on the question of liability but allow it on the limb of quantum with the result that the award of damages by the trial court is hereby set aside and in its place make an award of one months’ salary which shall be subject to statutory deductions.
p. 10Disposition
As there has been both success and failure on each side, parties shall bear their own costs of the appeal.
p. 10Costs

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 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.