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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the appellant was properly constituted when the vetting process was undertaken
- 2.whether the vetting process was procedurally unfair
- 3.whether the damages awarded at trial were excessive
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
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
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
#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
Respondent's entitlement to 12 months' salary as compensation
Damages limited to the contractual notice period absent bad faith or justification for more
Costs
As there has been both success and failure on each side, parties shall bear their own costs of the appeal.
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.
the panel could not be lawfully constituted, in the first place, in the absence of a properly constituted Commission.
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.
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.
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.
As there has been both success and failure on each side, parties shall bear their own costs of the appeal.
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.