Ethics & Anti-Corruption Commission v Busia County Government (Civil Appeal 14 of 2017) [2025] KECA 622 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed the EACC cannot investigate corruption through its secretariat alone when no commissioners are in office.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether, in the absence of the Commissioners, the Commission can carry out its day-to-day work, including investigations, through its secretariat
- 2.Whether the Director of Public Prosecutions can direct the EACC to carry out investigations, pursuant to Article 157(10) of the Constitution
- 3.Whether the appellant ought to have been penalised in costs by the trial court
- 4.Whether the ground that the petition was unsigned, raised for the first time on appeal, could be entertained
Key legal issues
#Whether the EACC secretariat can perform the Commission's core investigatory functions in the absence of commissioners
It cannot. Investigations and recommendations to the DPP belong corporately to the Commission and must be authorised and sanctioned by the commissioners.
The Court adopted its own prior holding in Michael Sistu Mwaura Kamau, reasoning that although the EACC carries out its investigative mandate through the secretariat and staff, the ultimate decision to recommend prosecution to the DPP must remain with the Commissioners, who exercise oversight over the secretariat and give strategic direction. Section 16(7) of the EACC Act makes the secretary responsible for executing the Commission's decisions, not substituting for the commissioners.
Whether the DPP can direct the EACC in its investigatory role
No. The DPP may assign an officer to assist or guide an investigation, but cannot direct constitutional commissions how to exercise their constitutional mandate.
Section 5(3) of the Office of the Director of Public Prosecutions Act deliberately uses the words 'assist' and 'guide' rather than 'direct'. The relationship between constitutional commissions and independent offices is symbiotic and complementary; turf wars ought not to be countenanced, and investigative agencies equally cannot direct the DPP. The trial Judge was not faulted for using the words employed in the statute.
Whether a new ground (the unsigned petition) could be raised for the first time on appeal
No, absent leave of the Court, and none was sought.
Rule 107(a) of the Court of Appeal Rules bars arguing grounds not specified in the memorandum of appeal. The Court cited longstanding authority including Alwi Abdulrehman Saggaf v Abed Ali Algeredi and Stallion Insurance Company Limited v Ignazzio Messina & C.S.P.A on the reluctance of appellate courts to entertain fresh points not raised below, given fairness, delay and prejudice considerations.
Whether the trial court erred in awarding costs against the EACC
Yes. The costs order was set aside because the trial judge failed to take account of the fact that the litigation was public interest litigation with no allegation of personal benefit.
Applying Jasbir Singh Rai on costs following the event and the public interest factor, and the United India Insurance criteria for interfering with discretionary decisions, the Court held it was entitled to interfere since the Judge failed to take into account that this was public interest litigation and there was no allegation the suit conferred personal benefit on any party.
Whether the High Court erred in holding the EACC was essentially established only to promote Chapter Six of the Constitution
No such holding was made; the Court agreed with the respondent that the Judge never stated this.
The Court examined the impugned decision and found no basis for the appellant's first ground of appeal, agreeing with the respondent that the learned Judge did not expressly or impliedly hold that the EACC was only established to promote Chapter Six of the Constitution.
Legal principles established
#- The functions of investigating and making recommendations to the DPP belong corporately to the EACC; the secretary or secretariat cannot bypass the commissioners, properly constituted or not.
- The DPP may assign a subordinate officer to assist or guide an investigative agency in the investigation of a crime, but cannot direct constitutional commissions such as the EACC on how to undertake their constitutional mandate.
- A party may not, without leave of the Court, argue on appeal a ground that was not specified in the memorandum of appeal or raised before the trial court.
Court orders
#- 1.The order of the High Court penalising the appellant in costs is set aside
- 2.The appeal is otherwise dismissed with no order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court, Nairobi
- Petition No. 382 of 2015
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules (rule 31(1)(a) of the Rules of this Court)
Relief refused
#The appellant's challenge to the High Court findings that the EACC secretariat could not perform core investigatory functions in the absence of commissioners and that the DPP could not direct the EACC
The Court associated itself with its prior decision in Michael Sistu Mwaura Kamau that investigatory and recommendatory functions belong corporately to the Commission, not to the secretary or secretariat alone, and that the DPP may only 'assist or guide', not direct, constitutional commissions
Leave to argue the new ground that the petition was unsigned
The ground was not in the memorandum of appeal and was not raised before the trial court, contrary to rule 107(a) of the Court of Appeal Rules
Costs
The order of the High Court penalising the appellant in costs was set aside; the appeal was dismissed with no order as to 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.
Having considered the issues in this appeal, save for the order penalising the appellants in costs, which we hereby set aside, we, otherwise ind no merit in this appeal which we hereby dismiss with no order as to costs.
A situation where the Secretary and the Secretariat bypass the Commission, when properly constituted or not is not contemplated by either the Constitution or the enactments establishing the EACC.
whereas the Director of Public Prosecution may, through a subordinate oficer, assist or guide any investigative agency in carrying out its mandate, when it comes to constitutional commissions such as the appellant, it cannot direct them on how to undertake their constitutional mandate.
The appellant did not seek this Court's leave to argue the ground faulting the petition for lack of signature and that ground cannot be raised.
by not considering the fact that this was a public interest litigation, and there being no allegation that the litigation was geared towards conferring a personal beneit on any of the parties, we are entitled to interfere.
Issues in the judgment
#The judgment states the raid occurred on 4th September 2015 but the trial court's declaration refers to seizure 'on or about 2nd September 2015', an internal inconsistency in dates.
The first ground of appeal attributes to the learned Judge a holding that the EACC was established 'essentially to assist only in the promotion of Chapter Six', yet the Court later finds no such holding was made.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ethics & Anti-Corruption Commission v Busia County Government (Civil Appeal 14 of 2017) [2025] KECA 622 (KLR)", Case Analysis (2025). Civil Appeal No. 14 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/622/eng@2025-04-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.