The Ethics and Anti-corruption Commission & 2 others v Attorney General & 1 other
The bottom line
#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
#Executive summary
#Key legal issues
#Validity of actions taken by a non-quorate commission
The vetting and termination were null and void because the Commission was not properly constituted; liability for unfair termination was therefore unassailable
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.
Quantum of compensation for unfair termination where an exit clause exists
Damages should be limited to the contractual notice period absent bad faith or oppression; one month's salary was adequate
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.
Legal principles established
#- 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
#- 1.The award equivalent to 12 months' salary is set aside
- 2.In its place, an award of one month's salary, subject to statutory deductions
- 3.Each party to bear their own costs
- 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)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "The Ethics and Anti-corruption Commission & 2 others v Attorney General & 1 other", 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.