Nicholas Mwenda Mtwaruchiu & 7 Others v Ethics And Anti Corruption Commission & 5 Others [2014] KEELRC 1257 (KLR)
The bottom line
#Kenya's Industrial Court ruled the EACC's vetting and job terminations were invalid because the Commission lacked required members and denied employees fair process.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Industrial Court to entertain constitutional claims in employment matters
The Court has jurisdiction to interpret and enforce the Bill of Rights in labour and employment matters, but not an open licence to issue orders unrelated to the employment relationship.
Article 162(2) establishes courts with the status of the High Court for employment disputes; Section 12 of the Industrial Court Act confers exclusive jurisdiction over employment disputes. Following USIU, excluding the Industrial Court from Bill of Rights enforcement in employment matters would create parallel jurisdiction with the High Court. However, the jurisdiction does not extend to matters beyond the employment relationship, such as the legality of the 3rd and 4th Interested Parties' appointments.
Proper constitution of the Commission at the time of vetting
The Commission was not properly constituted with only two members and no Chairperson; the vetting and resulting terminations were a nullity.
Article 250(1) requires each commission to have at least three members including the Chairperson. At the time of the vetting, only two members sat, with the 1st Interested Party acting in two capacities. A purposive reading cannot cure this fundamental flaw, and acting capacity under Article 259(3)(b) does not remedy the shortfall in numbers.
Procedural fairness of the vetting process
The vetting process failed the Section 41 Employment Act procedural fairness test; termination would have been unfair even with proper mandate.
No reasons were given for termination, no appeal avenue existed, panel members overlapped, and the Petitioners could not test the veracity of adverse evidence. Where disciplinary action is in view, due process under Section 41 requires explanation of reasons and opportunity to respond with access to documents and witnesses.
Constitutionality of Section 34(2), (3) and (4) of the Ethics and Anti-Corruption Commission Act
The provision is constitutional; the Petitioners' offices were not statutory offices saved by Section 31 of the Sixth Schedule.
Section 8(6) of the Anti-Corruption and Economic Crimes Act merely empowered the defunct KACC to create administrative offices, which did not enjoy the statutory protection of the Sixth Schedule. Legislation is presumed constitutional and the Petitioners did not rebut that presumption.
Res judicata
The Ruth Muganda and ACIYE cases did not decisively determine the issues raised by the Petitioners; the claim is not res judicata.
The prior cases dealt with specific issues arising from the plaintiffs' employment contracts, namely whether KACC employees were properly in office after expiry of contracts. None of the Petitioners were parties to those cases, and the legality of the vetting and termination was not decisively determined there.
Legal principles established
#- For a commission to be properly constituted, it must have at least three members as required by Article 250(1) of the Constitution.
- Where disciplinary action including termination of employment is in view, the affected employee must be subjected to due process under Section 41 of the Employment Act, 2007.
- The Industrial Court has jurisdiction to interpret and enforce the Bill of Rights in employment and labour matters.
- Presumption of constitutionality applies to legislation challenged before the Court.
- Joiner of high ranking officials without legal basis creates unnecessary cost and should be discouraged.
Court orders
#- 1.Declaration that the vetting undertaken by the 1st Respondent that led to the termination of the Petitioners' employment was a nullity, as were all decisions arising therefrom including the termination
- 2.Petitioners to be paid their full salary and allowances for the period they would have served under their last contracts with the 1st Respondent
- 3.The 1st Respondent to compute and pay the specific sums within thirty days from the date of judgment
- 4.The 1st Respondent to issue the Petitioners with Certificates of Service
- 5.Each party to bear their own costs
- 6.Petitioners' case against the Interested Parties struck out for improper joiner
- Jurisdiction invoked
- Article 162(2) and (3) of the Constitution and Section 12 of the Industrial Court Act, 2011
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.
- Paul Masinde Simidi v National Oil Corporation of Kenya & another [2015] KEELRC 189 (KLR)[2015] KEELRC 189 (KLR)30 Nov 2015applied
- Beatrice Mola v Kenyatta University & 3 others [2015] KEELRC 1000 (KLR)[2015] KEELRC 1000 (KLR)15 Apr 2015
Cite this brief
#Cite this brief
Caselaw, "Nicholas Mwenda Mtwaruchiu & 7 Others v Ethics And Anti Corruption Commission & 5 Others [2014] KEELRC 1257 (KLR)", Case Analysis (2014). Petition filed 4th November 2013 (Industrial Court, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1257/eng@2014-09-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.