Jane Wanja Muthaura v Ethics and Anti-Corruption Commission [2021] KEELRC 1166 (KLR)
The bottom line
#The Employment Court ordered the EACC to pay a former finance officer over Kshs. 10.2 million after finding her firing had no valid reason and no fair process.
What this practically means
#Executive summary
#Key legal issues
#Whether acting and special duty allowances were lawfully paid
The allowances were payable and paid regularly under clauses 7.5 and 7.6 of the Governance Manual, which continued to apply during transition
In the absence of a definitive transitional law on allowances, the Governance Manual continued to apply, as the Government Financial Management Act was deemed to apply in ACIYE. The requirement of Director/Assistant Director approval could not be fulfilled because those offices stood abolished, and appointment was made in writing by the Advisory Board, Permanent Secretary Treasury and Head of Public Service. The Auditor-General's Report was not conclusive evidence of irregularity, and Ministry circulars could not override the Manual of an Independent Commission.
Whether the Respondent's claim for refund of Kshs. 3,012,976 succeeds
The Claim is declined in its entirety
Since the allowances were lawfully paid, there is no basis for a refund. The Auditor-General's Report did not mention the Governance Manual, the Petitioner was not called to answer audit queries, and Ministry circulars cannot override the Manual of an Independent Commission.
Whether termination was fair and lawful
Termination was unfair and unlawful - no valid reason was shown and procedure was disregarded
There were no allegations put to the Petitioner, no show-cause letter, no charges, no disciplinary hearing and no findings of any employment offence. The termination followed a pattern of demotion and humiliation by a Commission not fully constituted, and vetting leading to termination was a nullity per ACIYE and Mtwarachiu. Termination at the employer's will is misconceived in Kenyan law.
Whether constitutional rights were violated
No constitutional violations established; remedies lie under the Employment Act
The violations complained of stemmed from inconsistent advice and misunderstanding of transitional provisions, affecting the contract of employment rather than constitutional rights. The Employment Act offers adequate remedies without recourse to the Constitution.
Remedies payable
12 months' compensation, 3 months' notice pay, 18 days leave pay, service gratuity and 2 days' salary totalling Kshs. 10,241,292
Compensation assessed on length of service (7 years), clean record, premature termination 12 months before contract expiry, and unlawful procedure, with Section 49(4)(e) and (f) factors. Gross monthly salary of Kshs. 471,000 adopted; allowances excluded from gross pay. Gratuity awarded as computed by the Respondent at Kshs. 2,810,880.
Legal principles established
#- All termination of contracts of employment must meet the tests of substantive justification and procedural fairness
- Termination at the will of the employer is not a valid principle of employment law in Kenya
- During the transition under the Sixth Schedule, existing laws and instruments applicable to transitioning institutions continue to apply in the interim; there are no gaps contemplated
- Circulars from the Public Service Ministry cannot override the Governance Manual of an Independent Commission
- Where compensation for unfair termination is awarded, the remainder of a fixed-term contract cannot form the basis for a separate award
Court orders
#- 1.The Claim by the Respondent under Cause Number 722 of 2015 for Kshs. 3,012,976, costs and interest is declined
- 2.Declaration that termination of the Petitioner's contract was unfair and unlawful
- 3.Respondent to pay the Petitioner Kshs. 39,336 as salary for 2 days worked
- 4.Respondent to pay compensation for unfair termination equivalent of 12 months' gross salary at Kshs. 5,652,000
- 5.Respondent to pay 3 months' salary in notice pay at Kshs. 1,413,000
- 6.Respondent to pay annual leave of 18 days at Kshs. 326,076
- 7.Respondent to pay service gratuity at Kshs. 2,810,880
- 8.Total award of Kshs. 10,241,292
- 9.Costs to the Petitioner
- 10.Interest at court rates from the date of Judgment till payment is made in full
- Jurisdiction invoked
- Employment and labour relations jurisdiction; petition alleging violation of Articles 10, 27, 41, 47 and 50 of the Constitution and the Employment Act
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.
- Mahia v Kenya Universities and Colleges Central Placement Service (Cause E6501 of 2020) [2024] KEELRC 1086 (KLR)[2024] KEELRC 1086 (KLR)11 Apr 2024
- Mainga v Kenya Broadcasting Corporation (Cause 1281 of 2015) [2023] KEELRC 2893 (KLR)[2023] KEELRC 2893 (KLR)14 Nov 2023
Cite this brief
#Cite this brief
Caselaw, "Jane Wanja Muthaura v Ethics and Anti-Corruption Commission [2021] KEELRC 1166 (KLR)", Case Analysis (2021). Petition (consolidated with Cause Number 722 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1166/eng@2021-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.