Board of Management Nyeri Primary School v Maina & 33 others (Civil Appeal 81 of 2017) [2021] KECA 63 (KLR)

The Court reasoned that Boards of Management are bodies corporate with statutory power to recruit, employ and remunerate non-teaching staff under Section 59(p) of the Basic Education Act and Regulation 17. That power is not an alternative route into public service, which is the preserve of the Public Service Commission under Article 234(2)(a) of the Constitution read with Part VI of the Public Service Commission Act. Employment by a statutory body therefore does not confer civil servant status.

The Court held that the Respondents, though employed by a statutory body, were not employees of the National Government. The Appellant, as a body corporate, had statutory power to recruit, employ, remunerate, promote, demote or terminate its employees under Section 59(p) of the Act, provided such powers are exercised in accordance with the applicable statute law governing employment in public corporations.

Having found the Respondents were not civil servants, the Court held the circulars issued by the then Office of the Prime Minister/Ministry of State for Public Service did not apply to them. Using Black's Law Dictionary's definition of civil service, the Court found the Respondents were not employed in a State department. Further, under Regulation 18 only professional-cadre staff enjoy Civil Service-similar terms, and no evidence showed the Respondents were professionals; their terms were determined by the Board under Regulation 19.

The Court, sitting as a first appellate court, restated the settled principle from Selle v Associated Motor Boat Co, as adopted in Arthi Highway Developers Limited v West End Butchery Limited, that a first appeal is by way of retrial: the appellate court must reconsider and evaluate the evidence and draw its own conclusions, while making due allowance for the fact that it did not see or hear the witnesses.