Onanda & 26 others v Board of Management Migori Teachers College (Cause 213 of 2018) [2023] KEELRC 1349 (KLR)

Article 260 defines a public office as one in the national government, county government or public service whose remuneration is payable from the Consolidated Fund or money provided by Parliament. The Respondent's witness admitted it is a government institution funded by government subsidies and student fees, and that the Claimants' remuneration is paid from these sources. The Court therefore had no difficulty concluding the Claimants are public officers.

The Claimants contracted with the Respondent, not the Public Service Commission, and no evidence showed the Respondent employed them under delegated authority. The Court endorsed and applied the Court of Appeal's decision in the Maina case that employees of Boards of Management of schools are not civil servants. Consequently, Circulars expressly limited to civil servants do not apply to the Claimants.

The Circulars state on their face that they apply to civil servants, so they do not bind the Claimants. However, under Article 230(4)(b) the SRC must advise on remuneration of all other public officers, and by asserting without reasons that the Circulars do not apply to Board of Management employees, it abdicated that duty. The appropriate remedy was to order the SRC to perform its advisory function after research and public participation.

Some appointment letters referenced a 1985 agreement between the Ministry of Education and a trade union, but no copy was produced. Others issued in 2003 and 2004 did not indicate the duration of the contracts. Without that material the Court could not find the employment was permanent and pensionable.