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Crown through De Souza v Kaswaka wa Kimanayi (Revision Case No. 124 of 1927) [1927] EACA 28 (1 January 1927)
- Citation
- [1927] EACA 28
- Status
- Judgment
- Jurisdiction
- Uganda
- Court
- East African Court of Appeal
- Panel
- Sheridan, J
- Case number
- Revision Case No. 124 of 1927
- Language
- English
More details
- Court
- East African Court of Appeal
- Panel
- Sheridan, J
- Case number
- Revision Case No. 124 of 1927
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court held that the fact of a servant outstaying his leave does not amount to the offence of departing without lawful excuse from his employer's service with intent not to return, as contemplated by section 48(5) of the Employment of Natives Ordinance. The accused had been granted leave at the time of departure, and any omission to return at the expiry of leave may be considered under section 47(2), not section 48(5). Furthermore, the advance of Sh. 62 was deemed a loan rather than an advance on a current contract, and its non-payment does not attract the penalties provided by the Ordinance. The conviction was set aside due to these substantive and procedural defects, including an incomplete complaint and improper issuance of a warrant.
Court disposition
conviction_set_aside
Orders
- The conviction under section 48(5) of the Employment of Natives Ordinance is set aside.
02
Material facts
Parties
Crown
Applicant Counsel: C. D. De SouzaKaswaka wa Kimanayi
RespondentAmounts and remedies
- Advance Given to Accused: KES 62
03
Procedural history
Posture
Criminal Revision / Revision
04
Questions and positions
Legal issues
- 01
Does a servant outstaying his leave constitute an offence under section 48(5) of the Employment of Natives Ordinance?
- 02
Is the omission to return at the expiry of leave covered under section 47(2)?
- 03
Was the advance of Sh. 62 a loan or an advance on a current contract, and does its non-payment attract penalties under the Ordinance?
Party arguments
- Applicant
- The Crown argued that the accused departed from his employer's service without lawful cause and with intent not to return, thus committing an offence under section 48(5) of the Employment of Natives Ordinance. The issuance of a warrant for arrest was justified under section 43, and the advance of Sh. 62 was considered relevant to the contractual relationship.
- Respondent
- The respondent contended that he had been granted leave at the time of departure and that outstaying leave does not constitute an offence under section 48(5). The advance of Sh. 62 was a loan, not an advance on a current contract, and its non-payment should not attract penalties under the Ordinance.
05
Court’s reasoning
Legal principles
- 01
Employment of Natives Ordinance (Cap. 139), section 48(5)
Outstaying leave does not constitute the offence of departing without lawful excuse from service under section 48(5).
- 02
Employment of Natives Ordinance (Cap. 139), section 47(2)
Omission to return at the expiry of leave may fall under section 47(2).
- 03
Employment of Natives Ordinance (Cap. 139)
A loan advanced by the employer is not subject to penalties under the Ordinance if it is independent of the contractual relations.
06
Ratio, limits and disposition
Ratio decidendi
The court held that the fact of a servant outstaying his leave does not amount to the offence of departing without lawful excuse from his employer's service with intent not to return, as contemplated by section 48(5) of the Employment of Natives Ordinance. The accused had been granted leave at the time of departure, and any omission to return at the expiry of leave may be considered under section 47(2), not section 48(5). Furthermore, the advance of Sh. 62 was deemed a loan rather than an advance on a current contract, and its non-payment does not attract the penalties provided by the Ordinance. The conviction was set aside due to these substantive and procedural defects, including an incomplete complaint and improper issuance of a warrant.
Obiter and limits
- The complaint was incomplete, failing to state the work, pay, or date of engagement.
- Issuance of a warrant for arrest was improper given the accused's known address.
- The rate of pay was not stated, but the advance of Sh. 62 was likely a loan, not an advance on a current contract.
Court disposition
conviction_set_aside
- The conviction under section 48(5) of the Employment of Natives Ordinance is set aside.
Source and reliance status
East African Court of Appeal
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
East African Court of Appeal
Judgment
110
CRIMINAL REVISION.
Before SHERIDAN. J.
CROWN through C. D. DE SOUZA
$\sim$
KASWAKA wa KIMANAYI.
Revision Case 124/1927.
Employment of Natives Ordinance (Cap. 139) section 48 (5)without lawful cause departing from his employer's service with intent not to return thereto.
Held: That the fact of a servant outstaying his leave does not constitute an offence under Section 48 (5) although his envision to<br>return at the expiry of the leave may fall under Section 47 (2).
ORDER.—There are many defects in this case. Firstly, the complaint is incomplete; it neither states the work, the pay nor the date of engagement. Secondly, although the accused person's address was given a warrant for his arrest was issued (vide section 43, Cap. 139). Thirdly a conviction under section 48 $(5)$ was entered although at the time he left his master's service he had been granted leave. It has been held by this Court on different occasions that the fact of a servant outstaying his leave does not constitute the offence of departing without lawful excuse from his master's service with intent not to return thereto. His omission to return at the expiry of his leave may fall under section 47 (2). Fourthly, although the rate of pay of the accused is nowhere stated it may fairly be assumed to have been less than Sh. 62 per month. On his departure on leave he was advanced Sh. 62 by his employer. The probabilities are that this was a loan; there is nothing in the evidence to suggest that it was an advance on account of a current contract. No doubt the accused was bound to pay the loan but not under the penalties provided by the Ordinance, for it was a transaction independent of the contractual relations of the parties.
The conviction is set aside.
$\boldsymbol{v}$ .
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