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De Souza v Kaswaka (Revision Case 124/1927.) [1927] EACA 33 (1 January 1927)
- Citation
- [1927] EACA 33
- Status
- Judgment
- Jurisdiction
- Uganda
- Court
- East African Court of Appeal
- Panel
- Sheridan, J
- Case number
- Revision Case 124/1927.
- Language
- English
More details
- Court
- East African Court of Appeal
- Panel
- Sheridan, J
- Case number
- Revision Case 124/1927.
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court held that the mere fact of a servant outstaying his leave does not amount to the offence of departing without lawful excuse from his master's service with intent not to return under section 48(5) of the Employment of Natives Ordinance. The accused had been granted leave at the time of departure, and his failure to return at the expiry of leave may only fall under section 47(2), not section 48(5). Furthermore, the sum of Sh. 62 advanced to the accused was considered a loan, not an advance on a current contract, and thus not subject to the penalties of the Ordinance. The conviction was set aside due to these substantive and procedural defects, including an incomplete complaint and improper issuance of a warrant for arrest.
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
- Loan Advanced to Accused: KES 62
03
Procedural history
Posture
Criminal Revision / Revision
04
Questions and positions
Legal issues
- 01
Whether outstaying leave constitutes an offence under section 48(5) of the Employment of Natives Ordinance (Cap. 139).
- 02
Whether the omission to return at the expiry of leave falls under section 47(2) of the Ordinance.
- 03
Whether a loan advanced to the accused is subject to 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.
- Respondent
- The respondent contended that he had been granted leave at the time of departure, and that outstaying leave does not amount to departing without lawful cause. The sum advanced was a loan, not an advance on a current contract.
05
Court’s reasoning
Legal principles
- 01
Employment of Natives Ordinance (Cap. 139), section 48(5); prior court decisions
Outstaying leave does not constitute the offence of departing without lawful excuse from service with intent not to return 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
General contract law principles; facts of the case
A loan advanced by the employer is not subject to penalties under the Ordinance if it is independent of the contractual employment relationship.
06
Ratio, limits and disposition
Ratio decidendi
The court held that the mere fact of a servant outstaying his leave does not amount to the offence of departing without lawful excuse from his master's service with intent not to return under section 48(5) of the Employment of Natives Ordinance. The accused had been granted leave at the time of departure, and his failure to return at the expiry of leave may only fall under section 47(2), not section 48(5). Furthermore, the sum of Sh. 62 advanced to the accused was considered a loan, not an advance on a current contract, and thus not subject to the penalties of the Ordinance. The conviction was set aside due to these substantive and procedural defects, including an incomplete complaint and improper issuance of a warrant for arrest.
Obiter and limits
- The complaint was incomplete as it failed to state the work, pay, or date of engagement.
- A warrant for arrest was improperly issued despite the accused's address being known.
- The rate of pay was not stated, but the sum advanced was likely a loan, not an advance on 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 omission to 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.
<sup>11.</sup>
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