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Rex v Gitwasi (Revision Case No. 253 of 1942) [1942] EACA 89 (1 January 1942)
- Citation
- [1942] EACA 89
- Status
- Judgment
- Jurisdiction
- Uganda
- Court
- East African Court of Appeal
- Panel
- Lucie-Smith, J. (Kenya), Sheridan CJ
- Case number
- Revision Case No. 253 of 1942
- Language
- English
More details
- Court
- East African Court of Appeal
- Panel
- Lucie-Smith, J. (Kenya), Sheridan CJ
- Case number
- Revision Case No. 253 of 1942
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court held that the statutory language of 'irretrievably lost' requires more than a temporary absence of the animal. The mere fact that an animal has been missing for three or four days does not satisfy the requirement of irretrievable loss, as it remains possible that the animal may be found alive and well within a reasonable period. The burden of proof for irretrievable loss rests squarely on the employer, and in this case, that burden was not discharged. Consequently, the conviction and sentence imposed on the accused were not supported by the evidence or the proper application of the law.
Court disposition
conviction_and_sentence_quashed
Orders
- The conviction and sentence are quashed.
- The accused is directed to be set at liberty.
- If any fine or part thereof has been paid, it is to be refunded.
02
Material facts
Parties
Rex
Applicant Counsel: Dennison, Crown CounselSimeon Murage Gitwasi
RespondentAmounts and remedies
- Maximum Fine Under Section 59: GBP 5
- Maximum Imprisonment Under Section 59: months 6
- Sentence Served by Accused: months 3
03
Procedural history
Posture
Criminal Revision / Revision Order
04
Questions and positions
Legal issues
- 01
Whether the loss of an animal for three or four days constitutes 'irretrievable loss' under section 59(c)(iii) of the Employment of Servants Ordinance, 1937.
- 02
Who bears the onus of proving that an animal was irretrievably lost in the circumstances of the case.
Party arguments
- Applicant
- The Crown Counsel argued for the proper interpretation of section 59(c)(iii) of the Employment of Servants Ordinance, 1937, focusing on whether the facts of the case met the statutory requirement of 'irretrievable loss' and the allocation of the burden of proof to the employer.
- Respondent
- The accused was absent and unrepresented; no arguments were submitted on his behalf.
05
Court’s reasoning
Legal principles
- 01
Section 59(c)(iii) of the Employment of Servants Ordinance, 1937
The onus of proving that an animal was irretrievably lost lies upon the employer.
- 02
Judicial interpretation of Section 59(c)(iii)
A loss of an animal for a few days does not amount to irretrievable loss within the meaning of the statute.
06
Ratio, limits and disposition
Ratio decidendi
The court held that the statutory language of 'irretrievably lost' requires more than a temporary absence of the animal. The mere fact that an animal has been missing for three or four days does not satisfy the requirement of irretrievable loss, as it remains possible that the animal may be found alive and well within a reasonable period. The burden of proof for irretrievable loss rests squarely on the employer, and in this case, that burden was not discharged. Consequently, the conviction and sentence imposed on the accused were not supported by the evidence or the proper application of the law.
Obiter and limits
- The court invited the attention of the Crown Counsel to the section for possible clarification by amendment or otherwise.
- It is unfortunate that the accused has served most of his sentence before the matter was reviewed.
Court disposition
conviction_and_sentence_quashed
- The conviction and sentence are quashed.
- The accused is directed to be set at liberty.
- If any fine or part thereof has been paid, it is to be refunded.
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
CRIMINAL REVISION
BEFORE SIR JOSEPH SHERIDAN, C. J., AND LUCIE-SMITH, J.
REX. Prosecutor
$\mathbf{v}$ .
SIMEON MURAGE GITWASI. Accused
Revision Case No. 253 of 1942
Ordinance $11/38$ —Employment of Servants—Section 59 (c) (iii)—"Irretrievably lost" $\rightarrow$ Onus of proof.
Accused absent. unrepresented.
$\mathcal{A}_{\mathcal{A}}$
Dennison. Crown Counsel. for the Crown.
ORDER (19-12-42).—We have had the advantage of hearing learned Crown Counsel on the difficult question of the interpretation of section 59 $(c)$ (iii) of the Employment of Servants Ordinance, 1937, and its application to the facts of the present case. This section reads as follows: —
$59$ . Any servant may be fined a sum not exceeding five pounds and in default of payment may be imprisoned for a period not exceeding six months if he is convicted of any of the following acts: $-$ ...
(c) if. being employed, as a herdsman $\rightarrow$ ...
(iii) he loses any animal placed in his charge and it is proved by his employer to the satisfaction of the court that such animal could not, in the circumstances of the case, have become irretrievably lost without the act or default of the servant."
While we can envisage cases where it can be proved that an animal has been irretrievably lost, it cannot be said that where, as in this case, an animal has been missing for three or four days, that the animal has been irretrievably lost. To hold that would be to do violence to the language of the section. How can it be said that the animal being lost for a few days may not be discovered alive and well within a week or any given period? It has to be remembered that the onus of proving irretrievable loss lies upon the employer. We invite the attention of the learned Crown Counsel to this section with a view to its clarification by amendment or otherwise. It is unfortunate that the accused in the present case has served the greater part of his sentence of three months in default, but it was only three or four days ago that the file was returned to the court by the Magistrate.
The conviction and sentence are quashed and the accused is directed to be set at liberty. If by any chance the fine or any part thereof has been paid it is directed to be refunded. $\mathbb{R}^{n-1}$
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