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Rex v Trivedy (Revision Case 1/1929) [1929] EACA 164 (1 January 1929)
- Citation
- [1929] EACA 164
- Status
- Judgment
- Jurisdiction
- Uganda
- Court
- East African Court of Appeal
- Panel
- Crean, Actg J, Stephens, J
- Case number
- Revision Case 1/1929
- Language
- English
More details
- Court
- East African Court of Appeal
- Panel
- Crean, Actg J, Stephens, J
- Case number
- Revision Case 1/1929
- 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 definition of 'employer' under section 2 of the Employment of Natives Ordinance (Cap. 139) encompasses both individuals and firms, including their partners and agents. The appellant, as a partner in J. S. Trivedy and Co., was therefore an 'employer' within the meaning of the law and liable for the withholding of wages. The subsequent bankruptcy of the firm did not negate the appellant's criminal liability for acts committed before the bankruptcy proceedings. The court found that whoever signed the kipandis did so as the appellant's agent, and thus the appellant was responsible for the offences. However, considering the bankruptcy, the court modified the sentence to a fine and cautioned the appellant in related cases, upholding the convictions but mitigating the punishment.
Court disposition
conviction_upheld_sentence_varied
Orders
- Convictions in all cases are upheld.
- Sentence in Criminal Case No. 19 of 1929 is altered to a fine of Sh. 200 or one week's simple imprisonment in default.
- In cases 79/29 and Nos. 145-175, the accused is cautioned.
02
Material facts
Parties
J. S. Trivedy
AppellantRex
RespondentAmounts and remedies
- Fine Imposed in Criminal Case No. 19 of 1929: KES 200
03
Procedural history
Posture
Criminal Revision / Revision Application
04
Questions and positions
Legal issues
- 01
Whether a partner in a firm falls within the statutory definition of 'employer' under section 2 of the Employment of Natives Ordinance (Cap. 139).
- 02
Whether the appellant can be held criminally liable for withholding wages due to employees when the firm has been adjudicated bankrupt after the offences but before trial.
- 03
Whether liability attaches to the appellant individually or equally to all partners.
Party arguments
- Applicant
- The appellant argued that as only a partner in the firm, he should not be individually liable or imprisoned, since other partners were equally liable for the alleged withholding of wages. He also suggested that the signing of kipandis (employment documents) was done by various clerks, not solely by himself.
- Respondent
- The respondent contended that the statutory definition of 'employer' includes any person or firm who has entered into a contract of service, and that the appellant, as a partner and agent, is liable for the offences committed prior to the bankruptcy. The respondent maintained that the appellant's role and actions made him responsible under the law.
05
Court’s reasoning
Legal principles
- 01
Section 2, Employment of Natives Ordinance (Cap. 139), Laws of Kenya.
A partner in a firm is included in the statutory definition of 'employer' and is liable for offences committed under the Employment of Natives Ordinance.
- 02
Bankruptcy Ordinance; general principles of criminal liability.
Bankruptcy of the firm after the commission of the offence does not absolve individual partners from criminal liability for offences committed prior to bankruptcy.
06
Ratio, limits and disposition
Ratio decidendi
The court held that the statutory definition of 'employer' under section 2 of the Employment of Natives Ordinance (Cap. 139) encompasses both individuals and firms, including their partners and agents. The appellant, as a partner in J. S. Trivedy and Co., was therefore an 'employer' within the meaning of the law and liable for the withholding of wages. The subsequent bankruptcy of the firm did not negate the appellant's criminal liability for acts committed before the bankruptcy proceedings. The court found that whoever signed the kipandis did so as the appellant's agent, and thus the appellant was responsible for the offences. However, considering the bankruptcy, the court modified the sentence to a fine and cautioned the appellant in related cases, upholding the convictions but mitigating the punishment.
Obiter and limits
- All complainants are entitled to preferential payment of wages under the Bankruptcy Ordinance.
- Justice can be met by upholding convictions but altering sentences in light of the bankruptcy.
Court disposition
conviction_upheld_sentence_varied
- Convictions in all cases are upheld.
- Sentence in Criminal Case No. 19 of 1929 is altered to a fine of Sh. 200 or one week's simple imprisonment in default.
- In cases 79/29 and Nos. 145-175, the accused is cautioned.
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 STEPHENS, J. and CREAN, Actg J.
${\tt REX}$
$\cdot v$ .
J. S. TRIVEDY.
Revision Case 1/1929.
Employment of Natives Ordinance (Cap. 139), section $2$ definition of the term " employer."
Held: - That a partner in a firm comes within the definition.
ORDER.—This is an application for revision of the conviction and sentence passed on the appellant by the Resident Magistrate. Nakuru, for withholding wages due to certain natives in his employ. The accused is a member of the firm of J. S. Trivedy and Co., and after the summonses were issued, but before the cases were tried, the firm filed their petition in bankruptcy, and were adjudicated bankrupt before the hearing of the cases.
All the complainants will be entitled under the Bankruptcy Ordinance to preferential payment of the wages due to them, but the appellant committed the offences before the filing of the petition, and is therefore guilty of the offences. It was contended that the appellant being only a partner in the firm could not be sent to prison as the other partners were equally liable. With this contention we do not agree. Section 2 of Cap. 139, Laws of Kenya, defines "employer" as meaning "any person or any firm, corporation or company who or which has entered into a contract of service to employ any servant, and the agent, foreman. manager or factor of such person, firm, corporation, or company."
We took evidence from the appellant and he said that he may have signed some of the kipandis and that Saferinus, the native complainant in Criminal Case No. 19 of 1929, being his clerk, signed some, and that his Indian clerk signed others. Whoever signed the various kipandis which were not produced before us signed as the agent of the appellant and the appellant must be held liable.
In view, however, of the firm having been adjudicated bankrupt, we think that justice could be met by upholding the convictions in all the cases, but altering the sentence to one of a fine of Sh. 200 in Criminal Case No. 19 of 1929 or one week's S. I. in default, and in each of the cases 79/29 and Nos. 145-175 we caution the accused.
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