Singh v Crown ; Munyama v Driver (Criminal Appeal No. 11 of 1927; Criminal Appeal No. 12 of 1927) [1927] EACA 18 (1 January 1927)

APPELLATE CRIMINAL.

Before PICKERING, J., and SHERIDAN, J.

CHHAJJA SINGH

$v$ . CROWN.

Cr. App. 11/1927.

JUMA MUNYAMA

$\boldsymbol{v}$ .

E. R. DRIVER.

Cr. App. 12/1927.

- Employment of Natives Ordinance (Cap. 139)-section 2interpretation of the term "servant". - Held:-In Cr. App. 11-that a native employed as a driver of a<br>motor lorry or bus for trade purposes is not a servant as defined in the Ordinance. - $Held:$ -In Cr. App. 12—that a native employed as a recruiter is not a servant as defined in the Ordinance.

JUDGMENT.-On 19th January last the appellant in Criminal Appeal No. 12 appeared before a Magistrate at Kisii and stated that he wished to sue his master, the respondent, for wages and commission. He produced his Native Registration Certificate on which his employment was stated to be that of a recruiter and his remuneration to be Sh. 9 and commission. The Magistrate does not appear to have been put on his guard by this information but issued a summons under the Employment of Natives Ordinance (Chap. 139 of 1926). That Ordinance has application only when under the contract of service the servant engages to perform duties answering to one or more of the descriptions set out in section 2 of the Ordinance. It is there enacted that the servant, if he is to acquire the rights and incur the disabilities created by the Employment of Natives Ordinance, must have been employed to work as a labourer, herdsman, artificer, domestic servant, sailor, boatman, porter, messenger or to do work of a like nature to any of these classes.

The work actually done by this appellant was to cross over into Tanganyika Territory and recruit labourers whom the respondent supplied to settlers in this country. Having regard to his duties we are of opinion that the appellant was not a servant within the meaning attached to that word by section 2, and it follows that the provisions of the Employment of Natives

Ordinance had -no application to the matt.er laid before the Magistrate at Kisii. The proceedings instituted under the Ordinance were invalid and all orders which the Magistrate purported to issue and findings which he purported to make under powers created by that Ordinance must be revoked. This appeal No. 12 succeeds and the Judgment passed against the appellant is set aside.

A similar question arises in Criminal Appeal No.

11.

In \_this case the only information obtainable from the record with regard to the description of the respondent's duties under the admitted contract of service is that he was to drive a motor vehicle for the appellant, who is a small Indian shopkeeper at Ruiru. The only class of employee of those set out in section 2 of t.he Ordinance within which the respondent could reasonably be held t,o fall is that ·of " domest,ic servant ". \. Vl1en considering what. meaning should \;>e attributed to those words it appears to us to be reasonable to adopt the language of Warrington, L. J., in *In re Jack-9on* (1923, 2 *Ch.* 369) where he said: " I shoulrl think that when a man in the position of this testator talks of domestic servants he intends t:0 include all those .yho minister to the wants and comforts of himself and pis family ". The provisions of the Employment of Natives Ordinnnce should not have been taken by the Magistrate as having application to the repondent's employment until he was satisfied t,hat · the respondent's work as a motor car driver was such as normall.v ministered to the wants and comforts of the Indian shopkeeper and h:s .family. Vve are of opinion that the meagre available evidence is much more consistent with a finding that the respondent drove a mot-or lorry or bus for trade purposes than that he ·acted as a chaffeur driving the shopkeeper's personal car. The Magistrat,e has not directed his mind to this question but has assumed· the application of the Ordinance when no grounds for any finding to that effect were before him. This appeal No. 11 succeeds and the conviction and sentence are set aside. The civil rights of the various parties to· these appeals remain of course unimpaired.