[1927] EACA 28
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,...
Source-derived case information.
- Citation
- [1927] EACA 28
- Parties
- Applicant: Crown; Respondent: Kaswaka wa Kimanayi
- Court
- East African Court of Appeal
- Jurisdiction
- Uganda
- Case Number
- Revision Case No. 124 of 1927
- Procedural Posture
- Criminal Revision / Revision
- Outcome
- conviction_set_aside
- Judges
- Sheridan, J
- Legal Topics
- Employment of Natives Ordinance, Unlawful Departure From Service, Leave and Absence, Criminal Liability for Contractual Breach
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Crown
Applicant
Kaswaka wa Kimanayi
Respondent
Procedural Posture
Criminal Revision / Revision
Legal Issues
- 1 Does a servant outstaying his leave constitute an offence under section 48(5) of the Employment of Natives Ordinance?
- 2 Is the omission to return at the expiry of leave covered under section 47(2)?
- 3 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?
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...
Court Disposition
conviction_set_aside
Orders
- The conviction under section 48(5) of the Employment of Natives Ordinance is set aside.
Full Case Text
Judgment text and source record
12 paragraphs
#### 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.
$\boldsymbol{v}$ .