[1942] EACA 90

## CRIMINAL REVISION

BEFORE SIR JOSEPH SHERIDAN, C. J., LUCIE-SMITH AND BARTLEY, JJ.

## REX, Prosecutor ·ν.

## 1. KILITO CHEBUNDO, 2. BERESIGUTON ARAP ROTICH, Accused

## Revision Cases Nos. 214 and 215 of 1942

Resident Labourers Ordinance—Failure to preserve property of employer— Neglect of duty—Section 26—Proof of damage—Inapplicability of section 27 $(2)$ $(a)$ .

The facts appear sufficiently from the judgment.

Accused absent, unrepresented.

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Dennison, Crown Counsel, for the Crown.

JUDGMENT (23-12-42).—Criminal Revision Cases Nos. 214 and 215 have been consolidated as they relate to the same transaction, the alleged failure by two native servants to preserve the property of their employer placed by her in their charge contra the provisions of section 26 (2) of the Resident Labourers Ordinance, 1937. The section, in so far as it is material, reads:-

"A resident labourer shall be liable to a fine not exceeding one hundred and fifty shillings and in default of payment for any term not exceeding two months— $...$

(2) if, by wilful breach of duty or by neglect of duty or through drunkenness, he refuses or omits to do any lawful act proper and requisite to be done by him for preserving in safety any property placed by the occupier in his charge, or placed by any other person in his charge for delivery to or on account of his occupier;"

For an offence against this provision it will be observed that the maximum penalty by way of fine is Sh. 150. Both accused having been found guilty on their pleas were ordered to pay compensation in the sum of Sh. 200 each and paid it. The Magistrate, it appears, awarded this compensation under section 27 (2) (a) which reads:-

"27. (2) Upon any complaint brought before a court under the provisions of this Ordinance the magistrate may, in addition to any jurisdiction he might have exercised if this Ordinance had not been enacted, exercise all or any of the following powers: $\rightarrow$

(a) He may adjust and set off one against the other all such claims on $(a)$ the part either of the occupier or of the resident labourer arising out of, or incidental to, the relation between them as the magistrate may find to be subsisting, whether such claims are liquidated or unliquidated, and whether such claims are for wages, damages or otherwise: and he may direct the payment of such sum as he finds due by one party to the other party."

It is convenient here to state our opinion that this provision is not applicable to the facts of this case for there were no claims to adjust or set off. Had the case been one of an employer withholding wages from a servant as against damage to his property the section might, we consider, be held to apply, but that is not the present case.

The respective pleas of the accused on being charged were as follows: -

Case No. 214/42: Kibito Chebundo, "I admit I was responsible with Beresiguton for greasing the tractor wheels and I did not do so, so it went bad"; and

Case $215/42$ : Beresiguton arap Rotich, "I left the tractor without grease for three weeks. I admit I was responsible for greasing it and I failed to do so and as a result it became destroyed."

No evidence was recorded in the case and the Magistrate on the pleas referred to expressed his finding in the following terms:-

"The damage incurred according to attached letter from Gailey and Roberts to complainant was about Sh. 400, I consider complainant should be compensated by accused."

It should hardly be necessary to observe that this letter was not evidence against the accused but even if it were, having read it, we are unable to understand how it could afford support for a finding that the damage caused entailed an expenditure of Sh. 400. What is the position then in these cases? In our view it is this, the accused have admitted an offence contra section 26 (2) of the Resident Labourers Ordinance, an order for compensation to the amount of Sh. 200 in each case was made which order is bad firstly on the ground that there was no evidence to support it and secondly for the reason that the section under which it was made does not apply to the facts of the case. We are consequently compelled to set aside the order in each case and for it we substitute an order that the accused in each case will pay a fine of Sh. 20 in respect of the offence which they have admitted, their employer being left to take such civil remedy as she may possess and may be advised in respect of such damage as she may be able to prove. In each case it is directed that a refund of Sh. 180 be made to the accused, the balance of Sh. 20 being retained in payment of the fine.