Crown through De Souza v Kaswaka wa Kimanayi (Revision Case No. 124 of 1927) [1927] EACA 28 (1 January 1927)

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### 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.

$\boldsymbol{v}$ .