Rex v Gitwasi (Revision Case No. 253 of 1942) [1942] EACA 89 (1 January 1942)

## CRIMINAL REVISION

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

## REX. Prosecutor

$\mathbf{v}$ .

## SIMEON MURAGE GITWASI. Accused

## Revision Case No. 253 of 1942

Ordinance $11/38$ —Employment of Servants—Section 59 (c) (iii)—"Irretrievably lost" $\rightarrow$ Onus of proof.

Accused absent. unrepresented.

$\mathcal{A}_{\mathcal{A}}$

Dennison. Crown Counsel. for the Crown.

ORDER (19-12-42).—We have had the advantage of hearing learned Crown Counsel on the difficult question of the interpretation of section 59 $(c)$ (iii) of the Employment of Servants Ordinance, 1937, and its application to the facts of the present case. This section reads as follows: —

$59$ . Any servant may be fined a sum not exceeding five pounds and in default of payment may be imprisoned for a period not exceeding six months if he is convicted of any of the following acts: $-$ ...

(c) if. being employed, as a herdsman $\rightarrow$ ...

(iii) he loses any animal placed in his charge and it is proved by his employer to the satisfaction of the court that such animal could not, in the circumstances of the case, have become irretrievably lost without the act or default of the servant."

While we can envisage cases where it can be proved that an animal has been irretrievably lost, it cannot be said that where, as in this case, an animal has been missing for three or four days, that the animal has been irretrievably lost. To hold that would be to do violence to the language of the section. How can it be said that the animal being lost for a few days may not be discovered alive and well within a week or any given period? It has to be remembered that the onus of proving irretrievable loss lies upon the employer. We invite the attention of the learned Crown Counsel to this section with a view to its clarification by amendment or otherwise. It is unfortunate that the accused in the present case has served the greater part of his sentence of three months in default, but it was only three or four days ago that the file was returned to the court by the Magistrate.

The conviction and sentence are quashed and the accused is directed to be set at liberty. If by any chance the fine or any part thereof has been paid it is directed to be refunded. $\mathbb{R}^{n-1}$