Rex v Safi (Cr. Rev. Case No. 850/1935) [1937] EACA 202 (1 January 1937)

## **CRIMINAL REVISION**

### Before Sir Joseph Sheridan, C. J., and WEBB, J.

### REX (Principal Labour Officer), Complainant

# $\mathbf{v}$

# T. A. SAFI, Accused

### Cr. Rev. Case No. 850/1935

### Master and Servant-Wages-Payment otherwise than in money-Employment of Natives Ordinance (Cap. 139 Laws of Kenya).

Held (7-3-36).—That, apart from food supplied under the contract of service, the wages of a "servant", as defined by the Employment of Natives Ordinance (Cap. 139), must be paid in money, save as is provided by section 27 of the Ordinance.

Wallace, Crown Counsel, for the Crown.

Accused in Person.

JUDGMENT.—This is a case under the Employment of Natives Ordinance in which a servant was, as the Magistrate in our view correctly found, engaged to work as a garden boy at Sh. 12 per month and posho. In adjusting claims as between the employer and the servant under section 45 of the Ordinance the Magistrate held that certain payments in kind which, according to endorsements by the employer on the back of the labour tickets, amounted to Sh. $20/75$ , could not be regarded as payment in part satisfaction of the Sh. 12 per month. He based his decision on the authority of the Truck Act (England), 1831. After consideration we have come to the conclusion that recourse cannot be had to this statute for a solution of the question. In the first place that Act provides that its provisions shall be applicable only to those engaged in certain trades which are specifically set out in section 19. By section 20 any domestic servant or servant in husbandry is excluded from its operation. On the contrary the Employment of Natives Ordinance applies to many persons who are not included in the 1831 Act. The definition of servant in the Ordinance reads as follows:-

""Servant" means any Arab or native employed for hire, wages, or other remuneration as a labourer, herdsman, artificer, domestic servant, sailor, boatman, porter, messenger, or in any employment of a like nature to any of the foregoing, and any Arab or native apprentice, and any Arab or native to be exhibited in any capacity in any circus, show or exhibition."

True the Truck Amendment Act, 1887, extended the application of the principal Act to any workman as defined by section 10 of the Employers and Workmen Act, 1875.

Section 10 reads:

"In this Act-

The expression 'workman' does not include a domestic or menial servant, but save as aforesaid, means any person who, being a labourer, servant in husbandry, journeyman, artificer, handicraftsman, miner, or otherwise engaged in manual labour. whether under the age of twenty-one years or above that age, has entered into or works under a contract with an employer, whether the contract be made before or after the passing of this Act. be express or implied, oral or in writing, and be a contract of service or a contract personally to execute any work or labour."

Here the same criticism applies that the Employment of Natives Ordinance includes persons to whom the Truck Act as amended does not apply, for instance domestic servants, porters, messengers, and Arabs and natives to be exhibited in any capacity in any circus, show or exhibition. This difference between the English and the local law is of such a cardinal nature as to convince us that the Truck Acts cannot be invoked as statutes applied to this country in virtue of the Order in Council. Another reason for not holding them to be applicable is that in our opinion a contract may be made under the Employment of Natives Ordinance according to which the servant's wages or remuneration may consist of money and food, whereas under the Truck Acts, with the exception of a servant in husbandry, a contract providing for remuneration otherwise than in the current coin of the realm is declared to be illegal, null and void.

We have therefore to look to the Ordinance itself to discover whether any part of the Sh. 12 per month, to take the case before us, can be paid in kind. The guiding section is clearly 27 which provides:

"An employer shall when necessary and if requested by a servant, supply him with a suitable blanket, and in the case of a porter engaged for a journey also with a jersey and water-bottle. In any such case, unless expressly agreed to the contrary, the reasonable cost of the article or articles supplied shall be paid by the servant and may be deducted from the remuneration of the servant, and until the whole or a portion of such cost shall have been so deducted or otherwise paid by the servant the article or articles supplied shall remain the property of the employer."

The Magistrate referred to this section and said that it would appear to imply that other deductions than those specified are not legal. What this section particularly conveys to our minds is that some part of the remuneration must be in money for otherwise there would be no remuneration susceptible of a deduction. How could the cost of a blanket be deducted from anything but a definite sum of money?

The Ordinance we confess is not particularly clear on the point, but the construction we have put upon it, besides being a competent one when the whole of the Ordinance is considered, is, in our view, one in accordance with commonsense and fairness, for the servant in contracts under the Ordinance must be presumed to be less capable of looking after his own interests than the employer is of his, and to put the employer in a position that would enable him to value and supply food or goods to his servant and deduct the value so assessed from the servant's money wages might in some cases result in injustice to the servant. In short the parties are in unequal positions of<br>contracting. In conclusion we find that although the English Truck Acts are not applicable to this country, the Magistrate correctly decided that the payments made in kind should not have been deducted from the money wages of the servant.