Rex v Stirling and Scott Ltd (Cr. App. 2/1931.) [1931] EACA 20 (1 January 1931)

### APPELLATE CRIMINAL.

# Before SIR JACOB BARTH, C. J. and DICKINSON, J.

## REX (Appellant) (Original Prosecutor) 1) .

#### STIRLING & SCOTT, LTD. ${\tt MESSRS}.$ (Respondent) (Original Accused).

### Cr. App. 2/1931.

# The Employment of Natives Ordinance (Cap. 139), section 24housing of servants.

$Held$ (17-3-31):—That the object of the section is to secure housing<br>for employees. This is to be at the expense of the employer if the employee can neither return home at the conclusion of his daily<br>work or obtain suitable and proper housing at or conveniently<br>near to his place of employment. There is nothing in the provise<br>to suggest that the accommodati employee.

Howell, Crown Counsel, for Attorney-General.

Buckley for Respondent.

Before the lower Court it was submitted on behalf of the Crown that the Respondents had failed to fulfil the obligation imposed on them by section 24 of the Ordinance, and that the fact that a servant was able to find housing accommodation at his own expense, or that suitable housing accommodation other than free accommodation was obtainable at or near to his place -of employment, did not relieve an employer from such obligation.

Howell.—Refers to Cap. 139, section 24, and submits there is no provision for employer not to supply housing. Employers have not satisfied themselves that accommodation was available.

Buckley-Refers to Maxwell on the Interpretation of Statutes, 6th Edition, page 281, and submits that the proviso to section 24 (Cap. 139) is repugnant to the preceding part of. the section.

The Judgment of the Court was delivered by Sir Jacob Barth.

JUDGMENT.—This is a case stated at the instance of the Attorney General by the Resident Magistrate of Nairobi. The facts are that the respondents Messrs. Stirling & Scott, Ltd., -of Nairobi, were prosecuted for a breach of section 24 of the Employment of Natives Ordinance (Cap. 139) for failing to

provide proper housing for a native employee, Midiro s/o Madora, at the respondents' expense. It was alleged in the summons that the employee's "home" is at Mbale. The learned Magistrate acquifted the accused.

The following facts were found by the learned Resident Magistrate : —

- (1) Midiro was employed by the respondents at Sh. 25 per month. - (2) The respondents made no adequate or any arrangements. for the housing of Midiro. - (3) Midiro made his own arrangements for housing at Pumwani for a rent of Sh. 5 per month.

In our opinion the case was rightly decided by the learned Magistrate on the facts found by him. The section provides that an employer shall at his own expense cause every servant in his service to be properly housed. The proviso to the section varies this provision by enacting that "the obligation of an employer as regards housing shall not by reason of this section extend to any case in which a servant is able to return to his home at the conclusion of his daily work or to obtain suitable and proper housing at or conveniently near to his place of employment." The expression "home" is unfortunate. Any man's place of residence is his "home" for the time being, but in our opinion we are not concerned with the construction of that expression in this case. The second alternative appears to us entirely to relieve the respondent of the responsibility cast upon him by the section. It was proved to the Magistrate's. satisfaction that suitable and proper housing convenient to his. place of employment had been obtained by Midiro.

The object of the section is to secure housing for employees. This is to be at the expense of the employer if the employee can neither return "home," whatever that may mean, at the conclusion of his daily work, or obtain suitable and proper housing at or conveniently near to his employment.

There is nothing in the proviso to suggest that the accommodation alternative to that to be provided under the section. should be free of expense to the employee.

We agree with the conclusion of the learned Magistrate and with his reasons therefor.

The appeal is dismissed.