Rex v Trivedy (Revision Case 1/1929) [1929] EACA 164 (1 January 1929)

## CRIMINAL REVISION.

Before STEPHENS, J. and CREAN, Actg J.

${\tt REX}$

$\cdot v$ .

## J. S. TRIVEDY.

## Revision Case 1/1929.

Employment of Natives Ordinance (Cap. 139), section $2$ definition of the term " employer."

Held: - That a partner in a firm comes within the definition.

ORDER.—This is an application for revision of the conviction and sentence passed on the appellant by the Resident Magistrate. Nakuru, for withholding wages due to certain natives in his employ. The accused is a member of the firm of J. S. Trivedy and Co., and after the summonses were issued, but before the cases were tried, the firm filed their petition in bankruptcy, and were adjudicated bankrupt before the hearing of the cases.

All the complainants will be entitled under the Bankruptcy Ordinance to preferential payment of the wages due to them, but the appellant committed the offences before the filing of the petition, and is therefore guilty of the offences. It was contended that the appellant being only a partner in the firm could not be sent to prison as the other partners were equally liable. With this contention we do not agree. Section 2 of Cap. 139, Laws of Kenya, defines "employer" as meaning "any person or any firm, corporation or company who or which has entered into a contract of service to employ any servant, and the agent, foreman. manager or factor of such person, firm, corporation, or company."

We took evidence from the appellant and he said that he may have signed some of the kipandis and that Saferinus, the native complainant in Criminal Case No. 19 of 1929, being his clerk, signed some, and that his Indian clerk signed others. Whoever signed the various kipandis which were not produced before us signed as the agent of the appellant and the appellant must be held liable.

In view, however, of the firm having been adjudicated bankrupt, we think that justice could be met by upholding the convictions in all the cases, but altering the sentence to one of a fine of Sh. 200 in Criminal Case No. 19 of 1929 or one week's S. I. in default, and in each of the cases 79/29 and Nos. 145-175 we caution the accused.