Wilson v Reginam (Criminal Appeal No. 856 of 1954) [1955] EACA 321 (1 January 1955)

## COURT OF APPEAL FOR EASTERN AFRICA

Before Sir Barclay Nihill (President), Sir Newnham Worley (Vice-President) and SIR ENOCH JENKINS, Justice of Appeal

### W. A. WILSON, Appellant (Original Accused)

# REGINAM, Respondent

## Criminal Appeal No. 856 of 1954

(Appeal from the decision of H. M. Supreme Court of Kenya, Paget Bourke, J.)

Employment Ordinance, sections 64, 65, 66 and 72 (1) (a)—Charge—Duplicity— Vagueness—Precision of dates in charge—Continuing offence—"Ticket" system.

The appellant was originally charged in one count under section 72 (1) (a) of the Employment Ordinance with failing to pay, upon demand, the wages due to 82 employees "as detailed on attached schedule". At the trial the charge sheet was amended by charging two counts under the same section, one in respect of employee $X$ and one in respect of employee $Y$ . Each count referred to "various" dates in 1953".

It was (*inter alia*) argued for the appellant (1) that the charges were bad for duplicity in that $(a)$ successive failures to pay on demand would be distinct offences and (b) as the employees were employed on a "ticket" system whereby at the end of each period covered by the ticket the contract ended, there should have been separate charges for failing to pay the amount due on each contract and, (2), that the charges were bad for vagueness because they related to "various dates".

Sections 65, 66 and 72 (1) (a) of the Employment Ordinance are set forth in the judgment. Section 64 of the Ordinance gives discretionary power to magistrates to adjust and set off claims, to direct fulfilment of a contract, to rescind a contract and apportion wages or other sums, to impose fines and to pass any sentence or judgment authorized by the Ordinance.

Held $(20-1-55)$ .—(1) The amended charges were not bad for duplicity. The successive failures to pay on demand were not distinct offences because the offences covered by the charges were continuing ones. In any event, not only does the Employment Ordinance permit the filing of an omnibus complaint but it also permits an omnibus charge, so that not only were the amended charges not bad for duplicity but neither was the original charge which<br>charged allegations covering a number of employees and a number of unpaid contracts.

(2) The charges should not have referred to "various dates" as the dates in a charge ought to be precise. It would have been preferable for the latest date of demand before the institution of proceedings to have been stated, but there had been no prejudice to the accused.

#### Appeal dismissed.

Cases referred to: R. v. Thanga s/o Mathenge, 22 (1) K. L. R. 39; Mohamed Bashir<br>v. R. 24 (1) K. L. R. 88; R. v. Uberle 5 E. A. C. A. 58; R. v. Odda Tore and another, 1<br>E. A. C. A. 114; Mongella s/o Ngui v R. 1 E. A. C. A. 152; Harpin 3.4.13, 140, к. v. Katusya wa Kasyoki 23 (1) K. L. R. 48; R. v. Cheboi Chelagat 23 (1) K. L. R. 64; R. v. Atanas s/o Mwamere 17 (1) K. L. R. 60; R. v. Henry Wilson s/o Sumba 20 (2) K. L. R. 43; R. v. Thompson (1914) 2 K. B. 99; Ho

Oulton and Gledhill for appellant.

Twelftree for respondent.

JUDGMENT (read by Jenkins, J. A.).—This is a second appeal from convictions entered against the appellant in the Court of the 1st Class Magistrate at Kericho of two offences against section 72 (1) (a) of the Kenya Employment Ordinance, Cap. 109. That section reads as follows: $-$

"72 (1). An employer shall be liable to a fine not exceeding one thousand shillings and in default of payment to imprisonment for a period not exceeding six months, if he is guilty of any of the following acts or omissions:-

(a) if he fails, on demand, to pay any wages to an employee, when such $(a)$ if he fails, on demand, to pay any wages to an employee, when such wages are due to such employee."

On the charge sheet the charge was originally set out as follows:— "Statement of Offence.

Non-payment of wages, contrary to section 72 (1) (a) of the Employment Ordinance, Cap. 109.

Particulars of Offence.

Aubrey Wilson, on various dates in 1953, at Songhor in the Nyanza Province did fail on demand to pay wages amounting to Sh. 90 to Muyawa A. Ruto, an employee, when such wages were due, and to 81 other employees (as detailed on attached schedule) wages totalling Sh. 5,834."

At the trial, however, the charge sheet was amended on the application of the prosecuting Labour Officer (p. 19 of record) to read as follows:—

"Count 1. Accused Aubrey Wilson, on various dates in 1953 at Songhor in the Nyanza Province did fail on demand to pay wages amounting to Sh. 80 to an employee Kibiegor arap Musop when such wages were due.

Count 2. Accused on various dates in 1953 at Songhor in the Nyanza Province did fail on demand to pay wages amounting to Sh. 112 to Kipsiaga arap Kolil an employee when such wages were due (contrary to section 72 (1) (a), Cap. 109)."

The reason for this amendment will be discussed later in this judgment.

This appeal has been argued mainly on the following three grounds:—

- (a) The learned Supreme Court Judge erred in holding that the charges framed were not bad for duplicity. - (b) The learned Supreme Court Judge erred in holding that the charges $(b)$ framed were not bad for vagueness. - (c) The learned Supreme Court Judge's ruling that the appellant had not in fact been prejudiced was unsupported by any or sufficient evidence.

To deal adequately with these grounds of appeal it is necessary to set out first of all the history of the case and in particular of the action taken by the Labour Officer to deal with the alleged non-payment of wages by the appellant. The latter left his farm at Songhor in the Nyanza Province because of financial difficulties in July, 1953, and obtained employment in Nairobi. Before leaving, he did not pay off his employees but they were apparently kept on under the supervision of a foreman-clerk, Gitau Kahonoki, P. W.1, and certain wages due were left unpaid. The appellant admits in evidence (p. 25) that when Mr. McLeod, a Labour Officer, visited his farm on 16th June, 1953, there was an accumulation of unpaid tickets covering a period of about six months. He, the appellant, returned to his farm on 17th July, 1953, for one day only and thereafter stayed at Nairobi.

The characteristics of the ticket system on which the labourers worked are set out in section 5 of the Employment Ordinance. Put shortly, they are that the contract between employer and employee is for 30 days' work over a maximum period of 42 days. At the end of the latter period the contract is at an end and the employeee is entitled to be paid for the number of days he has worked, whether or not he has completed 30 days' work. If he completes the 30 days' work before the expiration of the 42 days he is entitled to be paid forthwith. Each employee is given a ticket by the employer at the beginning of the period. The ticket is ruled off into 30 spaces, each for the entry of the date when a day's work is completed. On the appellant's farm the foreman-clerk made these entries. Exhibits B to G inclusive are such tickets.

The records of the magistrate's court show that a summons was served on the appellant at Nairobi on 30th November, 1953, to appear at the court at Kericho on 21st December, 1953. That summons was issued by the magistrate on the application of the Senior Labour Officer, Nyanza, and it informed the appellant that his attendance was necessary to answer a charge of "failing on demand to pay wages to an employee Muyawa A. Ruto and to another 81 employees as per schedules attached, contrary to section 72 (1) (a) Employment Ordinance, 1942". The said schedules contain the names of 82 natives with particulars of their tribes, rates of pay, number of tickets for which wages due are claimed, and the total amount claimed. It is important to note here that the Employment Ordinance makes special provision for this procedure, Section 66 of the Ordinance reads as follows: -

"66. (1) Notwithstanding anything to the contrary contained in any other law for the time being in force in the Colony, on a complaint or suit against an employer in respect of wages due to more than one of his employees the magistrate may permit one complaint or one plaint to be made or filed by a labour officer or by one of such employees on behalf of all such employees and their claims to be proved by such labour officer or by such employee accordingly:

Provided that the complaint or plaint shall have annexed thereto a schedule setting forth the names of such employees, their addresses and descriptions and the details of wages due to each such employee.

(2) All such claims shall rank equally between themselves, and shall be paid in full, unless the amount recovered from the employer be less than the total amount of the claims with costs, in which case, after payment of the costs, all such claims shall abate in equal proportions among themselves and be paid accordingly. Costs given against the employees shall be paid by such employees or by any of them in such proportions as the court shall direct.

(3) The provisions of section 216 of the Criminal Procedure Code shall not apply to any proceedings instituted under this Ordinance for the nonpayment of wages to any employee."

(Section 216 of the Criminal Procedure Code places a limit of 12 months on the time within which proceedings in certain summary cases can be instituted.)

The appellant not having appeared on 21st December, 1953, in answer to the summons, a warrant of arrest was issued by the magistrate on 24th December, and on 7th January, 1954, the appellant, with his advocate, appeared at the court. The proceedings, however, were adjourned sine die on the application of the prosecuting Labour Officer, for, as the latter stated, he had discussed the matter out of court with the appellant's advocate and was prepared<br>to suspend prosecution because a "settlement" had been suggested. The terms of the so-called settlement were not recorded at the time in the court record, but four months later, viz.: on 12th April, 1954, the magistrate records an application by the Labour Officer for the issue of a fresh summons "as accused has failed to settle the debt by instalments as agreed by him on 7th January, 1954. No instalment has been paid although the arrangement was that accused should pay Sh. 800 per month with effect from 6th March, 1954". A fresh summons was issued, and on 26th May, 1954, the appellant was before the court and the trial began, not, however, in respect of the original 82 employees but in respect of two only. The reason for this is recorded in the court record as follows (p. 18):-

"Mr. Dodds (Labour Officer) states that the case has been going on for some time in view of proposed settlemtent out of court which has not been adhered to. For Emergency reasons the labour force on Nduba farm has been reduced to 10. It has therefore not been possible to control the movement of the 81 [sic] persons listed in the charge.

He requests permission of court to amend the charge sheet for hearing to-day, as he has only been able to produce to-day two complaints, Nos. 22 and 31. He asks that the charge be amended by deletion of all complainants save Kibiegor arap Musop and Kipsiaga arap Kolil."

The charge sheet was amended by the magistrate in accordance with this application and the appellant faced the two counts which have already been set out.

Actually for reasons which will appear later it is difficult to see why the Labour Officer in the first place did not proceed with the original charge sheet unamended, and, secondly, why two counts were considered necessary to deal with the cases of two employees. Evidence was given by the foreman-clerk Gitau, P. W. 1 (p. 21) and this was confirmed in evidence by the appellant (p. 25). that completed tickets were collected by Gitau on the 18th of every month and payment for them was made at the end of the month. Pay day is at the end of the month, in conformity with the general practice in Kenya. It is obvious that some such arrangement has to be made for dealing with the payment of ticket contracts in order that the difficulties which would arise from the fact that employees complete their tickets on different days of the month shall be resolved. At the end of the month tickets completed by the 18th of the month are paid. Tickets completed between the 18th and the end of the month would be due for payment (v. paragraph (d) of section 5 of the Ordinance), but no doubt employees were usually content not to make demand for payment of such tickets at the end of that month. As Gitau says (p. 21, line 11) "... sometimes a man could accumulate more than one ticket before he was paid". The important point is that the last day of the month is the day when wages are paid and when any employee would, no doubt, put forward any complaint or demand concerning wages he might have to make. The foreman-clerk writes up the tickets and the Muster Roll (exhibit A). He would of necessity be present on pay day, and complaints and demands concerning wages would be made through him. Thus, on 17th July, 1953, when the appellant returned to the farm from Nairobi for one day, Gitau showed him all the completed tickets, and as Gitau says in evidence (p. 22), "All the employees who were due for wages then asked for their wages through me". This was undoubtedly a demand (section 72 (1) $(a)$ ) for "employer" is defined in section 2 of the Ordinance as including a foreman. In other words, the native employees are not required to make their demands for wages personally to the employer but can effectively make them to the foreman.

Turning now to the grounds of appeal. The first alleges duplicity in the two counts in that they charge the appellant with failing on demand "on various dates" in 1953 to pay wages due". The argument of appellant's advocate was at first based on the submission that successive failures to pay on demand are distinct offences. He submitted that a second failure to pay on demand is an aggravation of the first failure and is a separate offence. This argument, however, was finally

abandoned and, we think, rightly so (v. Stone's Justices Manual, 86th Edition, p. 114, note (n), quoting Harpin v. Sykes (1885) 49 J. P. N. 148). The offence is undoubtedly a continuing one. The second argument on the ground of duplicity was based on the submission that each ticket is a separate contract. Thus, in the first count, four contracts are alleged, four tickets of Sh. 20 each, and the failure to pay on demand on various dates can therefore refer to four different offences.

The arguments put forward and the cases cited by the advocate for the appellant in support of this submission were based upon the provisions of the Criminal Procedure Code and the normal rules of pleading in criminal matters. He took no account of the special provisions of the Employment Ordinance (Cap. 109) which largely abrogate those rules and put this offence into an anomalous category. We refer to the provisions of sections 64, 65 and 66 of the Ordinance.

In considering these sections it must be kept in mind that their purpose is to provide an inexpensive quick and simple procedure for the recovery of wages owed to employees and to dispense, as far as possible, with all technical objections. It is in the furtherance of this object that section $72(1)(a)$ adds the sanction of the criminal law to what would otherwise be merely a breach of contract giving rise to civil remedy.

Now, section 65 expressly empowers the court, in order to achieve this purpose, to combine as it thinks best the rules of civil and criminal procedure. It provides as follows: $-$

"65. Anything in this Ordinance to the contrary notwithstanding, it shall be lawful for any magistrate, having jurisdiction in any proceedings under this Ordinance, whenever he considers that by following or by requiring the complainant to follow the procedure laid down by law for criminal cases the ends of justice will or may be defeated, to adopt or order to be adopted for all or any purpose of the proceedings and at any stage thereof or for the levying of moneys ordered to be paid, all or any of the provisions of the law for the time being in force relating to procedure in civil cases."

One of the first rules of civil procedure is that all plaintiffs having the same cause of action may join in one suit: another is that a plaintiff may unite in one suit several causes of action against the same defendant; and a third is that when two or more suits are pending in the same court in which the same or similar questions of law or fact are involved, these suits may be consolidated.

Now, if it be assumed that in the instant case a separate charge had been laid in respect of each labourer and of each contract on which money was due to each such labourer there would have been a total of at least 260 charges. It is obvious that the separate trial of these would have beeen so impracticable that the end of justice would almost certainly have been defeated: the obvious course would be to consolidate them.

Section 66 is obviously designed to avoid such an impossible situation by authorizing the court to receive one complaint (in criminal proceedings) or one plaint (in civil) in respect of all the employees and all the claims of each employee. In the instant case the complaint very properly covered allegations in respect of 82 labourers with an average of three-four unpaid contracts each. But it has been urged for the appellant, with reference to section 89 of the Criminal Procedure Code, and in particular sub-section (4) of that section, that although the Employment Ordinance permits the filing of an omnibus complaint, it does not specifically state that the magistrate may draw up an "omnibus" charge covering all the matters complained of. It is said that the formula "Notwithstanding anything to the contrary contained in any other law for the time being in force" is not sufficiently specific or explicit to override the general rule embodied in subsection $(4)$ —"one offence, one charge".

If this were indeed the case, then section 66 will have largely failed in its intended effect, at least in criminal matters. There would be little gained in the instant case by filing one complaint if it had to be followed by nearly three hundred separate charges.

But we have no doubt that the appellant's argument is wrong. When sections 64, 65 and 66 are read together it is clear that they are designed to and do, enable the magistrate by a combination of criminal and civil procedure, to deal speedily and effectively with a complaint of unpaid wages by fining the defaulting employer, ordering payment of wages due and proceeding to execution on default. It would be merely futile to permit the filing of an "omnibus" complaint if the matters therein complained of had then to be resolved into a great number of separate offences. It must not be overlooked that such an interpretation would in the majority of cases be very oppressive to the employer; although the failure to pay wages to any one employee on demand is an offence, it would be harsh and oppressive to say that a hundred offences are committed if one hundred employees jointly demand their wages and are not paid. On this view of the law it is difficult to see how there could ever be duplicity in a charge of this nature: certainly there was no duplicity in the instant case. The provisions of section 64 strongly support this view. It gives the magistrate, upon a mere complaint by either the employer or the employee, discretionary power to adjust and set off all claims subsisting between them. Indeed, without finding that any offence has been committed, the magistrate is empowered if, in his opinion, compensation or damages cannot be assessed or pecuniary compensation will not meet the case, to impose on either party a fine not exceeding Sh. 400 with imprisonment not exceeding one month in default of payment. This extraordinary provision clearly shows that the legislature intends speedy and effective justice without undue regard to niceties of procedure.

The whole of the argument put before us on this appeal was indeed unreal. Annexed to the original summons was a copy of the schedule with the prescribed particulars, and Mr. Oulton has admitted that he had no cause for complaint on that score. Nor could he pretend to have in face of the appellant's admission that the wages as claimed were owed and his promise to pay them, a promise which he failed to keep. Mr. Oulton therefore somewhat naively admitted that he had had to fall back on the objection of lack of precise dates as to when these wages were demanded.

This is indeed the only respect in which the charges, both the original and the substituted ones, can be validly criticized. Both the complaint and the charge in the summons alleged failure to pay wages on demand "on various dates in 1953". It is always good practice when formulating criminal charges to be as reasonably precise as to dates and place as the evidence at that stage warrants, and it is clear that at the date of making his complaint the Senior Labour Officer had sufficient evidence to enable him to give at least one specific date; preferably, we think, the latest date of demand before action taken. But even if the charges fell short of technical perfection, the appellant could not be in any way prejudiced, because the evidence showed beyond doubt that he was fully aware that the employees were demanding their arrears of wages. Mr. Oulton has complained<br>that not all of the "tickets" were produced in evidence and that he thought he would have to meet a case based only on the few tickets exhibited. It is not surprising that the other tickets were not produced in view of the appellant's failure to challenge the amounts claimed and indeed his admission of liability.

The truth is that the appellant never had or attempted to make any substantial defence to the charges, and both here and in the Supreme Court has sought to evade his just punishment on relying on just those technicalities which sections 64, 65 and 66 were enacted to prevent.

The appeal is dismissed.