Hamad Wendo v. Mwangoye and Company Ltd. Misc. Civ. 1-1-69 27/1/70; Birorn J.

Hamad Wendo v. Mwangoye and Company Ltd. Misc. Civ. 1-1-69 27/1/70; Birorn J.

The appellant who had been employed by the respondent company was arrested on a charge of stealing the property of the respondent worth about Shs. 20,000/-. He was subsequently acquitted of theft. He then demanded his salary, severance allowance, leave pay and payment in lieu of notice. The respondent rejected the claim on the ground that appellant had not been dismissed or even suspended. The appellant testified that he had approached the respondent company after his arrest and demanded half pay and this had been refused. The respondent company denied the appellant ever visited them at all until after he had been acquitted.

when he came to demand payment in lieu of notice. The issue before the Senior Resident Magistrate was one of credibility who found that on a balance of probabilities the case had not been proved and appellant’s claim was dismissed.

            Held: (1) “The issue was purely one of credibility. The learned magistrate, who saw and heard the parties and the witness of the appellant, found that the evidence for each side was evenly balanced, and as the onus was on the appellant to establish his claim, which he had failed to do, he dismissed it. It is not without interest to note that learned magistrate directed himself that the appellant probably did not go near the offices at all until his case was finalized and he was acquitted, because he was then facing a charge of stealing the property of his employers.” (2) “In arguing this appeal, Mr. Ved, who appeared for the respondent, went even further and submitted that the learned magistrate must have found the appellant’s claim frivolous or vexatious. This submission is not without substance as, according to the Employment Ordinance, at Section 143, a court is not empowered to order costs against an employee who fails in his claim against his employer, unless the court considers the claim to be frivolous or vexatious.” (3) “I would go further and state that the preponderance of probabilities would appear to be on the respondent’s side as, if the appellant really believed that he was entitled to half salary during the period he was suspended from duty, as according to him he was, it is inconceivable that he would not have complained to the Labour Officer at his employers’ refusal to make any payment.” (4) Appeal dismissed.