ADVOKS GLOBAL · KENYA
Labour Institutions Act
54. Criminal liability of agent, employer
Edition: 2023-12-11 · In force
54. Criminal liability of agent, employer
(1)Where the immediate employer of an employee is himself in the employment of another person and that employee is employed on the premises of that other person, that other person is for the purposes of this Part deemed to be the employer of that employee jointly with the immediate employer.(2)Where an employer is charged with an offence under this Part, he shall be entitled, upon information duly laid by him and on giving to the prosecution not less than three days’ notice in writing of his intention, to have any other person to whose act or default he alleges that the offence in question was due, brought before the court at the time appointed for the hearing of the charge.(3)If—(a)after commission of the offence has been proved the employer proves that the offence was due to the act or the default of that other person, that other person may be convicted of the offence; or(b)the employer further proves that he has used all due diligence to ensure that he complied with the provisions of this Act, he shall be acquitted.(4)Where an employer seeks to rely on the provisions of subsection (2)—(a)the prosecution, as well as the person whom the employer claims to have committed the offence, shall have the right to cross-examine him if he gives evidence and to cross-examine any witnesses called by him in support of his case and to call rebutting evidence; and(b)the court may make such order as it deems fit for the payment of costs by any party to the proceedings to any other party thereto.(5)Where it appears to a labour officer that an offence has been committed in respect of which proceedings might be taken under this Part against an employer, and the officer is reasonably satisfied that the offence of which complaint is made was due to an act or default of another person and that the employer could establish a defence under subsections (2) and (3), the officer may cause proceedings to be taken against that other person without first causing proceedings to be taken against the employer; and in any such proceedings the defendant may be charged with and, on proof that the offence was due to his act or default, be convicted of the offence with which the employer might have been charged.