ADVOKS GLOBAL · KENYA
Occupational Safety and Health Act
114. Exemption of occupier or owner on conviction of actual offender
Edition: 2022-12-31 · In force
114. Exemption of occupier or owner on conviction of actual offender
(1)Where the occupier or owner of a workplace is charged with an offence under this Act, he shall be entitled, upon a charge duly made by him and on giving to the prosecution not less than three days’ notice in writing of his intention, to have any other person whom he charges as the actual offender (whether or not that person is his agent or servant) brought before the court at the time appointed for hearing the charge; and if, after the commission of the offence has been proved, the occupier or owner of the workplace proves to the satisfaction of the court—(a)that he has used all due diligence to enforce the execution of this Act and of any relevant order or rule made hereunder;(b)that the said other person committed the offence in question without his knowledge, connivance or wilful default,that other person shall be convicted of the offence and the occupier or owner shall not be guilty of the offence, and the person so convicted shall, in the discretion of the court, also be liable to pay any costs incidental to the proceedings.(2)The prosecution shall have the right in any case to cross-examine the occupier or owner if he gives evidence and any witnesses called by him in support of his charge, and to call rebutting evidence.(3)When it is made to appear to the satisfaction of an occupational safety and health officer at the time of discovering an offence—(a)that the occupier or owner, as the case may be of the workplace has used all due diligence to enforce the execution of this Act;(b)the person who committed the offence; and(c)that it has been committed without the knowledge, connivance or wilful default of the occupier or owner and in contravention of his orders,the occupational safety and health officer shall proceed against the person whom he believes to be the actual offender without first proceeding against the occupier or owner of the workplace.