Headmaster Ivumwe Secondary School vs Principal Labour Officer (DC Criminal Appeal No. 30 of 1998) [1998] TZHC 2329 (16 October 1998)

E-! T.'-{E EIGI·I c01mT OF TANZAI'HA AT NB:ri:YA , (DC) CRTIHNAL APPEAL NO. 30 OF 199~ (Original Criminal Case No-. 805 of 1997 •f RESIDENT MAGISTRATE'S COURT MBEYA ;JISTRIC'.!' AT MBEYA Before: S.M. Rurnanyika - Rcsidmt Magistrate) HEP.lliJASTEH, IVU:MW:E SECONDARY SCHOOL . Versus APPELLL.NT PRINCIPAL Ll.BOUTI OFFICER •••• • ••••••• ·• RESPONDENT JUDGHTilTT The Court of Resident Magistrat Mbey.._ convicted the appeJ.lant -of the of:fenee of. Failure to repatrate an empl,,yee, ·-cntrary to sectiens 1,3(1-) and (4) a¥.d 15·4 of the Emph;ymen't-Ordinace, Cap •. 366·. Th~ court paesed a,snt<i.nce.·• pf. fine of°, hs.5,00Q/== ~~·two morithe impris•nn;ent in default. •rli. eoi.U't; in addition, ordered.immediate Yepi<. tr:i.a tibn f · the ernpl9yee and payment te· •him ,,. ~ . .. . , •f subeitenee eX1ense f•?- · the period he> rma:ii\et1. un:.epat?iated. i .. I l The .convicti6111. · and sentence aggrieved the apellant w.hoe lene~ adv•at., . . ,. Mr. Mkumbe, in consequence, preferr1- this ai,pea:J. and argue•. it before me, in the Jresence of- -la:bour of.ficer, Mr. Lemidiy6 Mwidunda, who reeisted · it A M ro Mkumbc had.aJ;so: represented the appella•t at the trial. Th~ appellant was at all material' times the Headmaster of Ivuinwe Secondary , School situate within the Viunicipality ·of Mbeya •. It was a -private secf!ndary schoal, and Maulisio Ngweta (PW1) was one of the teachers there. · P.W1 wa~ employed on 1.?o92 (Ext P2) from J-.lalangali Secondary School Irj.nga. On 26.6.96 his crvices were te;mi:.o.ated (Ext P7)" He was paid hie _terminal· bnefits. On the question or" repatriation to !falangali he was offered a J.!lrry belonging to Meta Secondary School in hwn. . It was meant for him, his family and luggage. That had been the standard means _o:f._repatria.tirig teachers at· the echool. But .: P-!1 rejected the offer. He refused to use the lo!lry. ·He tolq. the trial court ~n 24.12.96 that he never went back to the appellant for the lo:ery 0 He- took up fl 0 ,., 0 0 • .. ,1 2

2 the matter of his repatriation with the labour office instead. He told the trial court that same day (24.12.96) th3.t he would be ready for repatriation after he .. had harvested his crops in his. ::s.h<?-;1Jba. It would appear he wanted to be paid shs.250,000/as which was taken to ha.ve been excessive. Under sections 55( 1) and. 103( 1) of Cap. 366 the appellant was obliged to ,. provide~ transport for the repatriation of P't!1 to his p1i:lce_ of engagement 9 that is, Malangali. '.L 1 his was exactly what the appellant had done. Contrary to the view taken by the labour office and. the trial court 9 the motor vehicle provided appears to have been proper and suitable in the circumstances of the casec The distance between Mbeya and Malangali was a few hours drive along- a good tarmac . ' , road. The motor vehicle, though a lorry, would, therefore, have 'ferried the •.. ~ ., - k. ~ appellan...t, his family and luggage to Ma:lan[(ali at a go;· with the 1ea;;;t •-inc-on.re- .•. .. ,. ~ nience., .. ¼! ,,Y •~ ven lemidiyo Mwidunda told tli'i court "'thit ie _ 1 -rou-ld himself, .:.: .. , .;... .. •. ,, .. . f ..... ... .,, ; ', ' ., ' ., have taken that offer of a lorry for transportation given ·th1\good. qondi_ii,on . of the roacl_. appellant. .. •· ,.. - . ;_. .. . . The <)ffer of the lorry was "riot __ p_e·cul:i:ai"':o:r:~ pa.rticula.F .to the .. .'''"'!" ··'""' ........ '.""~ ·-s =••,...; . -:·. .. r ~ 1 he lorry was the one in use by tne - school wheve~ ;r;-etri§t ton. . .... J.;· ·, .. .ri -· repatria.tion as 1a,te as at· the time of the triaL 'I , , 1 • • t ha·• + r e n.ac, ,1J.s crops o rves., , - ' first. :t· would 1 itl-i9respect, agree with Hro Mkumbe that PW1 himself stood to- · blame for any delay· iri his repatriation • .,., He was- not, therefore, entitled to subsistence expenses in tertns .. of section 53(4)_(a) of Cap. 366. I am sat1sfied that the ttia1•court erred in its finding that the appellant had neglected or fni1ed or refused to repatriate PW,.l. The conviction of the appellant, therefore, could not ge sustained. I would, in oori.cl"1.J.sion, c;:o,:1ment on the sentence of the i;'ine of shs.5 ,000/= .. passed: °J7:.11at sentenee wi-.s iJ.legal. The appellant was a first·offender, ·,a.rid u .. terms of 3ection 154 of Cap& 366, a sentence of a fine whih could.lawfully be imposed ~as o'ne nol, exceedingAshs.2"'9000/=. I w6uld.-&ertainly have 3ubstituted a lawful sentence for.that which.was passed were the -conviction. of the appellant tenable& .... o o ·o ,. • ·• o o/' 3

I accordingly allow the appeal, qua13h the conviction, and set aside the ,sentence and the orders made thereunder-. The fine of shs. 5 ,000/= already paid is to be refunded to the appellr'lnL B.P. :-10SHI JUIGE. 16 October 1998. :F'o:r Appellant: Mr. Mkumbe, advocate. For Respondent: Mr. G. Jonas4