20180824 TZHC Mbeya

IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY OF MBEYA AT MBEYA CRIMINAL APPEAL NO. 53 OF 2017 (Appeal from the judgement of the Resident Magistrate Court of Mbeya at Mbeya, Criminal Case No. 46 of 201 6) REPUBLIC .......U.................U............I....I..U....U......... U .....APPELLANT VERSUS RACHEL NJERI MANASE NDEGWAH..II...S..........II.....RESPONDENT JUDGMENT Hearing date: 021812018 Judgment date: 241812018 NGWEMBE, 3: The Respondent Rachel Njeri Manase Ndegwah is known by other names such as Njeri d/o Manase © Njeri d/o Manase Samwel © Rachel d/o Samwel Manase Ndegwah © Rachel d/o Ndegwah which all of them refer to one person and they have been used in different documents with different purposes. The Respondent was charged in the resident magistrates' Court of Mbeya with Seven (7) counts namely: 1. Unlawful entry and or presence in the United Republic of Tanzania contrary to section 31 (1) (i) and (2) of the Immigration Act; 2. Engaging in employment without valid working permit contrary to section 31(1) (m) eT- (J and (2) of Immigration Act; 3. Forgery, contrary to section 333, 335 (a) and 337 of the penal code; 4. Forgery contrary to section 333, 335 (a) and 337 of the penal code; 5. Uttering false documents, contrary to section 342 of the penal code; 6. Uttering false document contrary to section 342 of the penal code and 7; Uttering false document contrary to section 342 of the penal code. Out of seven counts, the trial court convicted her on two counts namely; forgery of her birth certificate bearing serial number 0631501 purporting to have been issued by District Registrar of births and deaths of Mbeya and forgery of secondary education certificate bearing serial number KCSE 1864859 purporting to have been issued by the Kenya National Examination Council. In both counts she was sentenced to serve two years in jail in each count, but same were to run concurrently. However, the trial magistrate proceeded to order the Respondent to serve those two years in Community Services under Community Service Act No 6 of 2002. Immediately after pronouncement of that judgement, the Republic was aggrieved and issued notice of intention to appeal to this court, hence this appeal armed with seven (7) grievances, which conveniently may be summarized into two grounds namely: - Whether the trial court failed to analyze the prosecution o evidence and convict the Respondent accordingly; Whether the trial court failed to sentence the Respondent appropriately according to law. These two issues summaries all seven (7) grievances of the Republic. During the hearing of this appeal, the appellant was represented by Miss Tengeneza learned State Attorney and on the Respondent was represented by Mr. James Kyando learned advocate. The two learned counsels were well prepared; I recommend for their input. In brief, the learned, State Attorney argued vehemently on two grounds that the trial magistrate erred in law and in fact on the Respondent's nationality and forcefully submitted that the trial magistrate erred in sentencing the Respondent to only two years' imprisonment contrary to sections 333, 335 and 337 of the Penal Code Cap 16 R.E. 2002. She argued that the prosecution adduced strong evidences on the nationality of the It Respondent that she is not a Tanzanian. She further argued, that the evidence of PW2 substantiated that the Respondent had two birth certificates, one indicating she was born in 1 January, 1978 and her parents were Kenyan Nationals and she is a Kenyan, while another birth certificate indicated that the Respondent was born in 1979 at Mbeya and both parents are Tanzanian and she is a Tanzanian by birth and by nationality. One of her birth certificate, the Respondent is known as Njeri, while on another is known as Rachel. The two certificates were tendered during trial but the court did not consider them. 9-0 Further, submitted that in 2010 the Respondent used the second birth certificate to apply for Tanzanian Passport and obtained, while knowing 1 that she is not a Tanzanian citizen. In this point the State Attorney concluded that the trial magistrate convicted the Respondent for forgery of birth certificate, but failed to convict her on obtaining Tanzanian Passport illegally, for the same birth certificate was used to apply and obtain Tanzanian Passport. The State Attorney, argued further that the Respondent failed to apply for nationality after reaching the age of 18 years, hence living in the country illegally. Even on cross examination the Respondent admitted that, she never applied for naturalization. The same forged birth certificate was used to apply for employment and r was employed in Tanzania Investment Center as Tanzanian while not. The learned State Attorney rested her submission on this ground by referring this court to the decision of the Court of Appeal in Said Ally Mtinda V. Republic Criminal Appeal No. 55 of 2012. The ground on sentencing the Respondent, the learned State Attorney argued that the sentence of two years was unreasonable. The law demand upon conviction of the accused, the convict had to be sentenced to seven (7) years imprisonment. She prayed this Court to use section 366 (1) (a) (iii) of Criminal Procedure Act to sentence the Respondent according to law. She referred this court to the case of Edward Mange V. Republic l_o Criminal Appeal No. 51 of 2014 at page 10 where the court of Appeal held that the appellate court may interfere with the sentence if the 171- sentence is manifestly inadequate. Finally, she prayed that this court finds the Respondent guilty of all counts and sentence her according to law. On the adversarial side, the learned advocate Kyando forcefully, argued that no prosecution witness testified which among the two birth certificates used to apply for Passport. Further argued that no prosecution witness found the Respondent with any of the two certificates. Thus the prosecution failed to call witnesses from immigration to prove which documents were used to apply for Passport. That the birth certificate from Kenya was never produced in court as an exhibit. In page 38 of the proceedings the prosecution promised to call witness from Passport department but failed. The learned advocate concluded in this point by arguing that there is no proof that the Respondent has been using those names interchangeably. Further argued that PW3 failed to prove which certificate was used to apply for employment at TIC. Therefore, the allegations of forged documents to obtain employment was not proved by the prosecution. On the ground of sentence, the learned advocate argued that his client was rightly sentenced to two years for most of the allegations were not proved and there was no proof that the Respondent was aware of the existence of birth certificate of 1979. Therefore, she deserved lenient sentence. On ground of nationality, the learned advocate argued that her client proved her nationality that she is a Tanzanian as the prosecution failed to 17-5 1. prove the contrary that she is a Kenyan. The prove that she is a Tanzanian is through documents tendered in court such as baptism certificate, school certificates and resident permit, which were tendered in court as exhibits DE 2, DE 3 and DE 4. The advocate rested his submission while emphasizing that the Respondent is a Tanzanian according to section 3 (1) (a) and (b) of the Citizenship Act. In rejoinder, the learned State Attorney, briefly argued that DW5 forcefully testified in court that the Respondent was borne at META Hospital in 1978, however META Hospital at that year was yet to be established. At page 24 of the proceedings, PW2 failed to produce original birth 0 certificate and school certificates because the same were with the Respondent who refused to produce. However secondary evidences (certified copies) were produced in court during trial. Further submitted that among criteria to apply for Tanzanian Passport is to submit birth certificate, and her parents were not naturalized as Tanzanians. Therefore, the Respondents at the age of 18 years ought to have denounced her Kenyan citizenship and fill forms of allegiance to Tanzania. The Respondent was employed at TIC after producing her Curriculum Vitae in her application for employment, which indicated that she is a Tanzanian while not. . . On the ground of sentencing the learned State Attorney, reiterated her earlier submission that the trial court erred in law for not sentencing the Respondent according to law for she committed serious offences against the Republic. She prayed that the court should enhance that sentence and that the Respondent is not a Tanzanian. Having heard rival arguments from both learned counsels, the first fundamental legal question to be answered is what is the role and duty of a prosecutor in criminal cases like this one? Prosecution always has a fundamental duty to prove the criminal case to the standard required by law and that standard is a prove beyond reasonable doubt. In the case of Sunderje V.R (1971) HCD 316 and Tumbark Halbattthe V. R (1957) EA at page 355, judges insisted that a prima facie case must be 10 one on which, a reasonable court directing its mind on the law and evidence before it, could convict if no explanation is given by the defence. Msoffe J.A in the case of Nathaniel Aiphonce Mapunda and Benjamini Aiphonce Mapunda V. Republic [2006] T.L.R. 395 held:- "As is well known, in a criminal trial the burden of proof always iles on the prosecution. Indeed, in the case of Mohamed Said Matula V. R. this Court reiterated the princí/e by stating that in a criminal charge the burden of proof is always on the prosecution. And the proof has to be beyond reasonable doubt. There must be credible evidence linking the appellants with the offence commifted' (f There must be .a link between the credible evidence directing to none but to the accused, and in the absence of clear explanation from the accused the court will convict him and sentence according to the seriousness of the offence committed. Lord Denning, at one time endeavored to give the most lucid definition of the phrase "beyond all reasonable doubt" in the case of Miller v. Minister of Pensions, (1947) 2 All ER 372, where he said:- "for that purpose the evidence must reach the same degree of cogency as is required in a criminal case before an accused person is found guilty. The degree is well settled. It need not reach certainty, but it must carry a 0 high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of just/ce. If the evidence is strong against a man as to leave only a remote possibility in his favour which can be dismissed' Therefore, the degree of proof beyond reasonable doubt will vary with the degree of the seriousness of the offence under consideration. The more serious the offence the higher ought to be the burden of proof. As rightly pointed out by Lord Denning, what constitutes 'proof beyond reasonable Lr doubt' cannot be something beyond human knowledge, or beyond human imagination, but must be attached with evidence linking the accused with the offence committed. If any remoteness possibility in favour of the Ma accused is considered, the law will fail to protect innocent members of the society. Chief Justice Georges in the case of Fanuels/o K/u/a v. R. (1967) HCD at 369, held that:- 'Yt is not necessaty to accept the evidence of the accused in order to find him not guilty. All that an accused need to do is to raise a reasonable doubt as to his guilt' The accused, always should raise defence which defence should be exonerating him from liability that he was not the one who committed the offence. Mere allegations, which are not delinking him with the accusations O laid against him, any court of law may convict him upon cogent analysis of the prosecution evidence. There are series of chain of authorities from this court and the Court of Appeal on the duty of prosecution to prove the case beyond reasonable doubt, that no other person than the accused who committed the offence. On the other side the fundamental duty of the defence counsel is to raise doubt on the credibility of the evidence adduced by the prosecution. Having so said, how does this principle apply or link up with this appeal? At this stage of appeal, the records of the trial court together with the legal arguments from the bar are used to determine the alleged offences 2c committed by the Respondent. The duty of this court is to find out if at all (77 the trial court erred in law and in fact in not convicting the Respondent and sentencing her according to law. In determining this appeal, the following issues need to be answered, namely:- What is the true name or names of the Respondent among many names appearing in various documents tendered and admitted in court during trial; Whether the Respondent is a Tanzanian by birth or by registration or by naturalization or is a Kenyan; Whether, the prosecution proved all counts laid against the I0 Respondent, if answered in affirmative whether the trial court erred in law and facts to analyze the evidence and find the Respondent liable; and Whether the sentence issued by the trial court was unreasonable contrary to law. In answering these key issues, I hope, all grounds of this appeal will be properly determined. The first issue, is on the true name of the Respondent, whereby according to her Passport issued by the United Republic of Tanzania, which passport was admitted during trial as an exhibit PE2, issued on 18th November, 2010 1-0 and expiring on 17 th November, 2020, the owner is called Rachel Manase Ndegwah. Exhibit DEl is titled Kitambulisho cha Ukatoliki meaning identity of being a Catholic, which is issued upon being baptized under that Mi 1 Christian denomination, the name of the owner is called Rachel Kitau born on 01/01/1978, whose father is called Manase Kitau and her Mother is Esta Kamau of Kiwira Mbeya. There is another copy of a Kenyan Passport, which was admitted in trial court as exhibit PE4, the owner is Miss Rachel Njeri Ndegwa student, born at South Nyanza Kenya on 01/01/1978. In the resident permit Class, A, issued by the Unite Republic of Tanzania to one Manase Ndegwa Samwel which was admitted in trial court as exhibit PE3, one of her child is called Njeri Manase, born on 01/01/1978. In exhibit PE5 which is a certificate of secondary education issued by Kenya National Examinations Council, the bearer is Rachel 10 Manase Ndegwa. The birth certificate issued by United Republic of Tanzania dated gth May, 1979, the bearer is Njeri Manase Samwel whose father and mother are Kenyan nationals. Another birth certificate issued by the United Republic of Tanzania dated 8th November, 2010, the the bearer is Rachel Njeri born at META HOSPITAL on 01/01/1978, whose father is Samuel Manase Ndegwah and mother is Esther d/o Wanjiru Wanjiru Kamau both parents are recorded as Tanzania nationals. PW3 is an employee of Tanzania Investment Center whose evidence at trial produced exhibit PE 6 containing curriculum vitae (CV) of a person called Rachel Manase Mwamengo after marriage, whose nationality a -O Tanzanian is born on 01/01/1978. Having referred in various documents admitted in court during trial, which carries different names but referring one date of birth, one may wonder why all those names? Whether they refer to one and the only person? and if they referred to one and the only person, why having all those names for what purpose? Though I am not aware if at all there is a provision in our laws, which prohibit one person from have many names or creates an offence for having different names, yet the use of those names, may result into criminal offences. For instance, if those names are used to commit offences and take refuge by changing his/her identity, that may amount into an offence. In this appeal, it is not in dispute, I think, all seven (7) different names refer to one person, who was born on 01/01/1978. The date and month of birth is consistent throughout the referred documents. I have no doubt in my mind, all those names refer to one person who is the Respondent in this appeal. She has been using them interchangeably, depending on the circumstances and purpose. This conclusion is arrived at, due to the fact that those names have been derived from documentary evidences tendered and admitted by the trial court during trial. Therefore, the Respondent is called Rachel Manase Ndegwah, Rachel Kitau, Rachel Njeri Ndegwa, Njeri Manase, Njeri Manase Samwel, Rachel Rachel Njeri and Rachel Manase Mwamengo (after marriage). The second critical question is whether the Respondent is a Tanzanian national or Kenyan national? This issue was not critically analyzed by the trial magistrate, which I think should not tie us much, since the admitted documentary evidence and defence evidence in record speak lauder with no iota of doubt. The Respondent in her evidence during trial as appears in page 54 of the proceedings stated as follows:- "am a Kikuyu. Kikuyu's are from Kenya. My father stayed in Tanzania with a resident permit because was a Kenyan. I used to stay here because of his permit. I am with father who had lost. I have never requested to be naturalLed. Imm,iration laws allows to be a citien through one parent. I appiled for passport in 2010. Before had a Kenyan passport' In the Kenyan Passport, No A 244577, (exhibit PE 4) which the Respondent is not denying to be hers, the owner is cafled "Miss Rachel Njeri Ndegwa, born at South Nyanza Kenya on 1/1/1978 whose national 10 status (Taifa Ia mwenye pasi; mwananchi wa Kenya) citizen of Kenya". The birth certificate dated gth May, 1979 both parents were Kenyan nationals. The Resident Permit Class A No 29354 issued to her father Manase Samwel Ndegwah Gitau by Tanzania Immigration Department, her mother, (wife of Manase Samwel Ndegwah Gitau) is Esta Wanjiru both are Kenyan nationals. I find no difficult to conclude that the parents of the Respondent are both Kenyan nationals. They pay allegiance to the Republic of Kenya. It is a common knowledge, like day followed by night, that the nationality of a child follows the nationality of his/her parents. The laws of Tanzania o permit dual citizenship to children, but upon attaining the age of 18 years, he/she must denounce one nationality and remain with only one nationality. Tanzania has no dual nationality; it is either a foreigner residing in the country after obtaining resident permit or a citizen. Citizenship may be by birth or by naturalization as per sections 4, 8 and 9 of the Citizenship Act Cap 357 R.E. 2002. For easy of reference section 9 (1) & (3) of the Act provide:- 9. (1) Subject to the provisions of subsection (3), any person who is a non-citizen of the Un/ted Republlc may, being a person of full age and capacity, on making an appllcation in that behalf to the Minister, and on satisfying the proviions of the Second Schedule to this Act, be naturalized as a citizen of the united Republic, ID and be granted a certificate of naturalization" 9. (3) '.4 person shall not be natura/ised as a citizen of the Un/ted Republlc under this sect/on except after he has made a declaration in writing in the prescribed form renouncing, or indicating his willingness, but for the legal restrictions to renounce any other nationailty or citizenship he may possess any daim to the protection of any other country, and take an oath of allegiance in the form specified in the First Schedule to this Act' L~~ There is no short cut on citizenship in Tanzania, every person attaining full 2..-o age (meaning from 18 years old) and is not a citizen of United Republic by descent and as provided by law must follow the letters of the law as quoted above. The question now is whether the Respondent is a Citizen of Tanzania or a foreigner? This question is answered by documentary evidence tendered in court. The Resident Permit Class A issued by the Government of the United Republic of Tanzania to the father of the Respondent Manase Ndegwa Samwel admitted as an exhibit PE3, both parents are Kenyan Nationals. The birth certificate of the Respondent issued by the United Republic of Tanzania dated gth May, 1979, the bearer is Njeri Manase Samwel whose father and mother are Kenyan nationals. The Kenyan Passport, which was admitted in trial court as exhibit PE4, the owner is Miss Rachel Njeri Ndegwa student, born at South Nyanza Kenya on 01/01/1978 0 both parents are Kenyan nationals. Since there is no contrary evidence to contradict the nationality of the Respondents' parents, then I have no doubt that both parents of the Respondent are Kenyan Nationals and they pay allegiance to the Government of Kenya. The fact that the Respondent was either born in Tanzania or Kenya, is settled that according to her birth certificate issued gth May, 1979, she was born at Mbeya Government Hospital. This evidence is corroborated by PW4 and exhibit PE7. The fact that she was born at META Hospital is a day light lie, for the said hospital came into existence in year 1985, while the Respondent was born in year 1978. How could she be borne in a hospital which was not in existenc The burden is on the Respondent to prove otherwise, but the evidence on record, proves that she was born at Mbeya Regional Hospital in year 1978. Since the Respondent was born by parents who were non Tanzanians, upon attaining full age was legally bound to comply with the Citizenship Act. M -W On the issue of passport, the Tanzania Passport and Travel Documents Act No. 20 of 2002, the term Passport is defined to mean:- "a document in a booklet form issued to a citizen of the United Republic of Tanzania under this Act for the purpose of fac/iltating his movement across boundaries subject to laws and regulations of the country of destination or transit' Section 3 (2) of the Act provide types of Passports namely:- "Ordinary Passport, Service Passports, Diplomatic Passports, East African Passports, an emergency o Tra vet Documents, Certificate of Identity and General Convention Travel Documents' According to exhibit PE2 it is an ordinary Passport issued to the Respondent under section 10 (1) of the Act as quoted hereunder:- "An ordinary passport may be issued to any citizen of the United Republic of Tanzania for the purpose of travelling outside the United RepubIic' Section 11 of the Act read:- "The holder of a passport or travel document shall be prima-facie evidence of the nationality or o domicile of the holder and of his entitlement to state protection. V Provided that a mere possess/on of a passport or travel document shall not operate as a bar to inquiry, in vestigation or judicial proceedings against the holder if there are reasons to warrant such a course of action ' Passport is a property of the Government of the United Republic of Tanzania and may be issued to any citizen of the United Republic of Tanzania. There is no provision in the Act which allow non-citizen to be issued Tanzanian Passport. Conditions accompanied with the application for passport to the director of immigration are provided for under section 12 (2) of the Act that:- A birth certificate or an affidavit of birth or a certificate of naturalL?ation of the appilcant; A birth certificate, or an affidavit of birth or certificate of naturalization of the app//cant's parent or parents; Recent, clear and un-mounted passport size photographs as may be directed by the issuing authority; (c)(Not applicable). For the available documentary evidence, I hastily answer the issue of whether the Respondent is a Tanzanian citizen by birth or by naturalization in negative. For clarity the Respondent is a non-citizen of the United 1 67 Republic of Tanzania, instead she is a Kenyan by virtue of her parents, and they have been staying in Tanzania by virtue of Resident Permit Class A. Based on the above conclusion, it is also concluded that the Passport issued by the United Republic of Tanzania, which passport was admitted during trial as an exhibit PE2, issued on 18th November, 2010 and expiring on jjth November, 2020, was obtained by the Respondent illegally, contrary to the cited sections of law. It is a basic knowledge that one person cannot have legally acceptable conflicting birth certificates. The evidence of PW4 and the documentary evidence admitted in court as an exhibit PE7 is undoubtedly prove that the j 0 birth certificate obtained on 05th November, 2010 was illegally obtained by the Respondent contrary to law. The third ground for determination is whether the prosecution proved the case to the standard required by law. As rightly stated above and on the cited precedents, the prosecution proved the case at trial court to the standard required. As rightly stated above proof beyond doubt does noc- mean beyond human imagination or human ability to notice remoteness of doubt but rather, the prosecution should prove all elements of the offence, whereby a trial magistrate upon careful evaluation of the entire evidence of both the evidence of the prosecution and that of the defence reach into O formal conclusion that the alleged offence was indeed committed by the accused. The above analysis of evidence I with no hesitation to conclude that the prosecution proved the case to the standard required by law. Therefore, issue three is answered in affirmative. The last question is whether the trial court erred in sentencing the Respondent. Before embarking into this issue I wish to adopt the wisdom of the court of Appeal in Criminal Appeal No. 267 of 2006 Mkaima Mabagala V. R (Unreported), where they discussed at length on a reasoned judgement of a court and held that:- "For a judgement of any court of Justice to be held to be a reasoned one, in our respectful opinion, it ought to contain an objective evaluation of the 10 evidence for the defence which is balanced against that of the prosecution in order to find out which case among the two is more cogent. Such an evaluation should be a conscious process of analyzing the entire evidence dispassionately in order to form an informed opinion as to its quality be fore a formal conclusion is arrived at Using this legal benchmark, I respectfully and confidently say that the trial court did not live up to this requirement. The judgement of the trial court failed to analyse the evidence of the prosecution logically with a view of 2_o arriving into a right conclusion. Applying section 366 (1) of the Criminal Procedure Act cap 20 R.E. 2002 this court has a statutory duty to correct errors made by the trial court as I hereby do:- The prosecution proved the office of unlawful presence in the United Republic of Tanzania contrary to section 31 (1) (I) and (2) read together with section 6 (a) of the Immigration Act Cap 54 R.E. 2002 as amended several times. The Respondent being a foreigner ought to have decided her nationality upon attaining the age of majority but failed and continued to reside in Tanzania without any permit contrary to the above cited sections. Hence this court convicts the Respondent for the offence of residing in the country illegally and consequently is sentenced to pay fine of TZS 600,000/= upon failure to pay fine be imprisoned for a period of three (3) years. 0 The second count is also proved that the Respondent was engaged in Employment while knowing that she is a foreigner and that she did not naturalise her citizenship upon attaining the age of majority, and that she admitted in trial that she never opted to be naturalized, thus the respondent is convicted on offence of engaging into employment contrary to section 31(1) (m) and (2) read together with section 6 of the Immigration Act Cap 54 R.E. 2002 as amended, This court do hereby convict the Respondent and sentence to pay fine of TZS 600,000/= upon failure to pay that fine be imprisoned for a period of three (3) years. That Count 3 and 4 relating to forgeries of birth certificate and that of secondary school certificates the trial court rightly, convicted the Respondent for both certificates were forged and the sentence of two 170 years in each count was proper in the circumstances. However, the sentence to serve, community work for the period of two years concurrently for the two offences, are reversed and substituted to a fine of TZS 500,000/= each count, for clarity count 3 and count 4 the Respondent shall pay fine of TZS 1,000,000/= upon failure to pay. that fine the Respondent shall serve imprisonment for the period of five (5) years in each count, the sentence to run concurrently. That in regard to count fie (5) and six (6) on uttering false documents, I adopt the reasoning of the trial court that same are replica of counts 2 and 3 which have already been dealt with. to Therefore, same are dismissed. Count seven (7) on uttering false document with a view of obtai ing Tanzania Passport was proved as clearly analyzed hereinabove. Therefore, the trial magistrate did not direct his mind properly on the Immigration Act. Otherwise he would have arrived into a different conclusion. The documents used to obtain Tanzanian passport were forged for the Respondent had no right whatsoever to apply and obtain Tanzanian Passport. Therefore, the Respondent is convicted for uttering false documents that is obtaining Tanzanian Passport illegally contrary to sections 10 and 11 of the Tanzania Passport and t20 Travel Documents Act No. 20 of 2002, read together with section 342 of the Penal Code Cap 16 R.E. 2002. Section 342 of the Penal code read: - Elf '4ny person who knowingly and fraudulently utters a false document is guilty of an offence and is liable to the punishment, provided for in respect of the offence of forgery in relation to that document' The section directs us to find appropriate sentence under Tanzania Passport and Travel Documents Act No 20 of 2002. Section 19 (2) of the Act provide that upon being convicted shall be liable to a fine of not less than two hundred thousand shillings and not exceeding one million shillings or to imprisonment for a period of not less than two years or to both fine and imprisonment. NO Thus this court convicts the Respondent accordingly and sentence to pay fine of TZS 500,000/= upon failure to pay fine shall be imprisoned for a term of five (5) years. Finally, upon complying with the sentences imposed to the Respondent, shall immediately be ordered to leave the country as per section 14 (1), (2) (b) and (3) of the Immigration Act Cap 54 R.E. 2002. Otherwise obtains permission from the relevant authorities to stay in the Country. ML 4- I condusion, this appeal has merit and is allowed as per the above orders. P J NGWEMBE tt:\ JUDGE 24/08/2018 Court: Delivered at Mbeya in Chambers on this 24th day of August, 2018 in the presence of Miss. Rosemary Mgenyi State Attorney for the Appellant and Miss. Mary Gatuna for James Kyando Advocate for the Respondent. Right to appeal to the Court of Appeal explained. P.J. NGWEMBE ---. JUDGE IN 24/08/2018 jcj