High court bans religious group, sentences its pastor

MBEYA: THE High Court, Mbeya Sub-Registry, has banned the Kikosi Kazi cha Injili, a religious group, from conducting its activities and sentenced its Pastor, Mbarikiwa Mwakipesile, to either pay 10m/- fine or remain behind bars for three years and eight months.

Judge Musa Pomo gave the decision after determining an appeal lodged by Mwakipesile, the appellant, to oppose findings of Mbeya District Court, which had convicted him of operating an unregistered society.

“Evidence on record reveals that the unregistered Kikosi Kazi cha Injili is conducting activities. It is therefore banned from carrying out its activities whatsoever unless and until the time it obtains official registration from respective authorities,” he declared in his judgment delivered recently.

During hearing of the appeal, the counsel for the appellant had submitted that trial magistrate erred in law and facts by sentencing his client to custodian sentence without option of fine.

He contended that the trial court did not evaluate his evidence pertaining his pendency of an appeal he lodged before the Home Affairs Minister challenging rejection by the Registrar of Societies to register his church.

According to the counsel, such pendency of appeal, therefore, in terms of section 2 (j)(b)(iii) of the Societies Act protected or exempted his client from being charged with the offence of operating unregistered society.

In the judgment, the judge started by reviewing the preliminary hearing proceedings conducted by the trial court and noted that the appellant admitted that he was informed of his right of appeal 21 days of the decision for refusing to register the church. Such right, he observed, the appellant failed to utilise. In addition, the judge also noted that the appellant admitted that despite being officially banned to conduct church services, went on conducting the same.

“Since the appellant admitted that he did not appeal despite being informed of such right, what the trial court did was to hear him testifying that he applied for and was granted extension to lodge an appeal out of time,” he said.

The judge pointed out that such was possible for the appellant, in his defence, to tender documentary evidence to that effect. To the contrary, he said, out of all the four defence witnesses who testified in court, none tendered such crucial evidence.

“Basing on the foregoing, as long proof is not borne on record, the appellant cannot be heard complaining that an appeal is pending before the Minister for Home Affairs against registration refusal of Kikosi Kazi cha Injili,” the judge said.

As regard to the sentence that was imposed on him by the trial court, the judge noted that the law under which the appellant was charged with provides option of both fine and sentence.

He pointed out that courts are enjoined at the time of sentencing a convict, in a situation where the provision of penal status provides for option of paying fine or imprisonment or both, to resort to payment of fine as first option and jail sentence will come upon default.

It was the views of the judge that the appellant being a first offender, with no previous criminal record, deserved to be given an option of paying fine.

“Therefore, I set aside jail sentence and substitute it for payment of fine to the tune of 10m/-, failure of which the appellant shall continue serving the sentence imposed by the trial court,” he ruled.

Facts show that the appellant is a Pastor of Kikosi Kazi cha Injili, a society which is said to be unregistered operating church services at Isyesye area within Mbeya District in Mbeya Region.