Agnes Jacob Kwagilwa vs Mashimba Hussein Mashimba (Civil Appeal No. 578 of 2023) [2026] TZCA 570 (13 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: MWANDAMBO. J.A., KENTE, J.A. And MGONYA, J.A.^ CIVIL APPEAL NO. 578 OF 2023 AGNES JACOB KWAGILWA.......................................................APPELLANT VERSUS MASHIMBA HUSSEIN MASHIMBA ........................................ RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Mwanza) (Maiqe, J.) dated the 19th day of February, 2018 in Matrimonial Appeal No. 01 of 2017 JUDGMENT OF THE COURT 27th April & 13th May, 2026 KENTE, J.A/. The parties to this appeal celebrated a civil marriage at Tanga Tanzania on 20th January 2000. On 22n d September, 2000 one child was born to the parties during subsistence of their marriage. However, after the couple failed to navigate the bumpy periods of their marriage, on 9th August, 2014 the appellant petitioned the District Court of Nyamagana in Mwanza Region for divorce on the grounds that, the marriage between her and the respondent had broken down irreparably. The appellant's specific allegation in support of the petition were that, the respondent had constructively and unreasonably neglected her by failing or deliberately i neglecting to look after her and providing maintenance to her and to the child. To illustrate, the respondent gave one instance of the appellant's alleged conducts that had made the marriage life so intolerable or hostile such that she was forced to sue for divorce as being, the taking possession and retaining of her clothes without reasonable grounds or her consent. She also accused him with neglect or refusal to resolve their matrimonial misunderstandings which had become very common to the extent that she could not reasonably be expected to live any more with him. As the marriage between the parties appeared to be under considerable stress and the relationship between them became incrementally turbulent, characterised by intrigue and arguments, the respondent initiated judicial proceedings against the appellant and prayed for the following substantive orders, thus: i. The marriage be resolved; ii. A decree for divorce be issued; iii. Division of matrimonial properties jointly acquired with the appellant; iv. Custody of the only child to the marriage be granted to her; and 2 v. The appellant be ordered to return back her clothes with immediate effect. In answer to the petition, the appellant readily and quickly conceded to the fact that the marriage between him and the respondent had indeed broken down irretrievably. He however denied to have behaved in the manner alleged by the respondent. He contended that, as opposed to the respondent's allegations and accusations against him, in fact, it was the respondent who had behaved in such and similar ways that the couple could not reasonably be expected to live together. He gave the following particulars of his wife's unreasonable and intolerable behaviour: i. That, she had been so offensive and impatient to him to the extent of bemusing him on several occasions before his leaders and the public at large; and ii. That she had, on numerous occasions, attacked and caused him bodily injuries forcing him to seek medical treatment in hospital. As for the allegations that he had neglected or refused to provide maintenance and necessaries of life to the respondent and the child, the appellant pleaded that, it was the respondent who was saddled with a matrimonial duty of maintaining him after he had spent a lot of his financial resources into her medical training, all the more, as he was at the time of their conjugal discord, out of work his appointment having been terminated allegedly at the instigation of the respondent. He prayed that the petition for divorce be allowed, the marriage be dissolved and for the respondent to be ordered to maintain him for the reasons he had given. Before the trial court, both parties gave evidence in support of their respective allegations and stances in the petition. The respondent who was the petitioner at the time, also called six witnesses while, for his part, the appellant had four witnesses who testified in support of his case. However, for the reasons that will soon become apparent, we will not delve into the details of the parties' evidence. Suffice it to say that, at the commencement of the trial, apparently after going through the pleadings and briefly engaging the parties in the discussion regarding the prospects of their marriage's survival, the learned trial Magistrate was immediately convinced that, indeed the marriage had irreversibly broken down and that, given the circumstances, the parties could not reasonably be expected to live together. Subsequently, she went on making the following observations and decision (as appearing at page 38 of the record of appeal); thus: 4 " Court: This court having iooked at paragraph 6 o f the petition for divorce, she states that marriage between the applicant and the respondent has irreparably broken down , the fact which was admitted by the respondent at paragraph 2 o f his reply to petition o f divorce, that indeed their marriage has irreparably broken down. It's this court opinion that it cannot force the parties to remain married\ and since they have themselves agreed that ; indeed their marriage has irreparably broken down, this court's business is to bless their wishes. Having noted that therefore, this court is hereby dissolving the applicant and respondent's marriage a decree o f divorce is granted as agreed by the parties themselves. Sgd: A.L.K. -R M 10/10/2014" Consequent to the above decision by the trial court, only one substantive issue was framed for investigation and determination, that is, whether or not, during the subsistence of their marriage, the parties were able to jointly acquire any matrimonial properties and if the answer is in the affirmative, what then were the said properties. The issue as to what reliefs were the parties entitled, was subsidiary. But then, in the course of the trial, the learned Resident Magistrate discovered that the issue of custody of the only child to the marriage for which the respondent was fighting, had been inadvertently skipped. Apparently, pursuant to Order XIV Rule 5 of the Civil Procedure Code, the trial magistrate raised the said issue suo motu and went on determining it, but without according a hearing to the parties. The learned Magistrate observed and decided in this respect, that: "During the hearing however no party stated anything regarding the custody o f the child. The reason could be that no issue was formulated concerning the custody o f the said child. By considering the welfare principle as so stipulated under section 125(2) o f the Law o f Marriage Act Cap 29 R:E 2002, o f which the court should consider at the time o f ordering the custody to be granted to either party, and the fact that the Respondent did not dispute the Petitioner's prayers in his reply to the petition, the petitioner is granted the custody o f the child. The Respondent shall have a reasonable access to the said child and as well is ordered to provide all basic needs including paying for her school fees." She finally concluded thus: "AH that said therefore, the petitioner's prayers are partly allowed, that is the custody o f their child, o f which the Respondent should provide for maintenance. The rest o f the Petitioner's prayers are denied for reasons stated earlier." Sg.A. L. K - R M 29/07/2015 Following the finalization of the case, a decree derived directly from the judgment was extracted and it, read as follows: "IN THE DISTRICT COURT OF NYAMAGANA DISTRICT A TM WANZA DC MATRIMONIAL CAUSE NO. 9 O F2014 A JK .................................................. PETITIONER MHM .............................................. RESPONDENT DECREE Petition for: - (i) The marriage to be resolved. (ii) Decree for divorce. (iii) Division o f matrimonial assets acquired with the respondent during their joint matrimonial life namely landed properties, home utensils, home appliances (electrical and non-electrical) etc (iv) Custody o f a child. (v) Respondent be ordered to return back the petitioner's clothes with immediate effect. (vi) Any other reliefs as the courtdeems fit. This suit coming on this day for final disposal before A.L.K - Resident Magistrate in the presence o f the petitioner, MWIKO CHACHA and ERASTO MTUI from Kabonde and Magoiga law firm - Advocates and in the absence o f the respondent as well as both counsel for the parties. It is decreed and ordered that the petitioner is granted the custody o f the child o f which the respondent is ordered to provide maintenance and shall have a reasonable access to the child. The rest o f the petitioner's prayers are denied. Given under my Hand and the seal o f the Court this 29hJuly, 2015. RESIDENT MAGISTA TE MWANZA" Aggrieved by the above-decision of the trial court, the present respondent appealed to the High Court of Tanzania, (sitting at Mwanza), blaming the trial court for failure to properly evaluate the evidence and not holding that various properties itemized in the petition for divorce were jointly acquired matrimonial properties subject to distribution between the appellant and respondent. After hearing the parties in their respective submissions in which there was a serious dispute with regard to the acquisition of the earlier- mentioned properties, the learned High Court Judge went on partly reversing the judgment and decree of the trial court in respect of the 8 sharing of the property situate at Plot No.582 Block HH at Nyakato area in Mwanza City in which the present appellant was awarded a share of 25%. As to the rest of the properties, the judgment and decree of the trial court were left intact. The then respondent who is now the appellant before this court, was dissatisfied with the decision of the High Court. He went on filing the present appeal citing four grounds but on which, as we shall hereinafter demonstrate, the determination of this appeal does not turn. Before we threw ourselves into the hearing of the appeal in earnest, Mr. Joseph Madukwa learned advocate, who appeared before us representing the respondent prayed to withdraw a preliminary objection which he had raised earlier on in terms of Rule 107(1) of the Tanzania Court of Appeal Rules 2009. There being no dissent from Mr. Julius Mushobozi the appellant's counsel, we went on marking the preliminary objection as withdrawn. Moving forward, we engaged the two learned counsel to address us on the propriety or otherwise of the judgment of the trial court that failed to reflect or pronounce itself on the respondent's specific prayers, a state of affairs which, together with others, as we will subsequently show, created a couple of challenges to us. 9 Our engagement of the two advocates was based on what we consider to be the position of the law that, a judgment that fails to address and reflect key prayers by the parties to a civil suit, is generally considered defective or incomplete even if some parts of the said judgment were based on a partial consent between the parties as it were in this particular case. Submitting in response to our question, Mr. Mushobozi was very brief and straight forward. He begun by observing that, in its judgment and decree, the trial court did not specifically pronounce itself on the parties' substantive prayers for disolution of the marriage and the issuance of a divorce decree the issues on which the parties were purportedly in accord. It is needless to say that, in terms of section 114(1) of the Law of Marriage Act, the court's decision on the said prayers was a prerequisite for the consequential orders made by the trial court regarding distribution of matrimonial properties and custody of the child. Upon our further probing after having noted another disquieting anomaly in the record, the learned counsel submitted that, it was not proper for the parties (at page 38 of the record of appeal), to mutually agree that a marriage between them had broken down irreparably and subsequently ask the trial magistrate to simply endorse their consent without the said question being investigated by the court itself before it 10 could make its own findings as per sections 99 and 108 of the Law of Marriage Act. To this end, we were implored by Mr. Mushobozi to nullify the proceedings from the 10th October 2014, onwards, set aside the judgments and decrees of the trial and the first appellate court and direct for a trial de novo. For his part, Mr. Joseph Madukwa learned advocate appearing for the respondent, endorsed the same legal position as adopted by Mr. Mushobozi. Consequently, he spoke very succinctly, by and large, rehashing the submissions and concluding by a prayer already made by Mr. Mushobozi. For our part, the first question we are enjoined to determine in this case appears to be this: What should a partly consented and adjudicated judgment contain? Our view on this question is quick and immediate that, apart from the formal preliminaries and endings, a partly consented and adjudicated judgment must combine the agreed-upon matters and terms of the parties with the court's judicial decisions on the contested issues. In other words, such a judgment must clearly reflect the consent portion (agreed part and terms) of the parties and the adjudicated portion reflecting the court's ruling. It should be needless to say at this point in time that, failure by a court of law to document what was agreed upon li by the parties and what was adjudicated, breaks the requirement of certainty of a judgment making it legally vulnerable and easily assailable. Turning to the decree of the trial court in this case, as it can be noted at once, it suffers from the following two deficiencies which are not only glaring but also very fundamental: i. It does not capture the final decision of the court particularly with regard to the respondent's prayers for dissolution of marriage and a divorce decree respectively under items (i) and (ii) and; ii. It does not spell out the rights of the parties and the particular reliefs granted. Obviously, the above deficiencies in the court decree were not from nowhere. They were a direct result of the earlier-mentioned deficiencies in the trial court's judgment. Considering all those irregularities, it must be observed at this juncture that, a court decree that does not reflect the findings of the court as contained in the judgment or omits the reliefs or prayers granted, is considered defective. As a matter of necessity, a court decree must formally express the adjudication as a whole in conformity with the judgment. In a situation like the one under consideration where both the judgment and decree are defective particularly in a manner that 12 affects the merit of the case, that renders the entire proceedings a nullity as the legal consequences generally mean the decision is unenforceable. As mentioned earlier, the second limb of both counsel's arguments addressed the approach taken by the trial court which accepted both parties' mutual consent to the dissolution of their marriage and the issuance of a divorce decree without seeking to establish in the first place, if the marriage had indeed broken down irreparably. Going by section 99 of the Law of Marriage Act, no decree of divorce shall be granted unless the Court is satisfied that the breakdown is irreparable. As such, the law specifically mandates that, in any petition for divorce, the court must be satisfied of the irreparable break down of the marriage before granting a divorce. In this connection, the court is enjoined to have regard to all relevant evidence which ought to be led by the parties regarding the conduct and circumstances of each party. This often involves the petitioner's demonstration of the respondents' commission of any of the matrimonial offences such as adultery, cruelty, wilful neglect or desertion. It follows in our judgment that, as opposed to the approach by the learned trial magistrate in the present matter, under the Law of Marriage Act in Tanzania and in terms of similar provisions of law in some other jurisdictions, a court of law generally cannot issue a divorce decree unless, upon evaluation of the evidence led by the parties, it is satisfied that the 13 marriage has broken down beyond repair. In this regard, we are compelled to quote with approval what was stated by one of the most renowned family-lawyers in Tanzania who observed correctly so in our view that, the courts in Tanzania and Africa generally, are often encouraged to safeguard marriages and avoid granting quick divorce decree because a marriage as a social institution, is viewed not merely as a contract between two individuals, but as a crucial, sacred and communal foundation of social stability. To that end, the legal systems in Africa, in line with local cultural values, recognise that divorces invariably cause profound, lasting and negative impacts on families, children and society at large. (See: "An Analysis of the Legal and Institutional Framework on Marriage Conciliation Boards in Tanzania" by Abdulrahman 0. J. Kaniki: International Journal of Law and Society (Vol.8 Issue 4) Published on 3r d December 2025). Needless to say, the question as to why do courts in Africa hold this position, is a deferred topic. From what we have stated above, we entirely agree with the arguments by both counsel regarding the procedural irregularities obtaining in this matter which, as it turned out, were not detected by the learned Judge of the first appellate court. We are increasingly of the view that indeed, this is an appropriate matter to refer back to the trial court for a retrial. We accordingly nullify the proceedings of the lower courts, 14 quash and set aside the resulting orders and remit the matter back to the trial court for purposes of trial de novo which should be expedited. The parties will bear respective costs. DATED at MWANZA this 12th day of May, 2026. L. S. MWANDAMBO JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL Judgment delivered this 13th day of May, 2026 in the presence of Mr. Brian Steven Kimbele, learned counsel who took brief for Mr. Julius Mushobozi, learned counsel for the appellant, Mr. Madulu B. Madulu, learned counsel for the respondent and Mr. John Banene, Court Clerk; is hereby certified as a true copy of the original. \ >ViA. L. KALEGEYA ffiPUTY REGISTRAR URT OF APPEAL 15