Fredy Machunda vs Dorothea Deus (Civil Appeal No. 237 of 2024) [2026] TZCA 567 (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. 237 OF 2024 FREDY MACHUNDA......................................................................APPELLANT VERSUS DOROTHEA D E U S .................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Mnvukwa, J.) dated the 19th day of April, 2023 in Matrimonial Appeal No. 110 of 2022 JUDGMENT OF THE COURT 30th April & 13th May, 2026 MGONYA, J.A,: This appeal arises from the decision of the High Court of Tanzania, Mwanza District Registry, which affirmed the judgment of the District Court of Ilemela awarding the respondent a sum of TZS. 10,000,000.00 as compensation for her contribution to the acquisition of matrimonial assets following the dissolution of marriage between the parties. The background leading to the appeal, albeit briefly, goes as follows: The appellant and respondent solemnized their marriage under Christian rites sometime in 1998. The marriage was blessed with four children. However, marital harmony deteriorated, and the parties separated in the year 2010. The efforts undertaken by the Marriage Conciliation Board of Pasiansi Ward to reconcile the parties became futile, hence, their relationship came to an end by a decree of divorce granted by the Primary Court of Ilemela District at Ilemela. The parties had no qualms with the decree of divorce, but the subsequent orders relating to the division of matrimonial properties. It is on record that, during the trial, the respondent told the trial court that during the subsistence of the marriage, they jointly acquired several properties, which include: four matrimonial houses; one located at Plot No. 147 Block A, Pasiansi, a second house situated at Ilemela Makaburini, a third house situated at Ilemela Mahakamani, and a fourth one situated at Kiseke. Other properties listed by the respondent were motor vehicles identified as one Escudo and two Hiaces which were allegedly sold by the appellant. That, from the proceeds of the sale, other vehicles, including five Scania trucks, one Canter, a Toyota Prado, and a Noah, were bought. On his side, the appellant denied joint acquisition of the said properties. After hearing the parties, the trial court found that although the respondent had not established direct financial contribution to the acquisition of the properties, she contributed to the family's welfare through domestic chores and participation in the family's hardware business. Consequently, the trial court awarded her TZS. 3,000,000.00 as compensation. That decision irked the respondent who appealed to the District Court of Ilemela. The respondent sought enhancement of the award where she claimed a share of 50% for Plot No. 471 Block A and 20% of the proceeds from the hardware business. The first appellate court, upon hearing the parties, held that the respondent contributed to the acquisition of the matrimonial properties through parenting and assisting in the hardware business, thus adding the compensation from TZS. 3,000,000.00 to TZS. 10 , 000 , 000 . 00 . The appellant was displeased with the first appellate court's decision. He thus unsuccessfully challenged the same before the High Court. The High Court dismissed his appeal and upheld the decision of the first appellate court. Still aggrieved, the appellant has lodged the instant appeal. The memorandum of appeal is predicated on two grounds, namely: 1 . That the High Court erred in iaw in affirming the award of TZS. 10,000,000.00 as compensation to the respondent; and 2. That the whole decision is against the law and the evidence on record. At the hearing of the appeal, both parties appeared in person unrepresented. The appellant prayed the Court to consider the written 3 submissions in support of the appeal which he filed earlier on 16th February, 2024. He had nothing to add. On the other hand, the respondent at the outset declared not to support the appeal. In his written submission, the appellant faulted the High Court Judge for upholding the relief granted to the respondent by the first appellate court. He argued that, the relief granted was never asked for by the respondent. According to the appellant, the lower courts acted contrary to the legal principle that a court cannot grant relief which has not been prayed for. To bolster his argument, he cited the cases of Pasinetti Adriano v. Giro Gest Limited and Another (Civil Case No. 17 of 1998) [1999] TZHC 512 and Zalkha Binti Mohamed v. Juma Mazige (1970) H.C.D. No. 132, where the court explained the role of pleadings and the requirement of the court to confine itself to issues which have been raised in the pleadings. Arguing further, referring us to the cases of Bi. Hawa Mohamed v. Ally Sefu [1983] T.L.R. 32 and Bibie Mauridi v. Mohamed Ibrahimu (1989) T.L.R. 162, he contended that, it is necessary to prove the extent of contribution which could be in the form of money, property, works, and even domestic work. In his submission, from what is reflected on pages 116 and 117 of the record of appeal, it was unjustifiable to award the respondent TZS. 10,000,000.00 while she had no contribution towards the acquisition of the properties. The appellant insisted that the lower courts erred in granting such relief to the respondent. On her part, the respondent was brief and straightforward in stating that she supported the decisions of the lower courts. She had nothing to add. Having considered the record of this appeal, grounds of appeal, and submission of the appellant, it is clear that the only issue for determination by this Court is whether the High Court properly affirmed the award of TZS. 10,000,000.00 to the respondent as compensation for her contribution to the acquisition of matrimonial properties. Essentially, the law regarding division of matrimonial properties is now well settled both by statute and by case law. Section 114 (2) and (3) of the Law of Marriage Act (the LMA) provides: "(2) In exercising the power conferred by subsection (1), the court shali have regard to- (a) the customs of the community to which the parties belong; (b) the extent of the contributions made by each party in money\ property or work towards the acquiring of the assets; (c) any debts owing by either party which were contracted for theirjoint benefit; and (d) the needs of the children ; if any, of the marriage, and subject to those considerations, shai! incline towards equality of division. (3) For the purposes of this section, references to assets acquired during the marriage include assets owned before the marriage by one party which have been substantially improved during the marriage by the other party or by theirjoint efforts." It is settled through case law that the contribution towards the acquisition of matrimonial assets may be direct and indirect. The law recognized domestic work as an indirect contribution towards the acquisition of matrimonial assets. See, for instance, the decisions of the Court in the cases of Bi. Hawa Mohamed v. Ally Sefu (supra) and Bibie Mauridi v. Mohamed Ibrahimu (supra). In the latter, it was held that: "Performance of domestic duties amounts to a contribution towards acquisition , but not necessary 50%." See also Maryam Mbaraka Salehe v. Abood Salehe Abood, Civil Appeal No. 1 of 1992, and Yesse Mrisho v. Sania Abdul (Civil Appeal No. 147 of 2016) [2019] TZCA 763. In the instant appeal, it is on record that the second appellate court evaluated the evidence adduced by the parties relating to the assets allegedly acquired during the subsistence of the marriage. As illustrated 6 earlier, the respondent mentioned various properties whereby, upon evaluating the evidence, the trial court found that the respondent had established her contribution to the acquisition of a house situated at Plot 471 Pasiansi, Mwanza and awarded the respondent TZS. 3,000,000.00 as compensation. On appeal to the High Court, the High Court Judge found that, although Plot No. 471 was solely purchased by the appellant as shown in a sale agreement (Exh. P4), the same was substantially improved by the joint efforts of the parties during the subsistence of their marriage. That, the evidence showed that the respondent made both direct and indirect contributions during the subsistence of the marriage. In his view, the respondent's participation in the hardware business materially contributed to the financial contribution which led to the development of the said property. Therefore, referring to section 114(3) of the LMA and the case laws, it held that, the property was jointly acquired by the parties and therefore, subject to division between them. Consequently, referring to the principle stipulated under section 114 of the LMA, and the case of Mohamed Abdallah v. Halima Lisangwe [1998] T.L.R. 197, the High Court affirmed the award of compensation of TZS. 10,000,000.00. In our considered view, we find that the High Court properly exercised its power under the law governing the division of matrimonial assets in affirming the award of compensation. The appellant's complaint lacks merit as he has failed to demonstrate that the award was excessive, arbitrary, or made on wrong principles of the laws. Thus, we find no reason to fault the High Court decision. We noted the appellant's concern that the lower courts awarded compensation while the respondent in her pleading did not seek that relief. With profound respect, we do not agree with him supported by the view underscored in the underlined persuasive decision of the High Court in the case of Mohamed Abdallah v. Halima Lisangwe (supra) where it held that: "The principle under the division of property under s. 114 of Law of Marriage Act is one of compensation. Whether what is being compensated is direct monetary contribution or domestic services, it does not matter". We subscribe to the above position as it is clear that the law under section 114 of LMA intends to protect a spouse from being left without any property or compensation for the contribution made towards the joint acquisition of the assets during the subsistence of marriage. In our view, courts have discretion to award compensation in monetary or physical properties depending on the peculiar circumstances of each case. What is important is for the court to ensure fairness and that the amount of compensation is consonant with the contribution. In the event, we find no merit in this appeal and accordingly dismiss it in its entirety. We make no order as to 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 the appellant and respondent in person, unrepresented and Mr. John Banene, Court Clerk; is hereby certified as a true copy of the original. 9