Method Amon Kinde vs Christina Kasawa Masendeko (Civil Appeal No. 1350 of 2025) [2026] TZCA 559 (13 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA fCORAM: KEREFU. 3.A.. MWAMPASHI, 3.A. And ISMAIL. J.A.) CIVIL APPEAL NO. 1350 OF 2025 METHOD AMON KINDE .......................................... ................... APPELLANT VERSUS CHRISTINA KASAWA MASENDEKO .......................................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Temeke One Stop Judicial Centre at Dar es Salaam) fMnvukwa, J.) dated the 12th day of May, 2025 in Civil Appeal No. 5683 of 2025 JUDGMENT OF THE COURT 2CP April & 13P May, 2026 ISMAIL 3.A.: The parties herein lived under one roof for 12 years, during which they were presumed to be a married couple. At some point in their cohabitation, differences emerged and took a toll on their relationship. The appellant, at whose instance judicial intervention was sought, alleged desertion, denial of conjugal rights and voluntary separation as being the reasons for irretrievable breakdown of the relationship. In the petition filed in the District Court of Temeke at One Stop Judicial Centre (the trial court), the appellant implored the court to recognize that their union had i significantly fledged. He also beseeched the court to order distribution of jointly acquired matrimonial assets. The District Court acceded to the prayer by declaring that the union had, indeed, broken down irreparably. With respect to matrimonial assets, the court ordered that, a house on Plot No. P9915, located at Goba Tegeta "A", in Dar es Salaam be solely placed in the hands of the respondent. What fell on the hands of the appellant were: a residential house located in Mwanyamala Dar es Salaam, a surveyed piece of land located at Wazo in Ubungo District, an un-surveyed piece of land located Chanika, Ilala District, a residential house at Matosa in Ubungo District and a motor vehicle make Toyota GX 110. This decision incensed the appellant who thought that, the trial court failed to consider the extent of each party's contribution towards the acquisition of the house placed in the respondent's hands and that, the evidence adduced in that respect was disregarded. His appeal to the High Court fell through as the latter upheld the trial court's findings. Enraged by the decision, he instituted an appeal in this Court, predicating his complaints on two grounds of appeal, reproduced as hereunder: 1. That, the High Court erred in law and fact by failing to properly assess evidence adduced before the trial court and give due weight to the house on Plot No. P9915 located at Goba Tegeta "A", thereby unjustly awarding it solely to the respondent 2. That, the High Court erred in law and fact by considering and discussing other properties that were not relevant to the issues before the trial court, seemingly to justify its decision. Ahead of the hearing and/ consistent with rule 106 (1) and (7) of the Tanzania Court of Appeal Rules, 2009, the parties filed written submissions in support of and in opposition to the grounds of appeal. At the hearing before us, the appellant was represented by Mr. August Mramba, learned advocate, as his counterpart, Mr. John Carol Chogoro, learned counsel, appeared for the respondent. When he rose to elaborate on the appellant's written submissions, Mr. Mramba, who argued both grounds conjointly, submitted that, the testimony of PW1 and PW2, found at pages 34 and 44 of the record of appeal, was not properly evaluated. Whereas the testimony of PW1 stated how the piece of land on which the disputed house stands was solely acquired, in his own name, through payment of TZS. 7,000,000.00 from his personal coffers, PW2 testified on how the appellant hired him to carry out construction of the house. He added that, during the construction 3 period, all instructions, including those of buying construction materials, were issued by the appellant. The contention by Mr. Mramba is that, this uncontested testimony ought to have been used to make a finding in the appellant's favour. He referred us to the decision of the Court in Martin Misara v. Republic [2018] TZCA 318, wherein it was held that, a party who fails to cross- examine a witness on a material issue is deemed to have accepted that evidence. The learned counsel contended that, the respondent's admission, at page 53 of the proceedings, that construction of the Tegeta house was supervised by the appellant was a confirmation that there was no financial or material contribution from the respondent. He argued that, division of matrimonial assets which is governed by section 114 (1) of the Law of Marriage Act [Cap. 29 R.E. 2023] (the LMA), requires that, it be in respect of properties acquired jointly. He drew our attention to the decision of the Court in Gabriel Nimrod Kurwijila v. Theresia Hassan Malongo [2020] TZCA 31 in which it was held that, the extent of contribution is a determinant factor, adding that, in resolving that issue, courts must rely on the adduced evidence. The learned counsel's contention is that the first appellate court did not consider this reality. 4 In his reply submission, Mr. Chogoro did not find any fault in the reasoning and conclusion drawn by the 1s t appellate court. He maintained that, the house in dispute constitutes one of the matrimonial assets which were listed in the petition for divorce instituted by the appellant in the trial court. This property was listed as an asset that the appellant desired that it be distributed to him. The learned counsel quoted an excerpt from the appellant's own testimony as he stated that they acquired three houses, two pieces of land, two shops and a vehicle. He admitted that, the house in question was built when the parties were living together. Mr. Chogoro further quoted the appellant narrating the ordeal that befell him when he sustained an accident which rendered him immobile for nine months during which, he was fully supported by the respondent who was running the family businesses. Mr. Chogoro contended that, the argument that the house was solely acquired by him is not only an afterthought and an afront to the principle that binds the parties to their pleadings, but also the basic principle set out in Bi Hawa Mohamed v. Ally Sefu [1983] T.L.R. 32, and amplified in Asile Ally Said v. Irene Redentha Emmanuel Soka & Another [2024] TZCA 33. In these decisions, he argued, the Court held that, irrespective of who acquired the property, the same becomes a 5 matrimonial property jointly acquired by the spouses, if the acquisition was done during the subsistence of the marriage. He contended that, the testimony adduced was enough to establish that the said property was both a matrimonial asset and a matrimonial home. From the counsel's rival submissions, one issue arises. This is as to whether the concurrent findings of the lower courts which allocated the house in dispute in the respondent's hands were erroneous. Initially, we wish to state that, it is not lost on us, and on the counsel, we believe, that this is the second appeal which is, by and large, predicated on matters of fact. The findings against which the instant appeal lies are concurrently of facts. In dealing with such findings, we are guided by what this Court accentuated in Amratlal Damodar Maltaser and Another t/a Zanzibar Silk Stores v. A.H. Jariwalla t/a Zanzibar Hotel [1979] TZCA 20, and consistently held in subsequent decisions. In the said case, it was guided as follows: "In my respectful view, where, as in the instant case, there are concurrent findings o f facts by two courts, this Court should as a wise rule o fpractice follow the long established rule repeatedly laid down by the Court o f Appeal for East Africa, that is, that an appellate court in such circumstances should not disturb concurrent findings of facts unless it is cieariy shown that there has been a misapprehension o f the evidence, a miscarriage of justice or violation o f some principle of law or procedure." See also: Yakobo Magoiga Gichere v. Penina Yusuf [2018] TZCA 222. As intimated earlier on, the disputants are locking horns on the narrow question of distribution of the matrimonial assets. The focus is on the Goba Tegeta "A" house. In our jurisdiction, division of matrimonial assets is preceded by a court pronouncement to the effect that, the union that bound the parties under one roof is irretrievably broken down. When this happens, section 114 of the LMA whose substance is as reproduced hereunder, kicks in: 114 .-( 1 ) The court shall have power, when granting or subsequent to the grant a decree of separation or divorce, to order the division between the parties o f any assets acquired by them during the marriage by theirjoint efforts or order the sale o f any asset and the division between the parties o f the proceeds of sale. (2) In exercising the power conferred by subsection (1), the court shall ha ve regard to - (a) N/A; (b) the extent of the contributions made by each party in money, property or work towards the acquiring of the assets; (c) N/A; and (d) N/A. (3) For the purposes o f 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 their joint efforts. [Emphasis added]. From the cited provision, we distil that, acquisition of the property in question during the subsistence of the marriage and joint effort in the acquisition, constitute key determining factors. The issue for our determination is whether these factors were met. The contention by the appellant is that acquisition of the house in question was done solely by him, to the exclusion of the respondent. What he implied, we understand, is that, such acquisition was not through the spouse's joint efforts. He has relied on the testimony of PW1 and PW2 to fortify that view. Mr. Mramba has also called to his aid, the respondent's testimony, found at page 53 of the record of appeal, at which she stated in part, as follows: 8 "Kiwanja cha Goba Tegeta "A"kilinunuliwa mwaka 2015/2016 sikumbuki vizuri. Nyumba ya Tegeta Hianza kujengwa mwaka 2017. Mume wangu ndio alisimamia ujenzi mwanzo hadi mwisho." This is literally translated to mean as follows: "The Goba Tegeta "A" plot was acquired in 2015/2016,1 cannot recall properly. Construction of the house in Tegeta began in 2017. My husband supervised the construction from the start to its completion." The appellant testified that, he and the respondent ran joint businesses. He also admitted that, the Goba Tegeta "A" house was built between 2018 and 2019 when they were living together. It was also his testimony that, the respondent took care of him when he was involved in an accident that immobilized him for several months. This is besides other chores and other domestic duties which she performed. What we gather from the totality of this testimony is that: one, the said property was acquired and built during the subsistence of their cohabitation; two, that the appellant was the supervisor of the project, not the only or sole financier. But as we make sense of this testimony, we are mindful of the appellant's decision to list the house, among the assets that he desired that they be divided by the parties. We also consider this to be an all-assuring conviction that this was a matrimonial property, acquired during the subsistence of the 'marriage' and through the parties' joint efforts. In the appellant's wisdom, however, he wished that, this one house, in particular, fell under his sole ownership, white other properties whose acquisition was in similar fashion are placed in the hands of the respondent. They include the Chanika plot, a house in Matosa, and a house in Mwanyamala which, in terms of the appellant's testimony at page 36 of the record of appeal, were allegedly solely acquired by him, but it pleased him that they, save for the house in Mwanyamala, pass on to the respondent. We are of the view that, on the evidence adduced, the acquisition of the house in dispute was no different from all other assets which were listed for distribution. We agree with what the learned Judge of the High Court held and Mr. Chogoro's reasoning that, these were fruits of joint efforts, and the respondent has done enough to satisfy the requirements of section 114 (2) (b) of the LMA by demonstrating that, her extent of contribution was noticeable and significant. We are not oblivious to the fact that, the trite law is that, the extent of acquisition of the property is an evidentiary issue and that, the side 10 whose evidence is heavier carries the day - see: Gabriel Nimrod Kurwijila (supra). In the instant matter, the testimony adduced by the respondent weighed so heavily in her favour, to prove that she was profoundly involved in generating income that enabled the acquisition of the property in question. We are mindful, as well, that, the very fact that the said property was in the appellant's wish list, is an admission that this property was perfectly jointly acquired. He cannot, at a later stage, renege on that admission and implicit undertaking at this point in time. We are in full agreement with Mr. Chogoro that, being bound by his own pleadings, the appellant cannot be heard to give a contrary suggestion. Mr. Mramba has referred us to the decision of this Court in Gabriel Nimrod Kurwijila (supra) to buttress his contention on the extent of the spouse's contribution in the acquisition of the property. But, as alluded to earlier on, this decision only emphasized on the need to prove that, there was a contribution towards the acquisition and, in our considered view, this was done to good effect by the respondent. The learned High Court Judge premised her finding that, the house is a matrimonial house on the ground that, it was acquired during the pendency of the marriage and through joint efforts, irrespective of the 11 fact that the same was in the name of the appellant. She cited paragraph 21 of the petition of divorce in which properties due for division were listed. She also relied on the decision of the Court in Asile Ally Said (supra) wherein it was held that, where a property is acquired during the subsistence of the marriage and through joint efforts, then, such property becomes a matrimonial asset and it would matter less if the same is in the name of an individual spouse. In our considered view, the learned Judge's reasoning is spot on, and we subscribe to it. It represents the law as it currently obtains, and we find nothing justifying the appellant's disquiet. We, respectfully disagree, in consequence, with Mr. Mramba's contention that, the High Court and the trial court failed to give weight to the testimony adduced by PW1 and PW2. It is simply that, such evidence was of less probative value (if any) to be able to sway the court's finding in the appellant's favour. As we wind down, it behoves us to remark, albeit in passing, that, looking at the decision of the trial court which was upheld by the High Court, it is clear that, save for the house in dispute, all other items listed for distribution went the appellant's way and the respondent did not have any qualms on that. To demand that the house in dispute should also fall in the hands of the appellant constitutes, in our firm conviction, an act of 12 mindless greed. We are not persuaded, one bit, that justice will be better served if the Court were to entertain that contention. In sum, we find the appeal unmerited and we dismiss it. We make no order as to costs. DATED at DODOMA this 12th day of May, 2026. R. 1 KEREFU JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL Judgment delivered virtually this 13th day of May, 2026 in the presence of Mr. August Mramba, learned counsel for the appellant, Mr. John Chogoro, learned counsel for the respondent, and Mr. Shafii Kassim, Court Clerk, is hereby certified as a true copy of the original. A. S. CHWGULU DEPUTY REGISTRAR COURT OF APPEAL lU fM u - f EC 13