Bahati Issa Kagiye vs Esperansa Timothy (Civil Appeal No. 202507300001455 of 2025) [2026] TZCA 538 (12 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: LILA, J.A., MASOUD. J.A. And MLACHA. J.A.^ CIVIL APPEAL NO. 202507300001455 OF 2025 BAHATIISSA KAGIYE................................................................... APPELLANT VERSUS ESPERANSA TIMOTHY............................................................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, at Tabora) (Mirindo. J.l dated the 5th day of June, 2025 in Civil Appeal No. 29023 of 2024 JUDGMENT OF THE COURT 7t h& 12t hMay, 2026 MLACHA. 3.A.: At the core of this appealthere is astruggle forthe control of 3 houses built on Plot No. 227,Block B, Mtendeni,Tabora Municipal. It is not in disputed that the houses were built during the subsistence of the marriage between the appellant and the respondent and thus matrimonial assets subject to division under section 114 of the Law of Marriage Act, Cap 29 of the Revised Editions 2019 following the grant of a decree of divorce. The issue before the Court is who should take what. The factual background leading to this appeal can be presented as follows: The appellant and the respondent met in Tabora town, fell in love and celebrated a customary marriage on 14.02.2007. TZS. 460,000.00 was paid as bride price. At that time, the appellant was engaged in petty business, running a small shop. The respondent was then invited at the shop where they worked together for some time before they started another business. It was the business of buying and selling palm oil (locally known as Mawese) at Kigoma and selling them at Tabora. During this period, the respondent remained at the shop while the appellant was engaged in the business of buying Mawese. He changed later to the business of buying and selling maize and beans. He was buying them in Mpanda, Kigoma or Bukoba and selling them at Tabora. Sometimes he took them to Dar es Salaam. He kept on travelling while the respondent remained at the shop. In 2009 the couple gained strength and bought plot No. 227, Block B, Mtendeni, Tabora Municipal and started to build the houses, one after the other. As time went on, they brought two other plots; Plot No. 317, Block B Mtendeni and plot No. 242 Block B Malolo, both in Tabora town. They also bought a motorcycle SNLG whose registration number was not disclosed, raised and kept 30 local chickens, bought a bed and 2 mattresses, a gas cooker, a fridge and other domestic utensils. Life went on peacefully but it changed at a later stage because 2 the respondent could not conceive. The parties differed on the solution to the problem. The approach of the respondent was through the hospital and prayers. With this in mind she went through a number of hospitals in Tabora and later, on someone's advice, she moved to Nkinga Hospital, Lindi where she stayed for two weeks. She was diagnosed with blockage of fallopian tubes and undergone a minor surgery. She was given medicines to use. She also had a pastor who prayed for her. The appellant believed that the solution to the problem was on local medicines as such he discouraged the use of hospital medicines and going to the pastor. He brought local medicines which were rejected by the respondent. Tensions continued and grew. In January 2019 following the refusal to use some local medicines and a fight between them, the respondent vacated the matrimonial home returning to her parents. The appellant tried to convince her but in vain. He then decided to marry another woman. When he gave evidence in court on 8/1/2024, as appearing at page 26 of the record of appeal, he had 3 kids with the new wife; Furaha Bahati Kagiye(4), Peace Bahati Kagiye (1) and Faith Bahati Kagiye (1). The children were born in the period of separation which by then had extended to 4 years and 6 months. 3 Faced with this predicament, the respondent went to the Primary Court of Tabora District at Isevya in Matrimonial Cause No. 36 of 2023 seeking divorce and division of matrimonial assets. She accused the appellant of humiliation and cruelty. Based on the period of separation and the fact that the appellant was already married to another woman, the Primary Court found that love was no more and the marriage was broken beyond repair. It granted the decree of divorce and made orders for division of matrimonial assets. It gave the appellant the 3 houses, 3 bicycles and domestic items which included a bed and 2 mattresses, a cupboard, a wardrobe, a gas cooker, a fridge and all cooking and food utensils. The shop and the business of buying and selling maize and beans were also left with him. The respondent was given Plot No. 317, Block B Mtendeni, TZS. 1,000,000.00 as her share in the Malolo plot which was sold by appellant during separation, TZS 2,000,000.00 as her share in the shop, TZS 3,000,000.00 as her share in the maize and beans business and the motorcycle, SNLG. The respondent appealed to the District Court of Tabora in Matrimonial Appeal No. 000008502 of 2024 challenging the order which vested the 3 houses to the appellant. She had no query with the division on other items. In the like manner, there was no cross appeal by the 4 appellant on the division of other assets. The dispute had now narrowed down to Plot No. 227, Block B Mtendeni which includes a fight for the 3 houses situated therein. The District Court re-evaluated the evidence and declared the houses to be matrimonial assets. After considering the contribution of the parties in terms of section 114 of the Law of Marriage Act, it gave 50% to the appellant and 50% to the respondent. The appellant was aggrieved by the decision of the District Court and appealed to the High Court in PC Matrimonial Appeal No. 29023 of 2024. The High Court varied the decision of the District Court and gave 70% to the appellant and 30% to the respondent. Undaunted, the appellant lodged the appeal before the Court. The memorandum of appeal lodged by the appellant appearing at page 4 of the record of appeal has 5 grounds of appeal, but Mr. Kilingo Hassan, learned advocate who represented the appellant, with the leave of Court, abandoned grounds 4 and 5 and consolidated the rest of the grounds to carry one complaint; that the award of 70% to the respondent and 30% to the appellant was not fair in the circumstances. The submission of Mr. Hassan was short focused. He submitted that, if the learned Judge had assessed the evidence properly, he could find that the respondent met the appellant in business running a shop, which 5 had a capital of 3,000,000.00. He contended that the fact that the appellant was a source of the capital was not considered and if considered, it could not lead to the award of 70% to the appellant and 30% to the respondent. He impressed upon us to find that her contribution was small if assessed properly, the respondent could be entitled to 10% only while 90% was supposed be given to the appellant. When he was engaged by the Court on whether the order of selling the house was proper, he submitted that it was not proper to make an outright order to sell the house because it bars one of the parties to compensate the other and remain with the house. In reply, Mr. Kelvin Kayaga, learned advocate who represented the respondent, referred the Court to pages 22,23,24 and 52 of the record of appeal where there is evidence on how the parties worked together in the business which raised funds to buy the plot and build the houses. He submitted that, the plot and the houses were acquired during the subsistence of the marriage and this fact is not disputed. It was also not disputed that, the respondent remained at the shop while the appellant travelled in the course of business. In this way funds were raised to buy the plot and build the three houses over the years. He went on to submit that the respondent gave the appellant advice to open a bank account 6 and get a TIN number for business purposes. The Tin number is in her name. He impressed up on us to find that the decision of the High Court was sound because it was based on the law and the evidence on record. On the order of selling the houses which was made by the District Court and upheld by the High Court, like Mr. Hassan, he had the view that the order was erroneous. He urged the Court to correct the error by ordering the house to be valued and each party be given his share, to allow one of the parties to compensate the other, if need arises and remain with the house. He however hastened to say that, the order of sale is also needed, but must come as a last resort. We had time to examine the evidence on record and consider the submissions of the learned advocates. As intimated above, the appeal rests on a narrow point, division of matrimonial assets focusing on the three house only. We shall now consider this aspect. Division of matrimonial assets is a question of mixed law and fact. It calls for an examination of the law and the evidence. The relevant law is section 114 of the Law of Marriage Act which reads thus: "114 (1) The Court shall have power, when granting or subsequent to the grant of decree of separation of divorce, to order the division between the parties o f any assets acquired by them during the marriage by their joint efforts or to order the sale o f any such assets and the division between the parties o f the proceeds o f Sale. (2) In exercising the power conferred by subsection (1), the Court shall have regard to - a) the customs o f the community to which the parties belong; b) the extent of the contributions made by each party in money, property or work towards the acquisition o f 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, shaii incline towards equality of division. (3) for the purpose o f this section, reference to assets acquired during marriage includes assets owned before the marriage by one party which have been substantially improved during the marriage by the other party or by theirjoint efforts." [Emphasis supplied] 8 Our reading of this provisions has revealed that, division of matrimonial assets is done at the time of granting the decree of separation or divorce or subsequent thereto. There cannot be a division of matrimonial assets in the absence of a decree of separation or divorce. Division is limited to assets which were acquired during the subsistence of the marriage by joint efforts of the parties or assets which were acquired by one party before the marriage but substantially improved by the other party during the marriage. Division is made subject to proof of contribution by the parties towards the acquisition of the property and where the needs of the children are at issue, subject to the above considerations, the division should incline towards equality of division. See: Bi Hawa Mohamed v. Ally Sefu [1983] TLR, 32, Yesse Mrisho v. Sania Abdul [2019] TZCA 414, Sixbert Bayi Sanka v. Rose Nehemia Samzugi [2022] TZCA 227, Gabriel Nimrod Kurwijila v. Theresia Hassan Malongo [2020] TZCA 31 and Tumaini M. Simoga v. Leonia Tumaini Balenga [2023] TZCA 249 to mention but a few. The principles which guide a court in determining the shares of the husband and wife in division of matrimonial or family assets are spelled out under sub-section 2 of section 114 of the Law of Marriage Act, as intimated above. Of essence, for the purpose of this decision, is proof of 9 contribution of the parties towards acquisition of the assets. Here the provisions of sections 110 and 111 of the Law of Evidence Act (now sections 117 and 118 of the Revised Edition 2023) becomes of essence; he who alleges must prove. That is the essence of our decision in Sixbert Bayi Sanka (supra) where it was stated as follows: " The provisions enjoin or lay a burden to the parties to establish their respective contributions and joint efforts as regard acquisition o f the asset which will enable the court to fairly and justly determine the extent of their contribution hence apportion their respective shares." [Emphasis supplied] See also Gabriel Nimrod Kurwijila (supra) where it was stated thus: "The extent o f contribution is o f utmost importance to be determined when the court is faced with a predicament o f division o f matrimonial property. In resolving the issue o f extent o f contribution, the court will mostly rely on the evidence adduced by the parties to prove the extent o f contribution". [Emphasis supplied] 10 There is no dispute that the houses were acquired during the subsistence of the marriage. There is undisputed evidence that the appellant was in business in 2007 prior to the marriage and had a shop. The respondent joined the business in 2007 after being married. Through their deliberations as a family, it was decided that they should start a side business which became the domain of the appellant for some years. It later turned to be the main business. The evidence of the respondent at page 22 shows that the shop had a capital of TZS. 10,000,000.00 and external business had a capital of TZS. 20,000,000.00 acknowledging that more money came from the outside business than the shop. This was the position in 2019 when they parted. If we take the houses as a product of the family business, then, it is obvious that, the contribution of the appellant who run the external business and who was also the source of the initial capital of the shop, as intimated above, was greater than that of the respondent. When engaged by the Court on to what could be apportioned to the parties, Mr. Hassan suggested 90% to the appellant and 10% to the respondent. Mr. Kelvin Kayaga did not find this to be logical and fair. His stance was that the respondent who was engaged in the shop from 2007 to 2019 deserved something more than that. That was supposed to be the case despite the fact that the appellant gave the initial capital of the shop and run the external business which was bigger li than the shop. He impressed upon us to maintain the decision of the High Court. On our side, taking into account the requirements of the law that division of matrimonial asset is done according to the contribution made by each of the parties and based on the evidence that: i) the respondent worked at the shop from 2007 to 2019; iii) the shop was started by the appellant long before the marriage; iv) the appellant run the external business which had a bigger return than the shop; v) the houses were built during the subsistence of the marriage, we have the view that, the division of 70% to the appellant and 30% to the appellant done by the leaned Judge was fair justified and we find no reason to disturb it. The complaint raised is thus found to be baseless and dismissed. The complaint raised is thus found to be baseless and dismissed. However, we wish to point out by way of passing that, our position could be different if there was a cross appeal because there is a position already set by the Court in Bi Hawa Mohamed (supra) and many other cases which followed that, domestic services per see, can attract a contribution of upto 30% of the value of matrimonial assets. This means that, if the Court was moved properly, the respondent could get more than what was awarded by the High Court because she rendered domestic services as well. 12 Finally, we wish to make a correction in an area which is a subject of mistakes in many decisions of the lower courts, which we also invited the parties to give their views. It is on orders of outright sales of the houses once they are found to be matrimonial assets and subject of division to the parties. We have the view that ordering the house to be sold outright denies the parties the right to compensate one of the parties and take the house. Both the learned counsel found the order of sale made by the District Court and upheld by the High Court to be erroneous because it denied parties the right to compensate the other side and take the house. We share their views. That said and done, the order of the High Court ordering outright sale of the houses is vacated and substituted with an order that, the property in Plot No. 227, Block B, Mtendeni, Tabora Municipal be valued by a government valuer at the cost of both parties to establish its value and the percentage of the respective parties as indicated above. Once valuation is done, any of the parties will be free to compensate the other and remain with the house. If none of the parties will take this course or where the valuation of the property is delayed for a considerable period without good course, the Primary Court shall be at liberty to engage a Court Broker to sale the house and divide the proceeds of sale to the parties at the rate of 70% to appellant and 30% to the respondent after deducting the costs of the auction. 13 Save for the slight changes made above, the appeal is devoid of merit and dismissed. This being a matrimonial cause, we make no order for costs. DATED at TABORA this l l th day of May, 2026. S. A. LILA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL Judgment delivered this 12th day of May, 2026 in the presence of Mr. Kelvin Kayaga, learned counsel for the Respondent also holding brief for Mr. Hassan Kilingo, learned counsel for the Appellant and Ms. Rehema Makakala, Court Clerk; is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 14