Deogratius Leopold Ndanu vs Martha Juvenal Mkunde (Civil Appeal No. 566 of 2024) [2026] TZCA 544 (12 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: NDIKA. J.A.. MURUKE. 3.A. And MGEYEKWA. J.A.^ CIVIL APPEAL NO. 566 OF 2024 DEOGRATIUS LEOPOLD NDANU ................................................. APPELLANT VERSUS MARTHA JUVENAL MKUNDE....................................................RESPONDENT (Arising from the Judgment and Decree of the High Court of Tanzania, Sub-Registry at Dar-es-Saiaam) fSarwatt, J.) dated the 13th day of June, 2024 in Civil Appeal No. 6217 of 2024 JUDGMENT OF THE COURT 24hApril & 12t h May, 2026 MURUKE. 3.A.: The appellant and the respondent, contracted the Christian marriage on 31s t October, 2009. In the course of their marriage, they were blessed with three issues aged 13 years, 10 years and the youngest 6 years, at the time the respondent testified at the trial court, on September, 2023. Together with their own three biological issues, they also raised a son of the appellant's brother as their own, since he was one year old. The marriage was happy one, until 2020, when mistrust amongst them arose and destroyed their marriage relationship. The appellant accused the respondent for being dishonest in their marriage, while the respondent accused the appellant of cruelty against her. i Having failed to resolve the dispute amicably in 2023, the respondent filed a petition, praying for divorce, custody of the issues of marriage, division of matrimonial properties, maintenance costs, and TZS 50,000,000, being compensation for harassment and cruelty. The trial court upon hearing both parties, and upon being satisfied that the marriage has irreparably broken down, granted decree for divorce, half share of the matrimonial properties for each party, custody of issues to the respondent and maintenance of TZS 250,000,00 per month. The appellant was not satisfied, therefore filed an appeal at the High Court that was dismissed, upholding trial court findings. Again the appellant was not satisfied, he has filed present appeal, raising four grounds of complaint namely: 1. That, the High Court Judge sitting as appellate court erred in law to uphold the order on maintenance to be carried by the appellant only, while it is dear in the court records that the respondent is employed and earns a good salary amount to TZS Four Million per month which is sufficient for maintenance of the children. 2. That, the High Court Judge erred in law by upholding the trial court decision, without considering interest of children as the two children out of three opted to be under custody of the appellant. 3. That, the High court Judge erred in law and in fact by her failure to fault the trial court decision on the Ownership of the One Plot No. 1111, with Certificate o f registered Title No.88978, Block "B" which was declared to 2 be the Matrimonial property by the trial Court while its undisputed all over the court records and evidence that the said Plot is Owned and registered under the name of Rosalie Semi Epimaki Madeleka. 4. That, the High Court Judge erred in law for failure to interfere and fault the trial court's decision and order by dismissing the appeal\ white it is dear that, the trial Court did not scrutinize and evaluate properly the evidence. At the hearing of the appeal, Mr. Thomas Joseph Masawe and Mr. Denis Jacob Julias both learned counsel, represented the appellant and the respondent respectively. After short dialogue with the Court, the appellant counsel decided to abandon grounds 2 and 4, and submitted on grounds 1 and 3. The appellant's counsel apart from adopting written submission filed earlier, to be part of his oral submission, he amplified on the issue of the maintenance costs on ground one that, the amount of TZS 250,000 ordered by the trial Court and upheld by the first appellate Court as being higher on the appellant. Mr. Masawe maintained that, the respondent is earning about four million per months as salary it would have been proper for the amount of TZS 250,000 be shared equally with the respondent. In reply, the respondent's counsel submitted that the amount of 250,000 was not enough for maintenance cost as ordered by the High Court. The appellant has a duty to maintain the issues 3 of marriage as a father, he cannot avoid the obligations insisted the respondent's counsel and pressed for dismissal of the appeal. It is worth reminding the parties that the duty to maintain the issues of marriage by the parents is personal and cannot be delegated, more so, same is legal, continuous, and enforceable, it is not an option. Courts of law jail defaulters and attach salary to ensure that children are fed, clothed and schooled. According to the record, the three issues of marriage are staying with the respondent. The amount of TZS 250,000 ordered in 2023, is now too low according to the standard of living. The High Court, appreciated that fact and ordered the respondent to contribute the same amount in terms of the shelter and other related expenses. The appellant's complaint that the amount of 250,000, be shared between him and the respondent is in total disregard of rising standard of living, and change of the age of the issues of marriage. According to the record, in 2023, three issues were then aged 13, 10 and 6 years. After three years, now 2026, they are now aged 16, 13 and 9 years. This has the effect in increasing cost of living, in accommodation, food, clothing, education, health care and others of the like nature. Obviously, the costs of maintaining the issues has increased that is the reason the High Court ordered the respondent to contribute maintenance costs in terms of accommodation and other related expenses. It is surprising, instead of the 4 appellant thinking of increasing the amount, he is asking for his share of contribution to be reduced to avoid liability as a father of the three issues. This is unacceptable in the circumstances of this case. We therefore do not see the reason to interfere with the High Court's decision as the first appellate court vested with the jurisdiction of evaluating evidence of the trial court correctly did as seen at page 278 - 279 of the record. In the circumstances, this ground lacks merit, it is therefore, dismissed. The second issue for consideration is whether the property on plot No. 1111, Block "B" Boko Dovya Kinondoni, under Certificate of Tittle No. 88978, in the name of Rosaline Semi Epimaki Madeleka is matrimonial property. The appellant's counsel insisted that the appellant is not the owner of the property, therefore the properties on plot in dispute cannot be matrimonial property subject for division. The respondent's counsel while admitting that the property is registered in the name of Rosaline, SMI, he was quick to point out that, the appellant was given the plot in dispute as gift on his wedding, with the respondent, referring to SMI's evidence at pages 29 and 30 of the record who testified that the appellant did not change the tittle. Indeed, as correctly submitted by the respondent counsel, SMI, testified clearly that she was the former owner of the plot in dispute. In 2009, she gave 5 the same to the appellant as a gift on his wedding with the respondent, on condition that the appellant change the ownership. Thus, she is not the owner, as the plot was jointly developed by the appellant and the respondent. In totality, SMI insisted that it is upon the appellant and the respondent to divide the properties on the plot in dispute upon divorce. To this Court, the answer as to whether the appellant is the owner of the disputed plot is provided by Rosania Semi Epimila Madeleka SMI, the appellant's aunt, as reflected at pages 29, 30 and 34 of the record. For clarity, evidence of SMI, at page 29 of the record is hereby reproduced below: "Deogratias Leopard Ndanu ni mtoto wa dada yangu na Martha ni mke wake hivyo wote ni watoto wangu. Nasikia kwamba wameachana na wote wanataka talaka kila mtu anaishi kivyake. Walifunga ndoa mwaka 2009 baada ya harusi yao, niiiwapa kiwanja hicho hakikuwa na hati wala tofali. Masharti ilikuwa kubadilisha jina langu kwenda kwake na hakufanya hivyo. Ni mara nyingi nimemkumbusha. Baada ya kusikia wanataka kuachana na Deogratius anakana kwamba nyumba sio yake in yangu sio yake ni yangu. Ilinibidi nikatoe kiapo". 6 More so, at page 34 SMI, testified further that; "Kwenye ujenzi sikuwahi. Ni yeye na mke wake wamejenga.Naomba Mahakama kama wana amua kuachana mali walizo chuma wagawane." What can be gathered from the evidence reproduced above, proved that after the appellant's aunt gave the plot to the appellant, the same was developed by both the appellant and the respondent without changing the name from that of SMI to the appellant. Therefore, properties in the plot in dispute are the matrimonial properties. The case of Bi Hawa Mohamed vs Ally Seif [1983] TLR 32, defined matrimonial properties to mean properties acquired during subsistence of the marriage by the parties' joint effort. They include those properties acquired by one spouse before marriage but were substantially improved during marriage by the parties' joint effort. Equally so, the properties acquired by one spouse registered in either of the spouse name, during the subsistence of the marriage are matrimonial properties. (See Tumaini M. Simoga vs Leonia Tumaini Balenga (Civil Appeal No. 117 of 2022) [2023] TZCA 249, Gabriel Nimrod Kurwijila vs Theresia Hassan Mwalongo (Civil Appeal No. 102 of 2018) [ 2020] TZCA 31, Asile Ally Said vs Irene Redemta Emmanuel Soka and Another, (Civil Appeal No. 80 of 2020), TZCA 209 and Sixbert Bay Sanka vs Rose Nehemia Samzugi, (Civil Appeal No. 68 of 2022), [ 2023] TZCA 193. The law, Section 114 of the Law of the Mariage Act, Cap 29 R.E.2019 (the Act) that governed the division of matrimonial asserts, provides as follows: " 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 fany assets acquired by them during marriage by theirjoint efforts or order the sale of any asset and the division between the parties of the proceeds of sale. (2) In exercising the power conferred by subsection (1), the court shall 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, shall incline towards equality of division. 8 (3) For the purpose of this section , reference assert 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 Legally, there is no arithmetic formula for considering division of matrimonial properties in terms of section 114 (2) (b) of the LMA, because each case has to be decided according to its peculiar circumstances based on record. There is a chain of authorities to support this proposition. In the case of Yesse Mrisho vs Sania Abdul [2019] TZCA 414, the Court reaffirmed her position that: "There is no doubt that a court, when determining such contribution , must scrutinize the contribution or efforts of each party to the marriage in acquisition o f the matrimonial asserts." The respondent evidence on contribution of the acquisition of the matrimonial properties is as reflected from page 42 to page 45 of the record. The respondent all along, she testified to have acquired the properties with the appellant jointly. The evidence, has not been challenged by the appellant at the trial court, even during cross examination. Failure to cross-examine a 9 witness on an important matter ordinarily implies the acceptance of the truth of the witness evidence. In the case of Nyerere Nyague vs Republic, (Criminal Appeal No. 67 of 2010) [2012] TZCA 103, which was referred to by the Court in Kanaku Kidari vs Republic, (Criminal Appeal No. 326 of 2021) [2023] TZCA 223, the Court held that, a party who fails to cross-examine a witness on a certain fact, is deemed to have accepted that fact and will be estopped from asking the trial court to disbelieve what the witness said. The first appellate court evaluated the evidence on contribution by the respondent, as reflected at page 275 of the record of appeal, and satisfied with equal share distribution reached by the trial court thus upheld the same. It is worth noting that this is a second appeal. It is a settled position of the law that, the Court will not interfere with concurrent factual findings of the courts below, unless there has been misapprehension of the nature and quality of the evidence occasioning miscarriage of justice. For this position, see for instance, DPP vs Jaffar Mfaume Kawawa [1981] T.L.R. 149 and Isaya Mohamed Isack vs The Republic, Criminal Appeal No. 38 of 2008, Seif Mohamed E. L. Abadan vs The Republic, Criminal Appeal No. 320 of 2009 and Wankuru Mwita vs The Republic, Criminal Appeal No. 219 of 2012 (both unreported). In the case at hand, none of the conditions exists warranting interference. Thus this ground also lack merits. 10 In the final analysis and on the basis of the above stated reasons, we find that the appeal is barren of fruits and we accordingly dismiss it in its entirely. As the dispute originated from matrimonial matter, each party to bear own costs. DATED at DAR ES SALAAM this 8th day of May, 2026. G. A. M. NDIKA JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL Judgment delivered this 12th day of May, 2026 in the presence of Mr. Thomas Massawe, learned counsel for the appellant also holding brief for Mr. Denis Jacob, learned counsel for the respondent and Ms. Janekissa Bukuku, Court clerk; is hereby certified as a true copy of the original. J. E. FOVO PUTY REGISTRAR PURT OF APPEAL 11