Shaban Abdallah Mkose vs Johari Juma Kayagila (Civil Appeal No. 569 of 2024) [2026] TZCA 541 (11 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA fCORAM: MKUYE. J.A.. FELESHI, 3.A. And NANGELA. J.A.^ CIVIL APPEAL NO. 569 OF 2024 SHABAN ABDALLAH MKOSE...................................................APPELLANT VERSUS JOHARI JUMA KAYAGILA................................................. RESPONDENT (Appeal from the Judgment and Decree of the Court of Resident Magistrate of Morogoro exercising Extended Jurisdiction at Morogoro) fWaziri- PRM. Ext. Jur.^ dated the 17th day of May, 2024 in RM Ext. Juri. Civil Appeal No. 6 of 2023 RULING OF THE COURT 5Th& n th May/ 2026 FELESHI, J.A.: This appeal impugns the judgment and decree of the Court of Resident Magistrate exercising extended jurisdiction in Civil Appeal No. 06 of 2023, delivered on 17th May, 2024, concerning the division of matrimonial properties following the dissolution of the marriage between the appellant and the respondent, which had been contracted in 2009 under Islamic rites and was blessed with two children. i To appreciate the genesis of this appeal, we find it necessary to briefly recount the background giving rise to it. According to the record of appeal, the parties' marital misunderstandings began to emerge sometime in or about the year 2017, and the ensuing serious and irreconcilable differences eventually led to the breakdown of their marriage relationship. Consequently, the respondent instituted Matrimonial Cause No. 11 of 2022 in the District Court of Morogoro (the trial court) seeking, inter alia, dissolution of the marriage, division of the alleged matrimonial assets, custody of the children, and maintenance for herself and the children. Before the trial court, the appellant did not oppose the prayer for dissolution of the marriage, maintaining that the marriage had irretrievably broken down. He, however, vigorously contested the respondent's claim regarding division of matrimonial properties, contending that, the properties listed by the respondent had been solely acquired by him prior to the marriage and, therefore, did not constitute matrimonial assets amenable to distribution upon dissolution of the marriage. Upon hearing the parties and evaluating the evidence placed before it, the trial court found that the marriage between the parties had irretrievably broken down and accordingly granted a decree of divorce. The trial court further awarded custody of the children to the respondent and ordered the appellant to pay a sum of TZS. 300,000.00 per month as maintenance for the children. Additionally, the court directed that the properties alleged to constitute matrimonial assets be valued and thereafter divided in the ratio of 60% to the appellant and 40% to the respondent. The appellant was also ordered to pay maintenance to the respondent in the sum of TZS. 100,000.00 per month for a period of six months or until her remarriage, whichever event occurred earlier. Being dissatisfied with the said decision, the appellant lodged an appeal before the High Court of Tanzania at Morogoro in Civil Appeal No. 04 of 2023, which was subsequently transferred to the Court of Resident Magistrate of Morogoro exercising extended jurisdiction (the first appellate court) and renumbered as Civil Appeal No. 06 of 2023. In that appeal, the appellant principally challenged the trial court's orders relating to evaluation of evidence and law, division of matrimonial property and custody of the children. Upon hearing the appeal, the learned Resident Magistrate with extended jurisdiction partly interfered with the order on division of matrimonial property but otherwise dismissed the appeal. Still aggrieved, the appellant has now appealed to this Court on three grounds of appeal which, for reasons that will shortly become apparent, we find unnecessary to reproduce them herein. When the appeal was called on for hearing before us, Messrs. George Nyangusu and Ignas Seti Punge, learned advocates, appeared for the appellant and the respondent respectively. Before the appeal could proceed to hearing on the merits, this Court drew the attention of learned counsel for the parties to a fundamental issue touching on the jurisdiction of the trial court and, consequently, the legality of the proceedings and decisions that ensued therefrom. Specifically, we noted that the proceedings before the trial court did not contain a certificate from the Marriage Conciliation Board certifying failure of reconciliation efforts between the parties, as mandatorily required by law. Equally, no such certificate appeared in the record of appeal before us. In response to the Court's query, learned counsel for both parties candidly conceded that no certificate in Form No. 3, as prescribed under the relevant law, had ever been obtained and presented before the trial court as a foundation for the proceedings. Counsel were unanimous in their position that, in the absence of such certificate, the proceedings before the trial court were void ab initio and that the subsequent appeal before the first appellate court was likewise rendered a nullity. For our part, we deem it appropriate to begin by reiterating the settled principle of law that jurisdiction is the very foundation upon which judicial authority rests. It is trite that jurisdiction is conferred by statute and that every court or tribunal is under a duty to satisfy itself that it is properly seized of the matter before embarking upon adjudication of the dispute on merits. This principle was aptly underscored by this Court in Richard Paul Osewe Madebe Ogare v. Republic [2026] TZCA 120, where the Court underscored that, proceedings conducted without jurisdiction are a nullity. It is equally settled that where a statute prescribes mandatory preconditions to the institution of proceedings, courts are bound to give effect to such legislative requirements. Courts cannot ignore or waive statutory conditions couched in mandatory terms. In matrimonial causes, the Law of Marriage Act, Chapter 29 (the Act), expressly requires that a petition for divorce must be preceded by reconciliation efforts before a Marriage Conciliation Board and that such Board must certify failure of reconciliation before any court may entertain the petition. Section 101 of the Act provides: " A person shall not petition for divorce unless he or she has first referred the matrimonial dispute or matter to the Board and the Board has 5 certified that it has failed to reconcile the parties /' In similar vein, section 106 (2) of the Act stipulates: "Every petition for a decree of divorce shall be accompanied by a certificate by a Board\ issued not more than six months before the filing of the petition..." The mandatory nature of these provisions has repeatedly been emphasized by this Court. In Patrick William Magubo v. Lilian Peter Kitali [2022] TZCA 441 and Domina Calist v. Msangi Hemed Msangi [2024] TZCA 1236, the Court discussed at length the legal consequences attendant upon non-compliance with sections 101 and 106 of the Act. See also, Hassani Ally Sandali v. Asha Ally [2020] TZCA 14. As may readily be discerned, the requirement for a reconciliation certificate issued in Form No. 3 under the Marriage Conciliation Boards (Procedure) Regulations, 1971, G.N. No. 240 of 1971, is not a mere procedural technicality capable of being disregarded at whim. It constitutes a substantive jurisdictional precondition to the institution of divorce proceedings. Such requirement may only be dispensed with under the exceptional circumstances specifically enumerated under paragraphs (a) to (f) of the proviso to section 101 of the Act. In the instant matter, both the proceedings before the trial court and the record of appeal are conspicuously devoid of any certificate issued by a competent Marriage Conciliation Board certifying failure of reconciliation efforts between the parties. We have, however, observed at pages 10 to 11 of the record of appeal a document titled "HUKUMU YA KISH ARIA KATIKA SHAURI LA NDOA NO. 98/2019" emanating from BARAZA LA MASHEIKH BAKWATA WILAYA YA MOROGORO. Learned counsel for the parties rightly refrained from equating that document with the statutory certificate contemplated under sections 101 and 106 of the Act and the relevant Regulations. We are in full agreement with that position. The reason is not far-fetched. While this Court does not underplay the important role played by religious institutions in resolving matrimonial disputes, the law expressly prescribes the form, contents, and nature of the certificate required for purposes of instituting matrimonial proceedings. Upon careful scrutiny, the said "Hukumu ya Kisharia" neither conforms to the prescribed Form No. 3 nor substantially satisfies the statutory requirements contemplated under the relevant Regulations. It cannot, therefore, be treated as a substitute for the mandatory certificate required by law. 7 Furthermore, there is nothing on record to demonstrate the existence of extraordinary circumstances that would justify exemption from compliance with section 101 of the Act. No application for dispensation appears to have been made, and no order exempting the parties from the mandatory reconciliation process was ever issued. In the premises, we are fully satisfied that the matrimonial petition before the trial court was instituted in contravention of the mandatory provisions of sections 101 and 106 (2) of the Act. The inevitable consequence is that the trial court lacked jurisdiction to entertain the petition. Since jurisdiction was absent from the inception, all proceedings conducted from the inception and thereafter, together with the judgments and consequential orders flowing therefrom, are incurably defective and amount to a nullity. Accordingly, and in exercise of our revisional powers under section 6 (2) of the Appellate Jurisdiction Act, Chapter 141, we hereby nullify, quash and set aside the entire proceedings, judgments, decrees, and all consequential orders made in Matrimonial Cause No. 11 of 2022 before the trial court as well as Ext. Jur. Civil Appeal No. 06 of 2023 before the first appellate court. For avoidance of doubt, any party desirous of pursuing matrimonial reliefs arising from the dispute between the parties remains at liberty to institute fresh proceedings in strict compliance with the requirements of law. DATED at MBEYA this 11th day of May, 2026. R. K. MKUYE JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL D. 1 NANGELA JUSTICE OF APPEAL Ruling delivered this 11th day of May, 2026 in the presence of Mr. Killey Mwitasi, learned Counsel holding brief for Mr. George Nyangusu, learned Counsel for the Appellant, Mr. Ignas Seti Punge, learned Counsel for the Respondent and Mr. Elias Nkwabi, Court clerk, is hereby certified as a true copy of the original. D. P. KINYWAFU DEPUTY REGISTRAR COURT OF APPEAL