Innocent John Karamagi vs Petronila Buberwa Karamagi (Civil Appeal No. 392 of 2024) [2026] TZCA 509 (8 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: NDIKA. 3.A.. MURUKE. 3.A. AND MGEYEKWA. J.A,^ CIVIL APPEAL NO. 392 OF 2024 INNOCENT JOHN KARAMAGI ..................................................... APPELLANT VERSUS PETRONILA BUBERWA KARAMAGI......................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania, Sub-Registry One Stop Judicial Centre at Temeke) (Omari, J/ l dated the 27thday of May, 2024 in Civil Appeal No. 59 of 2023 JUDGMENT OF THE COURT 21stApril & 8h May, 2026 MGEYEKWA. JA: This matter originates from the District Court of Temeke One Stop Judicial Centre at Dar es Salaam in Matrimonial Cause No.89 of 2022 (the trial court). In that case, the respondent filed a petition at the trial court claiming relief of divorce, division of matrimonial properties and custody of children. The material background and essential facts of the matter as obtained from the record of appeal giving rise to the present appeal indicate that the appellant and the respondent celebrated their marriage 1

under Christian rites on 17th September, 1987. During the subsistence of their marriage, they were blessed with four children, and they jointly acquired various properties. They lived a happy married life with no difficulties until 1994, when the appellant allegedly started to misbehave. The respondent also complained about infidelity on the part of the appellant, as she alleged that he had an affair with a housemaid. She added that they have stayed separated for more than ten years. Following the said unresolved misunderstandings, the respondent petitioned for divorce. On his part, the appellant testified that he invested a lot in raising his children. In 1983, he went to study in Canada and in 1993, he bought a house valued at TZS 800,000/=. The appellant alleged that they lived happily until 2021, when his wife visited their eldest daughter, who was married and living in Arusha. He contended that it was the respondent's habit to move away from the matrimonial home without any justifiable cause and come back later at her own pleasure. The appellant also disputed the allegation of having an adulterous relationship. The respondent was not willing to sell the matrimonial house because it is a 2

family house and they were was sleeping in separate rooms since 2011. The respondent stated that he loves his wife. At the trial, the controlling issues were: One, whether the marriage between the parties had broken down irreparably and two, who is entitled to the matrimonial assets acquired during the subsistence of the marriage. Upon hearing the evidence of both parties, the trial court granted the divorce and divided the matrimonial house equally among the parties. The appellant, being aggrieved by the decision of the trial court, preferred an appeal to the High Court One Stop Judicial Centre. Upon hearing the appeal, the learned Judge, in her judgment dated 27th May, 2024, upheld the decision of the trial court. Still dissatisfied, the appellant has lodged this second appeal. In his memorandum of appeal, the appellant raised eight grounds of appeal, which in essence, may be paraphrased as follows:

1. That, the High Court erred in law and fact in upholding the decree o f divorce without sufficient proof that the marriage had irretrievably broken down.

2. That, the High Court erred in law and fact in affirming a divorce decree based on assumptions o f lack o f love without evidential support. 3

3. That, the High Court erred in iaw and fact in upholding the trial court's finding o f a ten-year separation withoutproof.

4. That, the High Court erred in iaw and fact in affirming the decree o f divorce and equal division o f matrimonial assets in favour o f the alleged wrongdoer.

5. That, the High Court erred in iaw and fact in upholding equal distribution o f matrimonial assets without assessing the respective contributions o f the parties.

6. That, the High Court erred in iaw and fact by upholding a decision reached withoutproper evaluation o f the evidence.

7. That the High Court erred in law in endorsing the trial court's misinterpretation o f the term "separation."

8. That the High Court erred in law and fact in failing to adequately address the role o f the parties' daughter (PW2) in the matrimonial dispute. At the hearing of this appeal, the appellant was represented by Mr. Amon Rwiza, learned counsel, while the respondent was represented by Ms. Leila Hawkins, also learned counsel. Before the hearing commenced in earnest, Mr. Rwiza, learned counsel for the appellant, abandoned the seventh ground of appeal. He then elected to argue the first, second and third grounds together. Likewise, he argued the fourth and fifth grounds of appeal together, while the sixth ground was addressed separately. 4

Submitting on the first, second and third grounds of appeal, Mr. Rwiza contended that the decree of divorce was not founded on legally sufficient grounds. He argued that the alleged separation between the parties was not proved on the evidence and that there was no material on record to support the assertion of non-consummation of the marriage. In his view, the grounds relied upon were not strictly established to the requisite standard, and consequently, the decree of divorce was improperly granted. On the fourth and fifth grounds, the learned counsel submitted that the appellant had adduced cogent and uncontroverted evidence demonstrating his substantial contribution towards the acquisition of the matrimonial house. He faulted the courts below for ordering an equal distribution of the said property, notwithstanding the absence of any proven financial contribution by the respondent. When prompted by the Court to indicate an appropriate apportionment, he proposed a ratio of 70% in favour of the appellant and 30% in favour of the respondent. With regard to the sixth ground of appeal, the learned counsel for the appellant, Mr. Rwiza, invited this Court to find that the High Court misapprehended the nature and quality of the evidence on record. He 5

contended, in brief, that a proper judicial scrutiny of the evidence would have led to the conclusion that the grounds for divorce were not established and that the principles governing the equitable distribution of matrimonial property, particularly with respect to the parties' monetary contributions were not satisfied. On that basis, he urged this Court to quash the decision of the first appellate court and allow the appeal. In reply, Ms. Hawkins was brief. She submitted that the grounds for divorce were sufficiently established, particularly in light of the evidence showing that the parties had lived separately for a period exceeding three years. With regard to the fourth, fifth and sixth grounds, she maintained that the equal division of the matrimonial house was just and equitable, taking into account the respondent's non-monetary contributions, including domestic responsibilities and care within the marriage. She therefore prayed for the Court to dismiss the appeal in its entirety. We have carefully considered the rival submissions, the record of appeal, and the judgments of the courts below. As to the first, second and third grounds of appeal, the evidence on record clearly establishes that the parties had lived separately for a period of approximately three years 6

before the filing of the petition. In law, such prolonged separation is a cogent indicator of irretrievable breakdown of the marital union. In accordance to section 99 of the LMA, a decree of divorce is not granted unless the court is satisfied that the breakdown is irreparable. In the case of John David Mayengo v. Catherina Malembeka, PC Civil Appeal No. 32 of 2003 (unreported), the High Court held that: "Marriage being a voluntary union of a man and a woman intended to last for their joint lives. 11 is the parties themselves who are the bestjudges on what is going on in their joint lives. A crucial ingredient is love. Once disappears, then the marriage is in trouble. There is no magic one can do to make the party who hates the other to love her or him". We subscribe to the persuasive decision and satisfied that the learned trial magistrate, as affirmed by the learned Judge, properly analyzed the evidence on record. The courts below correctly found that, the petitioner and the respondent had lost love with each other for a period exceeding ten years, denied each other conjugal rights, and were unable to reconcile their differences. We are therefore satisfied that the 7

concurrent findings of the courts below were well-founded both in fact and in law. These grounds accordingly fail. Turning to grounds four, five and six of grounds of appeal, which we have considered together, the gravamen of the complaint relates to the division of matrimonial properties and the evaluation of evidence both on the decree of divorce and, more particularly, on the distribution of matrimonial property. We are unable to fault the High Court in affirming the decree of divorce as alluded to above. In law, such prolonged separation constitutes a clear and compelling indicator of the irretrievable breakdown of the marriage. We accordingly find no merit in the complaint that the evidence was not properly evaluated in relation to the dissolution of the marriage. However, we take a different view with respect to the distribution of the matrimonial property, particularly the house situated at Kinondoni, Dar es Salaam. The law is settled under section 114 (1) and (2) of the Law of Marriage Act (the LMA), that: "114- (1) The court shall have power, when granting or subsequent to the grant o fa decree o f separation or divorce, to order the division between the parties o f any assets acquired by

them during the marriage by theirjoint efforts or to order the sale o fany such assetand 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 o f 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 o f the children ; if any, o f the marriage, and subject to those considerations, shall incline towards equality o f division. (3) For the purpose o f this section, references to assets acquired during the marriage include assets owned before the marriage by a party which has been substantially improved during the marriage by the other party or by theirjoint efforts". 9

The Court has in a long line of decisions including, Bi Hawa Mohamed v. Ally Seif [1983] TLR 32, Gabriel Kurwijila v. Theresia Hassan Malongo [2020] TZCA 31, and Mohamed Abdallah v. Halima Lisangwe [1998] TLR 197, consistently held that ownership of matrimonial property vests in the spouses according to the contribution made by each of them towards its acquisition or improvement, and that such property is liable to be divided upon dissolution of the marriage. The governing principle, therefore, is that distribution must be commensurate with the proved contribution of each party. In the present case, it is not in dispute that the house at Kinondoni was acquired during the subsistence of the marriage and that the parties resided therein until when the respondent relocated to Arusha. It is equally not in dispute that the appellant made financial contributions towards its acquisition. In his testimony, the appellant gave detailed, consistent, and unchallenged evidence that he solely financed the acquisition of the said house, where he is presently residing. The dispute before us turns on the respective shares of the parties in the matrimonial property. It is noteworthy that the respondent did not effectively controvert the appellant's testimony regarding his financial 10

contribution. Her stance remained largely unparticularised, as she neither disclosed nor accounted for her own contribution. The record of appeal reveals that the appellant provided the funds used to sustain the family, and that evidence stood unchallenged. While it is settled law that non monetary contribution is a relevant consideration, such contribution must be established with sufficient particularity to enable the court to properly assess its weight in the overall distribution. Even if it were evident that the property was acquired during the subsistence of the marriage and that the parties resided therein until their divorce, that fact alone could not, ipso facto, justify the courts below in ordering an equal division of the property in the absence of cogent evidence equating the respondent's non-monetary contribution with the appellant's proven monetary contribution. We have also taken into account the undisputed fact that the appellant continues to reside in the matrimonial home, whereas the respondent has been absent for nearly thirty years. Notwithstanding this evidential position, the courts below ordered an equal division of the property. 11

A proper judicial exercise under section 114 of the LMA as alluded to above required a careful balancing of the appellant's established financial contribution against any proved non-monetary contribution by the respondent, so as to achieve a just and equitable distribution. In Yesse Mrisho v. Sania Abdul, Civil Appeal No. 147 of 2016 [2019] TZCA 414 the Court held that: "There is no doubt that a court, when determining such contribution must also scrutinize the contribution or efforts o f each party to the marriage in acquisition o f matrimonial assets". It went on to state that: "The principle drawn from BiHawa Mohamed v. Ally Seif (supra) is unambiguous, stating that the efforts made towards acquisition o f the said matrimonial property must be assessed and determined, and as also discussed in Bibie Mau/id v. Mohamed Ibrahim (supra), the contribution granted should not necessarily lead to 50% share each, since it is dependent on a party's contribution which is the determining factor o f what share one should receive and each case has to be considered on its own circumstances". 12

See also Rukia Diwani v. Mohamed Mahmoud (unreported), the Court held that, distribution must reflect the actual effort and resources invested by each party. Similarly, in Nangundo v. Nangundo [2000] T. L. R 137, it was reiterated that equality of division is not a rule of law but depends on the proved contribution of each spouse. Based on the above authorities, we find that although the High Court generally affirmed the findings of the trial court, it failed to properly direct itself on the legal effect of the appellant's uncontroverted evidence regarding financial contribution. In the circumstances, greater weight ought to have been accorded to the appellant's contribution, thereby entitling him to a larger share of the property. We are therefore satisfied that the High Court fell into error in failing to properly evaluate the evidence relating to contribution towards the acquisition of the matrimonial property. To that extent, grounds four, five and six succeed in part. For the foregoing reasons, we partly allow the appeal and hereby quash the judgment of the High Court in part. The order directing equal division of the house situated at Kinondoni, Dar es Salaam is set aside. It is substituted with an order that the appellant shall be entitled to a 70% 13

share thereof, and the respondent to a 30% share, the implementation of which shall be supervised by the trial court. As the appeal involves a family dispute the order that commends itself to us on the issue of costs is that each party shall bear their own costs in this appeal. It is so ordered. DATED at DAR ES SALAAM this 6th 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 8th day of May, 2026 in the presence of Mr. Amon Rwiza, learned counsel for the appellant, Mr. Maeda Timoth, learned counsel for the respondent who appeared virtually and Ms. Nise Mwasalemba, Court clerk; is hereby certified as a true copy of the original.