Regnold George Malyi vs Jazira Athuman Nguluko (Civil Appeal No. 439 of 2024) [2026] TZCA 436 (24 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: NDIKA. 3.A.. MURUKE. J.A. AND MGEYEKWA. J.A.) CIVIL APPEAL NO. 439 OF 2024 REGNOLD GEORGE MALYI................................................................ APPELLANT VERSUS JAZIRA ATHUMAN NGULUKO.........................................................RESPONDENT (Appeal from the Decision of the High Court of Tanzania, Dar es Salaam Registry at Dar es Salaam) (Mutungi, J.^ dated 2n d day of July, 2019 in Matrimonial Appeal No. 35 of 2019 JUDGMENT OF THE COURT 24hApril, 2026 NDIKA. J.A.: The appellant, Reginold George Malyi, sought to contest the decision of the Resident Magistrate's Court of Dar es Salaam at Kisutu in Matrimonial Cause No. 32 of 2017 in the High Court of Tanzania at Dar es Salaam. However, the High Court (Mutungi, J.) dismissed the appeal on 2n d July 2019, upholding a preliminary objection raised by the respondent, Jazira Athuman Nguluko. The appellant's counsel, Mr. Elinas Kitua, acknowledged the preliminary objection but urged the High Court to strike out the appeal rather than dismiss it. Conversely, Mr. Stanslaus Ishengoma, learned counsel for the respondent, advocated for the dismissal of the appeal in accordance with section 3(1) of the Law of Limitation Act, Cap. 89. After i evaluating the opposing arguments presented by the learned counsel, Mutungi, J. rendered the following decision: "... the appeal in essence is caught up in the web o f section 3 (1) [o f the Law o f Limitation Act] whose only remedy is for the matter to be [dismissed]. In the same vein this appeal has to be dismissed". The appellant, dissatisfied with the dismissal, now contests it, asserting that the appeal should have been struck out rather than dismissed under section 3(1) of the Law of Limitation Act, Cap. 89, as the limitation period of forty-five days for appealing to the High Court is stipulated by section 80(2) of the Law of Marriage Act, Cap 29. His counsel, Ms. Batilda Malyi, assisted by Mr. Benson Nguluko, also learned counsel, implored us to allow the appeal on that basis. Mr. Ishengoma, representing the respondent, argued that although the limitation period in question is established by the Law of Marriage Act under section 80(2), these provisions do not delineate the repercussions of non-compliance. Referring to section 46 of the Law of Limitation Act, he implored us to affirm the High Court's ruling that section 3(1) of the Law of Limitation Act pertains to the failure to adhere to the relevant limitation period. We need not travel a long distance over the issue at hand. Section 46 of the Law of Limitation Act clearly states as follows: 2 " 46 . Where a period o f limitation for any proceeding is prescribed by any other written law, then, unless the contrary prescribed by intention appears in such written law, and subject to the provisions o f section 43, the provisions o f this Act shall apply as if such period o f limitation had been prescribed by this Act". The above stipulation explicitly extends the provisions of the Law of Limitation Act to any proceedings governed by a limitation period established by any other written law, unless a contrary intention is evident in that written law, and subject to section 43, as though such limitation period had been established by the Law of Limitation Act itself. Consequently, non-compliance with a limitation period established by any written law, unless a contrary intention is evident within that statute, shall lead to the dismissal of the proceeding as per section 3(1) of the Law of Limitation Act. On this basis, even though the forty-five days limitation period in the instant case is prescribed by the Law of Marriage Act under section 80(2), the consequence of failure to comply with it must be dismissal in terms of section 3(1) of the Law of Limitation Act: see, for example, Hezron M. Nyachiya v. Tanzania Union of Industrial and Commercial Workers and Another [2005] TZCA 131; Hashim Madongo & 2 Others v. Minister for Industry and Trade & 2 Others [2007] TZCA 198; Barclays Bank Tanzania Limited v. Phylisiah Hussein Mcheni TZCA 202; and Ronilick E. K. Mchami v. The Registered Trustees of the Evangelical Lutheran Church in Tanzania & Another [2025] TZCA 614. Accordingly, we uphold the High Court's decision and dismiss the appeal. Each party shall bear its own costs. DATED at DAR ES SALAAM this 24thday of April, 2026. G. A. M. NDIKA JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL Judgment delivered this 24th day of April, 2026 in the presence of Ms. Batilda Malyi, learned counsel for the Appellant and Mr. Stanslaus Ishengoma, learned counsel for the Respondent and Mr. Ladislaus Msuba, Court clerk; is hereby certified as a true copy of the original. 4