KCB Bank Tanzania Limited & Another vs Hellena Kususya & Another (Civil Appeal No. 522 of 2023) [2026] TZCA 314 (18 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: SEHEL. J.A., RUMANYIKA, 3.A. And ISMAIL. J.A.^ CIVIL APPEAL NO. 522 OF 2023 KCB BANK TANZANIA LIMITED 1st APPELLANT 2n d APPELLANT YONO AUCTION MART & COMPANY LIMITED VERSUS HELLENA KUSUSYA 1st RESPONDENT 2n d RESPONDENT DENNIS MATHEW MABUBU (Appeal from the Judgment and Decree of the High Court of Tanzania, 7th November, 2025 & 18th March, 2026 SEHEL. J.A.: This first appeal centers on an issue as to whether the three landed properties namely; Plot No. 9, Block 4 situated at Kichangani area in Morogoro Municipality; Plot No. 280, Block 5 (a business house/hotel) situated at Kichangani area in Morogoro Municipality and Plot No. 337, Block D, situated at Kihonda area in Morogoro Municipality (hereinafter to be Land Division, at Dar es Salaam) (Ndunquru, 3.) dated the 14th day of December, 2020 in Land Case No. 432 of 2017 JUDGMENT OF THE COURT i referred to as Plots No. 9, 280 and 337 respectively or the landed properties), mortgaged to the 1st appellant were matrimonial homes. The background underlying this appeal is briefly as follows; the 1st respondent and the 2n d respondent contracted a Christian monogamous marriage on 15m September 1990. It is on the record of appeal that all properties were registered in the name of the "D enis Mathew Msanzyd'. It happened that in 2014, the said Denis Mathew Msanzya mortgaged the landed properties to KCB Bank Tanzania Limited, the 1st appellant, as collateral to a term loan facility of TZS. 500,000,000.00 and overdraft facility of TZS. 150,000,000.00 advanced to Denmams General Traders, a sole trading company owned and exclusively run by the 2n d respondent. The purpose of the loan was to take over facilities from Bank of Africa and to finance purchase of furniture for the conference hall and replenishment of capital in milling machine. Whereas, the overdraft was for meeting the working capital, the loan was to be repaid at equal instalments of TZS. 18,328,010.01 per month for the period of 36 months, while, the overdraft facility was to be repaid within 12 months from the drawdown date. 2 It transpired that Denis Mathew Msanzya defaulted to repay both the term loan and the overdraft facility. Given the default, the 1st appellant invoked her right to sell the mortgaged properties by appointing a broker, one Yono Auction Mart & Company Limited, the 2n d appellant. Therefore, the 2n d respondent advertised the landed properties for sale by public auction. Having seen the advertisement, the 1st respondent filed a suit against her husband and the appellants, jointly and severally, seeking, inter alia, for the declaratory orders that the purported mortgage deeds and intended sale of the landed properties were unlawful and unjustified for failure to obtain her consent as a spouse. In her plaint, she alleged that, during the subsistence of their marriage, the couple, through their joint efforts, acquired various properties including the three landed properties which were mortgaged to the 1st appellant without her knowledge. She further alleged that she was not involved in the process to secure the alleged loan. Nor did she give her consent to mortgage the landed properties. 3 The 1st appellant's defence was that her customer was one " Denis Mathew M sanzyd', not " Dennis Mathew MabubW, and that the mortgagor had provided a spousal consent from one Grace Lameck Lusesa. The 2n d respondent, though served, did not file a written statement of defence, and the case proceeded ex parte against him. After a full trial, the learned trial judge found in favour of the 1st respondent, holding that " Denis Mathew M sanzyd' and " Dennis Mathew MabubW were one and the same person, and that the mortgage of all three landed properties was a nullity for want of the true spouse's consent. Accordingly, it voided the mortgages and permanently injuncted the appellants and their agents from trespassing and/or selling the landed properties, carrying out any eviction and/or interfering in any way with the peaceful occupation of the 1st respondent on the three landed properties. The appellants were not amused with the outcome of the 1st respondent's suit. They therefore filed the present appeal comprised of 15 grounds of appeal as set forth hereunder: 1. That the learned tria i judge erred in iaw and in fact in not holding that "Dennis Mathew M abubu" is not "Denis Mathew M sanzya"hence the 1st respondent had no focus to challenge m ortgages over landed properties on Plot No. 9, Block 4, P lot No. 280 Block 5, P lot No. 337 Block D, a ll a t Morogoro, which was In the name o f Denis Mathew Msanzya. 2. The learned tria l judge erred in law and in fact in holding that the 2nd respondent's name o f "Mabubu" had an alias and/or was known as such. The tria l judge ought to hold that there was no evidence to prove that such a name was being used by the 2nd respondent and/or had acquired such popularity to the public. 3. That the learned tria l judge erred in law in applying the principle o f res gestae to the facts o f this case. The tria l judge ought to hold that the said principle which m ostly apply to crim inal cases ; was inapplicable to the facts o f the case. 4. That the tria l judge erred in law in holding that the 1st respondent had proved her case on a balance o f probabilities required in civ ii cases. The tria l judge ought 5 to hold that the evidence and/or testim onies adduced by the 1st respondent a t the tria l court, had inconsistencies and was a t variance with the 1st respondents pleadings. 5. That the learned tria l judge erred in iaw and in fact in nullifying the m ortgages over the properties o f Denis Mathew Msanzya allegedly fo r being m atrim onial homes and/or properties. The tria ljudge ought to hold that there was no p roo f that the said properties were acquired jo in tly by the 1st respondent and the 2nd respondent nor were m atrim onial homes. The proofavailed to the court was only on the existence o f the m arriage between the 1st and the 2nd respondents and not otherwise. 6. That the learned tria l judge erred in law and in fact in nullifying the mortgage over P lot No. 280 Block 5, Kichangani Area, Morogoro which is a com m ercial building , on the ground o f consent without proof o f it being a m atrim onial home and/or property. 7. That the learned tria l judge erred in iaw and in fact in nullifying Mortgage o f Plot No. 9, Biock 4 and Plot No. 337 6 Block D, Morogoro on the ground o f consent without proof o f it being a m atrim onial properties and/or m atrim onial home. The tria ljudge ought to hold that there was no proof that the said property was acquired jo in tly by the 1st respondent and the 2nd respondent to be a m atrim onial home and/or property. 8. That the learned tria l judge erred in law and in fact in holding that in lending to the 2nd respondent, the appellant only needed spouse consent. The tria ljudge ought to hold that it was a term o f the credit facility that m arriage certificate o f the 2nd respondent was p art o f the docum entation required by the appellant. The tria l judge took the testim ony o f DW1 out o f context and that oral evidence could not override docum entary evidence. 9. That the learned tria ljudge erred in iaw in not holding that the Appellant had taken reasonable steps in ascertaining that the 2nd respondent's application fo r m ortgage had a spouse consent The tria ljudge ought to hold that through Exhibit D1 and Exhibit D3, the appellant had se t out the requirem ent o f and obtained spouse consent in respect o f the credit fa cility extended to the 2nd respondent 10. That the learned tria l judge erred in law in holding that the 2nd respondent could not alienate the properties in dispute because o f h is m arriage to the 1st respondent The tria l judge ought to hold that in absence o f p roo f that the said properties were jo in tly acquired with the 1st respondent and as to tim e o f acquisition, the spouse consent , Exhibit D3 which was availed to the appellant, the 2nd respondent was entitled to alienate the properties in dispute. 11. That the learned tria l judge having observed that there was no challenge to the m arriage between the 2nd respondent and one Grace Lameck Lussea, ought to hold that since the 2nd respondent had not disowned the said m arriage, the spouse consent, Exhibit D3, was valid. 12. That the learned tria ljudge erred in law in rejecting the 2nd respondent's prayer fo r extension o f tim e to file W ritten Statem ent o f Defence. The tria l judge ought to 8 hold that in the circum stances o f the case where spouses were suing each other to the detrim ent o f the lender, denying the 2nd respondent's opportunity to file its defence prejudiced the appellants case. 13. That the learned tria l judge erred in law In not holding that the su it and the consequent proceedings thereof was tainted with fraud and/or collusion against the appellant 14. The learned tria l judge erred in law and in fact by failure to analyse properly the evidence on record henceforth reached on wrong conclusion. 15. The learned tria l judge erred in law and in facts in entering judgm ent in favour o f the 1st respondent without the requisite proofs in the case. At the hearing of the appeal, the appellants were represented by Mr. Tazan Mwaiteleke, learned counsel, whereas the 1st respondent had legal services of Mr. Ignas Seti Punge, learned counsel. The 2n d respondent, Dennis Mathew Mabubu, appeared in person, unrepresented. It is worthwhile to point out here that, pursuant to Rule 106 (1) and (7) of the Tanzania Court of Appeal Rules (the Rules), the appellants and the 1st respondent filed their written submissions for and against the appeal. The 2n d respondent did not file any submissions. Furthermore, before hearing of the appeal could commenced in earnest, Mr. Mwaiteleke informed the Court of his intention to abandon the eighth, nineth, eleventh, twelfth and thirteenth grounds of appeal of which he did. Upon taking the floor, Mr. Mwaiteleke adopted the written submissions and made clarifications on the remaining grounds of appeal by clustering them into three issues: one, whether the mortgagor was the 1st respondent's husband for her to have a locus standito sue the 1st appellant, two, whether the 1st respondent proved her case to the required standard and three, whether the mortgaged landed properties were matrimonial homes. Staring with the identity of the mortgagor featuring in the first, second and third grounds of appeal, Mr. Mwaiteleke submitted that the learned trial judge failed to appreciate the presented evidence in respect of the 2n d respondent whose name w as "Dennis Mathew MabubU' while the mortgaged landed properties were all registered under the name of "Denis Mathew Msanzyd' (the mortgagor and the true client of the 1st appellant). He submitted that the 1st respondent, being the wife of Mabubu, had no focus 10 standi to challenge mortgages over the landed properties registered in the name o f" Denis Mathew M sanzyd' , as she failed to prove the 2n d respondent was the holder of the registered mortgaged landed properties. Elaborating, he submitted that the 1st respondent neither brought nor presented before the trial court any other evidence to link the two identities be it in the form of the deed poll showing the change of name, or baptismal certificate of the 2n d respondent bearing the name of the mortgagor. To buttress his argument that it was important to use coherent names of the parties in dispute, he referred us to the case of Adamu Wamunza as Administrator of Estates of the Late Paul James v. Kinondoni Municipal Council & Another [2023] TZCA 17512, where the Court stressed the need for a stable and coherent use of names to avoid confusion and dishonest behavior. In the same vein, Mr. Mwaiteleke faulted the trial Judge's finding that "Dennis Mathew MabubU' was an alias name for "Denis Mathew Msanzyd'. It was his preposition that the 1st respondent ought to have proved that the 2n d respondent was commonly known as " Dennis Mathew Mabubu@ Msanzyd’ by calling witnesses from Morogoro in particular from Kihonda where it could have been proven that the twos were residing as a husband and wife, instead, she brought witnesses from Tabora who only witnessed i i the marriage. It was Mr. Mwaiteleke's view that failure by the 1st respondent to call neighbours from Morogoro, who were material witnesses in proving actual residence of the married couples, warranted an adverse inference against her case. On this, he cited the case of Hemedi Said v. Mohamed Mbilu [1984] T.L.R. 113. He further faulted the trial Judge for applying the principle of res gestae, arguing that it is predominantly applicable in criminal cases and was misplaced in the facts of this civil case. Submitting on the fourth, fourteenth and fifteenth grounds of appeal that raises the issue whether the 1st respondent proved her case on the required standard, Mr. Mwaiteleke submitted that the learned trial Judge erred in holding that the 1st respondent had proved her case on a balance of probabilities, leading to a failure to properly analyze the evidence and entering judgment without requisite proof. He contended that the 1st respondent pleaded in her pleadings that "Dennis Mathew MabubW was her husband and as a person who mortgaged the landed properties. However, he argued, during trial, it was revealed that the mortgagor was "Denis Mathew M sanzyd', and the titles for the disputed properties were solely in that name. He further argued that the 1st respondent failed to establish any 12 nexus between her marriage to " Dennis Mathew MabubU' and the registered property owner, one " Denis Mathew M sanzyd\ As such, there was no cause of action against the appellants. Citing section 110(1) and (2) of the Evidence Act and relying on the case of Lamshore Limited and J.S. Kinyanjui v. Bizanje K.U.D.K [1999] T.L.R. 330, Mr. Mwaiteleke asserted that the duty to prove the alleged facts, specifically, that the 1st respondent had a legal or equitable interest in the properties of " Denis Mathew M sanzyd', rested entirely on the 1st respondent but she failed to discharge such a duty. He further referred us to the case of East African Road Services Ltd v. J.S. Davis & Co. Ltd [1965] E.A. 676 for the preposition that "he who aiieges m ust prove" He submitted further that a party is bound by his pleadings and cannot succeed on a case not made out from the pleadings. He supported his submission by referring us to the authority in the case of James Funke Ngwagilo v. Attorney General [2004] T.L.R. 161. He added that the same principle was restated in the cases of Georgia Celestine Mtikila v. the Registered Trustees of Dar Es Salaam Nursery School [1998] T.L.R. 512 and Fatma Idha Salum v. Khalifa Khamis Said [2004] T.L.R. 423 that a court cannot grant a relief which was not pleaded. He also cited the 13 case of Barclays Bank (T) Ltd v. Jacob Muro [2020] TZCA 1875 for the preposition that any evidence produced which is at variance with the pleaded facts must be ignored. In the end, he referenced the case of Hadija Issa Arerary v. Tanzania Postal Bank [2020] TZCA 217 for the preposition that the responsibility to disclose a spouse's interest falls on the mortgagor, and that the 1st respondent, having failed to register a caveat, could not assert an interest against the 1st appellant, who was a bona fide encumbrancer for value. On the fifth, sixth, seventh, tenth and eleventh grounds of appeal which faulted the trial Judge's nullification of the mortgages, Mr. Mwaiteleke argued that there was no proof that the mortgaged landed properties were matrimonial homes requiring the 1st respondent's consent Elaborating, he argued that, according to the evidence on record, Plot No. 280 Block 5 was a commercial building housing a hotel and conference hall. Relying on sections 112 and 114 of the Land Act and sections 56 and 59 of the Law of Marriage Act (the LMA), he submitted that the requirement for a spousal consent applies only to the matrimonial home, or to a building where the couple ordinarily resides together, and not to a commercial property, and 14 that each spouse generally has the right to dispose of their own property. In that respect, he asserted that Plot No. 280 Block 5 was not a matrimonial home. Regarding Plots No. 9, Block 4 and No. 337, Block D, Mr. Mwaiteleke contended that the 1st respondent failed to prove they were matrimonial homes of Hellena Kususya and Dennis Mathew Mabubu. He contended that the 1st respondent had, throughout the trial, used different names to fit the obtaining circumstances. To fortify his argument, he referred us to exhibit P3, a birth certificate of PW2 which cited the name of Hellena Daud Kayamba, but not featured in the marriage certificate, exhibit PI. The marriage certificate named her as Hellena Kususya. He contended that such discrepancies of the 1st respondent's name casted doubt on her credibility, thus, cannot be relied upon. In that respect, he impressed upon us to find that the 1st respondent's case was incredible and improbable compared to the appellant's case. Mr. Mwaiteleke asserted that the 1st appellant took reasonable steps by obtaining a spouse's consent from Grace Lameck Lusesa (exhibit D3) as per the terms of the credit loan facility. He relied on the case of Hadija Issa Arerary v. Tanzania Postal Bank (supra), for the preposition that the 15 responsibility to disclose marital status lies with the mortgagor, and the mortgagee's duty is limited to obtaining consent based on that declaration. He also referred us to a High Court decision in the case of Charles Issack Ndosi v. Mary Ariano Zalallia & 2 Others [2018] TZHCLandD 370, where it was held that a mortgagee is only mandated to obtain spousal consent where the borrower declares another person holds an interest. He contended that, since the 1st respondent did not register her interest via a caveat, the 1st appellant cannot be blamed for relying on the land register which showed no caveat or interest from the 1st respondent. On this, he cited the case of Omari Yusufu v. Rahma Abudkadr [1987] T.L.R 169 where it was held that the purchaser of the registered landed property is justified to rely on the Land Office register on the information contained in that office; there was no need of further investigation because the register contains true information about the registered property. He concluded that, in the absence of proof of joint acquisition, the 2n d respondent was entitled to alienate the properties. Alternatively, he contended that, based on the evidence, the only property that qualified as a matrimonial home was Plot No. 337 Block D at Kihonda, although proof of residence was wanting. The other properties, 16 Plots No. 9, Block 4, and No. 280, Block 5 (a commercial hotel), did not require spousal consent. As such, the learned trial judge erred in nullifying the mortgages of the two landed properties. On the basis of his arguments, Mr. Mwaiteleke urged us to allow the appeal by setting aside the decision of the High Court with costs. On the other hand, Mr. Punge vigorously opposed the appeal, contending the same has no merit. He adopted the written submissions in reply and structured his oral submissions by combining the appellants' grounds of appeal into two clusters; one, the locus standi of the 1st respondent to sue the appellants and two, proof of the 1st respondent's case on the balance of probabilities. Responding to the first, second and third grounds of appeal on whether the 1st respondent had locus standi to sue the appellants, Mr. Punge fully supported the learned trial Judge's holding that the 1st respondent proved on the balance of probabilities "Dennis Mathew MabubW was one and the same person referred in the mortgaged landed properties as "D enis Mathew Msanzyd', Elaborating, he referred us to paragraph 6 of the amended Plaint which averred that the 1st respondent celebrated a marriage with one 17 "Dennis Mathew Msanzya @ MabubU' . He added that the 1st respondent and her witnesses successfully proved the assertion. He took us through the testimony of PW2, the daughter of the 1st respondent, whose testimony was to the effect th a t" MabubU ' was a baptismal name, while "M sanzyd' was the official name appearing on her birth certificate (exhibit P3). Relying on the principle established in the case of Goodluck Kyando v. Republic [2006] T.L.R. 363, he asserted that every witness is entitled to credence and must be believed and his testimony accepted unless there are good and cogent reasons for not believing a witness. He therefore urged us to find that the trial court was justified in accepting the evidence and holding that " Denis Mathew M sanzyd’ and " Dennis Mathew MabubW were one and the same person. Responding to the fifth, sixth and seventh grounds of appeal, Mr. Punge supported the finding of the trial judge that the mortgages were unlawful as the spousal consent was not obtained by the 1st respondent. He argued that, while the 1st appellant claimed to have obtained consent from one Grace Lameck Lusesa, no evidence was adduced or tendered to prove the existence of a marriage between the 2n d respondent and the said Grace Lameck Lusesa. In contrast, he argued, the 1st defendant proved her own 18 subsisting monogamous Christian marriage to the 2n d respondent through a Marriage Certificate (exhibit PI); her evidence was corroborated by PW3 and PW4 who witnessed the marriage ceremony on 15th September, 1990 held in Urambo, Tabora. He emphasized that spousal consent is a mandatory legal requirement under section 59 of the LMA and section 114 of the Land Act. He cited the case of Hemedi Saidi v. Mohamedi Mbilu [1984] T.L.R. 113 for the preposition that the appellants' failure to call Grace Lameck Lusesa as a witness entitled the court to draw an adverse inference that her testimony would have been contrary to the appellants' case. He also relied on the authority propounded in the case of Hadija Issa Arerary v. Tanzania Postal Bank (supra) that it is the duty of a mortgagee bank to conduct due diligence to ascertain the marital status of a mortgagor. With such a submission, he urged us to find that the learned Judge correctly analyzed the evidence and made sound findings on the mortgaged landed properties. In the end, Mr. Punge urged the Court to dismiss the appeal in its entirety and uphold the decision of the High Court with costs. The 2n d respondent fully associated himself with the submissions of the 1st respondent's counsel and nothing to add. 19 Mr. Mwaiteleke had nothing to rejoin on the submissions made by the respondents. On our part, we have considered the contending submissions made by the parties, revisited the record of appeal, the cited authorities and the law and observed that it is not disputed the 1st and the 2n d respondents were husband and wife and their marriage has not been dissolved. As hinted earlier on, the central issue to the appeal before us is whether the mortgaged landed properties were matrimonial homes. In other words, the issue was whether the mortgaged landed properties in the name of "Denis Mathew Msanzysf ' were proved on the balance of probabilities by the 1st respondent as matrimonial homes belonging to her husband, one " Dennis Mathew MabubW for her to have a locus standi to sue the 1st appellant. In that respect, we shall determine all grounds of appeal argued by the learned counsel as one. It is a cardinal principle of law that whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist and that the burden of proof as to any particular fact lies on that person unless it is provided by any law that proof of the fact shall lie on any particular person. This is the import 20 of sections 3, 110 and 111 of the Evidence Act - see also the cases of East African Road Services Ltd v. J.S. Davis & Co. Ltd (supra) and Lamshore Limited & J.S. Kinyanjui v. Binzanje K.U.D.K. (supra) In paragraph 6 of her amended plaint, the 1st respondent alleged that she celebrated a marriage with one " Dennis Mathew Msanzya @ MabubU’. On the other hand, the 1st appellant denied the allegation by averring that she had no any dealing whatsoever with the 2n d respondent who was a total stranger to her as she loaned the money to " Denis Mathew M sanzyd' who pledged his three landed properties as securities and such securities were consented to by the wife of the mortgagor, one " Grace Lam eck LuseseT. As hinted earlier on, in his judgment, the learned trial judge found that" Denis Mathew MsanzyaV whose names appeared in the landed properties that were mortgaged to the 1st appellant was one and the same person referred to as "Dennis Mathew MabubU’, the very husband of the 1st respondent. Accordingly, he concluded that the 1st respondent proved the case on the balance of probabilities. Our task, as the first appellate court, is to assess whether the finding of the trial court was supported by any evidence. On our reappraisal of the entire evidence, we observed that the 1st respondent's testimony, which was corroborated by PW2 proved on the 21 balance of probabilities that the 2n d respondent was popularly known by both names, " Dennis Mathew MabubW and/or " Denis Mathew Msanzyd'. This evidence is found at page 502 of the record of appeal where the 1st respondent (PW1) replied to the cross examination as follows: '7 was m arried by Dennis Mabubu. H is father is Mathew Msanzya. The first p la in tiff [now the 2nd respondent] is Denis Mathew M sanzya." This fact is further evidenced by the marriage certificate (exhibit PI) which showed the name of the 2n d respondent a s" Dennis Mathew MabubW and the birth certificate of PW2 (exhibit P3) which showed the name of PW2's father as "D enis Mathew M sanzycf. There is also evidence of PW2 and PW3. PW2 testified that her father's name was " Dennis Mathew M sanzysf but his baptismal name was " Dennis Mathew M a b u b ti PW3's evidence was to the effect that he witnessed the marriage of the respondents and that the names appearing in the exhibit PI were the baptismal name of the 2n d respondent while "M sanzycf' was the name of his grandfather. With such evidence on the record of appeal we find nothing to fault the learned trial Judge as we are satisfied that the 1st respondent, was the lawful wife of the mortgagor, one " Dennis Mathew M abubu" who was sometimes referred to as "Denis Mathew M sa n zy d Therefore, we hold that the 1st respondent sufficiently demonstrated interest to challenge the disposition of what she claimed to be matrimonial homes. The facts in the case of Adam Wamuza as Administrator of Estates of the Late Paul James v. Kinondoni Municipal Council & Another (supra) referred to us by Mr. Mwaiteleke are distinguishable to the present appeal. In that appeal, we failed to find any evidence linking the name of Paul James which the appellant claimed to be the administrator of his estate with P. James who was the registered owner of the land in dispute. In contrast, we have shown in the present appeal that there is ample evidence linking the name o f" Dennis Mathew MabubW with "D enis Mathew Msanzycf' and such evidence came from PW1, PW2, PW3 and exhibits PI and P3, Furthermore, we find the contention by Mr. Mwaiteleke that witnesses from Morogoro, rather than Tabora, were supposed to be called to authenticate what had been the residence of the respondents is without substance as the learned counsel misconstrued the relevance of their evidence which was to prove not only the respondents resided at Morogoro as husband and wife but also that " Denis Mathew M sanzyd' was also the name of the 2n d respondent. Next for consideration is whether the 1st respondent discharged her duty in proving on the balance of probabilities that the mortgaged landed properties were matrimonial homes necessitating for obtaining her consent. As rightly argued by Mr. Mwaiteleke, the relevant provisions of the law dealing with spousal consent in mortgaging matrimonial home are sections 116 and 118 of the Land Act and sections 3, 56 and 59 of the LMA. Sections 116 (2) of the Land Act and 2 of the LMA define a matrimonial home as the building where spouses ordinarily reside together, including its curtilage and land allocated for exclusive use. Furthermore, section 118 of the Land Act outlines the procedure of mortgaging a matrimonial home. For ease of reference, we reproduced it as hereunder: "(1) A mortgage o f a m atrim onial home including a custom ary mortgage o f a m atrim onial home sh all be valid only if- (a) any docum ent or form used in applying fo r such a m ortgage is signed by, or there is evidence from the docum ent that it has been assented to by the m ortgagor and the spouse or spouses o f the m ortgagor living in that m atrim onial home; or(b) any docum ent or form used to grant the mortgage is signed by or there is evidence that it has been assented to by the m ortgagor and the spouse or spouses living in that m atrim onial home. (2) For the purpose o f subsection (1), it sh all be the responsibility o f a m ortgagor to disclose that he has a spouse or not and upon such disclosure the m ortgagee sh all be under the responsibility to take reasonable steps to verify whether the applicant for a m ortgage has or does not have a spouse. (3) A mortgagee sh all be deemed to have discharged the responsibility fo r ascertaining the m arital status o f the applicant and any spouse identified by the applicant if, by an affidavit or written and witnessed document, the applicant declares that there were spouse or any other third party holding interest in the m ortgaged land." Therefore, for a mortgage of a matrimonial home to be valid, spousal consent must be obtained and the law imposes a dual obligation for the mortgagor who is required to disclose his or her marital status and for the mortgagee who is required to take reasonable steps to verify the accuracy of the mortgagor's disclosure. A mortgagee is deemed to have discharged 25 his/her duty if he/she declares, either by affidavit or a duly witnessed written declaration, that no spouse exists and that no third party holds an interest in the property. Conversely, where a mortgage of a matrimonial home is executed without valid spousal consent, such disposition is rendered null and void ab initio, for the absence of consent strikes at the root of the transaction, depriving the mortgage of legal efficacy and leaving the mortgagee without enforceable rights over the property. The issue of obtaining a spousal consent prior to the disposition of a matrimonial home is not a virgin territory to the Court. In the case of the National Bank of Commerce Ltd v. Nurbano Abdallah Mulla [2020] TZCA 238, The Court was invited to consider whether consent was required in the subsequent overdraft facility after the spouse had consented in mortgaging the matrimonial home for the first overdraft facility. The Court stated that: "We think that\ iike in the first arrangement, before finalizing the loan issuance procedures, the appellant [m ortgagee] had an obligation to ascertain the m arital status o f the m ortgagor as envisaged under section 114 (2) o f the Land A c t ... that duty is not casted upon only on the appellant’s side but also on 26 the p art o f the m ortgagor who has a reciprocal duty to disclose the inform ation o f the spouse(s) as stated under regulation 4 (1) o f the Land (Mortgage) Regulations, 2005..." In the present appeal, the 1st respondent adduced direct evidence that she was residing in Plot No. 337 Block D, Kihonda, with her children and produced a marriage certificate (Exhibit PI). Her evidence was supported by her daughter (PW2) who said that: 7 am living a t Kihonda at Morogoro in the fam ily house P lot No. 337, Block D, I am living with my mother... I know that t he house we live is in the process o f being auctioned as m y father m ortgaged it " From the above excerpt, we find that the evidence of PW1 and PW2 firmly established on a balance of probabilities that Plot No. 337, Block D was a matrimonial home falling within the meaning ascribed under sections 2 of the LMA and of the Land Act. As earlier stated, for this kind of property, a spousal consent was mandatory when one of the spouses intends to mortgage a matrimonial home - see the case of National Bank of Commerce Ltd v. Nurbano Abdallah Mulla (supra). The ensuing 27 question is whether the 2n d respondent and the 1st appellant fulfilled their legal and equitable duties. The 1st appellant argued, relying on the case of Hadija Issa Arerary v. Tanzania Postal Bank (supra) that her duty was limited to obtaining consent based on the mortgagor's declaration and relied on a consent form from " Grace Lameck Lusessf'. With due respect to Mr. Mwaiteleke's submission, the 1st appellant is required by the law to exercise reasonable due diligence including ascertainment of the marital status of the mortgagor as envisaged under section 114 (2) of the Land Act. We are of strong view that the principle stated in the case of Omari Yusufu v. Rahma Ahmed Abudkadr is not applicable to the present appeal because the facts are not the same. In that appeal, we were dealing with the legality of the disposition of the property whereby the appellant alleged criminal conduct i.e., fraud on part of the transferor and transferee. While, in the appeal before us, we are dealing with the requirement of obtaining a spousal consent in mortgaging a matrimonial home. Indeed, the 1st appellant tendered a consent form from "Grace Lameck Lusesa" (exhibit D3) as a proof that a consent of the spouse was obtained. Nonetheless, in the circumstances of the present appeal, we find that the 28 steps taken were not reasonable enough because, as per clause 7.1 read together with item 4 to Annexure I of the Facility Agreement, the 1st respondent was mandatorily required, among other things, to secure a marriage certificate which would have enabled her to verify the identity or the marital status of Grace La meek Lusesa to the mortgagor. Accordingly, the failure by the 1st appellant to take reasonable steps to ascertain the marital status of the mortgagor rendered the consent purportedly obtained to be invalid and therefore, the mortgage in relation to Plot No. 337 Block D, Kihonda was null and void. Based on the preponderance of the evidence, we are satisfied that the 1st respondent satisfactorily proved her case in relation to Plot No. 337 Block D, Kihonda. On the other hand, we agree with Mr. Mwaiteleke that while the 1st respondent proved her marriage and residence at Plot No. 337, Block D, her pleadings and evidence were insufficient to establish Plot No. 9, Block 4 and Plot No. 280, Block 5 were matrimonial homes as defined in law. The evidence, including the testimony of PW1, established that Plot No. 280, Block 5, was a commercial building housing a hotel. A commercial property, by its very nature, cannot be a matrimonial home. Therefore, the mandatory requirement for a spousal consent under the Land Act and the LMA did not 29 apply to it. Therefore, the trial judge erred in law by extending the spousal consent requirement to this commercial plot. In similar vein, the 1st respondent adduced no evidence to prove Plot No. 9, Block 4 was the couple's ordinary residence. In the absence of such proof, it did not qualify as a matrimonial home. The trial judge's finding was not supported by any evidence. The nullification of its mortgage was an error. Therefore, grounds 5, 6,7, 10, and 11 succeed to the extent that the judgment applied a blanket invalidity to all three landed properties without the requisite proof for each. In the end, the mortgage over Plot No. 337 is upheld as null and void for lack of valid spousal consent. Nonetheless, mortgages over Plot No. 9, Block 4 and Plot No. 280, Block 5 are declared valid and enforceable. In the final analysis, the appellant's appeal succeeds only to the extent that the mortgages over Plot No. 9, Block 4 and Plot No. 280, Block 5 were not matrimonial home. Accordingly, we set aside the order that Plot No. 9, Block 4 and Plot No. 280, Block 5 were matrimonial home and declared that the mortgages on these two landed properties were valid and enforceable against the respondents. Nonetheless, we affirm the order that Plot No. 337, 30 Block D, Kihonda was matrimonial home. Given that the appeal is partly allowed, we make no order as to costs. Dated at DODOMA this 9th day of March, 2026. B. M. ASEHEL JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL Judgment delivered this 18th day of March, 2026 in the presence of Mr. Tazan Mwaiteleke, learned counsel for the Appellants, Mr. Ignas Seti Punge, learned counsel for the 1st Respondent, 2n d Respondent in person, unrepresented via virtual Court and Mr. Issa Bakari, Court Clerk; is hereby certified as a true copy of the original. A. S. CHJJGULU DEPUTY REGISTRAR COURT OF APPEAL 31