Madeline Levson Muhumha vs Fredy Henely Nyamhokya (Civil Appeal No. 641 of 2023) [2025] TZCA 1088 (13 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA f CORAM: NDIKA, J.A.. KIHWELO. 3.A.. And NGWEMBE. J.A.^ CIVIL APPEAL NO. 641 OF 2023 MADELINE LEVSON MUHUMHA..................................................... APPELLANT VERSUS FREDY HENELY NYAMHOKYA.................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Dodoma) (Longppa, J.l dated the 15th day of November 2023 in DC Civil Appeal No. 43 of 2022 JUDGMENT OF THE COURT 3rd & 13th October, 2025 NDIKA. J.A.: On 31s t October 2022, the District Court of Dodoma dissolved the civil marriage between Madeline Levson Muhumha and Fredy Henely Nyamhokya, the appellant and respondent, respectively. As a result, the court issued several orders governing the care and support of the marriage's two children, as well as the distribution of spousal assets. The appellant appealed to the High Court at Dodoma against the orders on matrimonial asset distribution and maintenance, but she was partly unsuccessful. She is currently appealing to this court. The appellant initiated an extramarital relationship with the respondent in 2002, while still married to another man named Bernard

Wilson. After that marriage formally ended on 7th November 2007, she began cohabiting with the respondent. Their relationship resulted in two daughters, Zawadi and Bahati, born on 21s t November 2009 and 30th September 2012, respectively. On 15th February 2013, they entered into a civil marriage at the Dodoma District Commissioner's Office. The trial court determined that, even though the parties did not enter into a formal marriage until 15th February 2013, they were presumed to be married under section 160 of the Law of Marriage Act, Cap. 29 RE 2023 ("the Act"), based on the evidence that the community surrounding them considered them a married couple at least since 2008. Nonetheless, as previously stated, the trial court ultimately dissolved the marriage due to the respondent's actions of cruelty, infidelity, and sexual perversion. The appellant's demand for division of matrimonial assets was based on the claim that she and her ex-husband had jointly acquired five residences and two undeveloped properties in Dodoma. Additionally, she included five motor vehicles in the inventory of assets. In determining whether the couple jointly acquired matrimonial assets and the extent of everyone's contribution, the trial court made the following findings: first, that the appellant generated income for the family through

her charcoal and tailoring businesses, in addition to her services for managing household activities. Secondly, that the respondent was a successful entrepreneur with multiple lines of business who contributed significantly to the acquisition of the matrimonial assets. Finally, that the court confirmed that the couple had jointly acquired certain properties, which were to be divided at the ratio of 40:60 in favour of the appellant and respondent, respectively. Moreover, the trial court gave the appellant custody of the children while allowing the respondent visitation rights. The respondent was also ordered to pay TZS. 300,000.00 in monthly maintenance for the children. Regarding the division of assets, the court found as follows: First, because the respondent had unilaterally liquidated various matrimonial assets (including motor vehicles) for a total of TZS. 27,600,000.00, the appellant was granted 40% of the proceeds in the sum of TZS. 11,040,000.00. Secondly, the appellant and respondent received two properties classified as spousal assets: Plot No. 29 Block 60, Kizota, Dodoma, and Plot No. 1 Block S, Kikuyu East, Dodoma, respectively. Finally, all other matrimonial assets, including a farm in Ndebwe village, Dodoma, and a plot in Nkuhungu, Dodoma, were to be liquidated and the proceeds thereof distributed in the same 40:60 ratio.

The appellant appealed to the High Court on ten grounds/ primarily challenging the omission of certain assets (including milling machines and a Gastro Obscura milking machine) from the division, the habitability and valuation of the Kizota property, the basis for the monetary awards, and the adequacy of maintenance. The High Court considered the principles outlined in section 114 of the Act regarding the division of matrimonial assets, evidential requirements, and records. It determined that the appellant failed to substantiate the existence of the milling machines and the Gastro Obscura milking equipment, or the alleged inferior worth and uninhabitability of the Kizota property. It also resolved that exhibits D1 through D6 legitimately accounted for TZS. 27,600,000.00, resulting in a fair 40:60 split of the proceeds. Furthermore, Plot No. 112 Block'F', Ilazo South, Dodoma, which was allegedly mortgaged, was determined to be non-matrimonial because it was obtained before cohabitation. It was therefore ordered to remain in the respondent's occupation. However, the maintenance order was varied to require the respondent to cover all educational necessities for the children in addition to the monthly maintenance of TZS 300,000.00.

Mr, Elias Michael Machibya, learned counsel, prosecuted the appeal on behalf of the appellant on seven grounds faulting the High Court judge for:

1. upholding the trial court's division o f matrimonial properties that it was fair and in accordance with the law.
2. misdirecting himseifin finding that the claim that the house on Plot No. 29 Block 60, Kizota, Dodoma distributed to the appellant was inhabitable was a new issue not raised at the trial.
3. distributing the Plot No. 112 Block 'F', Ilazo South to the respondent.
4. for not holding that the sale o f matrimonial properties evidenced by exhibits D4 through D6 by the respondent was misuse o f the jointly acquired properties warranting the reduction o f the respondents share in the division o f matrimonial assets.
5. misdirecting himseif in assuming the distribution o f ratio o f 40:60 was for the whole o f the properties while it was not
6. deciding that the houses at Area C at Plot No. 2A Block 15 and Chidachi West at Plot No. 31 Block 'E' were not matrimonial propertiesjointly acquired by the appellant and the respondent
7. misdirecting himseifin overturning the trial court's finding that the appellant participated in the businesses o f the respondent For the respondent, Mr. Fred Peter Kalonga, also learned counsel, firmly opposed the appeal. 5

It is apparent that all the above complaints are about the split of spousal assets. For a start/ we should note that the High Court duly considered that the court's power under subsection (1) of section 114 of the Act, to order the division of matrimonial assets between the parties can be invoked if three conditions are met: one, when the court has granted or is granting a decree of divorce or separation. Two, if there are matrimonial or family assets which were acquired by the parties during the marriage. Finally, when the acquisition of such assets was brought about by the joint efforts of the parties - see Bi Hawa Mohamed v. Ally Sefu [1983] T.L.R. 32. In the instant case, it was common ground that all the three conditions were met. What was at issue, however, was the identification of the matrimonial assets as well as the determination of the extent to which each party contributed to their acquisition. The court was also alert that the power to divide assets is exercisable by having due regard to subsections (2) and (3) of that section: "(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 acquiring 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 purposes o f this section, references to assets 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 . " In terms of the above provisions, any matrimonial assets, once identified and confirmed, must be split by aligning with the customs of the community to which the parties belong, conforming to the extent of each party's contributions, and considering family debts and the needs of the marriage's children. With the above exposition of the law, we find it convenient to deal with the fifth and seventh grounds of appeal jointly. The thrust of these grounds is an attack on the finding by the High Court on the extent of the contribution by each party towards acquisition of family assets resulting in

the order that the assets be apportioned at the ratio of 40:60 for the appellant and respondent respectively. On the facts as found by the court of first instance and affirmed by the High Court, the appellant generated income for the family through her charcoal and tailoring businesses, in addition to her services for managing household activities. Although she claimed to have participated in and supported businesses of her ex-husband, the courts below gave more weight to the evidence that the respondent, being a successful entrepreneur with multiple lines of business, contributed more significantly to the acquisition of the assets. Given that we detect no misapprehension in the courts' calibration of the underlying evidence, we accord this finding a conclusive effect. Moreover, we are cognizant that section 114 (2) of the Act above enjoins courts to incline towards equality in apportionment of assets. However, as we stated in Helmina Nyoni v. Yeremia Magoti [2022] TZCA 170, which the High Court cited in its decision, equal division of the assets would not arise automatically but would occur where there is evidence of equal contribution to the acquisition of the assets. It is, therefore, our view that the apportionment ratio of 40:60 is just and equitable in the circumstances of the present matter.

The third ground of appeal criticises the High Court for allotting the entire property on Plot No. 112 Block 'F', Ilazo South to the respondent. The court based the distribution on four factors: first, that the property was acquired and developed between 2005 and 2007, before the appellant began cohabiting with the respondent while still married to her previous spouse. Secondly, that the property was encumbered by a mortgage in favour of National Bank of Commerce Limited, and the respondent was responsible for repaying the debt and redeeming the property. Thirdly, that the respondent was liable for the maintenance and education of the marriage's children. Finally, the respondent contributed more to the acquisition of the family assets than the appellant did. The finding that the Ilazo property was not a marital asset is obviously contentious. Mr. Machibya referred us to page 234 of the appeal's record, where the appellant was recorded saying that she contributed to its acquisition and development: "As to the house at Ilazo , it was our first house to buiid. I have aii time been a charcoal seiier and a taiior, so the profits we got from our business [are the ones] we used to build the house. This house was built in 2007. I do recall who assisted us were Mzee Chungu.... After getting that house, we used 9

it to take [a] loan and managed to pay back the loan. And the respondent [does] concede that the said house is ours." In his testimony, revealed on page 269 of the record of appeal, the respondent acknowledged the appellant's contribution to the acquisition and development of the property: "As to the house [at] Iiazo her contribution was to help me by cooking and washing clothes for me . " The appellant's contribution may have been trivialised by the respondent; however, we consider it noteworthy that he conceded that much. Consequently, we conclude that the property was one of the matrimonial assets that were subject to apportionment. Additionally, we believe it was unjust that the appellant was denied a portion of the property due to its alleged encumbrance, the respondent's responsibility for the children's upkeep, and his more substantial contribution. In our opinion, these grounds were extraneous factors, as they had been duly considered in the evaluation of each party's contribution, which led to the 40:60 apportionment ratio. In the premises, we set aside the High Court's allotment of the whole property to the respondent. Instead, we order that the property be sold, subject to the encumbrance involved, if 10

any, and the proceeds thereof be distributed according to the specified ratio. We proceed to the sixth ground of appeal. It requires us to interrogate whether the properties known as Plot No. 2A Block 15, Area C, Dodoma and Plot No. 31 Block 'E' Chidachi West, Dodoma were matrimonial properties jointly acquired by the parties. The appellant claimed at the trial that she and her ex-husband obtained the two properties in question through purchase. That the respondent purchased the Area C property for TZS. 1,600,000.00 from Stanley A. Feruzi in October 2015, according to a series of documents collectively accepted as exhibit P8, and the Chidachi property for TZS. 2,000,000.00 from Hamza Kassimu Abdallah in June 2014, according to exhibit P10. For his part, the respondent denied purchasing the properties. He testified that the properties were pledged by their separate owners as collateral for money borrowed from him. He presented an agreement dated 16th October 2016 between him and Stanley A. Feruzi (exhibit D2), as well as an agreement dated 2n d June 2015 between him and Hamza Kassimu Abdallah (exhibit D3), demonstrating that the loaned money was fully repaid and the properties redeemed. ii

Mr. Machibya was adamant that exhibits D2 and D3 were forged since they both included comparable typographical flaws. Mr. Kalonga disagreed with his erudite friend. He maintained that the appellant provided no proof challenging the truth of the two exhibits. After reviewing the facts presented, we agree with Mr. Kalonga's submission. For starters, even if it were assumed that the respondent purchased the two properties as per exhibits P8 and P10, there was no proof that the titles were transferred and registered in the respondent's name, allowing him to be formally recognised as the owner under section 40 of the Land Registration Act, Cap. 344 RE 2023. Indeed, the appellant did not produce any certificates of title as proof of ownership. Secondly, like the courts below, we do not believe that exhibits D2 and D3 were forgeries intended to defraud the appellant. In the circumstances of this matter, we do not think that it is reasonable to infer forgery from the comparable typographical flaws on the documents. So, the sixth ground also fails. We now revert to the second ground of appeal. Regarding this complaint, Mr. Machibya conveyed the appellant's displeasure that she was given a less desirable and livable Kizota property, while her ex-husband was given the more valuable residential property in Kikuyu East. He criticised 12

the High Court for concluding that the complaint brought up a completely new matter. We find no need to delve into the complaint in great detail. The appellant did not provide any evidence at the trial regarding the state, condition, or value of all the properties that she and the respondent sought to divide, except for the fact that the Kizota was previously utilised as a warehouse. She was responsible for providing the court with the necessary evidence to equitably assess and divide the assets after identifying and verifying them as family assets. We are of the opinion that the High Court was justified in rejecting the complaint that the Kizota property was of inferior value and uninhabitable, as the trial court had divided the assets based on the evidence present. We uphold the High Court's view that the appellant's claim was a novel issue that was not raised and addressed during the trial. Anyhow, the matter was a mere afterthought. The fourth ground is the last one we look at. Mr. Machibya criticised the respondent for selling three motor vehicles at throwaway prices without consulting anyone. He maintained that family assets were frittered away by the act. The High Court should have considered the dissipation of the assets by reducing the respondent's share in the division of matrimonial assets. 13

Mr. Kalonga, on the other hand, contended that there was no evidence to imply that the motor vehicles were squandered because of the transactions. He requested us to sustain the High Court's order that the appellant get a share of the sale proceeds in accordance with the prescribed apportionment ratio. Indeed, the evidence shows that the respondent sold three motor vehicles between 5th February 2019 and 8th October 2020, which was before the appellant had instituted her petition for divorce. T370 CLF (Mitsubishi Canter) was sold for TZS. 4,000,000.00, T821 CQW (Scania) for TZS. 10,000,000.00, and T899 DSS (Toyota Harrier) for TZS. 7,000,000.00. He claimed that he liquidated the assets to pay off overdue bank loans. Even though the appellant argued that she was not consulted before the transactions, the courts below recognised and respected the transactions as sound business decisions. On the evidence presented, we are not convinced that the respondent wasted the assets by selling them. The transactions occurred when the respondent's businesses were on a downward trajectory as unveiled on pages 267 and 268 of the record of appeal. In any case, we agree with Mr. Kalonga that the High Court's order granting the appellant a share of the sale proceeds in accordance with the 14

specified apportionment ratio was just; it met the circumstances of the case. The fourth ground is also devoid of substance. In the final analysis, we allow the appeal to the extent stated above. Consequently, we affirm the High Court's decision but with the adjustment that Plot No. 112 Block 'F', Ilazo South, Dodoma be sold, contingent upon any existing encumbrance, and the proceeds thereof be divided between the parties according to the specified ratio. Each party to bear its own costs. DATED at DODOMA this 13th day of October, 2025. The Judgment delivered this 13th day of October, 2025 in the presence of the Ms. Lucy Lesenge, learned counsel for the appellant and holding brief for Mr. Fred Peter Kalonga, learned counsel for the respondent connected via video conference and Ms. Christina Mwanandenje, Court Clerk, is hereby certified as a true copy of the original. G. A. M. NDIKA JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 15