Seif Yunus Kaduguda vs Fatma Rashid Kafuku (Civil Appeal No. 644 of 2024) [2025] TZCA 1033 (7 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA fCORAM: NDIKA. J.A.. KIHWELO. 3.A.. And NGWEMBE. J.A/l CIVIL APPEAL NO. 644 OF 2024 SEIF YUNUS KADUGUDA............................. .................................APPELLANT VERSUS FATMA RASHID KAFUKU ......................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Dodoma) (Masabo, 31 dated 8th September, 2023 in PC Civil Appeal No. 24 of 2022 JUDGMENT OF THE COURT 29thSeptember & 07th October, 2025 NGWEMBE. JA.: Fatma Kafuku, the respondent herein, sued Seif Yunus Kaduguda, the appellant herein, before Chamwino Urban Primary Court, claiming among others, divorce, custody and maintenance of the issue and division of matrimonial properties. The appellant did not contest divorce and maintenance of the issue save for division of matrimonial properties which hold them to the Court. The brief background to the matter traces from the Islamic marriage of the parties conducted on 10th March, 2017 which was blessed by one issue namely Jasmin. The marriage lasted shortly before

the appellant issuing three Taiakox best known as Tafaka 3. The matter went to the Qadhi Islamic Court - Dodoma Region, which, on 1st September, 2021 confirmed those Talak 3 as effective from 5th June, 2021. Thereafter, it is on the original record that the parties appeared before the Marriage Conciliation Board of Nzuguni Ward. The board filled form No. 3 on 23rd September, 2021 confirming that the marriage of the disputants was broken down irrevocable. The wording of Form No. 3 had the following contents: "Inathibitishwa kwamba baraza hilt Hiishindwa kabisa kuwapatanisha watu hao wawtt yaani mume na mke kwa hiyo maoni ya baraza h iii n i kwamba■ , kwa mujibu wa Mahakama ya Qadhi Mkoa wa Dodoma, Baraza kwa pamoja linaridhia kuwa bi. Fatma Rashid Kafuku aendeiee na hatua nyingine za kisheria kwa msaada zaidi Hi aweze kupata haki zake ." Henceforth, the respondent proceeded to petition for divorce as alluded to above, claiming that the appellant was her husband with whom they had married in Islamic rights and that the appellant had divorced her by issuing three talak which fact the appellant never disputed. Thus, she sought divorce, maintenance of the child and division of assets acquired jointly during the existence of their marriage,

listed to be two houses; nine plots of land; and a business at Nzuguni. As stated above, the appellant did not oppose the claim for divorce, custody and maintenance of the child, save for division of matrimonial property, which is subject of this appeal. At the end of the trial, their marriage was found irreparably broken down, hence divorce was issued under section 107(3) of the Law of Marriage Act (LMA). Consequently, the trial court proceeded to make subsequent orders for custody and maintenance of the child but abstained from ordering division of the alleged matrimonial properties. It was the trial magistrate's reasoning that the respondent did not adduce enough evidence in respect of the alleged properties and directed that a new case should be instituted for the purpose of litigating on division of those assets. The respondent was dissatisfied with the trial court's decision, hence, she appealed to the District Court of Dodoma, lamenting that the trial court failed to examine the evidence adduced by the respondent and failed to consider the custody and maintenance of the child. In turn, the first appellate court found TZS. 60,000.00 per month was enough for maintenance of the child considering the financial position of the appellant. Regarding the division of matrimonial property, it found that 3

the evidence on record was enough to decide conclusively on the division of those properties, hence it directed the file be remitted to the Primary Court for hearing on acquisition and division of those properties. However, the respondent again was dissatisfied with that decision of the first appellate court, hence, she successfully appealed to the High Court where it found that the lower courts misapprehended the evidence available and wrongly declined to distribute those matrimonial properties. In conclusion, the High Court proceeded to distribute the two houses at the rate of 30% of their value to the respondent and 70% to the appellant. However, the appellant was aggrieved, hence the instant appeal. It is against the said backdrop the appellant has preferred the present appeal seeking to impugn the decision of the High Court placing reliance on five grounds which in his written submission he summarized into two grounds while dropping ground 5. The two grounds may conveniently be paraphrased as follows: One, that the High Court distributed the alleged matrimonial properties without establishing the extent of contribution made by each party; and two, the petition for divorce was premature for the dispute never passed through the marriage conciliation board as required by law.

When the appeal was called on for hearing, in appearance was Ms. Johanitha Paul, learned advocate for the respondent, whereas the appellant neither entered appearance nor his advocate despite being served with notice of hearing. The notice of hearing was served on Mr. George Vedasto, learned advocate for the appellant who acknowledged receipt on 18th September, 2025. Being satisfied with the service of the hearing and since the appellant had prior filed in advance in Court his written submissions in support of the appeal in accordance with Rule 106 (1) of the Tanzania Court of Appeal Rules (the Rules), in terms of rule 106 (12) of the Rules, the Court decided to treat the written submissions of the appellant lodged on 18th June, 2024 as having been argued. On the other hand, the learned counsel for the respondent adopted her written submission filed in Court on 24th July, 2024 as such and prayed that the appeal be dismissed forthwith. In addressing the Court, the appellant consolidated the first three grounds into one, dropping ground 5 and arguing separately ground 4 as alluded to above. In the circumstances of this appeal, we find appropriate, first to determine the second ground on competence of the divorce. The division of matrimonial property which is the first ground, is consequential upon (awful divorce.

Submitting on whether the petition for divorce was premature for failure to adhere to the letters of LMA, the appellant made reliance to section 101 of LMA and supported it with the cases of Yohana Balole v. Anna Benjamin Malongo (Civil Appeal 18 of 2020) [2021] TZCA 388 (19 August 2021) (TANZLII) and Jackline Hamson Ghikas v. Mlatie Richie Assey (Civil Appeal No. 567 of 2022) [2024] TZCA 366 (16 May 2024) (TANZLII). He challenged strongly that Form No. 3 of the Marriage Conciliation Board of Nzuguni Ward did not qualify as parties were not reconciled. Thus, he rested that exhibit P4 was legally not worth a certificate envisaged under section 101 of LMA, hence the petition before the trial court was premature, null and void. In reply, the respondent submitted that exhibit P4 which is Form No. 3 was admitted during trial uncontested because the board failed to reconcile the parties. Thus, she urged the Court to find the certificate from the Marriage Conciliation Board of Nzuguni Ward was valid as it observed the requirement of the law and implored the Court to dismiss the appeal for it is devoid of merits. Having scrutinized this ground of appeal, the record before us and submissions of the parties, this ground has exercised our minds on the following reasons: first, the appellant was the one who issued three

talaks to the respondent and throughout he did not dispute the irreconcilable breakdown of their marriage. Under Islamic faith, which both paid homage, the alleged three talak was a conclusive proof that their marriage ended, thus he never disputed it all along; second the appellant never disputed both the decision of the Qadhi Islamic Court - Dodoma Region, which, on 1st September, 2021 confirmed those Ta/akZ as effective from 5th June, 2021. Moreover, the appellant did not question or dispute the existence of exhibit P4 whose contents as we quoted above indicate that the Marriage Conciliation Board of Nzuguni Ward, issued Form No. 3 declaring that their marriage is irreconcilable; third, the appellant throughout was contesting division of matrimonial properties but never challenged the legality or lawfulness of their divorce. Having considered the three reasons, we now intend to consider the position of law before conclusion. It is on record that parties in this appeal, having exhausted the remedies within the Islamic rights, were referred to Nzuguni Ward Tribunal. The ward tribunal is established by section 3 of the Ward Tribunals Act, Cap 106, RE 2002 (now 2023). Its composition is prescribed under section 4 (1) (a) of the same Act. The ward tribunal is, for all purposes, Marriage Conciliation Board as provided for under the

Schedule to the Act, Part II, item 2 on civil jurisdiction of the Ward Tribunal. It performs all functions of Marriage Conciliation Boards under the LMA. It is also permissible for parties of the same community to refer their dispute to the communal conciliatory board established under section 102 of the LMA or the Ward Tribunals Act. This was well discussed in Jackline Hamson Ghikas v. Mlatie Richie Assey (supra). The parties referred their dispute to Nzuguni Ward Tribunal. Under registration No. 9 (2) of the Marriage Conciliation Boards (Procedure) Regulations, GN 240 of 1971, the board is required to issue a certificate in case it fails to reconcile the parties. The certificate shall be in prescribed form (Form 3). We have examined the document which was issued by the Nzuguni Ward Tribunal, we are satisfied that it was in compliant in both, form and content provided for in the Regulation above. Considering the above circumstances, including the fact that the appellant never disputed earlier that they were reconciled by Nzuguni Marriage Conciliation Board, we are satisfied that the Marriage Conciliation Board of Nzuguni Ward acted justifiably and Form No. 3 s

satisfied the requirement of section 101 of LMA. Accordingly, this ground is devoid of merits. Having decided on the legality of their divorce, we now turn to determine the first ground, whose complaint is centered on failure of the respondent to make contribution to the acquisition of two houses subject to division. The appellant made reference to page 103 of the record of appeal that the High Court acknowledged that the two houses were built by the appellant based on his salary, allowance, loan and assistance from his relatives, while the respondent rendered no financial support or building materials to the construction works because she was a mere housewife, totally dependent on the appellant. He thus, challenged the High Court's decision to distribute shares of 70% and 30% to the appellant and the respondent respectively. To justify his argument, he referred the Court to section 114 (2) (c) of the LMA which section provide the need for contribution of each party to the acquisition of those two houses. He buttressed his argument with the decision of Yesse Mrisho v. Sania Abdul (Civil Appeal No. 147 of 2016) [2019] TZCA 763 (6 November 2019) (TANZLII) where the Court insisted on contribution by each party to the acquisition of the matrimonial assets.

In reply, the respondent contented that the respondent had contributed to acquisition of those properties in terms of her domestic works, housekeeping and other matrimonial obligations. She buttressed her argument with the decision in Bi Hawa Mohamed v. Ally Self [1983] T.L.R. 32 and Chakupewa v. Mpenzi and Another EALR [1999] EA 32. Thus, she insisted that the respondent had her contribution to the construction of those two houses and she supported the decision of the High Court. We have painstakingly, considered the rival arguments of the learned counsel, however, we find the issue of contribution in acquisition of matrimonial assets is settled in our jurisdiction. First, the term matrimonial property refers to those things acquired by one or another or both of the parties with intention that there should be continuing provisions for them and their children during their joint lives and used for the benefit of family as a whole. See: Bi Hawa Mohamed (supra). It is not in dispute that the said two houses were found during existence of their marriage. Since there is no evidence indicating otherwise, therefore, it remains that the two houses are matrimonial as rightly decided by the High Court. Since the welfare of the family is an essential component of the economic activities of a family, it is proper to consider contribution by a 10

spouse to the welfare of the family as contribution to the acquisition of the matrimonial assets. Therefore, even domestic efforts or work of a husband and wife constitutes contribution to the acquisition of matrimonial property. It is settled that the question of contribution of each spouse in acquisition of matrimonial properties does not entail material or financial contributions, rather it is interpreted liberally to include domestic works. See: Gabriel Nimrod Kurwijila v. Theresia Hassan Malongo (Civil Appeal No. 102 of 2018) [2020] TZCA 31 (20 February 2020) (TANZLII); and in Charles Manoo Kasara & Another v. Apolina Manoo Kasara [2003] T.L.R. 425, the Court reiterated that service of a wife entitles her to division of matrimonial property regardless of her direct contribution. Even if a wife had not made any direct contribution to their property, so long it is proved that those properties were acquired during the subsistence of their marriage, she is entitled to division of their properties. See: Regnard Danda v. Felichina Wikesi (Civil Appeal 265 of 2018) [2020] TZCA 1748 (25 August 2020) (TANZLL). We thus agree with the learned High Court Judge that the contribution of the appellant in construction of those houses had a lion share but the respondent likewise contributed to the acquisition of those assets, thus entitled to have a share as alluded to above.

In the premises, the impugned judgment and subsequent orders must be spared. We thus sustain the judgment and orders of the High Court and in the event, we find the appeal is devoid of merit and it is hereby dismissed in its entirety. Since this appeal is a matrimonial dispute, we make no order as to costs. DATED at DODOMA this 6th day of October, 2025. G. A. M. NDIKA JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL Judgment delivered this 7th day of October, 2025 in the presence of Mr. George Vedasto, learned Counsel for the Appellant, Respondent appeared in person unrepresented and John/Christina, Court Clerks; is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 12