Christina Joseph Malongo vs Victor January Bushi ((PC) CIVIL APPEAL NO. 21779 OF 2025) [2026] TZHC 3125 (12 June 2026)

1 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MWANZA SUB - REGISTRY AT MWANZA (PC) CIVIL APPEAL NO . 2 1779 OF 202 5 (Arising from PC Matr imonial Appeal No. 0000007410 of 202 5 of the District Court of Ilemela , originating from Matrimonial Cause No. 80 of 2024, the Primary Court of Buswelu.) CHRISTINA JOSEPH MALONGO ……… …… …… …. ………. ……. …… …. APPELLANT VERSUS VICTOR JANUARY BUSHI.. ……………………… ………. ……………….RESPONDENT RULING 26 /5 & 1 2/06/ 2026. E. L. NGI GWANA, J. Thi s appeal originates from the Primary Court of Ilemela District at Buswelu in Matrimonial Cause No. 80 of 2024 (the trial court), where the appellant herein petitioned for divorce, division of matrimonial properties, custody, and maintenance of their child who was born during the subsistence of the marriage . T he lower courts' records reveal that the appellant and the respondent contracted their marriage under customary rites in December 2021 and that during the subsistence of their marriage, they were blessed with one ( 1 ) issue of marriage , and they jointly acquired various properties. The respondent alleged that they got married in December 2021. In the year of 2022 he paid a dowry, which legitimized that the appellant is his lawful 2 wife . They moved to Nyamongo, but later on, he discovered that the appellant had two issues that were never di sclosed to him: being born to two other men. These two issues were born before they got married . The matter was referred to the Marriage Conciliation Board for mediation, but the mediation was not successful, and hence, she decided to petition for divorce, division of matrimonial properties, and maintenance of their child. Upon a full trial, the trial court was satisfied that there was no valid marriage and proceeded to dismiss it. Aggrieved by the decision of the trial court, the appellant appealed to the District Court of Ilemela (1 st appellate court) to challenge the same . Upon hearing the appeal inter partes, the first appellate court confirmed the trial court decision save for the order that the respondent should provide child maintenance at the tune of TZS 100,000/= monthly. Aggrieved by the decision of the first appellate court, the appellant registered this appeal to challenge the same on the following grounds: 1. That the first appellate court erred in law and in fact to uphold the decision of the trial court without considering the requirement of S.160(1) (2) of the Law of Marriage Act [C ap . 29 R.E . 2019 ] . 3 2. That the first appellate court erred in law and in fact to uphold the decision of the trial court, without considering the requirements of Sections 114(7) and (2) [C ap . 29 R.E . 2019]. 3. That the first appellate court erred in law and in fact to uphold the decision of the trial court which did not consider the parties’ evidence that they lived together as husband and wife since 202 1 . 4. That the first appellate court erred in law and fact to uphold the decision of the primary court which dismissed the claim of the appellant who proved her contribution in the acquisition of the properties during their marriage. 5. That the first appellate court, erred in law and in fact to uphold the decision of the trial court , which received the new evidence after the case being closed on 07/02/2025. 6. That the first appellate court erred in law and in fact to uphold the decision of the trial court , which wrongly interpreted Rule 49 of the PCCPC. 7. That the first appellate court erred in law and in fact to uphold the decision of the trial court , which, despite recognizing civil, religious and customary marriage and being registered but it failed to dismiss the claim of the appellant while the law recognize presumption of marriage and its essence is to protect a child and mother. 8. That the first appellate court erred in law and in fact to uphold the decision of the trial court while the evidence of the respondent was contradictory. Wherefore, the appellant prays for : (a) an order that there was a marriage between the parties ; (b) a n order dividing matrimonial properties 4 by 50% to 50% between each party ; ( c ) a n order of the respondent to maintain the child by giving T ZS . 150,000/= per month; and (d) other relief this court may deem fit to grant. However, u pon perusal of the records, the court raised the suo motu issue of whether there was a valid certificate that w as tendered and admitted at the trial court, which was referred to and obtained from the Marriage Concil iation Board , as per the dic tat es of Section 101 of the Law of Marriage Act [Cap. 29 R.E. 2023] , and invited the parties to a ddress me. Mr . Paschal Joseph, learned counsel for the appellant, submitted that a cer tificate from the Marriage Conciliation Board is mandatory and must be tendered in court to form part of the re cord. He further argued that the trial court record shows th at t here is a certificate, but the sam e was not tendered in court to form part of the record. Furthermore, he submitted that the same does not indicate that the re was a failure to reco ncile the parties. Based on the ab ove reasons, Mr. Joseph prays to the cou rt to nullify the proceedings and the fin ding s of both lower courts and set aside the ju dg ment s and orders thereto. T he respondent submitted that it was upon the appellant to tender the certificate . H e insisted th at it was upon the Marriage Conciliation Board 5 to issue a valid certificate ; therefore, he is not the one to be blame d . He added that since he is not res ponsible for the said omissions , no blame can be thrown t o him. I have passionately considered the submissions for and against the legal issue raised b y this court suo motu . After going through the parties’ submissions , pleadings, and trial court records, it is an undisputed fact that a certificate from the Marriage Conciliation Board was not tendered as evidence in the trial court. The sam e certificate does not sh ow t hat conciliation . The board has failed to reconcile the marriage; it just opined that there is a long - lasting dispute between the parties . A Marriage Conciliation Board certificate must explicitly state that the dispute was referred to the Board and that the Board failed to reconcile the parties . Without this certification, a court cannot accept or hear a divorce petition, as the document acts as mandatory proof that all options for amicable settlement have been exhausted. See the case of Patrick William Magubo vs . Lilian Peter Kitali (Civil Appeal No. 41 of 2019) [2022] TZCA 3070 (18 July 2022) TanzLII on pages 11 an d 12. It is a mandatory requirement t hat Section 101 of the Law of Marriage Act [Cap. 29 R.E. 2023], which provides a referral of a matrimonial dispute 6 to a Marriage Conciliation Board and obtaining its certificate . Failure to do so is fatal, and that was a mandatory jurisdictional prerequisite for a petition for divorce before a trial court . Since the record shows no such certificate was tendered and admitted in evidence, the trial court lacked jurisdiction to entertain the matter. This position was well stated in the case of Mabula Sayi vs. Kalekwa Malahya (Civil Appeal No. 195 of 2022) [2024] TZCA 1235 (10 December 2024) TanzLII, on page 14, where the Court of Appeal stated that: Similarly, in the instant appeal, since we have found that the alleged certificate from the Marriage Conciliation Board was not tendered and admitted in evidence as an exhibit to form part of the record of the trial court's proceedings, the said omission had rendered the petition for divorce incompetent on account of failure by the respondent to comply with the mandatory requirement of section 101 of the Marriage Act. I find the issue raised suo motu sufficient to dispose of the appeal; the need for considering the other remaining grounds of appeal does not arise. Consequently, I nullify the entire proceedings of the l ow courts and quash the judgment and set aside the subsequent orders thereto, as they all stemmed from nullity proceedings. The appellant is at liberty to process her 7 petition afresh in accordance with the law, if she so wishes. I make no order as to cost s . It is so ordered. Dated at Mwanza this 12 th day of June , 202 6 . E. L. Ngigwana Judge 12 /0 6 /2025 D elivered this 12 th day of June , 202 6, in the presence of the appellant and her advocate , Mr. Paschal Joseph; the respondent Hon. Baraka Mafuru - JLA; and Ms. Gladness Mnjari, B/C. E. L. NGIGWNA JUDGE 12 / 0 6 /202 6