I.A.M vs R.B.K (Civil Appeal No. 19613 of 2025) [2025] TZHC 8716 (19 December 2025)

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TEMEKE HIGH COURT SUB - REGISTRY (ONE STOP JUDICIAL CENTRE) AT TEMEKE CIVIL APPEAL NO. 19613 OF 2025 (Arising from the decision o f the District Court o f Temeke at One Stop Judicial Centre in Matrimonial Cause No. 25814 o f2024 before Hon. Swai - PRM) I. A. M .....................................................................................APPELLANT VERSUS R. B. K .................................................................................. RESPONDENT JUDGMENT 15 / 10/2025 & 19 / 12/2025 M.MNYUKWA, J. It is undisputed that the parties in this appeal lived under the presumption of marriage and acquired the status of husband and wife. The appellant (the petitioner in the trial) presented herself as the wife of the respondent, and the respondent assumed full responsibility as a husband and the father of three children born out of their love relationship with the appellant. It is on record that the appellant was a housewife, as she was not involved in any formal work, having alleged that the respondent did not allow her to work and that she was therefore financially dependent on him for everything. i

Their love relationship broke down without the parties having contracted a formal marriage. The dispute that arose between them was unsuccessfully reconciled by the parties and their families, which resulted in the termination of their relationship. There is no hope for the parties to live as a married couple, since the respondent has already celebrated marriage with another woman and has children with her. As their love relationship ended, the appellant filed a matrimonial cause before the Temeke District Court One Stop Judicial Centre (the trial court), praying for the following: i. A declaration o f the existence o f marriage on presumption between the petitioner and the respondent. ii. An order of equal distribution o f assets acquired during the presumption of marriage between the petitioner and the respondent H i. An order as to children's custody in favour of the Petitioner. iv. An order compelling the Respondent to furnish maintenance. v . An order for compensation to the tune of TZS 200,000,000 against the Respondent. vi. Costs of the Petition. vii. Any other reliefs this honourable court deems fit and just to grant. After hearing both parties, as indicated, the trial court presumed the parties' marriage and granted some of the reliefs sought by the

appellant, namely: a declaration that the parties lived under the presumption of marriage; division of the matrimonial assets proved to have been acquired by the parties during the subsistence of the marriage; and custody of the children, which was granted to the appellant. The trial court ordered the respondent to cover the following costs for the children: education costs, medical expenses, clothing, and to pay monthly maintenance of TZS 200,000 for food. The respondent was also granted access rights to the children. The trial court, however, refused to order payment of compensation to the appellant on the ground that she failed to prove that she had sustained damage warranting compensation. The trial court's findings on compensation and maintenance of the children did not please the appellant. She therefore preferred an appeal to this Court on three grounds of appeal, which are as follows: i. That the learned trial Magistrate erred in law and fact by failing to properly consider the evidence presented by the Respondent, who admitted that the Appellant was financially dependent on him. ii. That the learned Trial Magistrate failed to specify the allocation of TZS200,000 child maintenance expenses is for one child or all the children collectively. H i. That the learned trial Magistrate erred in law and fact to award child maintenance amount of TZS 200,000 without considering 3

the current costs o f living against the three children's daily essential needs and welfare of the children. At the hearing, the appellant appeared in person, unrepresented, while the respondent was represented by Mr. Victor Kikwasi, learned counsel. Upon the appellant's prayer, which was not contested by the respondent, the appeal was argued by way of written submissions. Supporting the grounds of appeal, the appellant argued the first ground of appeal separately and argued the second and third grounds of appeal jointly. On the first ground, she faulted the trial court for its failure to recognize that she was financially dependent on the respondent during the entire period they lived together, as he did not allow her to work for gain. She argued that, in his evidence during the trial, the respondent admitted that the appellant was his dependant. She thus prayed that this ground of appeal be allowed. Arguing in support of the second and third grounds of appeal, she submitted that the trial court erred in ordering monthly maintenance of TZS 200,000 for three children without considering the cost of living. She argued that a reasonable amount sufficient for the children's maintenance is TZS 15,000 per day instead of TZS 7,000 issued by the respondent weekly. Citing section 129(1) of the Law of Marriage Act, Cap. 29 R.E. 2023, she stated that it is the duty of every man to maintain his children.

To further bolster her argument that the monthly maintenance awarded was inadequate for three children, she referred to section 44 of the Law of the Child Act, Cap. 13 R.E. 2023 (the Act). She thus prayed that the appeal be allowed and that this Court order the payment of compensation to her. Contesting the appeal, Mr. Kikwasi argued that, while it is acknowledged that the appellant was unemployed and primarily attended to domestic work, the law does not equate financial dependency with an entitlement to compensation. He submitted that the trial court properly considered the appellant's domestic work as a contribution to the acquisition of the matrimonial assets and accordingly awarded her a share. He stressed that there is no law requiring a party to be monetarily compensated merely for being financially dependent. He further contended that, even if the respondent admitted providing financial support to the appellant, such an admission does not amount to an acknowledgment of legal liability for compensation, and that the trial court rightly held that there was no evidence proving that the appellant sustained damage warranting compensation. Disputing the second and third grounds, he submitted that he who alleges must prove. Clarifying further, Mr. Kikwasi stated that the 5

appellant failed to prove the alleged insufficiency of the children's maintenance to justify her claim that the amount ordered as monthly maintenance was inadequate. He argued that the amount requested by the appellant, at the rate of TZS 15,000/= per day, was not substantiated by any receipts or documentary evidence. He further clarified that the amount of TZS 200,000/= was awarded for the maintenance of three children, and not for a single child. He thus prayed that the appeal be dismissed. Rejoining, the appellant reiterated her submissions in chief, stressing that the compensation claimed did not relate to the share of the matrimonial property, but rather to the considerable time she spent with the respondent, during which she was not allowed by him to work for gain. After considering the record and the parties' submissions, the only issue for consideration and determination is whether the appeal has merit. In addressing this issue, I will determine the grounds of appeal as presented by the parties. To start with, it is important to appreciate that this is a first appeal. It is settled that a first appellate court must evaluate the evidence on record and arrive at its own conclusion if the need arises. See Nyakwama s/o 6

Ondare Okware v. Republic, Criminal Appeal No. 507 of 2019 [2021] TZCA 592. In the present appeal, the appellant's complaint on the first ground is deduced from the evidence she adduced at the trial court. For clarity, let the record speak for itself. She testified that: "... NiHanza maisha rasmi 2010 na ni/ipokuwa natafuta kazi mume wangu alinikatalia na kusema kuwa atanitunza. Nilitaka kufanya biashara na pia a/ikataa nittshi nyumbani nikiwa tegemezi." It is from the above testimony that the appellant claimed compensation, which was not granted, as there was no proof of any loss to justify payment of compensation. It is on record that the respondent did not deny that the appellant depended on him. Examining the appellant's complaint under this ground, it is my humble view that the more appropriate relief she could have sought was maintenance of a spouse after separation or divorce, as provided under section 115 of the Law of Marriage Act, Cap. 29 R.E. 2023, rather than compensation. This is because, as correctly held by the trial court, for compensation to be awarded, there must be proof that a party suffered loss or sustained damage. As per the evidence on record, it is clear that 7

the respondent was the provider and assumed full responsibility as the father of the children and as a husband to the appellant. In the circumstances, following the breakdown of the relationship, and considering that the evidence on record shows that the appellant still wished the relationship to continue, she could have sought a maintenance order, as a spouse may do where it is proved that she was not the source of the breakdown of the marriage. It would then have been the duty of the trial court to weigh out whether the appellant was entitled to maintenance or not. I believe that the length of cohabitation, the level of financial dependency, and the conduct of the parties could be among the factors the court could have considered in awarding maintenance. Therefore, as correctly held by the trial court, there is no proof that the appellant suffered damage warranting an award of compensation. Equally, this Court cannot be in a position to award compensation. Further, it cannot award maintenance, since that was not the relief sought. In the upshot, this ground lacks merit and is dismissed. Turning to the second and third grounds, the guiding principle is the welfare of the children, or the best interests of the children. Therefore, in

deliberating on these grounds, I will examine whether the amount ordered as monthly maintenance is sufficient and just. Child maintenance encompasses many aspects that are crucial for a child's upbringing in all spheres of life. In this case, the respondent was ordered to cover education costs, medical treatment, and clothing, which form part of child maintenance. He was also ordered to pay monthly maintenance of TZS 200,000 for three children. In making that order, the trial court stated, and I quote: "7/7 terms of section 129 o f the Act, the respondent is ordered to cover education costs o f all children, health insurance, clothes and Tsh 200,000/= per month as food support” Now, to examine whether the maintenance order, particularly the monthly maintenance of TZS 200,000 for food support, is sufficient or not, it is necessary to consider how the Act provides for the factors to be taken into account when the court grants an order for maintenance. Section 44 of the Act provides as follows: "S . 44 - A court shall consider the following matters when making a maintenance order- (a) the income and wealth of both parents of the child or the person legally liable to maintain the child. 9

(b) any impairment o f the earning capacity of the person with a duty to maintain the child. (c) the financial responsibility of the person with respect to the maintenance of other children. (d) the cost of living in the area where the child is resident. (e) the rights of the child under the Act." I have carefully scrutinized the evidence on record and assessed the respondent's income, as it was proved that the appellant depended on him. To be candid, the respondent's evidence on how he maintained his children does not correspond to the amount ordered by the trial court. In his evidence, apart from financial support towards the children's maintenance, he also provided food for them. In his testimony, he stated that through his instruction, his friend from Gairo sent foodstuffs to the appellant for the children. This corroborates the appellant's testimony that the respondent was paying TZS 7,000 per day, in addition to providing food support. Therefore, the monthly maintenance of TZS 200,000 for three children is insufficient, considering the cost of living and the standard of living to which the children were accustomed. This is because the separation of the parents should not adversely affect the children's standard of living, as provided under section 26(l)(a) of the Act. 10

Taking into consideration the respondent's financial responsibility for the maintenance of his other children from his wife, I find it just to award monthly maintenance of TZS 350,000 as food support for the three children, so that they may continue to live in the same standard as before the parties' separation. I have also ordered this amount because the respondent is no longer sending foodstuffs to the appellant for the children. Accordingly, this ground is allowed, and the amount of monthly maintenance is hereby revised. Consequently, the appeal is partly allowed to the extent explained herein. The order on monthly maintenance is hereby reversed. I make no order as to costs, since the parties are related. Order accordingly. The rightbpfaiD^is fully explained to the parties. I ft /o/ V M. M WttttWA JUDGE 19/12/2025 Court: JudgmenfSeTiver^d in the presence of the appellant in person and the respondent's counsel. M. MNYUKWA JUDGE 19/12/2025 11