J. S. S vs D. G. L (PC. Civil Appeal No. 22142 of 2025) [2025] TZHC 8620 (19 December 2025)

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA TEMEKE ONE STOP JUDICIAL CENTRE ATTEMEKE PC. CIVIL APPEAL NO. 22142 OF 2025 (Originating from PC Matrimonial Appeal No. 000027153 o f2024 o f District Court o f Temeke, One Stop Centre) J. S. S........................................................................APPELLANT VERSUS D. G. L.................................................................... RESPONDENT JUDGMENT Date of last order: 18/12/2025 Judgment date: 19/12/2025 S.D. MWAIPOPO J., This is a second appeal, arising from the decision of the District Court of Temeke at Temeke at Temeke ONE Stop Judicial Centre (OSJC) delivered on 18th July 2025 by Hon. J. Nankoma, SRM. The said decision upheld the Judgement of the Primary Court of Temeke at Temeke OSJC in PC Matrimonial Case No. 582 of 2024. The background of this matter is that, the Appellant herein filed a matrimonial matter before the Primary court beseeching it to grant divorce and division of properties. Prior to the filing of the matrimonial matter, the Appellant and the Respondent herein cohabited as husband and wife from 2004 to 2021. No formal marriage existed between them, but their union was recognized as a presumed marriage under Section 160(1) of the Law of Marriage Act [CAP 29 R.E. i

2023]. The Parties were not blessed with any issue in their presumption of marriage. Due to irreconcilable differences, the Respondent left the Appellant. At the time of his departure, he left among other assets, four (4) lorries and two (2) fixed bank accounts. However, during the period of separation, the Apellant informed the trial court that she spent all the money deposited in the fixed bank accounts, that is TZS 500,000,000 which were in the TZS bank account and USD 30,000 thousand which were deposited in the USD bank account. Further, she testified before the court to have sold three (3) lorries which were left, for TZS 103,000,000. The Appellant then proceeded to file an Application for divorce and division of matrimonial properties, before Temeke Primary Court at Temeke One Stop Judicial Centre. Upon hearing the parties, the Primary Court proceeded to rebut the presumption of marriage and proceeded to issue further consequential orders for division of properties acquired during the presumption of marriage. Aggrieved by the decision of the Primary Court, the Appellant appealed to the District Court of Temeke, praying for the nullification of the Primary Court Judgement, Decree and Proceedings. Upon hearing the appeal, the District court upheld the Judgement and Decree of the Primary court. Dissatisfied by the said decision of the District Court, the Appellant filed an appeal to the High Court containing four grounds as follows;

1. The appellate court erred in law and fact in upholding the decision of the trial court in the division of matrimonial 2

properties without considering the evidence adduced by the parties. 2. Both the appellate and trial courts erred in analyzing the Appellant's evidence regarding jointly acquired matrimonial properties. 3. The appellate court relied on contradictory evidence allegedly provided by the Respondent. 4. The trial and appellate courts' decisions lack legal support for the Appellant's claims. Therefore, the Appellant prayed for this court to: a. quash and set aside the Proceedings, Judgement and Decree of the trial court b. grant costs to the Respondent. c. Order any other relief (s) this Honourable Court may deem fit and just to grant. At the commencement of hearing, the Appellant enlisted the services of learned counsel Anna Abel Mwakabungu and the Respondent enjoyed legal services from learned counsel Abdul Aziz. The appeal was argued by way of written submissions pursuant to the timetable drawn by the court. Arguing in support of the first and second grounds of appeal, the learned counsel for the Appellant submmitted that, the matrimonial assets can only be divided where there exists a proven marriage, formal or presumed. The trial court rightly found that the parties cohabited from 2004 to 2021 under a 3

presumption of marriage as per Section 160(1) of the Law of Marriage Act [Cap 29 R.E. 2023]. However, the court erred by declaring the presumption rebutted and proceeded to divide properties without first issuing an order of separation or divorce, contrary to Section 160(2) which gives jurisdiction to the court to divide properties only after such an order has been granted. The Appellant referred the court to the case of Gabriel John Musa v. Voster Kimati, (Civil Appeal No 344 of 2019) 2021 TZCA 239 (9 June 2021) where the Court of Appeal held; "it is our considered view that, even in this case, it was improper for the trial court to resort into granting the subsequent reliefs prayed before satisfying itself on the existence of the alleged presumed marriage." In the case of Marcel Kichumisa v. Mary Venant Kabirigi, Civil Appeal No. 52 of 2020, the court had this to say; "Indeed, sections 114(1) and 110(1) of the LMA, clearly stipulate the fact that a decree of divorce or separation precedes the distribution of matrimonial properties. The said position has been reiterated in various decisions of the Court as reproduced herein above. Certainly, the division of property jointly acquired during the existence of marital relations is subject to a decree of separation or divorce having been issued. She further cited the case of Richard Majenga v. Specioza Sylivester Civil Appeal No. 208 of 2018, whereby when addressing a similar matter, the court stated that: 4

"It is clear that the court is empowered to make orders for the division of matrimonial assets subsequent to granting of a decree of separation or divorce" The court in the above cases affirmed that a decree of divorce or separation must precede property division. The Appellant argued that the trial court thus acted without jurisdiction. Submitting on ground no 3, the Appellant submitted that, there were clear contradictions between the parties on the status of joint properties, some allegedly sold and others still existing. The trial court failed to call for further evidence to clarify these contradictions, thereby denying both parties a fair hearing and violating natural justice. This contravenes principles set out in Abubakar I.H. Kilongo & Alexalen Memba v. Republic, Stanslaus Rugaba Kasusura v. A.G., and Charles Christopher Kombe v. Kinondoni Municipal Council, which stress that unresolved factual disputes render a judgment defective. Submitting on ground no 4 the Appellant submitted that the trial court's decision lacked proper legal reasoning and assessment of evidence, resulting in an erroneous and unjust judgment that left the status of the parties' relationship uncertain. The Appellant prayed for this Honourable Court to allow the appeal, quash the proceedings and judgments of the lower courts, and grant any other relief deemed fit for the ends of justice. In rebuttal, the Respondent firstly submitted that the Appellant's counsel unduly relies on the Primary Court Judgment in Talaka No. 582/2024 (20 Sept 5

2024. and fails to address the findings of the District Court, which is the subject of this appeal. The Respondent submitted further on the presumption of marriage by emphasizing on its protective purpose, that is, not to create a new form of marriage. Whereby when the presumption is raised, the other party must rebut it by proving that the parties did not acquire the reputation of husband and wife. The facts show that the parties cohabited from 2004 to 2021 and the union was rebutted when the Respondent left. The Respndent referred this court to the case of Zaina Ismail u Said Mkondo. [1982] TLR 34. In the case of John Kirakwe vs. Idd Siko, Hon. Mwalusanya, J. (as he then was) it was held that, there are only three important elements to constitute a presumption of marriage i. That the parties have cohabited for more than two years, ii. That the parties have acquired the reputation of husband and wife, and iii. That there was no formal marriage ceremony between the said couple. The learned counsel argued that, these three elements were observed by the trial court and the first appellate court. Submitting in rebuttal on grounds no. 1 and 2, the Respondent stated that the Appellant's contention that the courts lacked jurisdiction for not issuing a separation or divorce is misconceived. Once the presumption was rebutted, the courts correctly held that; no divorce or separation decree could be granted and therefore the complaint about lack of jurisdiction is unfounded. The Respondent referred this court to the case of Sami James v . Pendo Methuseia Masa/u. Thus, the appellate court rightly observed that, the Appellant's grievance about non-granting of divorce is misplaced. 6

On the third and fourth grounds, the Respondent contended that, the grounds are new and were not raised in the lower courts; therefore, they cannot be entertained on appeal. The Respondent referred the court to the case of Kipara Hamis Misagaa @ Bigi k Republic. He further argued that, the assertion that, the trial court failed to address the alleged contradictions is unsupported since all issues were considered at trial (see trial proceedings at p. 13). The learned counsel, distinguished the case of Kilongo, cited by the Appellant for being inapplicable. Finally, the Respondent asserted that, the trial and appellate judgments are reasoned and legally sound. For these reasons, the appeal lacks merit and the Respondent prays for the court to dismiss the appeal. In rejoinder, the Appellant maintained that, although the Respondent's counsel argued that the appeal was centered on the Judgment of the Primary Court, the four grounds of appeal clearly challenged both the trial and first appellate courts. The Appellant emphasized that this court's role is to examine errors of law and fact committed by the first appellate court, whose findings were based on the trial court record. On the issue of presumption of marriage, the Appellant reiterated that both parties cohabited from 2004 to 2021, thereby satisfying the requirements of section 160(1) of the Law of Marriage Act [Cap. 29 R.E. 2023]. It was not in dispute that the parties lived as husband and wife under the presumption of marriage, as also acknowledged by the trial court. The Appellant further contended that, once presumption of marriage is established, the court has jurisdiction under section 160(2) to grant an order for separation or dissolution. Failure by both the trial and appellate courts to 7

issue such an order before dividing matrimonial property amounted to a serious error of law. Regarding the alleged contradictions on ownership of matrimonial assets, the appellant argued that the same were raised and elaborated upon in the submissions, yet neither the trial nor the appellate court resolved them. The courts proceeded to divide properties despite conflicting evidence on whether some of the assets had been sold or still existed. In conclusion, the Appellant emphasized that, both lower courts misapprehended the law and facts governing presumption of marriage and division of matrimonial properties, thus rendering their decisions legally unsustainable. Having heard the rival submissions of the parties, the broad question to be resolved is whether the appeal has merit. It is trite law that the second appellate court is not supposed to interfere with the findings of the lower courts unless there is a miscarriage of justice or a procedural irregularity or any misapprehension of evidence or violation of some principle of law or procedure which would justify this court to do so. See the case of Simon Kichele Chacha Vs Aveline M. Kilawe Civil Appeal 160 of 2018(2021 TZCA 43 (26 February 2021M, the DPP vs Jaffari Mfaume Kawawa (1981) TLR 149, Musa Mwaikunda Vs the Republic(2006) TLR 387. In the case of Wankuru Mwita vs R, Criminal Appeal No. 219(Unreported), Neli Manase Foya v Damian Mlinga, Civil Appeal No. 25 of 2002(unreported) and the case of Nyantore s/0 Mbota vs 8

Republic Criminal Appeal No. 326/2014 CAT Mwanza, the Court stated when sitting on second appeal; the Court will not readily disturb concurrent findings of facts by the trial court and first appellate court unless it can be shown that they are perverse, demonstrably wrong or clearly unreasonable or a result of complete misapprehension of the substance , nature and quality of the evidence, misdirection or non-direction on the evidence, a violation of some principle of law or procedure or have occasioned miscarriage of justice". Further, in dealing with the grounds of appeal, I have carefully examined the the Judgments of the two lower courts and the submissions of both parties, in order to satisfy myself with the issues raised in the grounds of appeal. I have further observed that, the Respondent in his submissions has argued that, the grounds are new and were not raised in the District Court and that the appeal has focused on the trial court Judgement. Upon careful perusal of the substance presented in the appeal, I have observed that it covers issues of presumption of marriage and division of properties acquired under the presumption of marriage hence the appeal has relevancy to what was submitted before the District Court. Likewise, the submissions have challenged the findings of both lower courts since both decisions reached a similar verdict,that is the Primary Court's decision was upheld by the District court. I now turn to determine the grounds of appeal. 9

With regard to the first and second grounds of appeal, the Appellant has contended that, the trial court erred in law in distributing the matrimonial properties without issuing an order for separation or divorce as required under section 160(2) of the LMA. It is undisputed that, the parties lived together under the presumption of marriage within the meaning of section 160(1) of the Law of Mariage Act [CAP 29 RE 2023]. Following the rebuttal of their presumption of marriage, the primary court proceeded to divide the properties to the parties which were acquired during their cohabitation under the presumption of marriage as per section 160(2) and 114(1) of the Law of Marriage Act. In her submissions, the counsel for the Appellant has contended that, both the Primary and District Courts erred in law and in fact, by dividing the alleged matrimonial properties without first determining the existence of a valid marriage or issuing a Decree of Divorce or Separation. She argued that, section 160(2) of the Law of Marriage Act [CAP 29 R E 2023] grants jurisdiction to the court to divide properties only after the presumption of marriage has been followed by an order of separation or divorce and cited the cases of Gabriel Jonh Musa v Voster Kimati, Marcel Kichumisa v Mary Venant Kabigii and Richard Majenga v Specioza Sylivester to support her argument. I must state at the outset that I disagree with the submissions of the Appellant on this point and I shall demonstrate the reasons hereinbelow; In determining this issue, this court notes the principle which was lucidly laid down in the case of Gabriel John Musa v Voster Kimati (Civil Appeal No 344 of 2019) [2021 TZCA239], that; 10

"it is an error for the lower court to order the division of property without first establishing the existence of a marriage or presumed marriage". In the present case unlike in the case of Gabriel John Musa v Voster Kimati (supra), the existence of a presumed marriage was clearly established by the trial court at page 3 where it stated that; "kwa kuzingatia mazingira ya shauri hili na kifungu tajwa hapo juu ni dhahiri kwamba wadaawa waliishi katika dhana ya ndoa na sio ndoa halali kwa mujibu wa sheria, imethibitika pia kwamba dhana hiyo imevunjika baada ya mdaiwa kumtelekeza mdai" The trial magistrate continued to state as follows; "pili kuhusu kuvunjika kwa ndoa ya wadaawa, kwakuwa majibu ya hoja ya kwanza hapo juu ni kwamba wadaawa hawakuwahi kufunga ndoa yoyote halali kwa mujibu wa sheria basi Mahakama hii haitatoa amri yoyote kwa hoja ya pili kuhusu kuvunjika na kutoweza kurekebishika kwa ndoa ya wadaawa" The decision of the Primary Court, as affirmed by the District Court, found that, although the parties cohabited for over eleven years, the presumption was rebutted when the Respondent left. There was no formal marriage; thus, the lower courts were correct in refusing to issue a divorce or separation order but rather an order to rebut the presumption of marriage as per section 160(2) Of the LMA. For avoidance of doubt the said section reads as follows; 11

(2) When a man and a woman have lived together in circumstances which give rise to a presumption provided for in subsection (1) and such presumption is is rebutted in any court of competent jurisdiction, the woman shall be entitled to apply for maintenance for herself and for every child of the union on satisfying the court that she and the man did in fact live together as husband and wife for two years or more, and the court shall have jurisdiction to make an order or orders for maintenance and, upon application made therefor either by the woman or the man, to grant such other reliefs, including custody of children, as it has jurisdiction under this Act to make or grant upon or subsequent to the making of an order for the dissolution of a marriage or an order for separation, as the court may think fit, and the provisions of this Act which regulate and apply to proceedings for, and orders of. maintenance and other reliefs shall, in so far as they may be applicable, regulate and apply to proceedings for and orders of maintenance and other reliefs under this section. In the case of Hemed S Tamim v Renata Mashayo [1994] TLR 197 the Court of Appeal held that; "Where the parties have lived together as husband and wife in the course of which they acquire a house, despite the rebuttal of the presumption of marriage as provided for under 12

section 160(1) of the law of marriage Act, 1971, the courts have the power under s .160(2) of the Act to make consequential orders as in the dissolution of marriage or separation and division of matrimonial properties acquired by the parties during their relationship is one such an order". See also the case of Sami James v Pendo Methuse/a Masa/u, PC Civil Appeal No. 468 of 2023 [2024] where K.S Kamana, J at page 6, held that: "Since I have held that, the trial court was not justified to declare that the marriage between the parties had broken down as there was no marriage between the parties" Therefore, the trial court was right to rebut the presumption of marriage instead of declaring separation or divorce since there was no formal marriage and both parties agreed to that effect. Similarly, in Dosantus Uyalo v Zaina Masombola civil appeal No 63 of 2004 [2005] TZHC 493) the High Court recognized that long term cohabitation and societal recognition sufficed to establish a presumed marriage for the purposes of property division. Furthermore, in the case of Hidaya Ally v Amir Mlugu (2016 TZCA323); It was held that; "once a presumed marriage is recognized, the court has jurisdiction to grant consequential relief, including the equitable division of matrimonial property". 13

In the case at hand, the trial court recognized that, there was a presumption of marriage until it was rebutted by the Respondent after he left the Appellant. Although there is no formal divorce or separation order, the prolonged co-habitation and contributions of the parties justified the division of the properties acquired during the subsistence of the presumption of marriage. The argument that the court lacked jurisdiction to distribute properties without issuing an order for separation or divorce is misconceived and devoid of merit. The trial court was only bound to issue an order for the rebuttal of the presumption of marriage and proceed with other consequential orders which would be issued in a normal divorce or separation case. The District court in its Judgement held as follows; Therefore, the Appellant being aggrieved that the trial court did not declare their marriage broken down and grant divorce is a misconception and not the position of the law in our jurisdiction. I agree with this position of the District Court. The Appellant has thus grossly misinterpreted the provisions of section 160 of the Law of Marriage Act, Consequently, I agree with the submissions of the Respondent and that this first ground of appeal is bound to fail. With regard to the second ground of appeal, the Appellant submitted that, both the appellate and trial courts erred in analysing the Appellant's evidence regarding jointly acquired matrimonial properties. The evidence on record reveals that the Respondent being a public servant was the sole income earner and financed the acquisition of all properties. However, the Appellant, being a housewife also testified to have financed some of the properties financially and non-financially. She testified during the 14

hearing of the case that, during the presumption of their marriage, the parties acquired some properties. The record of the trial court reveals that, the Appellant admitted being a house wife. She is also recorded to have contributed TZS 30,000,000 million for purchasing roofing materials (corrugated iron sheets) from the funds which were given to her by the Respondent for establishing her own business. Moreover, in the trial court proceedings, the Appellant conceded to have sold three commercial lorries for TZS 103,000,000 and utilized substantial sum of money from the fixed deposit accounts which were opened by the Respondent in her names, without the Respondent's consent or any supporting documentation. She also spent amount of money obtained from the proceeds and banks accounts to develop the Bagamoyo farm and pay some of the employees. The law is clear that division of properties acquired under the presumption of marriage is not automatic and necessarily equal. The same yardstick used under section 114(2) is applicable in presumptions of marriage by virtue of section 160(2) of the LMA. However, the evidence of contribution be it financial or non-financial must be proven. Section 114(2)(b) of the Law of Marriage Act, which is also applicable in presumptions of marriage by virtue of section 160(2) requires the court to consider the contribution made by each party, whether direct or indirect. The leading authority is the case of Gabriel Nimrod Kurwijila v. Theresia Hassani Malongo, Civil Appeal No. 102 of 2018 CAT (unreported) where the CAT stated that; "The extent of contribution is of utmost importance to be determined when the court is faced with a predicament of division of matrimonial property .... 15

In the case of George Walter Mbwambo v Neema Stephen Mushi civil appeal no 524 of 2021 [2024], the Court of Appeal underscored that, courts are required to have regard to the extent of the contributions made by each party in money, property or work towards acquisition of the matrimonial assets. Furthermore, non-financial contributions such as performance of domestic duties are also regarded as forms of contributions towards acquisition of matrimonial properties. Judicial consideration to non-monetary contributions in divorce proceedings, is also affirmed in the various regional and international treaties signed and ratified by the United Republic of Tanzania, such as the Convention on the Elimination of All forms of Discrimination against Women ratified in 1986 and the Protocol to the African Charter on the Rights of Women in Africa (The Maputo Protocol) in 2007.These two instruments under article 16 and 7 respectively, call for the equitable division of matrimonial properties in case of separation, divorce or annulment of marriage. At the national level, the case of Bi Hawa Mohamed v Ally Seif [1983] TLR 32, is a guiding star. It was established in that case that, domestic services rendered by a spouse constitute an indirect contribution. However, such contribution must be weighed in light of all the circumstances of the case. This position was also reiterated in the case of Mohamed Selemani God vs Mwajuma Mohamed Ndewa PC. Civil Appeal no. 31196 of 2024 HCT Temeke which cited with approval the case of Bi Hawa Mohamed (supra) as follows; Katika kesi ya Bi Hawa Mohamed dhidi ya Ally Seif ilielezwa kuwa ustawi wa familia ni sehemu muhimu ya shughuli za kiuchumi wa familia hivyo ni 16

sahihi kuchukua mchango wa mume au mke katika kustawisha familia kama mchango uliosaidia kupatikana kwa mali au (uchumi) wa familia .... ustawi unaweza kuangaliwa kwenye huduma kama kazi za ndani za kila siku mfano kupika, kufua, kuandaa watoto kwa ajili ya shule, usafi wa ndani ya nyumba na mazingira yake na shughuli yeyote ambayo inalinda hadhi na heshima ya familia. Hivyo basi, mchango wa mdai unaweza kuonekana kwenye majukumu yake aliyoyatekeleza akiwa mama wa familia. Mahakama hii inaamini kabisa kwamba kutokana na kazi ya mdai kulea familia na watoto kwa ujumla basi mdaiwa alipata faraja na amani ya nafasi ilivyomuwezesha kufanya kazi zake zilizomuingizia kipato, kilichomuwezesha kupata mali ........ In the present matter, although the Appellant's domestic contribution as a house wife was recognized by the courts when distributing the properties, it was also significantly diminished by her subsequent conduct of waste and mismanagement of the assets which were left by the Respondent. The trial court totally excluded the Appellant in the division of some of the matrimonial properties. Similarly, in Zawadi Abdallah V Ibrahim Iddi civil appeal no 10 of 1980 [1981] TZHC 2452. The court observed that the intention of section 114 is to achieve fairness based on the party's genuine contribution and responsible management of matrimonial resources. 17

Referring to the records contained in the trial court, the Appellant apart from stating that she sold some of the assets and spent the funds which were deposited in the bank accounts without the Respondent's consent, she also testified to have purchased some plots in Dodoma using the sale proceeds, paid some of the workers and repaired their house at Boko Dovya as well as developed the farm at Bagamoyo. As for the properties acquired during the subsistence of the presumption of marriage, she stated on page 14 of the proceedings that; "Mali zilizopatikana wakati wa ndoa yetu ni nyumba ya Boko Dovya ambayo ipo ndani ya viwanja viwili kwa pamoja, kwanza ni kiwanja ploti namba 306 na plot namba 307 Block Gf pia tuna shamba la hekari 100, lipo Nangukurukuru ambalo lina vyumba ndani yake, shamba la hekari mbili na robo lililopo vikawe kiduni/Miwale Bagamoyo ambalo lina nyumba ndani yake pamoja na ngombe saba,kuku wa kisasa 350". She went on testifying that, Mimi na mdaiwa tunamiliki gari moja aina ya DARF ambalo ni Lori, magari matatu madogo la kwanza ni aina ya RAV Four, la pili ni Toyota Hilux pamoja na kirikuu moja, tunamiliki pia Kiwanja kipo Mahenge mjini huko Morogoro pamoja na Viwanja vinne vilivyopo mtaa wa Kibangwa Katika upatikanaji wa mali hizi nilichangia kama mama wa nyumbani lakini kwenye nyumba ya Boko Dovya nilichangia kununua bati chache zilizokuwa zimebakia 18

katika ujenzi, pesa za kununulia bati hizo nilizipata kutoka kwa madaiwa ambaye alikuwa amenipatia pesa ya kufanyia biashara mimi ndio nikanunulia bati hizo . Mimi pia nilikuwa nasimamia shughuli hizo za ujenzi pamoja na kutafuta mali hizo ambapo mdaiwa yeye ndiye alikuwa anatoa pes azote za manunuzi. Naomba Mahakama itoe mgawo wa mali zetu kwa kunipatia nyumba ya kuishi au kutoa mgawo wa mali zetu zote kuuzwa na mimi kupatiwa mgawo kwa kuzingatia sheria inayotaka... With regard to the farm at Bagamoyo she stated on page 14 as follows; Kuna kiasi nilikitumia kujenga sehemu ya kufugia ngombe huko Bagamoyo During cross examination, the Appellant admitted to have sold three lorries and cars and spent some funds which were deposited in the NMB Bank Accounts, (for TZS 500,000 and USD 30,000). The trial court, upon hearing the parties, allocated the properties for each as follows; The Appellant was granted; 4 plots located in Dodoma, one lorry (DARF) and 30% of the House at Nangurukuru, including the surrounding area therewith; The Respondent was awarded; 70% of the House at Nangurukuru and its surrounding area, the house at Boko Dovya, the House at Nangukuru Lindi,the house at Bagamoyo, cars; make Toyota Hilux, Toyota Rav Four and Nissan Dastan(Kirikuu), 7 cows, 300 chickens/broilers in Bagamoyo. In concluding, the Trial court magistrate also stated that the division considered the wasted properties by the Appellant and the fact that the 19

Respondent had a greater contribution. This division was also upheld by the District Court. The Appellant has contended that the trial and appellate court errored in assessing the division of the jointly acquired properties. Under section 114 of the LMA cap 29 as revised, the court is under a mandatory duty to divide matrimonial assets as acquired during the subsistence of the marriage or presumption of marriage by joint efforts. I have observed that, in this case parties were leaving under a presumption of marriage, and that once the court rebutted the presumption it proceeded to divide the assets acquired under the presumption of marriage in accordance with section 160(2) and 114 of the LMA. As it has already been pointed out, the similar provisions applicable in a formal marriage for distributing properties are also applicable under the presumption of marriage by virtue of section 160. The same principles are applicable. I have indicated herein above that both parties contributed to the acquisition of properties. However, their levels differ in terms of contribution considering the fact that the Appellant was a housewife and the Respondent was an employee of TRA. Therefore, it is clear that he has contributed more to the acquisition of the properties than the Respondent. Despite the fact that the Appellant was a homemaker and caregiver, she demonstrated her contribution both in terms of financial and non-financial aspects as shown herein above. Her contribution was based on financing, for instance of the Boko Dovya house, where she injected her money which was meant for business, developing the Bagamoyo farm, supervising construction, paying workers and doing other activities as stated in her own testimony, which was not controverted. 20

While I don't dispute the fact that she narrated orally in court that she sold some of the matrimonial assets without the consent of the Respondent, the provisions for distribution of such properties under section 160(2) and 114 of the LMA do not authorise outright denial of a spouse's share on the basis of the conduct alone. Any allegation of mismanagement must also be strictly linked to the actual acquisition or loss of the property. I understand that in this case, this was done vide the Appellant herself who gave an oral testimony on how she sold the properties without consulting the Respondent, despite the fact that it was at the time when they were not cohabiting together. However, even where mismanagement is alleged it does not automatically negate contribution of a spouse completely. In the case of Bi Hawa Mohamed (supra), where such issues of mismanagement were raised, the court still authoritatively held that; Contribution includes domestic services, child care, companionship and management of the home. Therefore, a spouse's contribution is assessed holistically not mechanically. Even in a situation where there is an economic misconduct, it only justifies, adjustment but not outright forfeiture which is disproportionate, punitive and contrary to equitable principles governing matrimonial causes. Even where mismanagement is proved like in the present case, the proper remedy is to still look at the contribution of each spouse and reduce a share and compensate parties accordingly but not total exclusion in jointly acquired properties as it was done by the trial court in some of the properties. Coming back to the case at hand, I have observed that, while the division totally excluded the Appellant in some of the assets, the trial considered the contribution of each party in some of the properties and mismanagement of the other assets as confessed by the Appellant. However, in dividing the 21

properties, the trial court ought also to have considered the explicit and substantial contribution of the Appellant in developing the House at Boko Dovya and also her contribution in developing the Farm at Bagamoyo as well. I have observed that in distributing these two assets, which the Appellant also stated to have developed the, the trial court totally excluded her instead of just adjusting her share or reducing it to a certain extent. I am of the further position that, in distributing the Bagamoyo farm, the trial court ought to have at least considered the Appellant, given her contribution in the farm and status as a homemaker, depending on the farm for her survival as well. She testified in her evidence that, she spent some money in developing the said a farm by building a section or shelter for cows. Similarly, she injected her moneywhich was meant for establishing her own business, in buying roofing materials (corrugated iron sheets) for the house at Boko Dovya and also repairing it. This is also clearly affirmed by the Respondent in his evidence on Pg 18 of the proceedings where it testified as follows: Mdai alikuwa ni mama wa nyumbani mimi ndiye nilikuwa mtafutaji namba mojahakuchangia kwa chochote zaidi ya kujazia mabati yaliyokuwa yamepelea kwenye ujenzi wa Dovyaambapo mdai alitoa pesa ambayo mimi nilimpatia afanye biashara. Based on the analysis and division of properties done by the trial court, I am of the settled position that, the variation should be done by allocating to the Appellant a share of 30% of the value of the farm located in Bagamoyo, this shall also be applicable to the poultry farm (chicken/broilers) and cows kept therein, since she also had her contribution in it, which evidence was not controverted by the Respondent. I have considered the fact that she is also a house wife and was also depending on the farm for her survival. 22

Similarly, the Appellant should also be awarded a share of 30% for the house located at Boko Dovya based on her contribution, which was not controverted by the Respondent. Furthermore, I have also noticed that, in her testimony before the trial court, the Appellant, mentioned one Plot at Mahenge Morogoro. However, during its summation of evidence, it skipped the attention of the trial court as the trial court did not deliberate on this plot of land. Since the Appellant also mentioned this plot as part of the properties acquired during the presumption of marriage, the trial court ought also to have directed its mind on that. Based on the powers of review bestowed upon me, I also proceed to divide the Plot located at Mahenge Morogoro to both parties, at the share of 30% Appellant and 70% Respondent. The value of all the landed properties shall be ascertained after valuation, as ordered by the trial court. Apart from this variation, I find that the division done is equitable and consistent with the principles of fairness. With regard to ground no 3 of appeal, the Appellant contended that; during the hearing, the Respondent contended that some of the jointly acquired assets still exist while the Appellant claimed that some of the assets have been sold out, quoting the decision of the trial court at page 7, "Mdaiwa alieleza kwamba sio kweli kwamba mdai ameuza sehemu ya mali za wadaawa na kwamba matf zotee ikiwemo akaunti za benki bado zinaendelea kufanya kazi kwa mas/ahi ya mdai kwani mdaiwa alipoondoka katika makazi ya wadaawa a/iziacha mali hizikiwepo. ...naioiomba mahakama kujumuisha mali 23

zote za wadaawa katika mgawanyo kwani magari na malori yote yanamilikiwa kupitia majina ya mdaiwa na hivyo mda/sio kweli kwamba ameyauza" The Appellant argued that since the court encountered this contradiction, it should have called the parties to bring poof of their allegations in order to satisfy itself on the existence of the assets or sale documents and or receipts. To the surprise the trial court disregarded the fact that the parties were in such a traumatic contradiction and proceeded with the unjustifiable grant of reliefs sought. She contended that, in a similar situation like this one, the court declared the resultant judgement defective. To bolster her submissions she cited the case of Abubakari I.H. Kilongo and Alexalen Memba Versus the Republic Criminal Appeal No. 230 Of 2021 which cited with approval, the case ofStanslaus Rugaba Kasusura and the Attorney General vs Fares Kabuye [1982] T.L.R. 338 The Appellant contended further that, the fact that the trial court proceeded to divide the properties without hearing the parties on the contradictory matters amounted to illegality and denied the parties the right to a fair hearing. She argued that, the court is vested with power to order the parties to bring more evidence on the contradictory evidence which arose for the sake of justice. This also was stated in the case of Charles Christopher Humprey Kombe vs Kinondoni Municipal Council (Civil Appeal No 81 of 2017) 2020 TZCA 1932 (12 June 2020) (at page 6 and 7) Where the court of appeal was of the view that; when there is a matter which needs clarification, the court should ask the parties to address the court. That leaving the parties with uncertainty basing on what they are contradicting about, amounts to injustice and violation of natural justice. She submitted that, in the above cited case, the court stated that; 24

It is established that any judicial order made in violation of any of the two cardinal rules of natural justice is void from the beginning and must always be quashed, even if it is made in good faith. Submitting in rebuttal on this point, the Respondent denied any existence of contradictions since the Appellant testified orally in court on how she handled some of the properties acquired during cohabitation. With respect to the alleged contradictions in the Respondent's evidence, this court finds that, there was no any contradiction at all since the Appellant herself testified before the court that she sold the properties and spent the money deposited in the bank accounts without consent. Even though she did not provide any proof of sale of properties or expenditures, but her own oral evidence was enough to cast away any contradiction. Oral evidence is one of acceptable forms of evidence apart from documentary evidence or electronic evidence. Thus, there was no need for the court to call for any further evidence. It was the duty of the Appellant to prove her case on the balance of probabilities since she was the one who filed it. She proved before the court that she spent the money in the accounts and sold some assets. Looking at the trial court's decision one will note that, trial court, the court didn't include for distribution, the properties which the Appellant said are no longer existing, however, it used it as a factor in arriving at its decision in distributing the available properties only. See page 8 of the trial court Judgement, last paragraph where the court itemised the only available properties. Finally, on the fourth ground, the Appellant contended that, the trial and appellate courts' decisions lack legal support for the Appellant's claims, that 25

the trial contended that the Appellant failed to demonstrate any misdirection of law or fact by lower courts. The Appellant has contended that; a valid judgment must be based on legal reasoning and supported by relevant statutory provisions and case law. In the present case the trial Court Judgment lacked the required legal foundation. The trial court failed to provide legal justification as to how it arrived to such a judgement. Had the Magistrate assessed the testimonial evidence of the parties, it could not have arrived at such an erroneous decision which reveals impropriety and illegality in the face of the law, justice and records, rendering miscarriage of justice and leaving the parties at a crossroad and uncertain as to whether their marriage has been dissolved or not. Having gone through the Judgement of the trial court, I find that it contains legal reasoning and supported by various authorities. Except for the minor variation done in the allocation of properties, I don't find any illegality contained in the said Judgement. Therefore this ground of appeal is also bound to fail. I thus find no reasons to interfere with the concurrent findings of the lower courts save for what has been varied. In the upshot, this court finds that the 1st, 3rd and 4th grounds of appeal are devoid of merit with an exception of the second ground which is allowed to the extent of the variation done herein above. Accordingly, the appeal is partly allowed and partly dismissed to the extent discussed herein above. For the avoidance of doubt I issue the following orders; 26

a. The Appeal is partly allowed and partly dismissed. The 1st, 3r d and 4th grounds of appeal are dismissed while the 2n d ground of appeal is allowed to the extent of the variation done. b. The Appellant is awarded a share of 30% of the value of the farm located at Vikawe, Kiduni/ Miwale in Bagamoyo, this shall also be applicable to the poultry project and cows kept therein c. The Appellant is awarded a share of 30% for the house located at Boko Dovya. d. The landed property at Mahenge Morogoro is awarded at the rate of a share of 30% Appellant and 70% Respondent. e. The division of the landed assets shall be preceded by a valuation to be carried out at the expense of both parties based on the percentage of their shares. f. As per section 90 of LMA, I grant no order for costs It is so ordered The right of appeal is fully explained. DATED at TEMEKE this 19th DAY of DECEMBER 2025 S.D. MWAIPOPO 1 19/12/2025 JUDGE 27