Mbeleyai Makairo vs Papaa Sinjore (PC. Civil Appeal No. 23621 of 2025) [2025] TZHC 8858 (19 December 2025)

1 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF MANYARA AT BABATI PC. CIVIL APPEAL NO. 23621 OF 2025 (Arising from PC. Matrimonial Appeal No. 10254 of 2024 in the District Court of Kiteto, Originating from Matrimonial Cause No. 10 of 2024 in the Primary Court of Kibaya at Kiteto) MMK …………………………………………………………………………. APPELLANT VERSUS PPS ……………………………………………………….……………….. R E SPONDENT JUDGMENT 11 th November & 19 th December, 2025 MWIHAMBI, J. MMK , the appellant and PPS , the respondent, were parties to a divorce petition before Kibaya Primary Court at Kiteto (the trial Court). MMS filed a petition for divorce against PPS , her husband, seeking for divorce and maintenance of their three issues. The claims in the petition for divorce read:

2 “Nakumbuka kuanzia mwaka 2024 mwezi wa kwanza ndugu (PPS) alikuwa ananinyanyasa na kuwachukua Watoto. Ninachodai talaka na matunzo ya Watoto na mgao wa mali.” Upon full trial before the trial Court , the trial magistrate reasoned that the appellant did not bring forward reasonable grounds to be granted divorce. However, he deemed it fit to grant one year separation between the parties. Regarding the custody of children, the trial Court ordered the children to be under the custody of the appellant. There was no order for division of matrimonial properties. This decision aggrieved the respondent and he proceeded to appeal before Kiteto District Court (the first appellate Court). He appealed on the grounds that; the trial Court erred in law and in fact for ordering the custody of the children to the appellant who deserted the children herself without any justifiable reasons and t hat, the trial court failed to analyze evidence in which it ended up reaching at a wrong conclusion. The parties appeared before the first appellate Court and their appeal was argued by way of written submissions. In his judgment, the first appellate magistrate reasoned that the trial magistrate was right to order one year separation between the parties as divorce has many negative

3 effects. Regarding the order of maintenance and custody of children, the first appellate magistrate had this to say: “In dealing with ground four of the appeal, I think the court would have considered to allow the respondent to continuing [sic] custodying [sic] the children as the act of complainant vacating the matrimonial home with no justifiable reasons disqualifies h er to ask for custody within the period for separation order given by the trial court. Yes, welfare for children in this situation is to be highly considered, still the wife said nothing in court to support his [sic] prayer for custody as it was for divorc e.” He then upheld the decision of the trial Court save for the order of custody and maintenance of children. This decision irked the appellant who is before this Court appealing on the following grounds , in verbatim :

1. That, the first Appellate Court Magistrate erred in law and fact by misdirected itself by granting divorce and failed to consider a crucial matter , namely the care and maintenance of children, particularly the four young children below the age of 5 years were putted under the Respondent living under a poor condition and the mother of children (Appellant herein) left with nothings hence reached into erroneous ju dgment.
2. That, the first Appellate Court Magistrate erred in law and fact for failure to take into consideration the Appellant herein were being oppressed, subjected to female cruel harassment and mistreated, forced to live as wife of the

4 Respondent and at the same time while her children under the age of 5 years were taken away from the appellant contrary to the law. The learned advocates, Mr. Simon Hilonga and Mr. Pastor Kong’oke represented the appellant and the respondent respectively in this appeal and argued the appeal by way of written submissions. In supporting the appeal, Mr. Hilonga prayed for the leave of this Court to correct the typing error on the first ground of appeal to read “That the first Appellate Court Magistrate erred in law and fact by misdirected itself by not granting the divorce…” Mr. Hilonga started submitting on the second ground of appeal that the first Appellate Court failed to address properly the issue of custody of children basing on the law and principles guiding the order of custody of children. He went further to say that the appellant has three issues aged 5 years, 3 years and 1 year respectively and that the trial Court and the first Appellate Court ordered the custody of the children to the respondent without considering the age of the childr en and their best interest. H e cited the provisions of section 125 of the Law of Marriage Act [ Cap . 29 R.E . 2023 ] and section 26 (1) (b) of the Law of the Child Act [ Cap . 13 R.E . 2023 ] . He added that the respondent has failed to take care of the welfare

5 of the children hence, contravening the provisions of sections 5 (1) and (2), 7 (2) and (3), 8 and 9 of the Law of the Child Act . Mr. Hilonga added that the children under the respondent’s care have subjected to forced labour and have been denied their educational rights hence, he prayed for the Court to order a decree for divorce and shift the duty of custody to the appellant and ma intenance to the respondent. On his part, Mr. Kong’oke replied that the provisions of the Law of Marriage Act and the Law of the Child Act concerning the best interests of the child are distinguishable to the appellant who had no affection with the children and deserted them but now she wants to take the children away from the respondent for her ill motive of depriving the respondent his children . On the first ground of appeal, Mr. Hilonga submitted that the courts below failed to properly evaluate the evidence that the parties had been separated for a period of three years which constitutes a clear indication that the marriage had irreparably broken down instead they proceeded to grant a decree of separation which is contrary to the law. He stated that according

6 to section 140 of the LMA the court has no power to force the parties to live together. Mr. Kong’oke replied that the submission of the appellant contains allegations which lack basis in the trial Court’s records as there is no evidence on record which suggests that the parties were separated for three years. The appellant stated on record that she left the matrimonial house since January 2024. He added that the separation order given by the trial Court is coming to an end hence, the parties can go back to petition for divorce. He prayed for the appeal to be dismi ssed with costs as it lacks merit. I have carefully examined the submissions of both counsels , the grounds of appeal and the records of the lower courts. At the beginning of his reply submission, the counsel for the respondent stated that this is a second appeal and it is trite law that the second appellate court should not interfere with the concurrent facts of the two courts below unless there is established evidence that the two courts below misapprehended crucial and material facts. He cited the case of Simon Kichele Chacha v . Avelina M. Kilawe (Civil Appeal No. 160 of 2018) [2021] TZCA 43.

7 Divorce procedures are governed by the Law of Marriage Act, Cap 29 R.E 2023 (the LMA). Section 99 provides that: “Subject to the provisions of sections 77, 100 and 101, a married person may petition to the court for a decree of separation or divorce on the ground that, his or her marriage has broken down but a decree of divorce shall not be granted unless the court i s satisfied that, the breakdown is irreparable. ” Section 107 (1) of the LMA provides that i n deciding whether or not a marriage has broken down, the court shall have regard to relevant evidence regarding the conduct and circumstances of the parties . The LMA under section 107 (2) has also listed down matters that the court will accept as evidence that marriage has broken down. They include adultery, sexual perversion, cruelty, willful neglect, desertion, imprisonment, mental illness, change of religi on and voluntary separation or separation decree of the court where it has continued for at least three years. The appellant before the trial Court petitioned for divorce and she testified that: “ Sijaja na shahidi kwani nikiwaita wanakataa, hakuna mtu ambaye hajui Watoto wangu wana shida, nimekuja kuomba mahakama hii inisaidie kupata Watoto

8 wangu, na nipewe talaka Watoto watatu ambao wamechukuliwa. Hicho ndicho ninachokiomba. Haya ndio maelezo yangu, amesaini.” From that evidence, the appellant did not advance any matter as evidence to be used by the trial Court that the marriage with the respondent had irreparably broken down for the decree of divorce to be granted. What she emphasized on was that she wanted her children. One of the issues to be determined by the trial Court was whether the marriage between the appellant and the respondent has broken down irreparably. While determining the same, the trial Court stated that: “Katika hoja ya kwanza kama ndoa hii imevunjika pasipo kurekebishika, tunaongozwa na kifungu cha 107 cha sheria ya ndoa sura ya 29, marejeo ya 2019, kwa maana kwamba ili ndoa ivunjwe kisheria sharti la kwanza ni lazima kuwepo na sababu zinazopelekea ndoa h iyo ivunjwe. Katika shauri hili mdai ameeleza kuwa Watoto wake wana shida na apewe talaka, hakusema kwa undani ni kwanini anadai apewe talaka…” The trial Court further reasoned that: “Sababu aliyoitoa mdai haitoshi kuwa sababu za msingi za kuvunja ndoa hii chini ya kifungu cha 99 cha sheria ya ndoa, sura ya 29 marejeo ya 2019. Lakini inaonekana wazi kuwa mdai hataki kabisa kuendelea kuishi na mdaiwa, jambo hili

9 limeleta au limeibua mgogoro mkubwa baina ya familia hizi…lakini pia mahakama haiwezi kumlazimisha mwanandoa kuishi na mwenzi wake wakati yeye hataki, hivyo ni kwa mujibu wa kifungu cha 140 cha sheria ya ndoa sura ya 29, marejeo ya 2019…” After reasoning well that the appellant was not able to convince the Court on the reason of why she wanted divorce, the trial Court magistrate proceeded to grant a decree of separation to the parties. The first appellate magistrate blessed this decision by stating in his judgment that: “In the record the trial court opined in verbatim; lakini inaonekana wazi kabisa kuwa mdai hataki kabisa kuishi na mdaiwa…suluhu mara kwa mara bila kupata muafaka. I think that wa s the proper moment for trial court to proceeding [sic] to order for divorce, I wonder how the trial magistrate hesitated to so doing. Nonetheless, I respect the trial magistrate point of view in giving order for one (1) year separation…” At this juncture, I will revisit the provisions of section 99 of the LMA and for convenience, I will reproduce it: “ Subject to the provisions of sections 77, 100 and 101, a married person may petition to the court for a decree of separation or divorce on the ground that, his or her marriage has broken down but a decree of divorce shall not be granted unless the court is satisfied that, the breakdown is irreparable.” [Emphasis is mine]

10 Being guided by the cited provision, this Court is of the firm view that separation is not an alternative to divorce, that is, the court cannot rescue the party who has petitioned for divorce and has failed to advance matters of evidence as has been provided for under the law, by granting him/her the decree of separation. It is apparent on the face of record that the appellant petitioned for divorce . In both cases, a party who petitions has to advance reasons before the court that, for separation, the marriage has broken down and for divorce, the marriage has broken down beyond repair as has been provided for under section 107 (2) of the LMA . Section 110 (1) of the LMA provides that: “(1) At the conclusion of the hearing of a petition for separation or divorce, the court may where - (a) satisfied that, the marriage has broken down and, the petition is for divorce, that the break down is irreparable, grant a decree of separation or divorce as the case may be, together with any ancillary relief; or (b) not satisfied, dismiss the petition, and where there is a cross - petition or cross - prayer, the court may if satisfied as aforesaid, grant a decree on the petition or on the cross - petition or cross - prayer as it may deem fit with

11 any ancillary relief to either party or if not so satisfied, dismiss both the petition and the cross - petition or cross - prayer .” [Emphasis is mine] The evidence of the appellant on record lacks matters of evidence as have been provided for under section 107 (2) of the LMA to warrant her a decree of divorce or separation. The trial magistrate cited section 140 of the LMA to justify his decision that: “…mahakama haiwezi kumlazimisha mwanandoa kuishi na mwenzi wake wakati yeye hataki, hivyo ni kwa mujibu wa kifungu cha 140 cha sheria ya ndoa sura ya 29, marejeo ya 2019.” Section 140 provides that: “A proceeding may not be brought to compel a wife to live with her husband or a husband with his wife, but it shall be competent for a spouse who has been deserted to refer the matter to a Board.” With due respect, this Court is of the firm view that the trial magistrate wrongly interpreted the cited provision in relation to the circumstance of this case. Having so observed, this Court finds that the trial magistrate erred in granting the decree of separation to the appellant. This Court finds it pertinent to interfere with the concurrent findings of the lower courts as there has been misapprehension of evidence as shown

12 hereinabove. In the event, the order of separation of Kibaya Primary Court is hereby set aside. Having said that, the order of custody of children as was granted by Kiteto District Court and Kibaya Primary Court is also set aside. This Court is of the firm view that if any of the party has a concern on the custody and maintenance of children, the proper forum to institute the matter would be the Juvenile Court. The Juvenile Court Magistrate would be at a better position to decide on who between the appellant and the respondent fit s for the custody and maintenance of children. In the event, the appeal is allowed to the extent explained above. Due to the relationship of the parties, this Court gives no order as to costs. It is so ordered. DATED at BABATI this 19 th day of December, 2025. N. J. MWIHAMBI JUDGE Right of appeal explained to the parties.

13 COURT: Judgment delivered today in presence of the appellant, Mr. Simon Hilonga advocate of the appellant and Mr. Pastor Kong’oke, Advocate for the respondent. B/C: Ms. Anna Mathayo (RMA) is present. N. J. MWIHAMBI JUDGE