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Judgment

' ' • • • -:' .i1· • • ·*··: -, ; 1 ... s ~~., 1. \ • • ,. · • , •. • C-;/770~~. IN THE HIGH COURT OF TA.ZA..~~IA AT MBEYA . DC •. EATRI~~-ONIAL · APPEAL ·No.· -1/1996 (From the decision of the D'istrict Court of Rungwe District at 'fukuyu in J'.atrimonial Cause No. 10 of 1995 BEFORE: F. N. l½ATOGOLO - D. !Jf.) EMELISE ITENDA •••••••••••••••••APPELLA..~~T .. VERSUS JOHNSON t-'MM-':BIPILE ••••••••••••• RESPONDENT JUDGEI"ENT· MWIPOPO, J. The appellant Emelise d/o Itenda is the divorced wife -•f the·· r~~sponden_t Johnson s/o iv:wambipile her. ex husband. She has appealle_d. agaipst the Distrj,ct Court 1 s decision to award her only½ the Shs.100,000/= as value of the house built on ·1their joint efforts at Kyimo village on the 1st and 2nd' grounds.of tho_ ' . writn memorandum of appeal filed and drawn by the learned Mr. ~~angole.her advocate who was later replaced-by the learned ·Mr. off I"J:kumbe Advocate whom she later on dispen sedLfrom further repre_~~en- ting her when he failed to attend the hearing of this appeal · prosecuted · on 8/12/98 and thereafter she L the appeal h~~rself. After the appeal had been heard I- directed further District evidence to be taken· by the trial court of Rungwe L Cour~ and . which was done on 25/5/98Ll/6/98 by CW.l Gw?maka s/o Asumbwile the Assistant Senior Government valuer of Mbeya Region. Since his evidence was taken on oath in the presence of and under cross-exaroination by both parties (the appellant and the respondent) his same evidence and prepared valuation report shall be included in the evidence of this case and be considered by this court on its merits and demerits in writing this judgement • . . . /2

2 - The first and 2nd grounds--of appeal generally .assessed . even when appear to,be groundful and L approached from the angle of the they · appellants'own evidence on oathLappear_ on the face of the record to be proper. The appellant as DW.l Emelise d/o Itenda testified that their matrimoni~~l home was built for Shs~~lO0,OOO/= •. That is why the trial court accepted this testimony as truthful and of the appreciated value ·. · assessed her ½Lshare of the house at Shs.100,000/= only. Here and she abandoned her·given value of the houseLbrought up fresh propositions·of the value of same to about Shs~~2,500,ooo/= as put· iv by her -then advocate the learned rr:r. i~~kumbe. _·The fresh additional evidence of the government valuer has indicated- that there are three wings of the house valued at:: I II 479,000/= ·shs·. for Wing A • 640,000/= If for Wing B ti 238,000/= for Wing C Total Shs. 1,358,000/= as shown in Exhibit C~ I hold that these valuations of the three winged house represent a fair market value of the house now in June, 1998~ The rspondent has contended that they divorced each 'other on 12/2/1996. The appellant answered on 25/5/jB that no house was built by the respondent alone in these words:- . . '*There is no·any house built by the respondent alone, . The main house and the n·ear house were built at the same time. We built them together. The front apartment was built later, but I also participated to bild it. They have to be valued together. There is no house the respondc:.-.-:- 1:Juil t alone. 11 In the trial court and at the hA;:rri.ng of .this appeal the appellant argued through his advocate the learned Mr. IV,kumbe that the entire .•• /3 '. I e
3 - . ' ,o.a.~~j.Qg was built wi.~~ ce.tr.ent:. brocks. cw.1, on additional . -~vfctence, tes:tified · that the. l .. ; .... ,._ . .:.

were:'.: the only ones built of 
,.,,,,. ,,, . 
out bili.lding. 
. . . . 
main -house a;fter breaking through the 
,., . 
main. house and the front ap·artrt1ents 
burnt bricks. This is, the front 
The appellant co~~essed in her above quoted stateinept 
,.'' 
~hat';1t was built later on~ Since they separated in 1995 '- / 
although the divorce was granted in February i996 it is obvious 
that she did not help to build th~ ~xtended portion of the house 
l 
which are built in burnt bricks. 
I accept the r 
8 
sponqent's version that it was only the· 
mud-bricked main house of 5 rooms which was built during th~ · 
· subsistence of their j9int ~-tay togeither as a husband and wife. 
. - 
After they separated although they were still husband and wife 
not yet divorced and after the divoree it was only the respondent 
who was still ~een _and capable of making the extra developments 
on the front and rear buildings valued at Shs.-640, 000/= and . · 
238,000/=. ·These 
1 
portions couldn't have been jointly acquired 
through their joint efforts for th~ appellant was re-married to 
her ulokole ·· ( fundamentalist) religeous sect and lost interest 
so 
in the respondent as a husband andL she lived alone elsewhere_. _ 
As for the main building marked Wing A in the valuer's 
report it was jointly acquired and built during their active 
subsistence of their marriage which ought to be split half way 
in its total value of Shs~479,000/= & ½ = 238,500/= payable to 
the appellant by the respondent. I therefore enhanc~ the lower 
of · ' · · 
court's assessmentL Shs.100,000/= pay off to the.ap?ellan~,t~, 
Shs,238,500/=. The respondent shall pay off Shs.238,500/= to- 
the appellant and retain the entire house (main mud~built house 
. ~ I_' '. , . ,: _) 
'Wing A). The other additional buildings are not subject to ~¥ 
••• /4

. , 
- 4 - 
division with the break up-of the marriage which were built by 
the respondent alone. He shall retain them as his own sweat's 
proce€d. They are his own property lawfully acquired by him •. 
The other movable properties were properly dealt with 
by the trial court such as the sewing machine which was 
acquired through a present given to him in Europe while studying 
there. There is no need of interfering with the lower eourt's 
dacision in relation to all other properties divided by the 
learned Mr. Matogoro (D.M.). 
The respondent raised the issues of custody of the chil- 
dren which were given to the .. ~:PP.~llan~. ~9 . . tha:t .. now he can take 
. .. • • , • • • t • • .. ., • • .. .. • ~ 
custody of them himself since the 
11 
:first" one born by the 
appellant is now over 10 years old.. This matter· was not· in issue 
in this appeal. The res~onq,£:ip:t. is free to formally ask the 
, I 
District Cou.rt to rever~~- _ij~_;; d:-~is.iion so that now he gets 
. ·•· ---· . •·- . - . ~ ...... ·•· . : . 
. 
·- 
custody of the two children. 
the children custody. 
He shall petition for chcirtge of 
Otherwise, this appeal is partly allowed and partly. 
p ., .. I I ',: ~ r • I 
dismissed as explained above. Since the appellant has worn 
hardly half way each party s·:1all bear his own costs. 
Date: 9/7/99 
Coram: Hon. E.L.K. Mwipopo, J •. 
Appellant: Absent 
· Respondent: Absent 
B/C •. Kosam. 
JUDGE 
·7./6/~999 
• •• /5 
.. - ..

Judgment

2 - The first and 2nd grounds--of appeal generally .assessed . even when appear to,be groundful and L approached from the angle of the they · appellants'own evidence on oathLappear_ on the face of the record to be proper. The appellant as DW.l Emelise d/o Itenda testified that their matrimoni~~l home was built for Shs~~lO0,OOO/= •. That is why the trial court accepted this testimony as truthful and of the appreciated value ·. · assessed her ½Lshare of the house at Shs.100,000/= only. Here and she abandoned her·given value of the houseLbrought up fresh propositions·of the value of same to about Shs~~2,500,ooo/= as put· iv by her -then advocate the learned rr:r. i~~kumbe. _·The fresh additional evidence of the government valuer has indicated- that there are three wings of the house valued at:: I II 479,000/= ·shs·. for Wing A • 640,000/= If for Wing B ti 238,000/= for Wing C Total Shs. 1,358,000/= as shown in Exhibit C~ I hold that these valuations of the three winged house represent a fair market value of the house now in June, 1998~ The rspondent has contended that they divorced each 'other on 12/2/1996. The appellant answered on 25/5/jB that no house was built by the respondent alone in these words:- . . '*There is no·any house built by the respondent alone, . The main house and the n·ear house were built at the same time. We built them together. The front apartment was built later, but I also participated to bild it. They have to be valued together. There is no house the respondc:.-.-:- 1:Juil t alone. 11 In the trial court and at the hA;:rri.ng of .this appeal the appellant argued through his advocate the learned Mr. IV,kumbe that the entire .•• /3 '. I e
3 - . ' ,o.a.~~j.Qg was built wi.~~ ce.tr.ent:. brocks. cw.1, on additional . -~vfctence, tes:tified · that the. l .. ; .... ,._ . .:.

were:'.: the only ones built of 
,.,,,,. ,,, . 
out bili.lding. 
. . . . 
main -house a;fter breaking through the 
,., . 
main. house and the front ap·artrt1ents 
burnt bricks. This is, the front 
The appellant co~~essed in her above quoted stateinept 
,.'' 
~hat';1t was built later on~ Since they separated in 1995 '- / 
although the divorce was granted in February i996 it is obvious 
that she did not help to build th~ ~xtended portion of the house 
l 
which are built in burnt bricks. 
I accept the r 
8 
sponqent's version that it was only the· 
mud-bricked main house of 5 rooms which was built during th~ · 
· subsistence of their j9int ~-tay togeither as a husband and wife. 
. - 
After they separated although they were still husband and wife 
not yet divorced and after the divoree it was only the respondent 
who was still ~een _and capable of making the extra developments 
on the front and rear buildings valued at Shs.-640, 000/= and . · 
238,000/=. ·These 
1 
portions couldn't have been jointly acquired 
through their joint efforts for th~ appellant was re-married to 
her ulokole ·· ( fundamentalist) religeous sect and lost interest 
so 
in the respondent as a husband andL she lived alone elsewhere_. _ 
As for the main building marked Wing A in the valuer's 
report it was jointly acquired and built during their active 
subsistence of their marriage which ought to be split half way 
in its total value of Shs~479,000/= & ½ = 238,500/= payable to 
the appellant by the respondent. I therefore enhanc~ the lower 
of · ' · · 
court's assessmentL Shs.100,000/= pay off to the.ap?ellan~,t~, 
Shs,238,500/=. The respondent shall pay off Shs.238,500/= to- 
the appellant and retain the entire house (main mud~built house 
. ~ I_' '. , . ,: _) 
'Wing A). The other additional buildings are not subject to ~¥ 
••• /4

. , 
- 4 - 
division with the break up-of the marriage which were built by 
the respondent alone. He shall retain them as his own sweat's 
proce€d. They are his own property lawfully acquired by him •. 
The other movable properties were properly dealt with 
by the trial court such as the sewing machine which was 
acquired through a present given to him in Europe while studying 
there. There is no need of interfering with the lower eourt's 
dacision in relation to all other properties divided by the 
learned Mr. Matogoro (D.M.). 
The respondent raised the issues of custody of the chil- 
dren which were given to the .. ~:PP.~llan~. ~9 . . tha:t .. now he can take 
. .. • • , • • • t • • .. ., • • .. .. • ~ 
custody of them himself since the 
11 
:first" one born by the 
appellant is now over 10 years old.. This matter· was not· in issue 
in this appeal. The res~onq,£:ip:t. is free to formally ask the 
, I 
District Cou.rt to rever~~- _ij~_;; d:-~is.iion so that now he gets 
. ·•· ---· . •·- . - . ~ ...... ·•· . : . 
. 
·- 
custody of the two children. 
the children custody. 
He shall petition for chcirtge of 
Otherwise, this appeal is partly allowed and partly. 
p ., .. I I ',: ~ r • I 
dismissed as explained above. Since the appellant has worn 
hardly half way each party s·:1all bear his own costs. 
Date: 9/7/99 
Coram: Hon. E.L.K. Mwipopo, J •. 
Appellant: Absent 
· Respondent: Absent 
B/C •. Kosam. 
JUDGE 
·7./6/~999 
• •• /5 
.. - ..

Emelise Itenda vs Johnson Mwambipile (DC Matrimonial Appeal No. 1/1996) [1999] TZHC 444 (9 July 1999)

Judgment

Discussion

Emelise Itenda vs Johnson Mwambipile (DC Matrimonial Appeal No. 1/1996) [1999] TZHC 444 (9 July 1999)

Judgment

Discussion