abilah fakili vs asmini selemani 2007 tzhc 120 3 october 2007

IN THE HIGH COURT OF TANZANIA AT SONGEA PC. MATRIMONIAL CIVIL APPEAL NO. 1 OF 2007 ABILAH FAK ILI.................... APPELLANT VERSUS: ASMINI SELEM ANI............... RESPONDENT 03/05/2007 HEARING CONCLUDED 04/10/2007 JUDGMENT DELIVERED JUDGMENT: KAGANDA, J. This is a second appeal, the matrimonial petition was filed before Mfaranyaki Primary Court. The Court granted divorce between the parties and ordered for division of their two houses purpoted to have been built during their marriage. The Court also ordered that the two children be under the custody of their father with a leeway to visit or be visited by their mother. The parties were satisfied with the decree of divorce but were not satisfied with the order of division of the houses plus orders o f sale hence this appeal. There is no dispute that there was or there is a house at Tandahimba in Mtwara Region which is the original home o f the appellant and at Songea which is the original home of the respondent. The appellant claims that, they built the house at Tandahimba for his parents to live in as such it should not be taken as a matrimonial house. More over the two, have never lived in that house. He also wanted or wished for the house at Songea to be sold because he had some debts to settle. The District Court allocated the house at Tandahimba to the appellant and the one at Songea to the Respondent. The appellant claims that, he dos not wish to go back to Tandahimba because he moved to Songea since 1988. The District Court was o f the view that selling the houses was not wise for the good o f both parties and their children. The issue is whether the houses were properly distributed by the District Court. The African Culture especially that o f this state, it is almost an obligation for one to take care of his/her parents at old age especially when he/she happens to be better off in life. The appellant came to Songea to conduct some business and I believe he used the proceeds to put up the house for his parents at Tandahimba, his village home. But, knowing that he had his own family to shelter, he build the house at Songea. Common sense dictates that, the parties have only one matrimonial house because no Law can throw out the parents from the house they have lived in just because it was built by their son. Had there been evidence to prove that the house was being rented, that would have been a proper remedy. Again since I have ruled out that the parties have only one matrimonial house, it is equally unwise to sale it because they have children to take care of and it is their duty to provide them with necessities o f life which include a shelter, clothes and food just to mention a few. The house is said to have three rooms as per trial courts record. I therefore order that:- - One room be used by the appellant. - The second room be used by the respondent - The third room be used by the two children. The sitting room be used equally plus the kitchen if any. The house should not be sold because doing so will render the two children homeless for not 2 fault o f theirs with that view the appeal is partially upheld. No order as to costs. Right o f appeal explained. S.S. KAGANDA JUDGE 3/10/2007. SSK/PJL. 2