gift samwel kasago vs mark raphael kihwele 2023 tzhc 19408 31 july 2023

IN THE HIGH COURT OF THE UNITED REPUBLI OF TANZANIA

ARUSH SUB REGISTRY

AT ARUSHA CIVIL APPEAL NO. 51 OF 2022 (Originating from Matrimonial Cause No. 18 of 2022, in the District Court of Arusha at Arusha) GIFT SAMWEL KASAGO................................... APPELLANT

VERSUS MARK RAPHAEL KIHWELE........................... RESPONDENT

JUDGMENT 18th & 31st July 2023 KAM U ZORA, J. The Appellant herein was the petitioner before the District Court of Arusha in Matrimonial Cause No. 18 of 2022. She prayed for judgment and decree against the Respondent as follows: - a. That, the court dissolve the marriage and grant decree for divorce. b. That, the court grant custody of children to the petitioner and the Respondent. c. That, the Respondent be ordered to contribute to medical treatment and school fees for the children. d. Any other relief(s) the court shall deed just to grant. Page 1 of 6 In his reply, the Respondent supported the petition and all reliefs sought under the petition. Before commencement of hearing at the trial court, parties entered into settlement agreement in which, they recorded their terms of settlement and did file the deed of settlement before the trial court. Without addressing the deed of settlement, the trial court proceeded on recording evidence of the parties and pronounced the judgment. In its judgement, the trial court made it clear that grounds for divorce were not proved hence refused to grant divorce. This also deterred subsequent orders sought under the petition. Aggrieved by that decision, the Appellant brought the present appeal challenging the trial court's decision on the following grounds: - 1. That, the trial magistrate erred in law and in facts by disregarding the deed of settlement entered by parties that the court had to dissolve their marriage and grant divorce.

2. That, the trial magistrate erred in law and in facts by disregarding the provision of section 9 of the Law of Marriage Act Cap. 29 R.E. 2019 3. That the court erred in law and in facts by neglecting the evidence adduced by the parties that their marriage has broken down irreparably. On the date scheduled for hearing the Appellant appeared and was represented by Anna Ephraim who was holding brief for Mr. Benson Mhango but with instruction to proceed. The Respondent appeared in Page 2 of 6 person, unrepresented and informed this court that he was in support of appeal and all prayers by the Appellant. He explained that, he has been separated from the Appellant for three years and he has all along supported divorce as he does not intend to settle down with the Appellant anymore. He informed this court that he is ready to comply to the terms of settlement which they submitted before the trial court. When asked to address the court, the counsel for the Appellant submitted that since the appeal is not contested this court should allow the appeal and grant divorce. She prayed that other orders should be as per the deed of settlement entered by the parties and filed before the trial court. Referring the case of Tumaini Simoga Vs. Leonia Tumaini Bulenga, Civil Appeal No. 117 of 2022, she insisted that since the parties had agreed not to live together as husband and wife, this court be

please to dissolve their marriage by granting decree for divorce. I have considered the trial court records, grounds of appeal and submission by the parties. It is without doubt that both parties are no longer intending to settle down in their marriage. They even went beyond in setting their terms for purpose of custody and child maintenance upon dissolving their marriage. They all agree that they have been living separately since 2019 and they do not intend to settle down together. This means that the Appellant and the Respondent has lost love for each Page 3 of 6 other. As held by this court in John David Mayengo Vs. Catherine Malembeka, CP Civil Appeal No 32 of 2003, where love disappear in marriage, no magic can be done to make someone love a person he/she does not love. It was held: - "Marriage being a voluntary union of a man and a woman intended to last for theirjoint lives., it is the parties themselves who are the best judges on what is going on in their joint lives. A crucial ingredient is love. Once disappears, then the marriage is in trouble. There is no magic one can do to make the party who hates the other to love her or him." The court of appeal was persuaded by the above case while dealing with similar issue in the case of Tumaini Simoga (supra) and granted divorce in considering that parties have lost love with each other and they were unsuccessful

reconciliated by the church member and the conciliation board. In the matter at hand, the Appellant while testifying before the trial court in 2022, she claimed that she was separated from the Respondent since 2019. The reason for their separation is that they were constantly fighting since they go married thus, she decided to have extra marital affairs. Their parents and church bishop tried to reconcile them in vain. They were advised to go at Kaloleni Conciliation Board but again, they Page 4 of 6 could not be reconciled. The Respondent on the other hand conceded to divorce as he could no longer handle their difference. Based on the above record, it becomes obvious that parties no longer love each other and nothing can be done to force their union. As opposed to what the trial court concluded, the Appellant alleged separation for three years, a fact that was not disputed by the Respondent. That being the case, and in considering the above cited authorities, this court finds that granting divorce is inevitable in the circumstance of this case as parties' marriage is broken down beyond repair. I therefore proceed to grant decree of divorce to the parties. Upon granting divorce, this court is inclined to discuss subsequent orders. From the records and submission by parties, nothing was introduced as matrimonial property, thus no order is made for that purpose. However, there is

issue of custody and maintenance of marriage issues. Parties were blessed with two issues of marriage, and they have agreed on shared custody under which the children will be under the care of the Appellant. The arrangement on the responsibilities of each party was well aligned in their deed of settlement which was disregarded by the trial court. Since that arrangement was well accepted by the parties and since it is in line with the welfare of the child, in the best interest of the child, I Page 5 of 6 allow such arrangement to stand. Parties are therefore vested with shared custody under which the children will be under the care of the Appellant. Save for the period during school or education programmes, parties shall have equal right with children especially during school holydays. As regard to maintenance, the Respondent shall provide for school fees and medical expenses while the Appellant will be responsible for other needs. In addition, parties shall also be bound by the terms of their deed settlement which they entered voluntarily before the trial court and confirmed it before this court. In the upshot, the appeal is allowed. But in considering the relationship between the parties and the fact that the appeal was not contested by the Respondent, each party shall bear own costs. DATED at ARUSHA this 31st Day of July 2023 Page 6 of 6