CIVIL APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (ARUSHA SUB - REGISTRY) AT ARUSHA CIVIL APPEAL NO.5 OF 2024 (Originating from Matrimonial Cause No. 1 of2023, Resident Magistrates' Court ofArusha) LINA ELINAMI MALEKO......................................... APPELLANT VERSUS EVANS ROBERT MAINA........................................... RESPONDENT JUDGMENT 9th May & 18th June 2024 KIWONDE, J.: This judgment is in respect of the main appeal and the cross-appeal, Civil Appeal No. 4 of 2024 involving the same parties. In the main appeal, the appellant, Lina Elinami Maleko, being dissatisfied with the decision of the Resident Magistrates' Court of Arusha in Matrimonial Cause No. 1 of 2023, has appealed to this court basing on three (3) grounds below: - Page 1 of 10 1 1) That the trial Resident Magistrates' Court erred in law for failure to distribute landed matrimonial properties fairly following the proof of development contribution (sic). 2) That the trial Resident Magistrates' Court erred in law for failure to consider properly the principle of development contribution hence unfair distribution of landed matrimonial properties. 3) That the trial Resident Magistrates' Court erred in law for considering location of the landed matrimonial properties instead of considering the principle of development contribution in distributing landed matrimonial properties. The appellant prayed this court to allow the appeal, quash the judgment of the trial court and set aside the decree thereto. Whereas, in the cross-appeal, the cross-appellant, Evans Robert Maina raised six (6) grounds of appeal which are: 1) That the trial Magistrate erred in law and in fact for offending the mandatory requirement of section 114 (1)(2) of the law of Marriage Act, cap 29 (R. E 2019) in distribution of matrimonial properties with regard to the contribution of parties in obtaining (sic) matrimonial properties. Page 2 of 10 2) That the trial Magistrate erred in law and fact by dividing properties which do not belong to the parties thus, not forming part of matrimonial properties. 3) That the trial Magistrate erred in law and in fact for dividing properties which belong to the appellant obtained through inheritance. 4) That the trial Magistrate erred in law and fact for failure to properly evaluate evidence on record adduced by the parties during hearing. 5) That the trial Magistrate erred in law and in fact for ordering division of no-existing properties to wit cars which have already been sold by the respondent. 6) That the trial Magistrate erred in law and in fact for issuing a contradictory decree. The appellant in cross-appeal asked the court to allow the appeal with cost, quash the judgment of the trial court in respect of division of matrimonial properties and any other orders this court deems fit and just to grant. Page 3 of 10 During hearing of the appeals, Mr. Mohamed Mhinda, learned counsel represented the appellant in the main appeal while, Mr. Kapimpiti Mgalula, advocate appeared and argued the appeal for the respondent (cross-appellant). The counsels argued the appeals separately but I will determine them together. Also, for the purposes of records, the 6th ground of appeal in the cross­ appeal was dropped down during hearing, thus it will not be discussed and or determined. From the pleadings, lower court records and the oral submissions made by the counsels, the main issue for determination is whether the appeals are merited or otherwise. In my scrutiny of the concerns by the parties, I found that the complaints are centred on whether the properties fall in the category of matrimonial assets and the application of the principle of the extent of contribution of each spouse in the acquisition of the matrimonial properties when the court orders distribution of the same. In law, under section 114 (1) (3) of the Law of Marriage Act, Cap 29 (R. E 2019), to constitute matrimonial assets subject to distribution between the parties once marriage is dissolved by the court, there must be Page 4 of 10 cogent evidence to prove that such assets were acquired during the substance of marriage by their joint efforts or that the properties were owned before marriage by one party which have been substantially improved during marriage by the other party or by their joint efforts. Therefore, even if the properties belong to one spouse but they are substantially improved or developed by their joint efforts during their marriage, then each spouse is entitled to share of the same for the improvements or development made thereto. This was a position in the case of Shakila Lucas Versus Ramadhani Sadiki, Civil Appeal No.349 of 2020 [2024] TZCA 36 (14th February 2024) TanzLii. In the matter at hand, it is not in dispute that the parties were husband and wife before divorce and they contracted their marriage in the year 2001. Also, it is apparent that their marriage has been dissolved by the court of law. After dissolution of marriage, the courts are empowered to order division of matrimonial assets acquired by joint efforts during subsistence of the marriage or those properties owned by one spouse before marriage but they have been substantially developed or improved by the other or by joint efforts. The respondent in the main appeal and appellant in the cross-appeal (Evans Robert Maina) claimed that the properties ordered to be divided Page 5 of 10 among the parties are not matrimonial assets because they belong solely to him as he acquired them by inheriting from his deceased father. The argument relies on the WILL, exhibit P1A of 2013. However, there is sufficient evidence showing that even before their father died, he had given properties to the children including the respondent as gifts. The WILL was just to avoid conflict between them. Thus, it is clear that these properties belonged to Evans Robert Maina. The appellant, Lina Elinami Maleko claims for her share in improving these properties. The evidence on records revels that she participated in developing them by building houses since when the land was given to Evans Robert Maina is said to be bare. The witness, DW2, Deo Robert Mugo Maina confirmed that Lina Elinami Maleko, involved in the development of these properties. Therefore, such improvements to the properties of Evans Robert Maina, the then husband of the appellant, which improvements were done during subsistence of marriage constitute matrimonial assets and the appellant is entitled to the share after evaluation of the improvements. The 2nd and 3rd grounds of the cross­ appeal are devoid of merits and they are dismissed. As to the principle applicable when ordering division of matrimonial assets, it is settled that the court has to consider the extent of Page 6 of 10 contribution of each spouse in the acquisition of the said properties. This is enshrined under section 114 (2)(b) of the Law of Marriage Act, Cap 29 (R. E 2019). This legal principle was cemented in Helmina Nyoni Versus Yeremia Magoti, Civil Appeal No. 61 of 2020, Court of Appeal of Tanzania at Tabora and Gabriel Nimrod Kurwijila Versus Theresia Hassani Malongo, Civil Appeal No. 102 of 2018 [2020] TZCA 31 (20th February 2020) TanzLii (Court of Appeal of Tanzania at Tanga). It is thus, a mater of evidence to prove that each spouse contributed to a certain extent. The contribution envisaged by law can be direct monetary contribution or indirect. The latter means even undertaking domestic services amounts to joint efforts or contribution in the improvements of the assets in this regard. For instance, taking care of the children and other house activities. This was stated in the landmark case of Bi. Hawa Mohamed V. Ally Sefu [1983] T. L. R 32. Besides that, contribution can be in terms of property, work or even advice towards acquisition of the properties. In the present appeals, the appellant, Lina Elinami Maleko, apart from domestic services, the evidence indicates that she carried out economic activities like keeping layers and selling eggs, broilers, selling animal Page 7 of 10 feeds and the spouses had tourism business. This proves that she contributed to the improvements made to the assets. The respondent said the extent of contribution was not established. But the court can look at those activities done since a party cannot keep every record of transaction because it is not anticipated that they would get divorced. In our law, marriage is expected to last for life. In my view, the appellant, Una Elinami Maleko, had a reasonable contribution to the improvements in question. When the trial Magistrate ordered the appellant to get 20% of the value of the improvements and the respondent get 80%, said the reason is that most of the landed properties are located at boma where sometimes it becomes hard to sell them as the petitioner's family resides therein at the surroundings. I concur with the counsel for the appellant that this has never been a good reason to deny the appellant's right ot high percentage in division of assets. If the same cannot be sold, the other party can compensate her in lie of selling them. Thus, it was wrong to give the appellant only 20% share on the said reason. So, the 1st, 2nd and 3rd grounds of appeal in the main appeal are merited and they are allowed. The order giving 20% share of the improvements to the landed properties to the appellant is hereby set aside. Instead, I Page 8 of 10 order equal division share, 50% each among the parties of the value of the improvements made to the landed properties after valuation. The 5th ground of appeal in the cross-appeal is that the trial magistrate ordered distribution of no-existing properties to wit, cars which have been sold by the respondent Lina Elinami Maleko. The counsel said it was wrong to order division of the said motor vehicle while it is not existing. In reading page 16 of the trial court's judgment, the trial Magistrate said the vehicle, Toyota Premio with registration Number T.290 DPH has to be returned back to Lina Elinami Maleko since it was not known how it was transferred to Maria, her mother in-law. It was said that if the respondent in cross-appeal was indebted by her mother in-law, such claim be made in ordinary means and not in this matter. Therefore, the said motor vehicle be returned to the respondent Lina Elinami Maleko. The 5th ground of cross-appeal fails too. Finally, the 1st and 4th grounds in the cross-appeal also, I find devoid of merits since the trial Magistrate closely scrutinized and evaluated evidence on records and reached to the conclusion elucidated above. To that end, the entire cross-appeal lacks merits and it is hereby dismissed. Consequently, the main appeal is found to have merits. It is Page 9 of 10 hereby allowed to the extent stated. The rest of the decision and orders of the trial court remain undisturbed. Order accordingly. DATED at ARUSHA this 18th June 2024. F. H. kiWONDE JUDGE 18/06/2024 Page 10 of 10