MASHAKA MUSA FANUEL V

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF SHINYANGA AT SHINYANGA CIVIL APPEAL NO. 20 OF 2022 MASHAKA MUSA FANUEL …………………………………… APPELLANT VERSUS MARIAM BENARD ..............................................……. RESPONDENT [Appeal from the Decision of the District Court of Shinyanga at Shinyanga] (U.S. Swallo, SRM ) dated the 14th day of December, 2021 in Juvenile Civil Application No. 23 of 2021 ----------- EX-PARTE JUDGMENT 7th and 10th June, 2024. S.M. KULITA, J. This is an appeal from the decision of Shinyanga District Court in the Juvenile Civil Application No. 23 of 2021. The story behind this matter in a nutshell is that the Respondent herein, MARIAM BENARD lodged the application at the said lower court against the appellant herein seeking for maintenance of 1 the three children that she has with the appellant, MASHAKA MUSA FANUEL. Upon the matter being heard at the District Court, it was decided that the Appellant has to pay the Respondent Tsh. 300,000/= (Three hundred thousand shillings) monthly for maintenance of the said children. Aggrieved with the said decision the Appellant lodged this appeal relying on the ground that the said sum is excessive. He alleged that the trial court didn’t consider his take home amount from the salary which was Tsh. 522,457/= by that time, and now it is Tsh. 418,790/=. The Appellant submitted that the Respondent is also a Government employee who also works as a Nurse, and that she opted to stay with the issues with the promise that she could live and take care of them. The Appellant submitted that he has no objection with the said concern by the Respondent. The Appellant alleged that the Respondent has the idea of taking the children to the expensive English Medium Schools of which he (appellant) is incapable to pay their respective fees. The Appellant added that the trial court didn’t provide the time limit for him to provide the said services to the children. He thus sought for this court to make an order for it. 2 The Appellant alleged that, among the deductions that are used to be made from his salary are the loan money that had been advanced to him by the Students’ Loan Board and the loan he had taken from the CRDB Bank before his marriage with the Respondent had broken down. There was no reply submission as the Respondent absconded to appear before the court for this matter, since the time when the Appellant had sought for restoration of the appeal and the same being restored for hearing on merit. Upon going through the record and the submissions made by the Appellant herein, I have the following observations; First, it is in the record and that the trial court declared the respondent being a biological father of the children and that the parties are no longer spouses. Further, apart from the Appellant’s take home earning of Tsh. 522,457/= by that time, and now Tsh. 418,790/=, there is no proof of other sources of income by the Appellant. Thus, the trial Magistrate was right to reduce the claimed sum of Tsh. 900,000/= being the amount for the Appellant herein to pay for the maintenance of the children. On it, she granted Tsh. 300,000/= of which the Appellant still claims to be excessive as he has another family including a new wife to maintain. 3 Among the things that the court should consider in determining the amount that a parent should pay in maintenance of the children is his/her income. See section 44 of the Law of the Child Act [Cap 13 RE 2019] which provides for considerations in granting the maintenance orders. The said section states; “A court shall consider the following matters when making a maintenance order- (a) the income and wealth of both parents of the child or of the person legally liable to maintain the child; (b) any impairment of the earning capacity of the person with a duty to maintain the child; (c) the financial responsibility of the person with respect to the maintenance of other children; (d) the cost of living in the area where the child is resident; and (e) the rights of the child under this Act” (emphasis is mine). In the case of FESTINA KIBUTU V. MBAYA NGAJIMA [1985] TLR 42 it was held; “In deciding what amount of maintenance should be paid, the court should hold an inquiry as to the means of both 4 parents in order to arrive at a just decision” [emphasis is mine] The fact that the Appellant has another family including a new wife who has replaced the Respondent, obvious he has to remain with some monies for his new family. Now, upon taking into account that, out of Tsh. 418,790/= that the Appellant uses to receive as his take home salary, the Tsh. 300,000/= is still excessive sum to be deducted, as he will be remaining with Tsh. 118,000/= only for himself and his new family. According to the trial court’s record, it is the submission of the Respondent (MARIAM BENARD) that, save for the school fees and medical expenses, she is capable to take care of food, clothing and shelter for the children. In its findings, the trial court, rightly took it into consideration by advising the parties to take the children to the schools with affordable fees, as the Appellant, the one who is obliged to pay it has the low income. According to the evidence on record the Respondent is also a Public servant who has been employed as a Nurse. The record and submission made by the Appellant transpire that, the said Respondent intends to take the children in expensive schools of which the Applicant is incapable to afford the payment of fees. In that situation the Respondent, if she opts to take the 5 children in those schools, she will have to top up the deficit sum. According to the above cited provision, section 44 of the Law of the Child Act, as well as the cited case of FESTINA KIBUTU (supra) an order to maintain the children can be made to all or any of the parents upon considering, among the other things, financial capacities of the respective parents. As for the duration that the said payments for maintenance should be provided, I can agree with the Appellant that there should be a time limit for him to provide the said services for the children. It is until the time that the said children will seize to be the students who need support of the parents. From the foregone analysis, I hereby reduce the amount that the Appellant has been ordered to provide for maintenance, particularly payment of school fees, from Ths. 300,000/= to TSh. 200,000/= per month. In upshot the appeal is hereby allowed. No order as to costs. S.M. KULITA JUDGE 10/06/2024 DATED at SHINYANGA this 10th day of June, 2024. 6 S.M. KULITA JUDGE 10/06/2024 7