stella mkeya vs milele choga 2015 tzhc 2164 3 september 2015

IN THE HIGH COURT OF TANZANIA

AT MBEYA PC. MATRIMONIAL APPEAL NO. 5/2014 (From M b o zi District Matrimonial Appea l N o .0 7 /2 0 1 4 . Original M low o Court Matrimonial C a u se No. 9 1 /2 0 1 4 ) STELLA MKEYA.................................................. APPELLANT

VERSUS MILELE CHOGA................................................. RESPONDENT

JUDGMENT Date o f Judgm ent: 0 3 / 0 9 /2 0 1 5 HON. A. F. NGWALA, J. In the Primary Court of Mlowo, in Mbozi District, the Respondent instituted a suit for divorce against his second wife, one Stella Mkeya the Appellant. The said trial court found that the Appellant had agreed and consented to divorce despite the fact that it is in the fact that it is in the record of the Mlowo Primary Court that the Appellant had clearly stated “Kama yeye anataka kuachana mimi sikutaka kuachana” . Here there was no mutual consent to divorce. Worse, the said trial Primary Court ordered the Appellant to be compensated one million five hundred thousand shillings only (Tshs. 1,500,000/=) from their matrimonial property. The Court simply, told the Appellant that the said sum was due to the fact that the Respondent had a family of seven children from his first wife while the Appellant had only three children. The maintenance and custody of their three children was granted to the Respondent. Dissatisfied, the Appellant appealed to the District Court at Mbozi where she lost the Appeal. This is therefore an appeal against the said decision of the District Court. In the Petition of Appeal with a total of three grounds, the Appellant through her Counsel Mr. Chingilile is complaining that the District Court did not consider the contribution of the Appellant in acquisition of matrimonial properties as the

wife of the Appellant. On the 2nd ground she is arguing that the District Court erred in using unfounded evidence in upholding the decision of the primary court and reached at unfair or unjust decision. Thirdly, the district court did not consider the grounds of Appeal; it misdirected itself by considering only the evidence of the Respondent to reach at that unfair decision. In the premises therefore after hearing the parties, the questions for this court's determination is whether or not there is or there are valid complaints in this appeal. As I have stated at the outset, that there was no mutual consent to divorce this Appeal therefore has merit. I hold so because upon perusal of the records, the records in its entirety clearly show a lot of procedural irregularities and non compliance of the mandatory statutory requirements of the Law of the Marriage Act, Cap. 29 R.E.

2002. It is quite clear that the provisions of Section 101 of the said Marriage Act which require the parties to refer the matter to the Marriage Conciliation Board before institution of the matrimonial proceedings in court were not complied with. More so there was no evidence established showing that the marriage has irreparably broken down to proceed to grant a decree of divorce in accordance with the provisions of Section 107 of the Marriage Act, Cap. 29 R.E.

2002. Similarly the record does not support that there was evidence to show that the Appellant was entitled to the reliefs granted by the said trial court which were upheld by the District Court. Much as it is quite clear that the proceedings in both the two lower courts are saturated with illegalities and irregularities that make the judgments a nullity, there is nothing this court can do except to declare the Judgment, Decree and all Orders in both the two courts a nullity. Consequently the appeal is allowed with costs here and below. The decisions of the Mbozi District Court are set aside and that of the trial court of Mlowo 3 Primary Court is declared null and void. It is further directed that if the parties so require should institute fresh proceedings in a court of competent jurisdiction, care being taken to comply with the detail procedures of the Law of Marriage Act, Cap. 29 R.E.

2002. Order accordingly. A.F.NGWALA

JUDGE 03 / 09/2015 Court: Right of Appeal to the Court of Appeal of Tanzania explained.