IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM

(CORAM: SEHEL, J.A., KHAMIS, J.A. And AGATHO. J.A.^

CIVIL APPEAL NO. 127 OF 2022

CHRISTIAN ABDU KOBA .......... ...... ..... ........ .......... APPELLANT

VERSUS

CECILIA G AM A........................................................................... RESPONDENT

(Appeal from the Judgment and Decree of the High Court of Tanzania,
Dar es Salaam sub registry at Dar es Salaam)
(Kamuzora. J.)

dated the 6th day of July, 2021

in
Civil Appeal No. 45 of 2020

JUDGMENT OF THE COURT

19th March & 16th June 2025

AGATHO. J.A,:

This appeal arises from matrimonial proceedings between the

appellant and the respondent, who were previously married. The main

controversy is the division of matrimonial assets following their divorce. The

marriage was formally dissolved in Matrimonial Cause No. 2 of 2008 before

the District Court of Kibaha without distributing the assets. For that reason,

in Civil Appeal No. 51 of 2010, the High Court ordered the District Court of
Kibaha to determine what are/were the matrimonial properties the parties

jointly acquired during the pendency of their marriage. The District Court in

executing the directives distributed the assets between the parties. But the

appellant was irked and appealed to the High Court vide Civil Appeal No. 45

of 2020 citing among other things an unfair distribution of the properties. To

his displease, the High Court upheld the lower court's ruling. He has now

preferred the appeal before this Court.

As grasped from the record of appeal, the background of the case is

that the parties were married in 2001. Marital conflicts began in 2006,

leading to the eventual dissolution of their marriage in 2009. During

subsistence of their marriage, they acquired various assets, including real

estate. The trial court initially ruled that the matrimonial assets should be

divided equally.

As the record shows, the District Court was satisfied that the appellant

sold some properties, namely two houses and three tipper trucks. The

District Court distributed the remaining house at Disunyara to the

respondent, along with the farm at Kilangalanga. That decision was upheld

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by the High Court in Civil Appeal No. 45 of 2020, which aggrieved the

appellant who preferred the present appeal.

The Memorandum of Appeal laid before us contains seven grounds of

appeal. One, the High Court erred by relying on the report and testimony of

Pius Mkundi, a Court Broker from Kibaha District Court, who was sent to

verify the matrimonial properties. Two, the High Court erred in law and fact

by failing to consider that the trial magistrate relied on the Court Broker's

report without visiting the disputed properties before ordering their

distribution. Three, the High Court erred in holding that the appellant was

entitled to two houses located at Mtongani Mlandizi without considering that

one of the houses was not matrimonial property and that the other house

was sold by the parties while they were still married. Four, The High Court

erred in failing to consider that the trial magistrate wrongly held that the

appellant had already received his share of matrimonial property and sold it.

Five, the High Court erred in awarding the respondent the house at

Disunyara without acknowledging that it was not a matrimonial property.

Six, the High Court erred in awarding the respondent both the Disunyara

house and the Kilangalanga plot without justification. And seven, the High
Court erred in partially upholding the trial court's decision, despite procedural

irregularities, including an unexplained change of magistrate.

When the appeal came for hearing, both the appellant and the

respondent appeared in person, and they were unrepresented. Taking the

stage, the appellant submitted on his grounds of appeal. He started by

submitting on the first ground of appeal that the court broker (DW2) who

was dealing, for past 17 years in their case, was also appointed by the trial

court to verify the properties.

It was his submission that the two plots at Disunyara were bought

during the subsistence of marriage. He added that they had title deeds, one

in the name of the respondent and another in the name of the appellant.

The appellant submitted further that the marriage was dissolved in 2008 and

in 2010 he decided to build the house in his plot at Disunyara. At that time,

the court broker found the house being built and reported to the District

Court. Regarding the Disunyara plots, the appellant pointed out that these

were listed in the TANESCO electricity project in 2017.

The appellant was also bemused when a successor Magistrate at the

District Court who reheard the case denied him to testify because he had
testified earlier before the previous Magistrate. The appellant stressed that

only the respondent was allowed to bring witnesses to testify. In the process,

the respondent listed the properties some of which were not part of

matrimonial assets. Besides, the court broker was called as the respondent's

witness. In his view the decision of the District Court was unfair.

Connected with the above is the second ground of appeal in which the

appellant submitted that the court broker went to verify the matrimonial

properties so that he can distribute them. But the court did not visit the locus

in quo before ordering distribution of the properties. Instead, the court

broker was sent to verify the properties while he was supposed to be handing

the properties to the parties. As for the evidence of verified properties, the

appellant submitted that there was none.

In respect of the third ground, the appellant submitted that the High

Court erred holding that the appellant was entitled to the two houses located

at Mtongani Mlandizi without considering that one house was not a

matrimonial house and another was sold during pendency of the marriage.

It was his submission that even the property sold by the bank the title deed

was available showing that it was his property. In his view, the High Court
ought to have considered the title deeds of the properties as these were in

the old court file. He maintained that the houses were sold by the parties

during subsistence of the marriage. He thus felt that justice was not done.

As for the fourth ground of appeal, the appellant submitted that he

was adjudged that his share in the matrimonial properties were the houses

he sold, and he did not deserve a portion in the remaining properties. He

decried that the same was decided without proof that he sold the properties.

Referring to the fifth ground the appellant submitted that he bought

two plots at Disunyara, one for himself and the other for the respondent. He

submitted that he built the house in his plot. He decried that the court simply

gave the property to the respondent without making a fair distribution of the

properties. That was also done regardless of Civil Appeal No. 51 of 2010

before the High Court, Hon. Twaib, J where he ruled that the District Court

should distribute the properties equally. He prayed that the court should

consider these irregularities in the proceedings and decision of the High

Court and the lower Courts.

In the sixth ground of appeal, the appellant assailed the High Court's

decision in upholding the decision of the District Court which distributed to

the respondent a house at Disunyara and a plot at Kilangalanga without any

justification and without any valuation of the property at Disunyara. He

lamented that the house at Disunyara has been given to the respondent

while he built it himself, and the respondent was given the house to live with

some children who are not of the appellant. But it was his submission that

he built the house at Disunyara when the marriage was already dissolved,

and divorce had already been issued. He added that the record and the title

deeds in the court file show the properties belonged to him. He urged the

Court to distribute the properties fairly basing on evidence.

Regarding the seventh and last ground of appeal, that there were other

magistrates who heard the Matrimonial Cause No. 2/2008 at trial court

without any reasons which in his view was illegality. The appellant submitted

that the first magistrate was transferred to another station, and a

subsequent magistrate did not take his testimony and instead allowed the

respondent to testify. He emphasized that his evidence was not considered,

and the successor magistrate told him that he has already adduced his

evidence before a previous magistrate. He beseeched the court to consider

the grounds of appeal and quash and set aside decisions of the High Court

in Civil Appeal No.45 of 2020 and that of District Court.

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 Clarifying on the confusion with regards to the plot at Mlandizi

mentioned on page 46 of the record of appeal, he elaborated that it is written

Mlandizi but it is Kilangalanga. According to him that plot was sold by the

respondent. The appellant submitted further that the property left was at

Disunyara, a large plot containing two plots where one was for the

respondent and the other belonged to the appellant.

In brief, the appellant's slammed the District Court for denying him an

opportunity to verify the properties listed by the respondent as matrimonial

properties. Apart from that the appellant submitted that the properties he

got was from distribution of matrimonial properties in his previous marriage.

In reply submission, the respondent admitted that when she was

married to the appellant, she found him with one house with a small living

room occupied by himself with his five children. The respondent also had

building materials at the site which were iron sheets, cement and bricks. She

took a loan from her office and expanded the house with two extra rooms

and a large living room. She submitted further that the appellant had a plot

at Mtongani - Mlandizi which he bought from one old man. She claimed that

she took her salary and built a five rooms house. In 2004 the appellant sold
the new house and bought a car Mark II. The house was sold by the

appellant when she was admitted into labour ward for their second child. At

their residential house, the respondent built some structures for grocery

stores (fremu za maduka) but the appellant demolished them. Then the

respondent built other six grocery stores "frames" and rented them to the

tenants.

On the house at Disunyara, she submitted that Disunyara plot was

bought in 2002, and the appellant paid the purchase price. As for the court

broker's involvement, she submitted that he was appointed by the court to

go with the parties to verify the matrimonial properties. Further on the

Disunyara house, the respondent told the court that it was built during

subsistence of their marriage. As for distribution of the matrimonial

properties, she submitted that the District Court in 2008 ordered the plot at

Disunyara and two out of six frames at Mtongani Mlandizi be distributed to

the respondent. She also argued that since the trial court distributed the

Disunyara plot to her in 2008 matrimonial cause, the appellant's building of

the house therein in 2010 was done while the plot already belonged to her.
 Regarding the properties sold, the respondent submitted that the bank

attempted to sale their residential house at Mtongani Mlandizi but she

intervened. She then pointed out that the appellant sold the house that had

"frames" at Mtongani Mlandizi. And the respondent remained with the house

at Disunyara, which is in TANESCO power line project. According to her the

house that currently remains unsold is that of Disunyara, which she admitted

having been built by appellant but distributed to her.

The respondent went on submitting that at Mtongani Mlandizi there

were two houses built on the same plot. These houses have been sold by

the bank including the one with six "frames." It was sold after dissolution of

marriage. She conceded that in one of the two houses she did not contribute

anything its development. She submitted that there was a third house at

Mtongani which was sold by the appellant when she was hospitalized. There

was a fourth plot/shamba at Shimo la udongo/mchanga, Kilangalanga which

was sold before 2008. In that shamba the appellant bought a quarter acre

and when they got married, they bought additional three quarters jointly.

The District Court distributed the two sold houses at Mtongani Mlandizi to

the appellant while the respondent was given a house at Disunyara which is

in TANESCO project. At Kilangalanga (shimo la mchanga) there was another

10
plot acquired during the subsistence of the marriage as seen on page 85 of

the record of appeal, which was sold by the appellant. Apart from that the

respondent submitted that there was yet another plot at Kilangalanga but it

belonged to her mother.

As for the two "shop frames" that the respondent built, she submitted

that they were demolished by the appellant. These were in TANESCO line. It

was her submission that they later built other six frames that were later sold

by the bank. She concluded that in 2020 when the District Court was

distributing the properties only the house at Disunyara remained.

The appellant rejoined that the house at Mtongani Mlandizi was built

when the appellant was in his previous marriage. He referred us to pages 24

and 28 of the record of appeal where DW1 and DW3 respectively told the

trial court that the house at Mtongani Mlandizi belong to the appellant. He

also disputed the claim that the property at Kilangalanga was owned by the

respondent's mother. He submitted that it was acquired during subsistence

of the marriage but the respondent sold it. He also agreed that the only

property remaining for distribution was that of Disunyara.

 Having depicted what transpired during hearing of the appeal and

considering grounds of appeal and the record of appeal, the following issues

deserve our engagement. One, combining grounds one and two of the

appeal, that is the involvement of the court broker as officer of the court

charged to verify matrimonial assets and later as respondent's a witness,

DW2. Without glossing over this was irregular and contrary to the known

and established procedures. Being an officer of the court with special

assignment, the court broker should not have been called to testify as

respondent's witness. It would have been fair if he was called to testify as a

court witness. We find this ground to be meritorious. Despite that finding

and considering the circumstances of this case, the fact that the parties have

battling in courts for almost two decades, we think justice will be served if

we proceed to examine other grounds of appeal as well.

Two, distribution of the matrimonial properties, which combines

grounds three and four. The issue is whether it was proper to distribute the

two sold houses to the appellant while one of them was not a matrimonial

property as it was acquired in the appellant's previous marriage. Moreover,

we ask whether it was proper for the District Court and the High Court to

hold that the appellant has already gotten his share from the properties he
12
has sold without any proof of the sale. While a party's wastage of

matrimonial property may be considered in distribution of the assets, here

there is no credible evidence to support that. To the contrary, there is ample

evidence on record that the appellant contributed to the acquisition of the

assets distributed to the respondent especially Kilangalanga plot and the

property at Disunyara. We think it was unjust for the lower courts to deny

the appellant a share in the two properties. The plot at Kilangalanga was

acquired during subsistence of the marriage and so is the plot at Disunyara.

Besides, the evidence on record showed that the Disunyara house was built

by the appellant. In division of matrimonial assets, a yardstick is the extent

of a party's contribution in their acquisition as held in Gabriel Nimrod

Kurwijila v. Theresia Hassan Malongo [2020] TZCA 31. See also Bi

Hawa Mohamed v. Ally Sefu [1983] T.L.R. 32.

Three, and along with the above are grounds five and six challenging

the distribution of the property at Disunyara to the respondent. Considering

the evidence of the appellant (PW1) and the respondent (DW1) on pages 16

and 25 of the record of appeal both testifying that the property at Disunyara

was acquired jointly during subsistence of their marriage although the house

therein was built by the appellant, it was therefore unfair to distribute it to

13
the respondent alone. We are saying so because the appellant contributed

to its acquisition. Notably, section 114(2) of the Law of Marriage Act [Cap 33

R.E. 2019] provides that distribution is based on contribution to acquisition.

That was also held by the Court in Gabriel Nimrod Kurwijila (supra) and

Yesse Mrisho v Sania Abdu [2019] TZCA 763. It is our view that the

appellant deserved a share. We thus find merit in grounds five and six.

Four, ground six too touched upon the plot at Kilangalanga, which the

District Court distributed to the respondent. We hold that was improper as

the evidence on record showed that the respondent bought it during

pendency of the marriage. The evidence of PW1, PW2, PW3 and PW4 in the

record of appeal on pages 16-20 and 31-32 confirms that the respondent

purchased the plot when the marriage was subsisting. Hence, we find the

claim that the plot belonged to respondent's mother to be baseless.

Lastly, on irregularity of two magistrates entertaining the matter that

constitutes ground seven of the appeal. Truly, the case at the District Court

was heard by two magistrates: Hon. Mwailolo, Resident Magistrate, and Hon.

Mkhoi, Senior Resident Magistrate. The transition from Hon. Mwailolo to Hon.

Mkhoi was not explained. In civil proceedings, Order XVIII rule 10 of the Civil

14
Procedure Code [Cap 33 R.E. 2019] allows a magistrate to deal with evidence

taken by another magistrate who either by reason of death or transfer to

another duty station was unable to complete the trial. However, the

magistrate should give reasons for taking over a case. The rationale of that

rule is to enable the court to assess witness' credibility and preserving

integrity %
and transparency of judicial proceedings as rightly held in M/S

Georges Center Limited v The Honourable Attorney General &

Another [2016] TZCA 629. However, in this case, and looking at the record

of appeal, we see no indication of prejudice to either party. Therefore, it is

our conviction that the irregularity does not invalidate the proceedings.

Hence, ground seven is devoid of substance. It is dismissed.

In conclusion, we have taken note of the appellant's complaint in

ground two that the District Court and High Court failed to visit locus in quo.

Nevertheless, we are unconvinced that the same led to miscarriage of

justice. Aside, and as to the remaining properties, it is established from the

record that these are, the plot at Kilangalanga and the property at Disunyara.

For the foregoing reasons we find merit in the appeal. We allow it and

proceed to quash and set aside the judgment and decree of the High Court.
We further order that the plot at Kilangalanga and the property at Disunyara

be equally distributed among the parties under supervision of the trial court.

This being a case emanating from matrimonial proceedings, each party shall

bear its costs.

It is so ordered.

DAVED at DAR ES SALAAM this 9th day of June, 2025.

B. M. A. SEHEL
JUSTICE OF APPEAL

A. S. KHAMIS
JUSTICE OF APPEAL

U. J. AGATHO
JUSTICE OF APPEAL

Judgment delivered this 16th day of June, 2025 in the presence of the

Appellant and Respondent in persons, is hereby certified as a true copy of

the original.

J. E. FOVO
EPUTY REGISTRAR
COURT OF APPEAL