IN THE HIGH COURT OF TANZANIA

TEMEKE SUB-REGISTRY
(ONE STOP JUDICIAL CENTRE)
AT TEMEKE
CIVIL APPEAL NO. 31911 OF 2024
(Arising from Matrimonial Cause No. 298 of2023f District Court of Temeke One Stop Judicial

Centre at Dar es Salaam (Hon. S. Swai, SRM)

J. J. M..................................................................................... APPELLANT
VERSUS

k. M. L............................................................................. RESPONDENT

JUDGEMENT
Date of last order: 31/03/2025

Date of Judgement: 15/04/2025

S.D. MWAIPOPO J,

This Appeal emanates from the District Court of Temeke at Temeke One Stop
Judicial Centre in matrimonial cause no 298/2023, decided by Hon Swai, SRM.

For ease of understanding of what actually transpired in the trial court, it is

helpful to provide some factual background of the case. Based on the available
court records, the situation unfolded as follows:

The Appellant and Respondent contracted a Christian marriage on 11/09/2021 at

the KKKT - Mbagala Church in Dar es Salaam. The couple was blessed with three
children: the first, aged 6 years, and two twins, aged 2 years.

However, the couple did not stay together for long. On 30 October 2023, the
Petitioner filed a case in the District Court, seeking a declaration from the court
that their marriage had irretrievably broken down, a ruling on child custody, and
a declaration that the properties acquired belonged to the Appellant, as the
Respondent had not contributed anything.

The Appellant cited the reasons for the breakdown of the marriage as a lack of
trust. He claimed the Respondent accused him of having HIV and being gay,
induced his younger brother Frank to steal from him, and generally showed no
love for him.

The District Court concluded that there was no basis to issue a confirmed divorce
declaration, but it issued an order for a three-year separation. It also found no
evidence of marital wealth. An order was made for the children to remain in the
Respondent's custody, and the Appellant was instructed to pay child support of
Tsh 400,000/= per month. Additionally, the Appellant is responsible for the
children's education, medical expenses, clothing, and accommodation. The
Appellant was given the full right to see the children every weekend from 12:00
PM on Saturday to 10:00 PM on Sunday.

Dissatisfied with the decision of the District court, the Appellant filed this Appeal
against the impugned judgment of the District Court of Temeke at Temeke dated
19th November, 2024. The grounds giving rise to this appeal are that: -

1. Trial Magistrate Court erred in Law and in fact by awarding the

maintenance amounts to Tsh. 400,000/= without doing a proper

analysis on considering the amount of money which the

Petitioner earns.

2. Trial Magistrate Court erred in Law and in Fact by not finding out

the reasons proving Section 107 of Law of Marriage Act while the
 Petitioner testified on the same and the Respondent never

objected during the hearing.

3. Trial Magistrate Court erred in Law and in fact by ordering the

Petitioner to be responsible to maintenance on health, education,

shelter without analysing nature of the work and a monthly

amount of money which the petitioner earns.

4. Trial Magistrate Court erred in Law and in Fact by being biased,

not looking on the evidences which the Petitioner's witnesses

testified, on analysing the evidence, no equal weight, the

analysed evidence only favours the Respondent.

5. Trial Magistrate erred in Law and in Fact by deciding the matter

basing on facts which were never adduced by the Respondent

during the hearing.

6. Trial Magistrate erred in Law and in fact by not clearly

mentioning, explain rights of Petitioner towards three issues

raised between the Petitioner and Respondent, the Hon.

Magistrate clearly imposed responsibilities towards the Petitioner

without considering rights and Limits for the petitioner.

At the commencement of hearing the Appellant enjoyed legal services from Mr.
Alphonce Nachipyangu, learned counsel while the Respondent enjoyed the legal
services from Mr. Hamisi R. Mayombo, the learned counsel. The hearing of the
Appeal, proceeded by way of written submissions, pursuant to the order of the
court and consent of both parties.

Submitting in support of the Appeal, the Appellant argued the 1st and 3rd
grounds of appeal together, as they are related. The Appellant submitted that; it
is a well-established law that every decision made in court must be analyzed to
ensure fairness to both parties in the dispute. In this case, the trial Resident
Magistrate failed to provide any analysis in the proceedings or judgment to
justify awarding the Respondent Tanzania Shillings Four Hundred Thousand as
monthly maintenance for the two minors living with the Respondent.

That, the Petitioner admitted in his testimony that he could only afford to pay
between Tshs 250,000 and 300,000 (as seen on page 15 of the proceedings on
3rd July, 2024). However, the trial Magistrate, as stated on page 2 of the
judgment, ruled otherwise: -

Mahakama inazingatia kuwa mleta maombi ni Afisa wa Benki na

hivyo anaagizwa kutoa matunzo ya Tshs 400,000/= kwa mwezi.

Anawajibika pia kugharamia elimu, matibabu, mavazi na maZazi

ya Watoto

The Appellant was stated that the Respondent at the trial court did not cross-
examine the petitioner on a particular matter, which amounted to an acceptance
of the fact by the Respondent. In the case of Patrick William Magubo vs
Lilian Peter Kita/i (Civil Appeal No. 41 of 2019), the Court of Appeal at

Mwanza held that a party who fails to cross-examine a witness on a certain

matter is deemed to have accepted the truth of that matter and will be estopped
from asking the court to disbelieve the witness's testimony, as silence is
regarded as an acceptance of its truth.

The Appellant continued, asserting that the trial Magistrate's conclusion to award
a large sum of money solely based on the fact that the petitioner works at a
bank was flawed. He contended that the magistrate had considered the
Petitioner's role as a bank officer and had ordered him to pay Tshs 400,000 per
month without further analysis. It was argued that the magistrate should have
examined the Petitioner's position in the bank, his salary, and his other
responsibilities, which were not thoroughly investigated.

Furthermore, it was pointed out that the trial magistrate's failure to take these
factors into account left the petitioner with an unjust burden, one that he could
not meet, making the judgment meaningless. The testimony of the petitioner
and PW1 indicated that, in addition to supporting his family, the petitioner also
had responsibilities towards his mother, Rogate Joseph Msando (a widow), and
his two brothers, Frank Fredrick Urio (PW3) and Davis Joseph Msando, all of
whom live with the petitioner's wife.

It was emphasized that the magistrate's order, which required the petitioner to
pay such a significant amount along with other potential financial obligations,
would result in the petitioner being burdened with debts and obligations he
would be unable to fulfill. The orders from the magistrate were viewed as
unreasonable under these circumstances.

The Appellant argued further that the orders made by the Honourable trial
Magistrate were separate and should be viewed independently. If all the financial
responsibilities were quantified, the total monthly obligation would unjustifiably
amount to three times Tshs 400,000. The orders were as follows: Tshs 400,000
for maintenance, along with additional responsibilities for the education, medical
care, clothing, and accommodation of the children.

The Appellant contended that the trial Magistrate would not have awarded such
a sum if the Magistrate had properly considered the petitioner's monthly income,
other responsibilities, and personal life. It was referenced that Section 44 and 45
of the Law of the Child Act, Cap 13 R.E 2019, require the court to consider the
income and wealth of both parents when making such a determination, a
principle also discussed in the case of Anyingisye Miava v Tukulamba
Kibweja (Civil Appeal No. 27 of 2020).

The Appellant further emphasized that case law insists that courts assess a
party's financial capacity before awarding maintenance. In the case of Paulina
Samson Ndawawa v Theresia Thomasi Madaha (Civil Appeal No. 45 of

2017), it was held that, failure to cross-examine a witness on an important point

could lead the court to infer acceptance of the witness's evidence as truthful,
making it difficult to reject that evidence.

Additionally, the Appellant pointed out that, according to the Law of Marriage
Act, Cap 29 R.E 2019, a parent has a primary duty to maintain their children,
regardless of custody arrangements. Section 129(1) of the Law of Marriage Act
emphasizes that maintenance includes necessities such as accommodation,
clothing, food, and education. The Law of the Child Act, Cap 13 R.E 2019, further
outlines maintenance as a shared responsibility between both parents.

The Appellant specifically referenced Section 44 of the Law of the Child Act,
which requires the court to consider several factors when making a maintenance
order, including the income and wealth of both parents, any impairment of
earning capacity, financial responsibilities towards other children, the cost of
living in the child's area, and the rights of the child.

The Appellant argued that the trial court had failed to analyze these critical
factors before making the award, and as a result, the decision was unjust. The
Appellant humbly prayed that the Appeal be allowed due to the trial court's
failure to consider these legal requirements.

The appellant's second ground of appeal revolves around the trial magistrate's
failure to consider critical evidence in line with Section 107 of the Law of
■
Marriage Act, which could have warranted a divorce. The appellant argues that
the trial magistrate erred both in law and fact by not addressing the petitioner's
testimony, which went unchallenged by the respondent during the proceedings.
The petitioner testified about allegations of brutality, including being taken to the
police station and accused of a gang rape offense by the respondent and his
brother, which the respondent did not contest or cross-examine. The appellant
cites various cases that support the notion that a party who fails to cross-
examine a witness on certain matters is deemed to have accepted those facts as
true.

The appellant in his submissions also highlighted the trial magistrate's failure to
acknowledge these uncontested facts in the judgment, especially in relation to
Section 107(2) of the Law of Marriage Act, which could have supported the
petitioner's case for divorce. The Petitioner provided testimony that supported
the grounds for divorce, such as allegations of mistreatment and separation from
the respondent, but these points were not adequately reflected in the
magistrate's judgment. He contended that the trial magistrate's reliance on the
respondent's testimony alone, without giving proper weight to the petitioner's
evidence, shows bias and a lack of impartiality, undermining the fairness of the
proceedings.

The appellant, therefore, sought to have the decision overturned, praying that
the appeal be granted, the divorce be finalized, and the maintenance amount for
the children be reduced to Tshs 250,000. The Appellant further emphasized that
the magistrate's judgment was flawed due to bias, as it ignored the petitioner's
evidence in favor of the respondent's testimony, violating the principles of fair
hearing and impartiality.
The Appellant's fourth ground of appeal asserts that the trial magistrate erred in
law and fact by being biased and failing to properly consider the evidence
provided by the petitioner's witnesses. The Appellant claims that the trial
magistrate's decision relied solely on the respondent's testimony, without giving
equal weight to the evidence presented by the petitioner's witnesses. He argued
that the magistrate did not compare or analyse the facts and evidence before
making the judgment, and instead, the judgment was based exclusively on the
respondent's account. This, according to the appellant, violates the principles of
fair hearing and impartiality, as the magistrate's approach favoured the
respondent's version of events over the petitioners. The Appellant submitted
further that, when the trial magistrate began expressing views on the case, there
was no reference to any of the evidence presented by the petitioner. He
highlighted that the magistrate's decision-making process did not include or
consider the petitioner's testimony, which is a crucial oversight. He quoted a
specific part of the judgment to emphasize this point as follows;.

Kiini cha kwanza mleta maombi (SMI) amepaswa kuthibitisha

kama ndoa yake imevunjika kwa kiasi isichorekebishika.
Akiongozwa na wakili Alphonce Nachipyangu SMI ameieleza
Mahakama kuwa miezi miwili kwenye ndoa ilimtosha kugundua
kuwa alikosea kumuoa mjibu maombi kama mke wake. Amesema
kuwa mke wake hakutaka kutambua nafasi yake kama mume na
kiongozi wa familia. Amemtuhumu mke wake kwa kumshawishi
mdogo wake amuibie fedha katika biashara yake. Amesema
hampendi kabisa mke wake na hawezi kuishi nae kama mke.
Ameshuhudia kutengana na mke wake vyumba wakati wakiishi
kwenye nyumba waliopewa kwa muda na mama yake. Shahidi
 amesema wamesuluhishwa na wazazi na hatimaye baraza la kata
lakini hakuna suluhu iliyopatikana.

Mjibu maombi (SU1) kwa upande wake amesema haoni sababu

ya Mahakama kuvunja ndoa kwa kuwa yeye hajakosea isipokuwa
mume wake. Amesema kama anataka talaka basi amlipe fidia ya
miaka 12 aliyompotezea. Nimerejelea ushahidi kwa mara kadhaa
na nakubaliana na mjibu maombi kuwa hakuna sababu toshelevu
imetolewa kuishawishi Mahakama kutoa amri ya kuvunja ndoa
chini ya kifungu 107 cha Shera ya Ndoa. Kwa mustakabali huo,
Mahakama inatoa amri ya utengano wa miaka mitatu.

The Appellant argued that the trial magistrate's conclusion was flawed because
the magistrate did not conduct a comparative analysis of the evidence, which is
necessary to ensure impartiality. The Appellant asserts that the failure to do so
violated the principle of fairness and neutrality in the judicial process. The
Appellant further emphasized that bias undermines justice, as it erodes public
confidence in the fairness of the proceedings. Citing Lord Denning's statement in
Metropolitan Properties Co (FGC) Ltd v. Lannon [1968] 3 AH E.R. 304, the
Appellant underscored that "justice must be rooted in confidence," and that
confidence is destroyed when people perceive the judge as biased.

The Appellant's sixth ground of appeal faulted the trial magistrate for failing to
clearly explain the petitioner's rights regarding the three issues raised between
the petitioner and respondent. The Appellant argued that the magistrate imposed
responsibilities on the petitioner without considering the petitioner's rights and
limits. The Appellant further submited that throughout the judgment, the
magistrate did not make any effort to clarify or explain the petitioner's rights,
resulting in an imbalance between the unjustified responsibilities placed on the
petitioner, as outlined in other grounds of the appeal. He stated that the
testimony provided by PW1 on 3rd July 2024 clarifies the prayers made by the
petitioner regarding the three issues in question. He referred to the relevant part
of PWl's testimony to support the petitioner's case, as follows;.

...Ningependa kuishi na watoto wangu kwa kuwa kuna mambo

anafanya ambayo siyo mazuri. Hana maangalizi mazuri kwa
watoto hawapo kwenye hali ya usafi. Anaacha watoto wenyewe
nasikia kwa majirani. Nitaishi na watoto nilipopanga nina watu
wa kumsaidia kulea bibi yao na dada yangu. Nipo tayari
kuhudumia watoto wakikaa popote.

The Appellant submitted that, despite the prayers made by the petitioner in the
proceedings, the trial magistrate's judgment failed to clearly impose any rights
upon the petitioner. Specifically, rights such as traveling with the children and
spending time with them were not addressed, and no clear court order was
issued regarding these matters. The Appellant submitted that the judgment has
imposed responsibilities on the petitioner rather than clarifying the petitioner's
rights regarding the three key issues. The Appellant argued that the reliefs
provided in the judgment lack clear limits, such as the duration of the orders,
and questions whether the parties and children are expected to comply with the
orders indefinitely. The judgment does not address important details, like when
the children could stay with their biological father or whether the children could
travel or stay with their father during the holidays.

He prayed that since the trial magistrate failed to consider these important
issues, this court should partially allow the appeal. The Appellant prayed for the
divorce to be granted and the maintenance amount for the children be reduced
to Tshs 250,000, which should cover all necessary needs for the petitioner's
children.

Submitting in rebuttal, the Respondent humbly submitted as follows;

Firstly, under Tanzanian law, specifically the Law of Marriage Act, Cap. 29, the
court has the authority to make fair and just maintenance orders. Section 36 of
the Act requires the court to consider the financial resources, needs, and the
standard of living established during the marriage. The court's decision in
Matrimonial Cause No. 298 of 2023 followed these provisions, as it properly took
these factors into account when determining the maintenance amount.

The Respondent further argued that the claim regarding the court's failure to
analyze the petitioner's earnings was unfounded. The court does not need to
conduct an exhaustive financial analysis but must ensure that the maintenance is
reasonable and justifiable based on available evidence. In this case, the court
adequately considered the petitioner's income, expenses, and financial situation.

The Respondent referenced the precedents such as Mwanakombo v

Mwanakombo [1992] TLR 100, which emphasized that maintenance should
address the needs of the receiving spouse. This principle was applied in the
current case, where the court evaluated and balanced the financial capacities of
both parties. The precedent set in Mwanakwere v Mwanakwere [2005] TLR 123
was also cited, highlighting that the court has discretion in determining
maintenance, and such decisions should only be overturned if deemed
unreasonable. The award of 400,000 Tshs was considered fair and reasonable,
factoring in the children's needs and the standard of living they would have
enjoyed in the absence of disputes.
 She also emphasized on the responsibility of both parents for child maintenance
under Tanzanian law, particularly the Law of Marriage Act, 1971, and the
Children's Act, 2004. While acknowledging that both parents should contribute to
the child's welfare, the court assesses the financial capabilities of each parent
and the needs of the child.

The respondent highlighted key considerations for determining maintenance,

including the child's best interests, the parent's financial capacity, and the need
to maintain equity and fairness. The court is tasked with ensuring that any
maintenance order is fair and does not place an undue burden on either parent
without first conducting a thorough assessment of their financial circumstances.

Addressing the 2nd ground of the appeal, the respondent cited Section 107 of the
Law of Marriage Act, which enumerates grounds for divorce, including adultery,
cruelty, and desertion. The trial magistrate, after evaluating the presented
evidence, determined that there was inadequate proof to establish any of these
grounds, exercising discretion in assessing the relevance and sufficiency of the
evidence provided. The respondent further argued that allegations and charges
are not conclusive evidence unless backed by a judicial decision. In this case, the
evidence was merely based on allegations without any conclusive judgment.

Addressing on claims regarding the court's evaluation of evidence, the

respondent clarified that the trial magistrate thoroughly examined all testimonies
and documents. The claim that the court did not review the petitioner's witness's
evidence was rejected as unfounded.

The respondent also rejected the allegation of bias against the trial magistrate as
no substantial evidence was presented to support claims of prejudice, and the
decisions were based on legal principles and the facts of the case, reflecting
impartiality.

Finally, the Respondent asserted that the trial magistrate applied the law
correctly, ensuring all procedural requirements were met. The appeal did not
demonstrate a deviation from legal standards but rather expressed
dissatisfaction with the outcome, which did not constitute a legitimate legal
challenge.

Having digested the arguments for and against the appeal, the broad question to
be addressed is whether the appeal has merit or not.

Having reviewed both the trial court proceedings, along with the findings and
submissions made by both parties, I am now in a position to determine this
appeal. In determining this appeal I am guided by the principle that this being
the first appellate court, it has power to dispose the grounds of appeal in
seriatim, or combine them or determine only one or several grounds which may
dispose the appeal altogether. Similarly, this being the first appellate court it has
power to re-evaluate evidence, and come up with its own findings. This is an
established practice having roots in in various precedents. See for example the
case of Kaimu Said v. Republic, Criminal Appeal No. 391 of 2019, Hassan
Mohammed Mfaume v. Republic, (1981) T.L.R 167 Faki Said Mtanda v.
Republic, Criminal Application No.249 of 2014 and Rashid Abiki Nguwa v.
Ramadhan Hassan Kuteya and Another, Civil Appeal No. 421 of 2021.

That done and said, I will begin by addressing the 1st and 3rd grounds of appeal,
which are to the effect that:

1. Trial Magistrate Court erred in law and in fact by awarding the

maintenance amounts to Tsh. 400,000/= without doing a proper

13
 analysis on considering the amount of money which the

Petitioner earns.

3. Trial Magistrate Court erred in law and in fact by ordering the

Petitioner to be responsible for maintenance on health,

education, shelter without analysing nature of the work and a

monthly amount of money which the petitioner earns.

As submitted herein above, the counsel for the Appellant has argued the 1st and
3rd grounds jointly. The learned counsel has contended that the Appellant's
complains are on the huge amount of maintenance Tsh 400,000/ and
responsibility for his client, that the trial court ordered the two children to be
under the custody of the Respondent, and his client be responsible for the
maintenance of health , education and shelter without considering the amount of
money which the Petitioner earns on a monthly basis. The learned counsel of
the Appellant is of the view that, this is not in the best interests of the children.
On the other hand the Respondent has refuted and disputed this allegations
contending that the trial court reached a just decision after evaluating the
evidence of both parties.

The law regarding the placement of children and maintenance is governed by

Section 125 of the Law of Marriage Act, read together with section 44 of the Law
of the Child Act, Cap 13 RE 2019. These provisions emphasize that the
paramount consideration in deciding child custody is the welfare of the child. In
exercising its powers, the court must prioritize the child's welfare while also
considering relevant factors outlined in the law.

Section 44 of the Law of Child Act mandates the court to assess various factors
when determining maintenance. These include the income and wealth of both
parents and the person responsible for maintaining the child, their financial
 responsibilities, and any impairment to their earning capacity, and the cost of
living in the child's area of residence. All these considerations must prioritize and
uphold the rights of the child. Section 44 reads as follows:
44. A court shall consider the following matters
when making a maintenance order-
fa) 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.
The trial court was required to consider all relevant criteria before awarding
400,000 Tshs to the Appellant. However, the judgment does not indicate the
Appellant's monthly earnings or explain how this figure was determined or
arrived at. The court merely stated that, as a bank officer, the Appellant was
required to maintain the children and the Respondent. Still, it failed to specify the
proportion of the Appellant's salary allocated for this purpose. The judgment also
lacked a rational basis for arriving at the awarded amount. The law, as stipulated
under the relevant provisions of the Law of Marriage Act and the Law of the Child
Act, requires such financial determinations to be thoroughly assessed. Short of
that it could either have an impact to the children who are supposed to be
maintained or the person who is supposed to implement the order of the court.
Similarly, such orders must be realistic based on the requirements of the law.

The law unequivocally places the duty to maintain children on the parents.
Section 129 of the Law of Marriage Act [Cap 29 RE 2019] establishes the father's
paramount duty to provide for the children, with the mother's duty arising when
the father is unavailable or unable. Given that this matter involves children, the
Law of the Child Act [Cap 13 RE 2019] becomes crucial, particularly its detailed
provisions on what constitutes the child's best interests.

In considering the wealth and income of the parents, Rule 84(2) of Law of
the Child (Juvenile Court Procedure) Rules, 2016 GN No. 182 of 2016
has listed factors for the Court to consider. These are:
"(2) The court shall, in considering the wealth or income of a parent or
a person legally liable to maintain the child, take into account-
fa) wages, salaries, commission, bonuses and allowances; (b) service
provided; (c) business activities; (d) pension or severance benefits; (e)
dividends and interests; (f) returns from real or personal property such
as rents, sale of produce, farm products, livestock, poultry, dairy
product and other similar items; and (g) needs of other dependants"

In this appeal at hand, the Appellant's wages/salary were a key consideration, as

he is a bank officer. However, neither the trial court proceedings nor the
judgment provided details on the appellant's monthly earnings. Additionally, the
trial court did not demonstrate how it determined the maintenance amount
based on the Appellant's income. This lack of rationale on the part of the trial
court raises concerns about the appropriateness of the maintenance order
issued.

To further assist the Courts in making an informed decision, Section 45 (1) of

the Law of the Child Act allows courts to order a Social Welfare Officer to
prepare a social inquiry report. When such a report is prepared, the court is
bound to consider the same in making its decision as provided under Section
16
45(2) of the Law of the Child Act. I find it pertinent to hereunder reproduce
the two provisions for ease of reference:
"45.-(1) A court may order a social welfare officer to prepare a social
inquiry report before consideration of an application to make an order
for maintenance, custody or access. (2) The court shall, in making such
order, consider the social inquiry report prepared by the social welfare
officer."
In the case at hand, the trial court did not issue an order for a Social Welfare
Officer to prepare a social inquiry report, despite the Appellant's concerns
regarding TZS 400,000/= maintenance order. In the proceedings of the
Trial court, the Appellant had expressed willingness to provide 250,000/= Tsh
per month, which raised the need for a welfare report to ensure a fair decision.
However, the court proceeded with the 400,000/= Tsh order without
justification or an assessment of the appellant's financial capacity. Given the
absence of such justification, the award appears unsubstantiated and could be
reconsidered, as the appellant's monthly earnings remain unknown in the court
records. There is no any record of the determination of his salary or earnings.

The purposes of an inquiry report are well provided under Rule 85 (1) (a) and
(b) of GN No.182 of 2016, which states:
"85. (1) The court may, before granting an order for maintenance by
section 45 of the Act, request a social welfare officer to prepare a social
enquiry report for—
(a) Assessing the ability of parents to provide for the maintenance and
care of the child; and
(b) Ascertaining the accuracy of any statements relating to income and
outgoings and liabilities."
These provisions are as they read before the amendments effected last year and
the time the case was being determined. Therefore, they are relevant.

In view of the foregoing analysis, this court has identified a major defect in the
proceedings, specifically the lack of a comprehensive report, lack of necessary
documentation such as the Appellant's salary slip, before the court arrived at its
decision.

The Inquiry report should have been obtained by interviewing both parties and
investigating their capacities through other means. Consequently, the court sees
the essence of remitting the matter to the trial court with instructions to conduct
an inquiry before making any award to either party or an order for maintenance.
This will enable the court to arrive at a just and proportionate amount of
maintenance which will not only be fair to both parties but also executable.

I am therefore satisfied that, the trial court failed in its judicial duty to inquire
about the financial status of both parties, which could have assisted it in
reaching a fair decision on the amount for maintenance to be provided. Thus, the
maintenance order issued was not appropriate and a nullity.

Based on the foregoing analysis and at this stage, I allow the appeal to the
extent discussed on ground no. 1 and 3 only and set aside the maintenance
order issued by the District court.

I further proceed to order for the matter to be remitted back to the trial court for
a social inquiry to be conducted and a report to be issued thereto for the court'
consideration. Then the court should proceed to compose the Judgement which
will incorporate the issue of maintenance after considering the social inquiry
report.

For these reasons and for the sake of ensuring decent continuation of
proceedings, I refrain from deliberating on the other grounds of appeal at this
stage in order to pave way for the composition of the Judgement on the aspect
of maintenance following the preparation of the social inquiry report.

I grant no order for costs as the matter arises from matrimonial proceedings.

It is so ordered.

Dated and delivered at Temeke, this 15th day of April, 2025.

S.D. MWAIPOPO
JUDGE
15/04/2025

Judgement delivered at Temeke this 15th April, 2025 in the presence of the
Appellant, J. J. M. and the Respondent A. M. L.

S.D. MWAIPOPO
JUDGE
15/04/2025