IN THE COURT OF APPEAL OF TANZANIA

AT MWANZA

f CO RAM: KOROSSO, J.A.. KENTE. J.A.. And MGONYA. J.A.^

CIVIL APPEAL NO. 117 OF 2022

AGNES A D A M ............................... .......................................... APPELLANT

VERSUS

ERICK JOHN SH EW IY O ............................................ ..................RESPONDENT

(Appeal from the decision of the High Court of Tanzania
at Mwanza)

(Mnyukwa, 3.^

Dated the 29th day of October, 2021

in
PC. Civil Appeal No. 34 of 2021

JUDGMENT OF THE COURT

4th & 23rd December, 2024

KOROSSO, J.A.:

This appeal arises from a decision of the High Court of Tanzania

sitting at Mwanza, in PC Civil Appeal No. 34 of 2021 (Mnyukwa, J.) of

29/10/2021. At Ilemela Primary Court, the appellant filed claims seeking

to be granted a decree for divorce and division of matrimonial properties.

She contended to have been living together with the respondent under

the same roof from 2012 to 2019. According to the appellant, she and the

respondent had joined hands in a customary marriage in 2012 and were

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blessed with one issue namely, Benjamin Erick John Shirima, seven (7)

years of age at the time of instituting the claims against the respondent.

The appellant further testified that during the period she and the

respondent lived together, they acquired the reputation of being husband

and wife. She alluded that they jointly acquired properties including a

residential house situated at Bupumula, Nyamihongolo; one motor vehicle

Toyota 1ST make, Registration Number T885 DNR and a variety of

household items as listed. In 2019, after their relationship turned sour,

she left the house without taking anything of what they had acquired

jointly during their cohabitation. The appellant claimed that when she

entered into a relationship with the respondent, she was not aware that

he was already married.

On his part, the respondent acknowledged knowing the appellant,

however, not as his wife, but as a mother of his son. He denied having

lived with the appellant, saying they had a relationship but they never

cohabited and never acquired any property together. He argued that the

properties listed as jointly acquired, he had purchased alone.

After a full trial, the trial court found there was no marriage between

the parties since at the time the respondent met the appellant he was

already in a monogamous Christian marriage to Veronika Fuko (DW2).

However, it held that taking into account the circumstances, justice

demanded invoking section 160(2) of the Law of Marriage Act, Cap 29

(LMA), since the appellant was entitled to a share of the properties

acquired during the period of her relationship with the respondent. The

trial court considered the fact that the contending parties had lived

together and the respondent was then separated from his wife. Therefore,

the trial court ordered for the distribution of the properties found to have

been acquired jointly, ordering for the valuation of the house at Block No.

275, Bupumula Rd, and thereafter, the appellant be provided with a forty

(40) percent share while the respondent was to get a sixty (60) percent

share, with each having the first option to buy off the other. There was

also an order for sale of the motor vehicle, Toyota 1ST Registration No.

T885 DNR and subsequently, each party to get fifty (50) percent of the

proceeds thereof. H ie household items listed were also distributed

between the two parties.

The custody of the child of the cohabitation was left in the hands of

the respondent since he was the one staying with the child at the time,

and the appellant was granted access rights to the child. Disgruntled with

the decision of the trial court, the respondent successfully appealed to the

District Court of Nyamagana in Civil Appeal No. 01 of 2021. The appellant

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was unsatisfied, and her appeal to the High Court was dismissed for lack

of merit, hence the current appeal in this Court.

The instant appeal was lodged through a memorandum of appeal that

fronts the following three grounds:

1. That the appellate judge erred in law to misinterpret section 160(2)

of the LMA and hence arrived at an erroneous judgment regarding

the division of properties acquired during the subsistence of the

parties' relationship.

2. That the appellate Judge erred in law not to order the division of

properties acquired during the subsistence of their relationship.

3. That the appellate Judge erred in law to decide that the trial court

of Ilemela Primary Court proved the existence of a presumption of

marriage between the parties which was not the case.

On the day the appeal came for hearing before us, Mr. Innocent

Kisigiro, learned counsel, represented the appellant, while the

respondent, appeared in person, and fended for himself. To be noted is

the fact that before the hearing commenced, Mr. Elias Hezron, learned

advocate, holding brief for Mr. Linus Munishi, learned Advocate for the

respondent, informed the Court that he had instructions to pray that Mr.

Munishi be discharged from representing the respondent since the

respondent had withdrawn his instructions. We granted the uncontested

prayer and discharged Mr, Munishi from representing the respondent and

further granted the prayer from the respondent to appear in person,

unrepresented.

When provided the opportunity to amplify the grounds of appeal, Mr.

Kisigiro decided to argue grounds one and three jointly. He faulted the

first and second appellate courts for; one, wrongly construing the decision

of the trial court on there being a finding on presumption of marriage for

the appellant and respondent, and two, misinterpreting the provision of

section 160(2) of Law of Marriage Act, Cap 29 (LMA) and thus arriving at

an erroneous finding in the distribution of properties acquired by the

appellant and the respondent during the subsistence of their relationship.

He argued that, while the appellant was not disputing the fact that the

parties lived together for about eight (8) years, the trial court having

rebutted the presumed marriage between the contending parties, the

proper procedure for the first and second appellate courts as guided by

the holding in Cecilia Mshamu v. Dick Kawago (2001) T.L.R 318,

should have been to hold that the properties acquired or developments

made together during their cohabitation without the involvement of any

other person including the wife of the respondent, are joint efforts of their

relationship. The learned counsel, in his written submission on page 3,

states further that; "In the instant appeal the parties had no capacity to

m arry but what they have acquired on jo in t efforts should be divided

equally."

According to the learned counsel for the appellant, the first and

second appellate courts should have confirmed the decision of the trial

court which had under the circumstances properly invoked the provision

of section 160(2) of the LMA in line with the decision of the High Court in

Harubushi Seif (supra), which was adopted by the Court in Hemed S.

Tamim v. Renata Mashayo (1994) T.L.R. 197. In the latter case, the

Court had stated that courts should consider the application of section

160(2) of LMA where the presumption of marriage is rebutted and there

are properties acquired jointly by the contending parties during the

subsistence of the relationship. He thus implored us to find that in the

instant case, the trial court correctly ordered for the division of properties

acquired during the subsistence of the relationship of the contending

parties and therefore, allow the appeal.

On the third ground, the learned counsel for the appellant faulted

the first and second appellate courts for holding that the trial court had

erroneously found that the presumption of marriage between the

appellant and respondent was proved. He contended that this finding was
misconceived because the trial court never made the said finding as can

be discerned from pages 5-7 of the judgment of the trial court.

Furthermore, he argued, on page 8 of the said judgment, the trial court

held that the parties were not legally married when it stated: "Ni ukw eli

usiopingika kwamba Wadaawa s i wana ndoa,"

According to him, the trial court expressly stated that upon analysis

of evidence, it was of the view that there was no marriage of any type

between the parties be it forma! or informal. He faulted the first and

second appellate courts for finding otherwise and in the process

occasioning a miscarriage of justice.

Regarding the second ground of appeal, Mr. Kisigiro stated that the

underlying issue therein had already been addressed when submitting on

the argued two grounds and he thus had nothing further to add. He

concluded by imploring us to allow the appeal and retrieve the trial court's

consequential orders so that the properties acquired during the

relationship of the appellant and respondent be divided equally.

In response to the grounds of appeal, the appellant categorically

denied having been married to the appellant or having lived or acquired

any properties together. He contended that at the time he met the

appellant, he was already a married man. He implored us to decide on the

appeal upon assessing the evidence on record critically and dismiss the

appeal for want of merit.

The rejoinder by the learned counsel for the appellant was brief,

essentially a reiteration of his submission in chief and the prayers.

In determining the appeal, having revisited the record of appeal,

and considered the written and oral submission from the appellant's

counsel and the oral submission from the respondent we are constrained

to address two issues; one, whether the appellate courts properly

interpreted section 160(2) of the LMA and two, whether the appellate

courts properly considered the findings of the trial court on whether or

not presumption of marriage was established on balance of probabilities.

We will start deliberating the second issue and on this point, we are

constrained to reproduce the holding of the trial court on this issue. On

page 105 of the record of appeal, it states that:

" ... N i ukw eii usiopingika kwamba wadaawa s i

wanandoa. Ushahidi unaonyesha kwamba mdaiwa
alib ariki ndoa ya kikristo tarehe 02/01/2010
(kielelezo NIN) chajieieza). Hivyo
inavyosadikika kuwa ndoa ya kim ila ya wadaawa
n i b a tiii m beie ya macho ya sheria....
Kwa kuangafia ta fsiri ya kifungu hicho cha sheria,
ndoa ya kim ila ya wadaiwa kwa Ushahidi wa picha

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 aiiotoa m dai (tazama kielelezo A l, A2, A3, A4,
A S na A6) unaonesha Hifungwa mwaka 2012
m iaka m iw ili (2) baada ya ndoa ya mdaiwa na SU2
kufungwa. Na ndoa hiyo Myofungwa kabla
ushahidi unaonesha n i ya Kikristo na n i ya mke
mmoja (tazama kielelezo N1N). Kwa h a li hiyo
ndoa h ii ya wadaiwa s i h aiali kisheria kw ani
iiifungw a w akati mdaiwa ana ndoa ya mke mmoja
ambayo Hishafungwa. Kisheria hakuna ndoa ka ti
ya wadaawa hivyo mahakama haiw ezi kutoa
taiaka kwa ndoa ambayo s i haiali."

From the excerpt above, undoubtedly, the trial court found that

there was no marriage in existence between the respondent and the

appellant because the respondent had proved on the balance of

probability that being in a marriage already, he had no capacity to marry

anyone else. Essentially, it also rebutted the presumption of marriage

between the parties.

A careful scrutiny of the judgment of the first appellate court shows

that the issue it considered was why the trial court upon concluding that

there was no recognized marriage between the contending parties,

proceeded to distribute the properties it held to have been jointly acquired

by the parties (who it considered to have lived in concubinage) and

rebutted the presumption of marriage. On the part of the second appellate

9
court, when discussing the finding of the trial court on whether the

presumption of marriage could be inferred from the parties on hand, it

held on page 195 of the record of appeal, that:

" Since there was subsisting m arriage on the p art

o f the respondent and because the long
relationship o f the parties is not covered under the
law, the tria l court was wrong to invoke the
provision o f section 160(2) o f the Law o f M arriage
Act, Cap 29 R.E 2019. As it was rightly observed
by the first appellate court that the issue o f the
division o f m atrim onial assets cannot be
established if the presum ption o f m arriage is not
established..."
Having carefully scrutinized the judgments of both the first and

second appellate courts, we have failed to find anywhere, where the trial

court declared there being a presumption of marriage between the parties

in this appeal. Our observation is further amplified by the observation

made by the second appellate court on page 196 of the record of appeal

that:

"It is worth to note that, as it is clearly explained

under ground one o f the appeal, after this court
finds there is no presum ption o f m arriage, it
cannot m ake any consequential orders..."

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 Essentially, faulting the trial court for proceeding to divide properties

acquired by the parties during their cohabitation after rebuttal of the

presumption of marriage. We thus find the ground misconceived and

dismiss it

Addressing ground one of the appeal, we begin by reproducing

section 160 (1) and (2) of LMA which states:

"160(1)- Where it is proved that a man and

woman have lived together fo r two years or moref
in such circum stances as to have acquired the
reputation o f being husband and wife, there sh all
be a rebuttable presum ption that they were duly
m arried.

(2)- When a man and a woman have lived

together in circum stances which give rise to a
presum ption provided for in subsection (1) and
such presum ption is rebutted in any court o f
com petent jurisdiction, the woman sh all be
entitled to apply for m aintenance fo r h erself and
fo r every ch ild o f the union on satisfying the court
that she and the man did in fact live together as
husband and wife fo r two years or more, and that
the court sh all have jurisdiction to make order or
orders fo r m aintenance and, upon application
made therefor either by the woman or the man,
to grant such other reliefs, including custody o f

li
 children, as it has jurisdiction under this A ct to
make or grant upon or subsequent to the m aking
o f an order fo r the dissolution o f a m arriage or an
order fo r separation, as the court m ay think fit\
and the provisions o f this A ct which regulate and
apply to proceedings fo r and order o f m aintenance
and other reliefs sh all in so fa r as they m ay be
applicable regulate and apply to proceedings fo r
and orders o f m aintenance and other reliefs under
this section."

The learned counsel for the appellant invited us to interpret the

provisions in favour of the appellant, in that, despite there being no formal

marriage between the parties, and the presumption of marriage having

been rebutted, the appellant reprisal could be found under section 160(2)

of the LMA, where even in such circumstances, a court is enjoined to make

consequential orders that may include division of matrimonial properties

just like in instances of dissolution of marriage or separation.

Certainly, the essence and import of section 160(2) of LMA has been

discussed in various decisions of this Court and given rise to mainly two

schools of thought. The first school of thought envisages that where there

is a rebutted presumption of marriage between parties, the court can

invoke the provision of section 160(2) of LMA to make consequential

orders on the division of properties acquired during the subsistence of the

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relationship of the two contending parties. In the case of Harubushi Seif

(supra), the High Court held that:

"under the provisions o f section 160(2) o f the

M arriage Act, if a woman has satisfied the court
that she has lived with the man fo r two years or
more, then the court is statutorily vested with the
jurisdiction to grant or make orders to the parties
in the same way as it has jurisdiction to make
orders consequent on divorce or separation o f the
duty m arried spouses under the provisions o f the
M arriage Act...

In the case of Hidaya Ally v. Amiri Mlugu, Civil Appeal No. 105

of 2008 (unreported) it was held:

"Ipso jure, the wording o f the above-quoted

section (section 160(2) o f LMA) shows that the
courts have the pow er to order division o fproperty
once the presum ption o f m arriage is rebutted ju st
like in instances o f dissolution o f m arriage or
separation."

Furthermore, in the case of Hemed S. Tamim (supra) the Court held:

"... where the parties have lived together as

husband and wife in the course o f which they
acquired a house, despite the rebuttal o f the
presum ption o f m arriage as provided under s.
160(1) o f the Law o f M arriage A ct 1971, the courts

13
 have the pow er under section 160(2) o f the A ct to
make consequential orders as in the dissolution o f
m arriage or separation, and division of
m atrim onial property acquired by the parties
during their relationship is one such order."

(See also, Valentine Leopold Ndanu v. Eva Aminiel Kitomari and

Another, Civil Appeal No. 323 of 2020 (unreported)).

The second school of thought on the issue asserts that there can be

no claims of division of properties under section 160(2) of LMA. In the

case of Odhiambo Eduor v. Jane Thomas Abuogo, Civil Appeal No.

21 of 2012 (unreported), where the trial court had rebutted the invocation

of the presumption of marriage between the parties, the Court held:

"... From the decision o f the High Court in C ivil

Appeal No. 1 o f2000, what the learned tria l Judge
had to address is the properties which were
acquired how they were acquired, and the extent
o f the contribution made by the respondent in the
acquisition o f the properties w ithout linking the
sam e with a presum ed m arriage between
the p arties.."

What we have gathered is that most of the decisions in the first

school of thought, address situations where the parties have lived

together as husband and wife for some time but failed to establish a

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presumption of marriage. In such circumstances, courts, under section

160(2) of the LMA may make consequential orders as in dissolution of

marriage, and division of matrimonial property acquired by the parties

during the pendency of their relationship as held in Hemed S. Tamim

(supra). Certainly, our assessment of all the cited cases is that they are

distinguishable from the instant case based on the different circumstances

pertaining as shown herein. In all the cited cases there was no evidence

that one of the parties was married as in the instant case and in the case

of Valentine Leopold Ndanu (supra) the issue was not the distribution

of properties.

In the present case, the trial court on pages 105 and 106 of the

record of appeal stated:

"... Kuhusu m ali za pam oja mahakama h ii kwa

kuangalia ushahidi uliotolew a mbele yake n i
dhahiri kwamba m bele ya macho ya sheria
hapakuwa na ndoa ha/a/l ka ti ya wadaawa. Lakini
kupitia fungu la 160(2), Sheria ya Ndoa; Sura
29 M apitio 2002 m dai ameweza kuthitibitisha
kwamba w aliishi na mdaiwa kama mume na mke
zaid i ya m iaka m iw ili (tazam a kielelezo B, C l,
C2, D1 na D2) hivyo ana haki ya kuomba mgao
wa m ali za pam oja kutokana na m ahusiano yao.
Kw ani ushahidi unaonesha kuwa mdaiwa

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 alitengana na mkewe baada ya kumpa ujauzito
m dai na w attshi na m dai hadi sasa
watipofarakana.

Suala h ili lilifafanuliw a vizuri na Ja ji Korosso

(kama alivyokuw a) katika kesiya Harubushi S e if
v. Am ina Rajab [1986] TLR 221. Naye alisem a
kama mwanamke ataithibitishia mahakama kuwa
a/fishi na mwanaume kwa miaka m iw ili au zaid i
atakuwa na haki kisheria kuomba matunzo ya
Watoto wa muungano wao na mgawanyo wa m ali
zilizopatikana kwa juhudi za pam oja katika
m ahusiano yao."
To be noted is the fact that section 160(2) would only be applicable

where a man and a woman have lived together in the circumstances that

would give rise to the application of section 160(1) of the LMA. As already

stated, this is not applicable in the present case. Upon discarding the

presumption of marriage, the trial court moved to consider section 160(2)

of LMA and its application in the present case. We firmly believe that had

the trial court carefully considered the peculiar circumstances in this

instant case, it would have carefully analyzed the evidence and concluded

otherwise. Even the appellant's pleadings were based on the court's

finding a marriage be formal or otherwise, existed.

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 In addition, to further amplify the peculiar circumstance in this case

that is as stated earlier the fact that the respondent was already married

to veronica Fuko (DW2). A fact that is not disputed by the appellant who

states that she was unaware of the existence of the fact that the

respondent was already married when she got involved with him which

resulted in cohabiting with him for eight years. We are of the view that

since the decisions cited by the learned counsel for the appellant,

addressed circumstances where none of the cohabiting parties was in a

monogamous marriage.

In light of the above, we are of the firm view that, in the instant

appeal, the court having rebutted the presumption of marriage for the

contending parties, the avenue proposed by the learned counsel for the

appellant, as provided under section 160(2) of LMA was unavailable. This

is because one of the conditions for applying section 160(2) of LMA as

provided by various decisions cited and discussed above, is that the

concerned parties must be seen to be living as husband and wife, which

under the circumstances cannot be the case as in in the instant case, the

respondent was already in a monogamous marriage and it would have

thus been impossible to regard them as husband and wife. The other

problem in the present case is that the appellant claims in her pleadings

were based on the property being matrimonial assets, which as shown

17
above could not be the case in the absence of a formal marriage or and

the trial court's rebuttal of the presumption of marriage.

In consequence, understanding the right of individuals to reap the

fruits of their labour, if the appellant is so inclined she may pursue legal

recourse for the claimed contribution to the properties acquired during

her relationship with the respondent by way of a civil suit or otherwise.

All in all, the appeal is dismissed. Each party is to bear its own costs.

DATED at DAR ES SALAAM this 18th day of December, 2024.

W. B. KOROSSO
JUSTICE OF APPEAL

P. M. KENTE
JUSTICE OF APPEAL

L. E. MGONYA
JUSTICE OF APPEAL

The Judgment delivered this 23rd day of December, 2024 in the

presence of Mr. Innocent Kisigiro, learned counsel for the appellant and

the respondent in person via video conference from High Court of

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