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RULING
Ebrahim, J.
This is a second appeal. The appellant SHIJA LABSON HAONGA
goes thus; the appellant and the respondent were husband and
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wife respectively. Their union was so considered under the
together in 2003. They were blessed with three issues (Isaka Shija
Haonga 15 years old, Bruno Shija Haonga 12 years old and Noel
Shija Haonga four years old). However, after some years their
After hearing both sides, the Primary Court found the marriage not
for separation for two years. It also ordered the custody of Noel, a
the District Court on the ground that the Primary court erred when
it issued the order for separation while she petitioned for divorce
In its turn, the District Court allowed the appeal. It substituted the
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appellate court further ordered the custody of the said Noel to be
follows:
that the respondent left her child with his father (appellant)
years.
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When the appeal was called for hearing, the appellant appeared
the respondent did not enter appearance even after the service
July 2021.
In his oral submissions, the appellant prayed for this court to adopt
respondent found him with the house which he was given by his
custody of their third issue did not consider the fact that he is able
to take care of him since he did so when the respondent left him
while he was only 3 years old. The appellant thus prayed for this
court to order the same child to be under his custody with the
against the order of the District Court substituting the order for
separation with the decree for divorce, this court is entitled to take
it that the parties now do not have any dispute regarding the
decree for divorce. The court thus, considers the decree for
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divorce as not an issue between the parties and it shall continue
Now, owing to the observations made above, I find that the two
a) Whether the District Court was justified in making the order for
order that gave the custody of the third issue (Noel) to the
appellant.
In relation to the first issue, it is the law i.e section 114 (1) of the Law
in performing that task. Such factors are set under section 114(2)
of the same Act. The Court of Appeal of Tanzania (the CAT) in the
case of Yesse Mrisho v. Sania Abdul, Civil Appeal No. 147 of 2016,
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section 114 of the LMA, is that distribution of matrimonial property
(c) any debts owing by either party which were contracted for
hand, the record shows clearly that, the District Court did not let
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beds and mattresses, two TV, two cup boards, sub-woofer, radio,
kitchen utensils and a house. The respondent thus prayed for the
acquiring them.
his reply submissions. He contended that the said house was built
did not say if the narration by the parties during their submissions
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because court’s orders are supposed to be specific for avoidance
observation that the District Court did not observe the law. This
follows therefore that the District Court was not justified in making
Concerning the second issue, my views are that, like the division of
125(2) and (3) of the same Act set factors to be considered by the
court in making such order for custody. It guides thus, and I quote
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(b) the wishes of the child, where he or she is of on age to express
facts of any particular case, the court shall have regard to the
custody.”
Section 126 and 127 of the LMA provides for some additional
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Tanzania, at Mwanza (unreported) and Festina Kibutu v. Mbaya
under the appellant on the reason that the respondent left them
District Court. This means that the respondent was satisfied with
the order for custody. Even if this court would assume that the
the Primary Court, still the District Court was duty bound to allow
question of welfare of the child. The District Court only held that,
the child was under seven years and for his welfare was supposed
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have been in the custody of her mother; see subsection (3) of
the District Court on the custody of the child (Noel). The record of
the factors set under the provisions of law cited earlier. Such
The District Court thus, violated the law cited above and the
decisions.
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Having answered negatively the two issues above, this court is left
court make? Since the District Court was the first appellate court
decree for divorce. Again, since the appellant herein did not
for the interest of justice the following orders shall save the
purpose.
ii) Also, the order for custody of the children made by the
Court.
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application for division of matrimonial assets upon them
are family.
Ordered accordingly.
Judge
Mbeya
29.10.2021
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