Bakari v. Mdulu Civ. Rev. 6-D-70; 23/9/71; Biron J.

Bakari v. Mdulu Civ. Rev. 6-D-70; 23/9/71; Biron J.

The parties to the suit were husband and wife. Following their divorce the wife claimed a share of the matrimonial property which included a house and a Philips radio. The action was commenced in the Resident Magistrate court. The Resident Magistrate on consideration of the facts that the parties were Muslim and Islamic Law was applicable to the case made can order under section 42 of the Magistrates’ Courts Act, 1963, to the effect that the High Court should order the transfer of the suit to the Primary Court. The proceedings were therefore remitted to the High Court.

Held: (1) “The order of the magistrate was made on the 23^rd of July 1970, when, as the law then stood, I with respect would agree with the magistrate that that was the proper course for him to take. Since then, however, on the 1^st of May of this year the Marriage Act, 1971, came into fore. The act at section 114 lays down specific provisions for the division of the matrimonial assets consequent on a divorce. Although at sub-paragraph (a) of subsection (2) of he section quoted it is provided that the court should have regard to the custom of the community to which they parties belong, to my mind the court of the Resident magistrate has jurisdiction of the matrimonial assets, which are really ancillary to the divorce in respect of which the court itself would also now have jurisdiction.” (2) “in all the circumstances I am not persuaded that it would be either in the interests of the parties or of justice to order the Court of the Resident Magistrate should hear and determine the suit in accordance with the provisions of section 114 of the Marriage act, 1971.”