Mkumba v. Mussa (PC) Civ. App. 12-D-69; 22/8/70; El-Kindy, Ag. J.

Mkumba v. Mussa (PC) Civ. App. 12-D-69; 22/8/70; El-Kindy, Ag. J.

The District Court of Ilala directed the Court Broker to attach the house of the appellant. This order was made as a result of the decision of the primary court Temeke, and confirmed by the District Court. The respondent claimed that she was entitled to a share of wealth which was accumulated by the appellant during their 22 years of married life. The facts leading to break up of their marriage were not in dispute. At the time of divorce, the appellant promised before the elders that he would build her a house, although she had no right to such a house. The Primary Court unanimously decided that the respondent had not right to any share of the property accumulated by the appellant during their married life just because she was the appellant’s wife. Apparently the appellant did not honour the undertaking, and the respondent sought to enforce the undertaking and the result of her action is the present order. For the appellant it was argued that this was a promise, which is not part of the judgment, and therefore it cannot be enforced as against the appellant. And that it was only a bargain, and therefore she could not attach the house as she did. For the respondent, it was argued that the offer to build the house was a compromise upon divorce, and that court can take recognition of an enforce such agreement.

            Held: (1) “Looking at the record in both lower courts, there is no doubt that the appellant agreed to build a house for the respondent, but this agreement was subject to the term that the respondent would show the appellant the plot where he could build the house. It was, therefore, no unconditional compromise, and it appears to me that the appellant could not be expected to build the house if the respondent did not show him the plot. Therefore, if the appellant did not build the house, the error was that of the respondent, who did not play her part. As it was, the order could not have been complied with nor could it have been enforced against the appellant.” (2) “I agree that it was a marriage compromise and therefore this court could take recognizance of it.” (3) Appeal allowed.