BI HAWA MOHAMED v ALLY SEFU 1983 TLR 32 (CA)

 

BI HAWA MOHAMED v ALLY SEFU 1983 TLR 32 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Nyalali CJ, Makame JJA and Kisanga JJA

29 November 1983

CIVIL APPEAL 9 OF 1983 B

Flynote

Family Law - Matrimonial property - Whether domestic services of a house wife

amount to contribution in acquisition of matrimonial assets.

Family Law - Matrimonial assets - Family assets - Assets envisaged u/s 114 (1) of the

Law C of Marriage Act, 1971 - Matrimonial assets acquired by spouses during

marriage by their joint efforts.

-Headnote

The appellant and respondent were wife and husband respectively until the

dissolution of D their marriage by a court decree of the Primary Court of Ilala

District at Kariakoo, Dar es Salaam in 1980. In subsequent proceedings the Primary

Court held that the appellant was not entitled to any share in the matrimonial assets

as she was a mere wife and that the house was bought by the husband's money. On

appeal to the High Court, E the Primary Court's decision was substantially upheld.

This is a second appeal.

Held: (i) Since the welfare of the family is an essential component of the economic

activities of a family man or woman it is proper to consider contribution by a spouse

to F the welfare of the family as contribution to the acquisition of matrimonial or

family assets;

(ii) the "joint efforts" and 'work towards the acquiring of the assets' have to be

construed as embracing the domestic "efforts' or "work" of husband and wife;

(iii) where a spouse commits a matrimonial mis-conduct which reduced to G

nothing her contribution towards the welfare of the family and consequential

acquisition of matrimonial or family assets she or he would not be entitled to a share

in the property.

Case Information

Appeal dismissed. H

Cases referred to:

1. Zawadi Abdallah v Ibrahim Iddi [1981] T.L.R. 311

2. Rukia Diwani Konzi v Abdallah Issa Kihenya Matr. Cause No. 6 of

1971. I

1983 TLR p33

3. Bateman v Bateman [1979] FAM 25 A

4. Iddi Kunganya v Ali Mpate [1967] HCD 49

5. Egerton v Brownlow [1853] 4 HL Cas 196

6. Martin v Martin [1976] 3 All ER 625

R.C. Kesaria for the appellant. B

[zJDz]Judgment

Nyalali, C.J., read the following considered judgment of the court: The appellant Bi

Hawa Mohamed and Ally Seifu were wife and husband respectively until the

dissolution C of their marriage by court decree of the Primary Court of Ilala District,

at Kariakoo, Dar es Salaam in 1980. In subsequent proceedings, seeking the division of

matrimonial assets, the Primary Court held in effect that Bi Hawa Mohamed was not

entitled to any share in the matrimonial assets, as to use the words of one of the

assessors, "She was D only a mere wife, and the house was bought by the husband

with his own money". The Primary Court went on to accept the offer made by Ally

Seifu to pay a sum of shs 2,000/- as a parting gift to her in accordance with his

religious tenets. On appeal, the High Court, Kimicha, J. substantially agreed with the

views of the trial Primary Court but increased the amount of the parting gift to shs

3,000/=. Bi Hawa Mohamed was further E aggrieved by the decision of the High

Court and she obtained legal aid from the Tanganyika Law Society, hence this appeal

to this Court. Mr. R.C. Kesaria, learned Advocate, appeared on legal aid for the

appellant. The Respondent appeared in person. The High Court certified that a point

of law was involved. It can be broadly state as F follows:

Did the High Court and Primary Court err in law in holding the view that

domestic services of a housewife do not amount to contributions made by her in the

acquisition of matrimonial G assets.

From the proceedings in the High Court and Primary Court the following facts were

established on the evidence. The appellant and respondent were married according to

H Islamic rites in Mombasa, Kenya, sometime in 1971. The respondent had a house

in Mombasa and they used it as the matrimonial home. Furthermore, the respondent

was a Seaman and his work involved travelling abroad for many months. While so

travelling, he would provide adequate maintenance for the appellant, who remained

at Mombasa, to I look after the matrimonial home. On one occasion, he gave her an

1983 TLR p34

NYALALI CJ

additional sum of shs. 18,000/= to set up business activities. She however failed to A

establish any business and the money cannot be accounted for. In 1974, the

respondent purchased a house in Dar es Salaam with his own money. This house is

House No. 40 along Swahili/Mhoro Streets and is the subject of this case. In 1975 the

spouses moved B from Mombasa to this house in Dar es Salaam and they were using

this house as the matrimonial home at the time of their divorce.

The power of the Court to divide matrimonial assets is derived from section 114(1) of

the Law of Marriage Act, 1971 which states: C

114(1) The court shall have power, when granting or subsequent to the grant

of a decree of separation or divorce, to order the division between the parties of any

assets acquired by them during the marriage by their joint efforts or to order the sale

of any such asset and the division D between the parties of the proceeds of sale.

It is apparent from the citation and the wording of section 114 that the assets

envisaged thereat must firstly be matrimonial assets, and secondly, they must have

been acquired E by them during the marriage by their joint efforts.

This first important point of law for consideration in this case is what constitutes

matrimonial assets for purposes of section 114. In our considered view, the term

"matrimonial assets" means the same thing as what is otherwise described as 'family F

assets'. Under paragraph 1064 of Lord Hailsham's Halsbury's Laws of England 4th

Edition, p. 491, it is stated:

The phrase "family assets" has been described as a convenient way of

expressing an G important concept; it refers to those things which are acquired by

one or other or both of the parties, with the intention that there should be continuing

provision for them and their children during their joint lives, and used for the benefit

of the family as a whole. The family assets can be divided into two parts (1) those

which are of a capital nature, such as the matrimonial H home and the furniture in it

(2) those which are of a revenue producing nature such as the earning power of

husband and wife.

The next important point of law for consideration and decision in this case is whether

the I assets in question - that is House No. 40

1983 TLR p35

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situated along Swahili/Mhoro Streets in Dar es Salaam was a matrimonial or family

asset A at the time of dissolution of the marriage of the parties. The answer here is

easy. On the facts established in the two courts below, that house was used by the

parties as their matrimonial home after they moved from Mombasa to Dar es Salaam.

It was therefore a matrimonial or family asset. B

The next point of law for consideration and decision is whether this matrimonial or

family asset is subject to division between the parties under the provisions of section

114 (1). It is apparent that the Court's power to divide matrimonial or family assets

under section 114(1) is invoked only when the following conditions exist: C

(i) When the Court has granted or is granting a decree of divorce or

separation; and

(ii) When there are matrimonial or family assets which were acquired by

the parties during the marriage; and D

(iii) When the acquisition of such assets was brought about by the joint

efforts of the parties.

There is no controversy regarding the existence of conditions (i) and (ii). The real

dispute centres on condition (iii) - that is, on whether the matrimonial home was

acquired E by the joint efforts of the appellant and respondent.

It is the appellant wife's contention that her efforts in performing her domestic duties

had the effect of placing the respondent husband in a financial position to buy the

house in F question. As already mentioned, the two courts below rejected this

contention on the ground that performance of domestic duties by a housewife does

not count in the acquisition of matrimonial or family assets. The fundamental

question now is whether this view of the two courts below is erroneous. G

We are aware that there are two schools of thought which currently contend in the

High Court on this issue. In the case of Zawadi Abdallah v Ibrahim Iddi, [1981] TLR

311 Mapigano, J. referred to these two schools of thought by stating: H

There are those who maintain that under section 114 the term joint effort is

limited to direct contribution by a spouse by way of money, property and work, to

the acquisition of the asset in question and that housekeeping and raising the children

count for nothing. I

1983 TLR p36

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On the other hand, there are those who take the view that household work

must be regarded A as part of the joint effort or contribution towards the acquisition

of any asset by the husband and that the wife's citing of the husband's marriage vow

and the fact that she has been running the home operate to entitle her to a slice in her

husband's estate. You may, if you B prefer, describe the two constructions as narrow

and broad, respectively. The question which I am called upon to answer in this case is

which one of those views is correct. This is an important matter and I confess I have

not found it all easy. To my knowledge not much has C been said about it in this

country and there is a paucity of judicial pronouncement on the matter. Such few

decisions as there are either way and happily I am not bound by any.

Those who champion the broad view see no valid distinction, in principle,

between the wife D who takes up employment or carries on business or profession

and the one who remains at home and devotes her time running the home. They

would construe the terms contribution and joint efforts liberally to include domestic

services rendered by the full time "domestic" wife. E

They would advance several reasons to back up their viewpoint. Among the reasons:

(1) That it is the philosophy and spirit of our time and that it is quite in harmony

with F realities and changed social and economic circumstances, (2) that the

domestic work may be more valuable to family than of a wife who is self-earning; (3)

that the husband can hardly conduct his business if his wife does not cook the dinner

and mind the children; (4) that in certain instances the wife may have sacrificed her

own career on the G altar of matrimonial life and if say after twenty or thirty years

of marriage her husband for old man's reasons or no reason whatsoever (as probably

was the position in the case before me), sees fit to banish her, the decree of divorce

may have the further undesirable and sad effect of practically thrusting her into

destitution; and (5) that in yet certain H instances the estate of the husband may

have been built up by the industry of the husband and the thrift and prudence of the

wife in running the home and that, therefore, it is in conformity with one's sense of

justice and fairness that she should share as of right in the fruits of his success. They

would find encouragement and comfort in the words of I Scarman,

1983 TLR p37

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L.J. which appear in the Medico-Legal Journal, 1966 Vol. 34 at p.19 that: A

It is recognised that a married woman who brought up a family and

maintained a home was thereby actually supporting her husband in his breadwinning

activities by releasing him from B family duty. Quite plainly if the marriage

broke down she must have a claim upon the family funds by reason of that vital

contribution to the family life. It was here that law of England (as it then was) went

wrong. C

These are, I think, strong and weighty reasons and no doubt that the strict operation

of the doctrine of separate property can occasion a great deal of distress to a divorced

woman. But we should bear in mind that the whole question is a legal one.

Judge Makame for one has taken stand on the side of the liberal school. Sitting in this

D court at this place he felt himself prepared and able to say that the domestic

services that a wife renders count. That was in the case of Rukia Diwani Kinzi v

Abdalah Issa Kihenya - Matrimonial Cause No. 6 of 1971. His reading of section 114

does not square with that of the magistrate who heard this case. The learned judge

thought that E the section has sufficient width to embrace the broad view. Stated the

learned judge:

There is a school of thought which says that domestic services a housewife

renders do not F count when it comes to acquisition, and therefore the subsequent

possible division, of matrimonial assets...

I find this view too narrow and conservative and I must confess my inability to

subscribe to it. G Section 114 of the Law of Marriage Act does not really support the

school of thought referred to and is, in my view, capable of accommodating a more

liberal interpretation.

A little further on Mapigano, J. continued. H

Even in a country like Britain, where salaried married women are quite

common, the modern progressive view, with which I wish to associate myself, is that

looking after the home and bringing up the children is a valuable contribution. See

for I

1983 TLR p38

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example the recent case of Bateman v Bateman, The law Report 1979 FAM 25.

A

But be it noted that in this respect our statutory law compares unfavourably

with the English Law. The perimeters or ambits of the English Law are simply and

expressly more extensive. B The English case to which the learned judge made

reference was an application by the wife for financial provision and adjustment of

property in her favour, upon the dissolution of the marriage between her and the

respondent. The decision of the court was manifestly predicated upon the provisions

of the English Matrimonial Causes Act, 1973, which makes C explicitly provisions to

the effect that in adjusting property rights under that Act, the contribution made by

each of the parties to the welfare of the family is a relevant consideration to be taken

into account. So in my respectful opinion the decision in that case can hardly be

helpful or persuasive. D

Mapigano, J. continues:

As shown, in this case the learned magistrate expressed and followed the

narrow E interpretation. He argued that since traditionally looking after the

household and caring for the children is the occupation and responsibility of wife,

just as the feeding and clothing the family is the occupation and responsibility of the

husband, then that should not be considered as a F contribution or joint effort. Was

he wrong? At the risk of being deemed a conservative, though I would like to believe

that I am not, I must say that on the view that I take of the law I feel compelled to

pronounce that the decision of the learned magistrate is, in the final analysis, sound. I

share his opinion that under section 114 the housework of a wife and G looking after

the children are not to be equated with the husband's work for the purpose of

evaluating contributions to marital property. I hold as he did that such domestic

services are not to be taken into consideration when the court is exercising its powers

under the section. I will give my reasons. H

First, I think that the broad view is inextricably linked with other matters. It

does bring to the fore other issues which are arguably troublesome in regard to which

the statute does not appear to make any clear provisions. Two such issues come to my

mind. One, there would be in I many cases the question whether the matter is to be

decided with reference to the

1983 TLR p39

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matrimonial differences which may in fact have made it necessary to consider

the matter in A the light of the principle that no one should be allowed to benefit

from his own wrong. To put it interrogatively, will a wife be allowed to benefit from

a marriage which she has wrecked? Two there would be the relationship between the

order under section 144 and the order which th e B court may make with regard to

maintenance under section 115.

Secondly, and I regard this to be a stronger point, the question can be asked: Is

there really anything in law to give any strong colour to the suggestion that is put

forward by the liberal C school? Certainly it was not part of our own law before the

enactment of the Law of Marriage Act. See for example Iddi Kungunya v Ali Mpate

[1967] HCD 49. And to be sure, there is no provision in the Law of Marriage Act

which says so in terms. That throws up a question of D judicial policy. It is this, that

where there are no clear rules of law governing matters of such general social

importance, matters which directly affect the interests of almost every matrimonial

couple and which raise issues that might be the subject of public controversy and on

which laymen are as well able to decide as lawyers, can the courts properly proceed

on E their view of public policy? (There is the warning uttered by a judge over a

century and half ago that public policy is a most unruly horse, you can never know

where it will carry you.) Would it not be to encroach on the province of the

Legislature? Patel, J. thought so. He observed briskly F in the case of Hamidi Amir

Hamid (supra) that if the Legislature had intended that domestic services performed

by a wife be regarded a contribution and joint effort it would have said so in language

clear and plain. But the liberal school might put forth the line that the law should G

be innovative and responsive to societal aspirations. I would embrace that principle. I

do understand that judges must develop the law and indeed it is now generally

accepted that sometimes they must, and do, legislate. The myth that common law

judges merely enunciate H or discover the existing law should now stand

discredited. Blackstone was, I think, one of the leading proponents of that theory.

However, as the great American judge Holmes once said, and many subscribe to that

view point, the judges should do so only interstitially, and with molecular rather than

molar motions. In 1969 (in his paper which he read at the University I college Dar es

Salaam) Sir

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Charles Newbold, then the President of the Court of Appeal for East Africa,

put the point in this A way.

"The power of the judges to make law is a power which can be

exercised within very circumscribed limits. The power is exercised in two fields. The

first is where rights and B duties of a member of the community are determined by

legislation; and in that field the circumscribing limits are the doctrines of equity and

the indefinable but real customs and needs of the community. Within the field in

which rights and duties are specified by legislation a judge's duty is to apply and

enforce the legislation and, save C as regards subordinate legislation, he cannot

challenge the validity or effectiveness of the legislation".

Further, I think perhaps I should read a short passage from the decision of

Parke J in Egerton v Brownlow (1853) 4 HL Cas 196, a passage which has been

frequently quoted with approval D by many judges including Sir Charles Newbold:

"It is the province of the statesman, and not the Lawyer, to discuss, and

of the Legislature to determine, what is best for the public good and to provide by

proper enactments. It is the province of the judge to expound the law only; the

written from the E decisions of our predecessors and of our existing courts, from

textwriters of acknowledged authority, and upon the principles to be clearly deduced

from them by sound reason and just inference; not to speculate upon what is best, in

his opinion, for the advantage of the community". F

In my considered opinion, I think that if at all there is any grey area in respect

of the matter, the appropriate solution to the problem lies in the intervention of the

Legislature and not in judicial Legislation. But is there a grey area? That leads me to

my next point and this is where I would put the emphasis.

I apprehend that to follow the broad view would be to give recognition to the

concept of G community of property between the husband and the wife -communio

bonorum - and perhaps with its logical corollary community of loss and debts. And,

specifically, it would run directly counter to section 58 and 60 (1) of the Law of

Marriage Act and empty those two provisions of H all meaning and effect. Those

sections are some of the striking features of the statute and seem to reflect the notion

of separate property.

They say that subject to the provision of section 59 (which relate to

matrimonial homes) and to I any agreement the parties

1983 TLR p41

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may make, any property acquired in the name of the husband or of the wife,

presumptively A belongs exclusively to that person. There are material which

strongly point to a definite legislative intention that domestic services should not

count when the court is dealing with the matter of division of assets under section

114. In this regard attention should be called to the B fact that the Act is based on

the work of the Kenya Commission on the Law of Marriage and Divorce which was

headed by Spry J.A. and which is comprised in the Commission's report of August,

1968. The Act borrows heavily from the draft bill prepared by the said commission -

C Appendix VII to the report. For instance our sections 58, 60 and 114 are,

respectively, exactly the same as sections 66, 68 and 123 of the draft bill. Now the

view and recommendations of the Spry Commission on the subject now at hand are

contained in paragraphs 177-184. It is D patently clear that the Commission rejected

the broad view and section 123 of the draft bill must, therefore, be taken to embody

or reflect that standpoint. Our Government White Paper No. 1 of 1969 - which

preceded the enactment contains nothing which suggests a difference between the

ideas of the Spry Commission and those of the authors of the White Paper. The E

White Paper has only a few words about the subject. It is the last sentence of

paragraph 19 and it merely says that:

"The proposed law should provide expressly that either spouse may

own his or her F own separate property which he or she owned before, or acquired

after, marriage". I am well aware that the Spry Report cannot be treated as authority

in any technical sense. But I find it valuable because it provides the background to

our Law and helps to discover the intention of the Legislature. I think I can treat the

background as strongly G indicating that our Legislature adopted the ideas and

philosophy contained in that report. It should, therefore, be inferred that the purpose

for which section 114 was enacted by our Legislature was not all that broad as

canvassed by the liberal school. It seems, from a historical perspective, that the

section was not designed to help a H married woman who has no property or has

failed to acquire any during marriage because of household duties. In other words, it

was not written into section 114 that a wife's marital status and duties should per se

make her a partner in the husband's I economic enterprises or gains. That in my

opinion, is the true construction of the section.

1983 TLR p42

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I am not of course saying that is good law. I am not for instance gainsaying the

fact that one of A the ills of the breakdown of marriage is the economic hardship

that a woman may have to suffer, where, as is common in Tanzania, the woman has

not acquired any property, and I think, therefore, that there is much to commend the

liberal viewpoint to serious reflection, and B consideration. What I am saying is that

the broad view does not comport with the history of the legislation and that the other

provisions of the Act would make little sense if that view is adopted. I am saying that

if the law is unsatisfactory the proper solution to the problem should C be legislative

rather than judicial.

We have, with respect, quoted Mapigano, J. at length because he appears to deal

adequately with the arguments in favour of the opposite views of the High Court and

D because we are satisfied that the narrow view is wrong and the broad view is

correct. We hereafter demonstrate what we mean.

Although it is correct to say that under English Law, the joint efforts or contributions

of E spouses is considered directly in relation to the welfare of the family rather than

directly in relation to the acquisition of matrimonial or family assets, we do not see

any difference between the effect of English Law and our Law on this issue since the

welfare of the family is an essential component of the economic activities of a family

man or women. So, it is proper to consider contribution by a spouse to the welfare of

the family as F contribution to the acquisition of matrimonial or family assets.

With regard to the fear that the broad view might result in a wife being "allowed to

benefit from a marriage which she has wrecked" we think, with respect, that it is

misguided because what is in issue is the wife's contribution or efforts towards the G

acquisition of matrimonial or family assets, and not her contribution towards the

breakdown of the marriage. Of course there may be cases where a wife's

misbehaviour may amount to failure to contribute towards the welfare of the family

and thus failure to H contribute towards the acquisition of matrimonial or family

assets; but this has to be decided in accordance with the facts of each individual case.

As to the alleged difficulties of making orders under section 114 along with orders

under section 115 of the Law of Marriage Act, we do not think that the provision of

these two I sections are contradictory or irreconcilable. It is apparent that the two

sections deal with different matters. Section 114 deals with the apportionment

1983 TLR p43

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of family assets and liabilities in general, whereas section 115 concerns assignment of

a A specific liability - that is, the liability to maintain a wife or former wife.

Moreover where a former husband is ordered to maintain his former wife after

divorce or separation, such an order amounts to a revenue producing asset vested in

the wife within the scope of the B second category of family assets as defined under

paragraph 1064 of Halsbury's Laws of England cited earlier on, and has to be taken

into account in the division of available matrimonial or family assets.

The point made is that the broad approach to the issue presupposed the existence of

C common ownership of matrimonial or family assets.

Contrary to the concept of separate ownership recognized under sections 58 and 60 is

not correct since the issue of division of matrimonial or family assets arises only when

the Court is granting or has granted a decree of separation or divorce but not

otherwise. D

As to the point to the effect that the broad view of the law on the issue is not

supported by authority existing before the enactment of the Law of Marriage Act, we

do not think that it is logical or sensible to take the absence of earlier authority as

precluding progress in the law of the Land. E

The argument that the broad view of the law amounts in effect to judicial legislation,

is not supportable since the court is not making or introducing a new rule in a blank

or grey area of social relations but is interpreting existing statutory provisions - that is

- the words "their joint efforts" and "the contributions made by each party in money,

property F or work towards the acquiring of the assets" used under section 114.

Undoubtedly, these provisions are not free from ambiguity. In such a situation the

court has to be guided by the established rules of construction of statutes. Mapigano,

J. used G the report of the Kenya Commission on the Law of Marriage and Divorce

which, it is said, was the basis of our Law of Marriage Act, 1971. We think such a

report should be used only as a last resort upon failure to make sense of these

statutory provisions on application of the normal rules of construction. H

One such normal rule of construction of ambiguous provisions is the MISCHIEF

RULE. Under this rule, the court, in looking for the true meaning of ambiguous

statutory provisions, is guided by the defect or mischief which the statute was enacted

to rectify or cure. On examination of the Law of Marriage Act, 1971, and the law as it

existed before I its enactment, one cannot fail to notice that

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the mischief which the Law of Marriage Act, 1971 sought to cure or rectify was what

A may be described as the traditional exploitation and oppression of married women

by their husbands.

It is apparent that the Act seeks to liberate married women from such exploitation

and oppression by reducing the traditional inequality between them and their

husbands in so B far as their respective domestic rights and duties are concerned.

Although certain features of traditional inequality still exist under the Act, such as

polygamous marriages, these do not detract from the over-all purpose of the Act as an

instrument of liberation and equality between the sexes. C

Guided by this objective of the Act, we are satisfied that the "joint efforts" and "work

towards the acquiring of the assets" have to be construed as embracing the domestic

"efforts" or "work" of husband and wife.

The other point of law for consideration and decision in this case is whether the

appellant D (former wife) is entitled to any share in the house in question. On the

facts established by the two courts below, it is apparent that the appellant's domestic

"efforts" or "work" consisted mainly in looking after the matrimonial home. She

neither cooked for nor E washed clothes for her husband nor did she make his bed

except on the few occasions when he was not travelling in ships abroad. Moreover the

couple had no children for her to take care of. As the respondent (former husband)

was frequently away from home while working as a Seamen, it is obvious that the

main beneficiary of such "effort" or F "work" was not the respondent but the

appellant herself who lived in the house. Of course this does not mean that her

domestic "efforts" or "work" was worthless. It is common knowledge that lack of care

of the house results in deterioration of such house.

The principles which guide a court in determining the shares of husband and wife in

G matrimonial or family assets are spelled out under sub-section 2 of section 114

which states.

(2) In exercising the power conferred by subsection (1), the court shall

have regard:

(a) to the custom of the community to which the parties belong, H

(b) to the extent of the contributions made by each party in money,

property or work towards the acquiring of the assets. I

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(c) to the needs of the infant children, if any, of the marriage, and

A subject to those considerations, shall incline towards equality of division.

On the established facts of this case, it would seem that the principles stated in (a) and

(b) are the only ones relevant case. The parties are Moslems, and it was established

that B as a Moslem (or at any rate according to their own sect of Islam) the

respondent is expected to give a parting gift to his former wife according to his

abilities. We are satisfied that such religious practice, which was undisputed, can

properly be construed C as a "custom of the community to which the parties belong".

The High Court found that the appellant was entitled to shs. 3,000/= under this head.

The record shows that she received the money in court. We find no reason to

interfere with this payment.

With regard to the principle stated under paragraph (b) of sub-section 2 of section

114, D it is evident that the extent of the appellant's contribution is indicated by her

"efforts" or "work" in looking after matrimonial home as against the respondent's

performance of his own part of domestic obligations towards the appellant. On the

established facts the respondent adequately provided for the maintenance and

accommodation of the E appellant. As a matter of fact, no complaint is made against

him in respect of performance of domestic duties towards his former wife. The

question arises whether this diligent performance of his own domestic duties can be

taken as disentitling the appellant from claiming a share in matrimonial or family

assets. We do not think so. The F correct approach is that husband and wife, in

performing their domestic duties are to be treated as working not only for their

current needs but also for their future needs. In the present case, the appellant, in

looking after the matrimonial home, must be regarded G as working not only for her

current needs but also for her future needs and such future has to be provided from

the matrimonial or family assets jointly acquired during the marriage in keeping with

the extent of her contribution.

On the facts of this case, the appellant was paid a sum of Shs. 18,000/= apparently H

when the spouses were still resident in Mombasa. The money was to be used by her

to set up some family business. She did not use the money for the purpose it was

intended. She apparently squandered it away. What is the significance of these facts?

There are two ways of looking at this situation. Firstly the money can be regarded as

an I advance made by the respondent

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towards the future needs of the appellant. Taking into account the nature of the A

appellant's contribution, the advance of shs. 18,000/= at the time was in our

considered view sufficient provision for the future needs of the appellant and she is

not entitled to claim a further share in the matrimonial or family assets. Secondly, the

squandering of B that money by the appellant when weighed against her

contribution, can be regarded as a matrimonial misconduct which reduced to nothing

her contribution towards the welfare of the family and the consequential acquisition

of matrimonial or family assets. As was said in the English case of Martin v Martin

[1976] 3 All ER. 629 by CAIRNS, L.J: C

...Such conduct must be taken into account because a spouse cannot be

allowed to fritter away assets by extravagant living or reckless speculation and then to

claim as great a share D of what is left as he would have been entitled to if he had

behaved reasonably.

We are satisfied that on this basis also, the appellant is not entitled to claim any share

in E the available matrimonial or family assets. So this leaves only the sum of shs.

3,000/= already paid and received in accordance with the religious custom of the

parties. In the final analysis therefore, this appeal fails and we hereby dismiss it.

Bearing in mind that this is a legal aid case, we see no reason to order the appellant to

pay costs. Each party therefore is to bear his or her own costs and we order

accordingly. F

Appeal dismissed.

1983 TLR p47

A