Halima Kahema vs Jayantilal G. Karia [1987] TZHC 40 (29 October 1987)


Mwalusanya, J.: The respondent Jayantilal G. Karia made an application at Nansio Primary Court in Ukerewe District, claiming the custody of an infant child, a boy called D Sunny aged more than one year. The child was born to the appellant Halima d/o Kahema with the respondent, out of wedlock.  When the application was made both  mother and father of the child were living separately in Ukerewe District.  The child at the time of the application was  under the custody of the appellant's parents at Mwanza. E
The application was not controverted at the trial, as the appellant mother readily admitted that she was not in a position to take care of the child who was then with her parents at Mwanza.  The admission was in writing and duly signed by her.  The trial court finding that the appellant mother had no objection to granting the custody of the F child to the respondent, unanimously granted the application.  That was quite proper as the welfare of the child required that the child be in the hands of either of the parents rather than the child's grandparents.
The  mother's appeal to the District Court was in my view rightly rejected.  As correctly G pointed out by the District Court, as the mother was not in the position to take care of the child, it was not in the interest of the welfare of the young child to remain with his grandparents when his father was fit and able to maintain him.
In the memorandum of appeal, the appellant has argued that there are material changes H in the circumstances of this case, to enable this court to vary the original order made by the Primary Court.  She said now she is ready to take the child and maintain him.  She also said that she is employed and has acquired her own accommodation at her new station in Mwanza. I
The answer to that submission is that the appeal is

misconceived.  Under s. 133 of the Law of Marriage Act. No. 5 of 1971, if there are any A material changes in the circumstances of the parties, after a custody order has been made, the aggrieved party has to apply to the same original court so that it varies its earlier order.  An appeal to a higher court will not do.  The original court has to be B satisfied that indeed in the meantime, there  has been material changes in the circumstances of the parties since the original order of custody was made, to warrant variation of the same.
The application could be in the same original case file; but one may choose to file a fresh application in the same court for variation of an original order.  And perhaps a fresh C application in a different court of concurrent jurisdiction will be proper so long as the applicant satisfies the court that there are material changes warranting a variation of an order made by another court.  But I am sure, an appellate court is not a proper forum for that prayer. D
In this case it appears highly probable that indeed there are some material changes in favour of the appellant mother.  This is because she is now ready to take the child instead of dumping it at her parents.  And moreover she has secured her own accommodation at her new station in Mwanza.  And thirdly it has all along been E conceded since the trial commenced that she is gainfully employed in the government with a reasonable salary.  And most important in favour of the mother is that the child is under seven years of age (infant he is only 1 year and three months old) there is a rebuttable presumption that it is for the good of an infant to be with his mother.  The F younger the child, as is the position here, the harder it is to rebut the presumption.  Let it be noted here that the question of legitimation of the child is irrelevant in the question of deciding the granting of the child.  Therefore the Primary Court and the District Court were to go out of their way in considerating the matter of legitimation of the child. G
In the event this appeal fails and it is dismissed.  As indicated earlier the appellant should go to the original court for an application for variation of its original order as provided under s. 133 of the law of Marriage Act No. 5 of 1971.  This is not the proper forum for H that prayer. I make  no order for costs for this appeal.
I Order accordingly.


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