E Mfalila, JA, delivered the following considered judgment of the Court:
This is a third appeal from the decision of the Primary Court of Ilabo district at F Bwquauni. In that court, the present respondent Renato Mashayo sued the appellant for divorce and division of assets in the form of a dwelling house acquired while they were cohabiting. The Primary Court found the respondent's claim established and granted the reliefs sought namely dissolution of marriage and equal division of the dwelling house. The appellant successfully appealed to G the district court which held that as the appellant had rebutted the presumption that they were duly married, there was no marriage to dissolve and that therefore the question of dividing matrimonial assets acquired during marriage did not arise. The respondent was therefore as it were condemned to get out of the eight year H relationship with the appellant empty handed. She fought back and successfully appealed to the High Court where Bahati,J held that although the presumption under s 160(1) of the Law of Marriage Act had been rebutted, the respondent still had some residual rights to property under s 160(2) of the Act which empowers the court, upon rebuttal under ss (1) of the same and upon the woman satisfying the court (as she did in this case) that she I
and the man did in fact live together as husband and wife for two years or more, A
`to make order or orders for maintenance and upon application made therefore either by the woman or the man, grant such reliefs including custody of children as it has jurisdiction under this Act to make or grant upon or subsequent to the making of an order for the dissolution of a marriage or an order of separation as the court may think fit, and the provisions of this Act B which regulate and apply to proceedings for and orders of maintenance and other reliefs under this section.' C
The learned judge then allowed the appeal, set aside the judgment and orders of the district court and restored those of the Primary Court. The appellant Hemed S Tamin applied for leave to appeal to this court arguing that there was an important point of law involved which cried for determination by this court. The Judge (Kyando, J) who heard this application and granted it, certified the following point of law for determination by this court: D
`Whether the respondent was entitled in law to a share of assets in the circumstances of this case.' E
We think the law on this point is quite clear under s 160(2) of the Law of Marriage Act 1971 on which Bahati, J based his decision. It was held by all the courts that on the evidence, the appellant and the respondent had lived as husband and wife for eight years in the course of which they acquired the house at Kiwalani. Both the F District court and the High Court found that the presumption under s 160(1) had been rebutted but the High Court held correctly that following this rebuttal the court had the power and jurisdiction to make the same consequential orders as in the dissolution of marriage or separation. The order for division of matrimonial assets G is one such order, consequently the learned judge ordered equal division of the house at Kiwalani which was acquired by the parties during or in the course of their relationship. However, having found that the parties were not duly married, the learned judge should not have ordered the restoration of the Primary Court order H regarding the dissolution of marriage, for quite obviously there was no marriage to dissolve. Consequently the order of dissolution of marriage upheld by the High Court is set aside.
Apart from this variation in the High Court judgment, the appeal is otherwise dismissed with costs. I