Makame, J.A.: The appellant Auguster Samanje was advocated for by Mr. Kisusi, C learned Counsel, while the respondent, Mussa Mohamed Pemba, who did not wish to be present, was unrepresented.
The appellant successfully sued for diverse in the Primary Court. It was also decided by the Primary Court that the applicant should get 50% of all the matrimonial assets, and D the respondent's appeal against that decision was dismissed by the District Court. On further appeal to the High Court, it was decided that the applicant should get only a small portion of the matrimonial assets, not 50% as ordered by the two courts below. Maina, J. who made that decision, later heard the present applicant's application for E leave to appeal to the Court of Appeal and refused to grant such leave. He said that he had made the variation because of the undisputed fact that the present applicant's contribution to the acquisition of the matrimonial assets was less than that by her former F husband, the respondent. The learned judge refused leave on the basis that there was no question of law involved, a pre-requisite under section 4(2) (c) (Sic) of the Appellate Jurisdiction Act, 1979.
The applicant contended that she contributed services and money even towards the improvement of the property she found the respondent with, and that this should have G been taken into account by the High Court in terms of section 114.
Mr. Kisusi also argued that in basing himself on section 4(2) (c) of the Appellate Jurisdiction Act the learned judge overlooked section 80(4) of the Law of Marriage Act 1971, which says: H
.... Any person aggrieved by a decision or order of the High Court in its appellate jurisdiction may appeal therefrom to the Court of Appeal (for East Africa) on any ground of law or mixed law and fact. I
Counsel submitted that Maina, J. was not entitled to upset the concurrent award by A the two courts below.
I decided to set out the foregoing by way of background only, as it will soon be clear.
Reference to Section 4 of the Appellate Jurisdiction Act by the learned High Court B judge was obviously lapsus calami, and by learned Counsel lapsus linguae. The old section 4, which would have been the relevant one, became the current section 5 when Act No. 16 of 1984 was passed. The intended section was therefore section 5(2) (c) and it is about that I now wish to say something. The High Court Ruling was delivered C on 20th February, 1990.
This matter started in the Primary Court. Under section 5(2) (c) no appeal shall lie to the Court of Appeal if the matter started in the Primary Court unless the High Court certifies that point of law (or, by necessary extension, a point of mixed law and fact) is involved. D Only the High Court may so certify - there is no concurrent jurisdiction like under section 5(1)(c). Section 5(1)(c) is excluded by section 5 (2) which applies "Notwithstanding the provisions of subsection (1) ..."
What has been introduced by section 80(4) of the Law of Marriage Act is the E dimension that even on a ground of mixed law and fact a person may appeal to the Court of Appeal. It is in that sense less restrictive, but I do not read that to mean that one may automatically come up. It would still have to be determined whether there was a point of law or mixed law and fact, and only the High Court has power to identify such F a point in the first instance.
The implication must be that that the applicant could only come up by way of appeal to the full court against the order refusing to grant leave, and not by way of a second application to the single judge. It follows therefore that the application before me is misconceived and it is hereby accordingly dismissed. The applicant may wish to G pursue matter elsehow as the substantive merit of his effort is not determined by the present decision.
H Order accordingly.
A
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