PATRICK WILLIAM MAGUBO VS. LILIAN PETER KITALI CIVIL APPEAL NO. 41 OF 2019.

Abstract

(i) The court found that the respondent's petition for divorce before the trial court was incompetent for failure to comply with the requirement of section 101 and 106 (2) of the Marriage Act. It is the requirement of the law that the granting of the divorce should be subject to compliance with section 101 of the Act. That section prohibits the institution of a petition for divorce unless a matrimonial dispute has been referred to the Board and such Board certifying that it has failed to reconcile the parties. That means that compliance with section 101 of the Act is mandatory except where there is evidence of existence of extraordinary circumstances making it impracticable to refer a dispute to the Board as provided for under section 101 (f) of the Act. “Every petition for a decree of divorce shall be accompanied by a certificate by a Board, issued not more than six months before the filing of the petition..."

(ii) section 76 of the Marriage Act, vests concurrent jurisdiction in matrimonial proceedings to the Primary, District and High Courts. The said section states that: "Original jurisdiction in matrimonial proceedings shall be vested concurrently in the High Court, a court o f a resident magistrate, a district court and a primary court." The court observed that in terms of the above provision, there is no doubt that the Primary Court, the District Court and the High Court all have original jurisdiction to entertain a matrimonial proceeding.