Q&A – 16 August 2021

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Wife stole my money

My wife stole money from my pocket when I was taking a short nap. In law can a wife be charged for stealing from a husband? Can I petition for divorce on grounds that my wife stole my money? Is stealing recognised as a ground for divorce? 
OL, Babati

Before we start answering your question, you have not told us whether or not the money in your pocket was your money, your wife’s money (yes men also use their wives money) or someone else’s money. It is not always true that the money in one’s pocket is that persons money. Here it clear that it was your pocket but your question is not 100% clear on whose money this was. However, for purposes of answering your question we assume that the money in your pocket was your money.

Section 264 of the Penal Code [Cap.16 R.E 2019] declares that a husband can steal from a wife and a wife can also steal from a husband. Therefore a wife can be charged and prosecuted for stealing from a husband and likewise a husband can be prosecuted for stealing from the wife.

Further, section 107(2) of the Law of Marriage Act [Cap.29 R.E 2019] does not specifically mention stealing by a spouse as ground for divorce. However, in deciding whether or not to grant a decree for divorce, Courts are enjoined by section 107(1) and 108(a)(d) of the Law of Marriage Act to consider either the proof of the grounds for divorce mentioned in section 107(2) of the Law of Marriage Act or proof of any relevant evidence regarding the conduct of the parties to the petition for divorce and circumstances of a particular case which show the marriage has broken down irreparably.

Theft by a spouse can be a ground for divorce provided it is proved by the party petitioning for divorce that following theft by a spouse, the relationship between the spouses has turned sour, and the continued relationship is intolerable thus the marriage has broken down irreparably due to the theft.

Tooting horn unreasonably

While driving I tooted horn to alert the driver in front of me who was driving slowly to speed up. A traffic police who was also in front of me stopped me and alleged that it was wrong for me to toot. Is it an offence to toot?
FM, Dar

Section 39B(1)(2) of the Road Traffic Act [Cap.168 R.E 2002] and regulation 39(3) of the Traffic Regulations allow tooting in very exceptional circumstances. Tooting horn is allowed only where it is necessary to do so in order to attract the attention of other road users to avoid or prevent a danger or giving a warning to another road user to avoid the dangerous approach or position which he or she is trying to take. Even where a driver toots horn to avoid or prevent danger, the tooting should not be excessive that is likely to be a nuisance or causing annoyance to other road users or people who live near the road.

In short it is an offence to toot horn unreasonably. What is unreasonable and what is not varies on the circumstances. Tooting horn to force a driver in front of you to speed up is an offence because the intention is not avoid or prevent an accident, unless you can prove otherwise.

A divorced spouse continues to use NHIF beneficiary card

I was married to a public servant but we have now divorced. My spouse is a NHIF member and I have a NHIF beneficiary card given to me as a spouse of the member. Despite the divorce, my former spouse has not demanded the return of the NHIF card. Am I allowed to continue using the NHIF despite not being the spouse of the NHIF member?
SA, Mpanda

Under section 11 of the National Health Insurance Act [Cap.395 R.E 2015] a member of NHIF is covered with her/his spouse. Once someone ceases to be a spouse, she/he is disqualified from holding and using NHIF beneficiary card as a spouse. It is the duty of the member to return the beneficiary identification card of the divorced spouse to the Fund. It is an offence under regulation 7(4) of the National Health Insurance Regulations, 2002 as amended by Government Notice No.11 of 2010 to use an unreturned card for the purpose of obtaining health services.

Landlord selling tenant’s car to recover rental arrears

My tenant who is a foreigner left the country for abroad where he stayed for four years before returning to the country. Before he left the country he said he would stay there for only 1 week. To assure me that his stay abroad would be short, he left with me his car together with the ignition key. Since he owed me a full years’ rent and I was not sure when he would return, I decided to sell his car to recover the rent. He came back just a week ago and has reported me to the police for stealing his car. Do I have any defence I can raise?
PP, Dar

Section 9 of the Penal Code [Cap.16 R.E 2019] provides a defence to a person who sells a property of another if the sale was done in exercise of an honest claim of right and without intention to defraud. A landlord who sells the property of his tenant to recover his rent can raise the defence of bonafide claim of right that he sold the property of the tenant because the tenant defaulted to pay rent. However, for the defence to be accepted it must appear to the Court that the landlord sold the car on genuine belief that he was recovering his rent. Unless there is something you have concealed from us, you seem to be in a position of a good defence.