Q&A – 29 May 2023

/in /by

Enforcing decree in favour of deceased person

Our mother successfully sued a person who called her a prostitute. However she died immediately after lodging the application for execution. Can the administrator of her estate continue the application for execution of the decree? Please guide us because we are getting advice that since our mother who was personally defamed is dead, the administrator of the deceased estate cannot enforce the decree.
JK, Kigoma

It is the law that where a decree-holder dies pending execution of the decree in her or his favour, the administrator of the estate is entitled to apply for execution or to continue the execution of the decree by substituting the name of the deceased for the name of the administrator and such an application is not to be considered as a fresh suit. Therefore, a legal representative of your mother (the decree-holder) may continue the application for execution lodged by her. To put it clear, a legal representative of a defamed person who dies after getting a judgement in his/her favour, has the right to lodge or continue the application for execution in favour of the deceased estate since in law, a decree is regarded as a part of the estate left by the deceased which is capable of being inherited.

It is a suit based on defamation which cannot be instituted by a legal representative of the defamed deceased. Where a person is defamed but he/she dies before instituting a suit, his/her legal representative cannot file a suit of defamation because defamation is a wrong of personal nature which does not survive after death of a person defamed. In law, a right of action founded on defamation is governed by the principle of ‘actio personalist monitor cum persona’ meaning that a person’s right to sue for defamation dies with him.

It is the suit of defamation and not execution of a decree arising from a suit of defamation which cannot be filed by a legal representative of the deceased. You should guide the legal representative of your mother to proceed with the execution.

Stealing or concealing a Will

My father died one year ago at the age of sixty five. He left two wives, my mother and my step mother whom he engaged with for about ten years before his death. He is survived by five children from my mother and a young boy from my step mother. Before his death my father used to tell us that he prepared his last Will in his late 50s. After his death, we tried to get the said Will, but in vain. There is evidence that it is my step mother who stole the Will and then conspired with our uncle to conceal it with an intent of altering its contents in their favour. What do you advise us to do?
MT, Kibaha

Stealing a Will is a crime and is punishable under section 266 of the Penal Code. The section provides that where the thing stolen is a testamentary instrument, whether the testator is living or dead, the offender is liable to imprisonment for 10 years. Also, section 277 of the Penal Code makes concealment of a Will an offence, as it states that any person who, with intent to defraud, conceals any testamentary instrument, whether the testator is living or dead, is guilty of an offence and is liable to imprisonment for 10 years. Therefore, if you have cogent evidence, you can report the matter to the police for them to initiate a criminal investigation against your step mother and your uncle. You then may have to appear in Court to prove the case with your cogent evidence. If proved beyond reasonable doubt, your step mother and your uncle are liable for imprisonment for 10 years each.

Compensation for lost baggage

My daughter is pursuing secondary education. In her last mid-term vacation, while traveling back to school by bus, a distance of about 100km, her bag was lost. In fact, when she disembarked from the bus, she found a bag similar to hers but the contents inside were different. She asked the bus conductor who recalled that there was a passenger who disembarked on the way before who might have taken a similar bag. There were more valuable items in my daughter’s bag compared to the junks she found in this bag. What legal action can my daughter take against the bus owner and his conductor?
TK, Arusha

It seems the bus conductor who was acting for the bus owner did not tag the two similar bags with identities of the passengers as required by the law. It is an offence under the Transport Licensing (Public Service Vehicles) Regulations, 2020 not to tag luggage with similar identities.  The Regulations requires a licensee, a bus owner in this case, in case of inter-city and inter-national public service vehicle to tag a passenger’s luggage and provide the passenger with a luggage identity tag bearing the name of the passenger and the final destination to ensure that passenger’s luggage is kept safe, secured and delivered to the passenger upon reaching the final destination. Where the passenger’s luggage is lost or damaged, the bus owner is bound to compensate the luggage or pay such amount of money equivalent to the value of the lost luggage to the passenger within 30 days from the date of reporting the incident and submission of the proof of lost item.

Your daughter is thus entitled to be compensated but the compensation shall be subject to proof of the value of the lost bag including the valuable items. You should note that under regulation 38(1), a passenger has a duty of declaring any valuable item carried in the checked in luggage. Compensation will be easily determined in case she abode to the said Regulations. We suggest you lodge a complaint with the Land Transport Regulatory Authority for enforcement of her rights in case the bus owner is adamant to pay.