EXIM BANK TANZANIA LIMITED VS. YAHAYA HAMISI MUSA (As the Administrator of the Estate of the Late HAMISI MUSA MOHAMED t/a AND ANOTHER CIVIL APPEAL NO. 275 OF 2019.

Abstract

1. In the light of the stated position of the law, although a suit preferred against a dead person is a nullity it is as well incompetent and not capable of being dismissed. Given the circumstances, the proper remedy herein was to strike out the suit instead of dismissing it so as to enable the appellant a chance to file a suit against the legal representative of the deceased.

2. It was thus, incumbent on the trial court before the preliminary objection was raised to engage parties on the propriety or otherwise of the suit instituted against a dead person so as to make necessary orders which was not the case. In the premises, it is our considered view that, it was not warranted to condemn the appellant to suffer costs following the dismissal of the suit which was in itself erroneous