MUPARARI v DHLIWAYO AND ANOTHER (13 of 2026) [2025] ZWSC 133 (20 November 2025)

**Judgment No. SC 13/26** **Civil Appeal No. SCB 92/25** 4 _**REPORTABLE**_**(13)** 1. **AZANIA MUPARARI (2) MOSES CHIBARO (3) HARUPERI MUTOMBA (NEE MUPARARI) (4) DZANISAI CHITANGA (NEE MUPARARI) (5) FLINT MUPARARI (6) ANGELA MUPARARI** **v** 1. **MUBAIRO DHLIWAYO (in his personal capacity and in his capacity as the executor of the Estate Late Javen Chibaro) (2) THE MASTER OF THE HIGH COURT N.O. (3) REGISTRAR OF DEEDS N.O.** **SUPREME COURT OF ZIMBABWE** **GUVAVA JA, MATHONSI JA & MUSAKWA JA** **BULAWAYO: 17 & 20 NOVEMBER 2025 ** _P. Dube_ , for the appellants _B. Dube_ with _I. Mupfiga_ and _G. Manyumbu_ , for the first respondent No appearance for the second and third respondents **GUVAVA JA:** 1. This appeal arises from the judgment of the High Court (“court _a quo_ ”) sitting at Bulawayo, under case number HCBC 934/24, handed down as judgment number HB 76/25 on 10 June 2025. In its judgment, the court _a quo_ upheld the special plea of prescription raised by the first respondent and dismissed the appellants’ claim for a declaratory order and ancillary relief with costs. 2. At the hearing and after hearing submissions the Court found no merit in the appeal and dismissed it with costs. It was indicated that reasons for the decision would be availed. These are they. _**FACTS**_ 3. The first, second and fifth appellants are male adults and the second, third and sixth appellants are female adults. The first to fifth appellants are all children of the late Jonah Chibaro, while the sixth appellant is the widow of the late Javen Chibaro. Javen Chibaro was the eldest son of the late Jonah Chibaro. The first respondent is a male adult and the son of the late Javen Chibaro and a stepson to the sixth appellant. The second respondent is the Master of the High Court of Zimbabwe, while the third respondent is the Registrar of Deeds. The second and third respondents are cited in their official capacities. 4. On 19 July 2024, the appellants issued summons in the court a _quo_ against the first respondent seeking a declaratory order and ancillary relief for the reopening of the estate of the late Jonah Chibaro registered under DR 707/85 with the Additional Master of the High Court at Harare. The appellants further sought the revival of the original Deed of Transfer Number 1208/57 which was in the name of the late Jonah Chibaro, the cancellation of Deed of Transfer Number 2642/1988 in the name of the late Javen Chibaro and Deed of Transfer Number 5716/2015 in the name of the first respondent. 5. In their declaration to the summons the appellants averred that the late Jonah Chibaro was the registered owner of a farm known as Mshawasha 14 situate in the District of Victoria which he held under Deed of Grant No. 1208/57 (‘the farm’). They further averred that the Late Jonah Chibaro conducted his life in terms of Shona tradition and custom. They further averred that during his lifetime, he had parcelled out undivided shares of his farm to all his male children and indicated that each child could build their homesteads thereon. It was stated that the sons had indeed built their homesteads on different parts of the farm. 6. It was further alleged that sometime during his lifetime, the late Jonah Chibaro made an oral will which was witnessed by his sons, one Niclas Mupandarima and Tadios Murindi (both now late). In terms of the oral will, the farm was bequeathed to all his children and descendants for their exclusive benefit in accordance with the various undivided pieces of land he had allegedly parcelled out to them. Jonah Chibaro passed away on 13 February 1985. It was further alleged that after his death and on 28 April 1985, a meeting was convened by his surviving children and family members. The meeting was held to discuss the distribution of the late Jonah Chibaro’s estate, the running of his farm as well as the appointment of a family leader. The late Javen Chibaro, as the eldest son, was then appointed at the meeting as the leader and to oversee the farm and take care of the family. 7. It is not in dispute that following this meeting, and on 28 December 2020, Javen Chibaro registered the estate of the late Jonah Chibaro under DR No 707/85 and was appointed as executor. He transferred the farm into his name under Deed of Transfer Number 2648/88. He subsequently donated the farm to his eldest son, the first respondent herein, and transferred it to him under Deed of Transfer Number 5716/2015. The appellants allege in the declaration that upon Javen Chibaro’s death they understood it to mean that the first appellant became the eldest surviving child of the late Jonah Chibaro and was entitled to take over the running of the farm. They, together with other elders in the family, resolved to register the estate of the late Jonah Chibaro and appoint the first appellant as executor of the estate. Their intention was to have the farm registered in the name of a trust so that all the members of the family could benefit. The first appellant duly registered the estate under DRB Number 3577/21 and he was subsequently appointed as executor dative. On or about 15 March 2023, while trying to finalise the estate, it was alleged that the first appellant discovered that the estate of the late Jonah Chibaro had been registered by the late Javen Chibaro during his lifetime under DR No. 707/85 and that he had been appointed executor dative on 30 March 1988. He also discovered that the farm had been transferred into the name of the late Javen Chibaro. 8. The appellants averred that the estate of the late Jonah Chibaro was wound up contrary to his express wishes which he had communicated during his lifetime through the oral will. On this basis it was alleged that the transfer of the farm to the late Javen Chibaro was fraudulent and improper and should be set aside. 9. On 15 August 2024, the first respondent entered an appearance to defend and filed a special plea of prescription. He averred that any objections to the registration and winding up of the estate of the late Jonah Chibaro ought to have been made within three years from the date upon which the second respondent wound up the estate. He averred that the appellants had an opportunity to object to the distribution of the estate as the first and final distribution account was published in terms of the law. It was his position that the appellants had not done anything to assert their rights and enforce the alleged oral will from the time the late Jonah Chibaro had passed away on 13 February 1985. 10. He further averred that the transfer of the farm into his name was by way of a donation by his father who had inherited it from the late Jonah Chibaro. Finally, he asserted that the appellants had filed their summons 39 years after the winding up of the estate of the Late Jonah Chibaro and the transfer of the farm into the name of the heir, being Javen Chibaro, in accordance with customary law. He averred that even after the property had been transferred into his name in 2015, a period of 9 years had lapsed, and the appellants had not acted. As such their claim had prescribed as the three-year period allowed by the Prescription Act [_Chapter 8:11_] (‘the Prescription Act’) to make a claim had lapsed. _**BEFORE THE COURT**_ __**A QUO**__ 11. At the hearing before the court _a quo_ , the parties agreed, as is required by law, to address the special plea of prescription through the leading of oral evidence before delving into the merits. The first respondent and the first appellant testified for the two opposing sides. 12. In determining the special plea, the court _a quo_ found that the first appellant’s admission that he never sought to inquire into the status of the farm for over three decades was not reasonable. It further found that the fact that he only sought to register the estate in 2021 after Javen’s death in 2020 contradicted his assertion of ignorance and instead showed ‘a longstanding wilful blindness or acquiescence’ to the true facts on the ground. The court _a quo_ also found that the doctrine of laches was applicable in the case, as the appellants did not act from 1985 to 2021, despite knowing that Javen had sole occupation and control of the farm. It noted that the appellants were not incapacitated, misled or obstructed from acting and were present in Zimbabwe and ought to have been diligent in seeking to enforce the oral will and their claim to the farm. 13. The court also found that in the circumstances, the appellants either knew or ought to have known about the disputed estate registration and transfers as far back as 1988. The court _a quo_ accordingly held that the delay of 39 years in instituting proceedings was not only unreasonable but prejudicial to the first respondent, who had held title to the farm since 2015 and was now facing claims based on an undocumented oral will which lacked any corroborative evidence except the first appellant’s mere say so. In the result, the court _a quo_ upheld the special plea of prescription and dismissed the appellants’ claim. 14. Dissatisfied with the decision of the court _a quo_ , the appellant lodged the present appeal to this Court premised on five grounds of appeal. An examination of these grounds reveals that the appeal hinges on a single issue for determination, namely whether the court _a quo_ erred in finding that the appellants’ claim had prescribed. _**SUBMISSIONS BEFORE THIS COURT**_ 15. Counsel for the appellant, Ms _Dube_ , motivated the appeal on the basis that the appellants were unaware that the late Javen Chibaro had registered and transferred their father’s estate into his own name. Counsel submitted that it was reasonable that it took the appellants over 39 years to register the estate of the late Jonah Chibaro as they believed that they all had a right to enjoy the farm as per the terms of the oral will. Counsel maintained that the family had agreed that Javen Chibaro, being unemployed and the eldest child, could stay on the farm and take care of the entire family. It was counsel’s argument that this arrangement did not in itself mean that he could process transfer of the farm to his name and by extension to his son, the first respondent. Counsel contended that the court _a quo_ erred in failing to accept the first appellant as a credible witness and in not finding his version of events to be reasonable and persuasive, thereby warranting the dismissal of the special plea of prescription. 16. On the other hand, counsel for the first respondent, Mr _Dube_ , argued that the court _a quo_ correctly concluded that the claim had prescribed as the evidence led at the trial had shown that as far back as 1985, when their father died, the appellants were aware that there was need for registration of his estate for proper management of the farm as there was an oral will. Counsel further argued that the court _a quo_ dealt with the issue of the oral will and correctly concluded that it could no longer advance the appellants’ claim as all those who were present when the said oral will was made were now deceased. _**ANALYSIS**_ 17. It is clear from a reading of the judgment of the court _a quo_ that it made findings of facts and credibility based on the evidence led by the parties. The court _a quo_ disbelieved the evidence of the first appellant and found that he was not a credible witness. In its analysis it found that; “The delay in action until the brother had died makes the plaintiff’s credibility in his argument that he had no knowledge of the 1988 administration of the estate questionable.” 18. The court _a quo_ believed the testimony of the first respondent that the appellants were aware of the registration of the estate by Late Javen Chibaro and subsequently to himself and on that basis found that appellants’ claim had prescribed. It is apparent from the grounds of appeal and the submissions made by counsel that before this Court the appellants’ have not challenged the factual findings made by the court _a quo_ or the finding of credibility of the witnesses. In fact, the grounds of appeal do not even begin to lay a legal foundation for interference, on appeal, with both the factual and credibility findings of the trial court. It is trite that an appellate court will not interfere with the factual findings of a lower court unless such findings are grossly irrational. In _Ngirazi & Anor_ v _Rensburg & Others_ SC 89/21 the Court reiterated this principle as follows: “It is sometimes said that for the appellate court to interfere with factual findings such finding must be irrational. The finding complained of must be so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his or her mind to the question to be decided could have arrived at such a conclusion. See _Hama_ v _National Railways of Zimbabwe_ 1996 (1) ZLR 664 (S) at 670 C-E; _Metallon Gold Zimbabwe_ v _Golden Million (Pvt) Ltd_ SC 12/15.” 19. The Supreme Court of South Africa in _Santam Bpk_ v _Biddulph_ 2004 (5) SA 586 (SCA), at para 5, commenting on the test to be applied by an appellate court in analysing the findings of credibility of a witness by a lower court remarked that: “Whilst a court of appeal is generally reluctant to disturb findings which depend on credibility it is trite that it will do so where such findings are plainly wrong (_R_ v _Dhlumayo and Anor_ 1948 (2) SA 677 (A) 706). This is especially so where the reasons given for the finding are seriously flawed. Over-emphasis of the advantages which a trial court enjoys is to be avoided lest an appellant’s right of appeal ‘becomes illusory’ (_Protea Assurance Co. Ltd._ v _Casey_ 1970 (2) SA 643 (7) 648 D-E and _Munster Estates (Pty) Ltd_ v _Killarney Hills (Pty) Ltd_ 1979 (1) SA 621 (A) 623H-624A). It is equally true that findings of credibility cannot be judged in isolation but require to be considered in the light of proven facts and the probabilities of the matter under consideration.” 20. This Court does not, in the exercise of its appellate jurisdiction, undertake an assessment of the rationality of a lower court’s factual findings in a vacuum nor does it assess the credibility of a witness in isolation or without the proper evidential context. Such an inquiry is not embarked upon _mero motu._ The Court may only engage in that exercise where it has been expressly invited to do so by the appellant through grounds of appeal that specifically seek to impugn the factual findings of the lower court. 21. In the present matter, counsel for the appellant, with commendable candour, conceded that none of the five grounds of appeal assail the factual determinations made by the court _a quo_ , or challenge its conclusion that the evidence of the first respondent was more credible than that of the first appellant. Accordingly, the determination of whether the court _a quo_ correctly held that the claim had prescribed must proceed on the premise that its factual findings that the appellants were aware of the registration of the estate by Javen and that they chose to do nothing about it stand unchallenged. 22. The court _a quo_ found that the first appellant knew of his father’s death in 1985, that he participated in his death rights and post-burial meetings which appointed his brother to oversee the farm. He did nothing to enforce the alleged oral will for over three years and even after the 1988 transfer of the farm to Javen Chibaro and from Javen Chibaro to his son in 2015. The failure by the first appellant to make his claim for the farm within three years from the time when his brother transferred the farm to his own name in 1988, resulted in the claim becoming prescribed. 23. Section 15 (d) of the Prescription Act provides that a debt, except where statute provides otherwise, shall prescribe after three years. Section 2 of the Act goes on to define a debt as being, “… anything which may be sued for or claimed by reason of an obligation arising from statute, contract, delict or otherwise.” [24] The question of when prescription begins to run is provided in s 16 of the Prescription Act wherein it is provided that: “(1) Subject to subss (2) and (3), prescription shall commence to run as soon as a debt is due. (2) If a debtor wilfully prevents his creditor from becoming aware of the existence of a debt, prescription shall not commence to run until the creditor becomes aware of the existence of the debt. (3) A debt shall not be deemed to be due until the creditor becomes aware of the identity of the debtor and of the facts from which the debt arises: Provided that a creditor shall be deemed to have become aware of such identity and of such facts if he could have acquired knowledge thereof by exercising reasonable care.” [25] From the evidence before the court _a quo_ the late Jonah Chibaro passed away in 1985. Upon his death, his children held a meeting and discussed his estate and resolved that the late Javen Chibaro would take over the farm and look after the family. The record shows that nothing was done to enforce the oral will which they allege was made by the late Jonah Chibaro before he died. Clearly, by the first appellant’s own evidence, the late Javen Chibaro took over the farm by the mutual agreement of the entire family. When he passed away in 2020, his son, the first respondent took over the farm which he had received from his father as a donation in 2015. From the time when Jonah Chibaro died to the time the appellants sought to register his estate in 2021, a period of over 36 years had lapsed. [26] Indeed it must be noted that the law in 1985, when the late Jonah Chibaro died, allowed only the eldest male child to inherit immoveable property in a deceased estate in his personal name. By agreeing, as a family, to let the late Javen |Chibaro control the farm the appellants had themselves failed to implement the terms of the so called oral will which they were now seeking to rely on. It was indeed foolhardy of them to seek to implement an oral will 36 years after the death of the deceased. The claim had long prescribed. _**DISPOSITION**_ [27] By 1988, the appellants’ cause of action had arisen, and by 1991, the claim had prescribed. The court _a quo_ correctly found the evidence of the first respondent to be credible and reliable. The first appellant was aware of the oral will at the time of the death of the late Jonah Chibaro. Had they wished to enforce it they would have done so at that stage instead of agreeing to appoint Javen to look after the farm and the family. On these facts there can be no doubt that the appellants had no legal ground to seek to resuscitate a cause of action that had arisen 36 years ago. The allegation of fraud in registering the estate by Javen Chibaro was a mere red herring as it had no basis in view of the agreement that the family arrived at to place him in charge of the running of the farm. In light of these findings the appeal stands to be dismissed. [28] Regarding the costs of this appeal, counsel for the first respondent sought an order for costs on a legal practitioner and client scale. In response, counsel for the appellants submitted that there were no exceptional features in the appeal warranting punitive costs, as the appellants were _bona fide_ in seeking their claim to the farm. The appellants’ appeal was neither frivolous nor an abuse of the court process. Accordingly, an order for punitive costs is not warranted. [28] It was for these reasons that the Court made the following order: “The appeal be and is hereby dismissed with costs.” **MATHONSI JA :** I agree **MUSAKWA JA :** I agree _Calderwood, Bryce Hendrie & Partners, _appellants’ legal practitioners. _Gundu Dube & Pamacheche_, 1st respondent’s legal practitioners.