DARANGWA N.O DULY REPRESENTING ESTATE LATE KAURA DR 962/22 v MAKAIPA AND OTHERS (29 of 2026) [2026] ZWHHC 19 (9 January 2026)

4 HH 29-26 HCH7290/22 PATRICIA DARANGWA N.O DULY REPRESENTING ESTATE LATE VIOLA KAURA DR 962/22 versus ZIBUTE SAMUEL MAKAIPA and JOHN NYAMBI and REDCLIFF MUNICIPALITY and MASTER OF THE HIGH COURT and REGISTER OF DEEDS (N.O) HIGH COURT OF ZIMBABWE WAMAMBO J HARARE, 9 January 2026 Opposed Application L Ziro, for the applicant No appearance for the first respondent Ms A Chihombori, for the second respondent No appearance for the 3rd to 5th respondents WAMAMBO J: This is a Court application wherein the applicant seeks the following relief:- “1. The application for cancellation of the agreement of sale, cession and title deed be and is hereby granted. 2. The Agreement of sale and cession of rights regards House Number 19 Masvingo Road, Redcliff Kwekwe also known as Stand 659 Rutendo Township of Redcliff Townlands situate in the district of Que Que between the second respondent, third respondent and the late Lucious Kaura is hereby cancelled. 3. The title deed 577/2009 regards House Number 19 Masvingo Road, Redcliff Kwekwe also known as Stand 659 Rutendo Township of Redcliff Townlands situate in the district of Que Que registered with and issued by the fifth respondent is hereby cancelled. 4. House Number 19 Masvingo road, Redcliff Kwekwe also known as Stand 659 Rutendo Township of Redcliff Townlands situate in the district of Que Que is declared to form part of Estate late Violet Kaura DR 962/22 and the applicant and fourth respondent shall register and administer the immovable property as required by law. 5. The second and third respondents to pay costs of suit jointly or severally the one paying the other to be absolved.” Violet Kaura bought House number 19 Masvingo road, Redcliff also called Stand 659 Rutendo Township of Redcliff Townlands situate in the district of Que Que (hereafter called the property) from the first respondent. An agreement of sale was entered into by Violet Kaura and first respondent. However, before the completion of the cession rights Violet, Kaura died. After Violet Kaura’s death her son Lucious Kauara sold the property to the second respondent. An agreement of sale was signed between Lucious Kaura and the second respondent. Lucious Kaura in turn died on 12 December 2005. A certificate of authority had been issued to Lucious Kaura to administer and distribute Violet Kaura’s estate. Further and more poignantly the certificate of authority empowered Lucious Kaura to :- “Transfer the following shares sign all documents necessary for the transfer of House no 19 Masvingo Road Rutendo into self (sic).” The said certificate of authority was issued on 8 December 2003 by O Mudzonganiso representing the Master of the High Court. Second respondent completed the cession of rights to himself culminating in a title deed for the property being issued in his favour. The applicant is acting in her official capacity as executrix dative in the Estate of Violet Kaura D.R 962/22. Applicant avers that the cession of rights to second respondent and that the agreement of sale between Licious Kaura and second respondent was unlawful. Further that Lucious Kaura and second respondent skirted the administration of estates laws as Lucious Kaura had no authority from fourth respondent and that he could not transfer more rights than he held. It is further averred by applicant that Violet Kaura died intestate and had other children apart from Lucious Kaura. In the same vein third respondent is alleged to have unlawfully endorsed and confirmed the sale and cession of the property unlawfully. To that end the applicant seeks an order as reflected earlier in this judgment. I note here that only the applicant and second respondent were represented at the hearing while there was no appearance for the rest of the parties. First respondent however filed an affidavit confirming that he sold the property to Violet Kaura. Further, that he never transacted with second respondent. He avers that he will abide by the court’s ruling. The second respondent is opposed to the granting of the relief as sought by applicant. The second respondent raised a number of points in limine. One of them, however, fell by the wayside through a correction by applicant and a concession by second respondent. The letters of administration issued to applicant had been impugned for an apparent typographical error which was corrected by the issuing authority and is no longer a live issue before me in the circumstances. The following were the points in limine raised by the second respondent. It is averred that the founding affidavit is invalid because applicant does not attest that she has personal knowledge of the information contained or alternatively that she has verified the correctness of the information. In the heads of argument Ms Chihombiro for the second respondent relied in Rule 58(4) of the High Court Rules, 2021. Rule 58(4) of the High Court Rules, 2021 reads as follows: “(4) An affidavit filed with a written application- Shall be made by the applicant or respondent as the case may be, or by a person who can swear to the facts or averment set out therein and …” My reading of Rule 58(4) of the High Court Rules reflects that the person deposing to the affidavit should swear to the facts or averments. Applicant in this case established that she is the executor of the Estate of the late Violet Kaura. Her founding affidavit is clear that she is under oath and further that where she refers to the law she does so under the advice of her legal practitioners. She refers to attached documents and sets out the detailed background in motivating the application. She is a person who can swear to the facts in the circumstances. In that light I find this point in limine without merit and I dismiss it. As adverted to earlier the point in limine of lack of locus standi by applicant has since been abandoned by the second respondent. The next point in limine as per second respondent's heads of argument, is that of non-joinder. It is averred that the executor of the Estate Lucious Kaura and Jonathan Tawona Tsvangirai (the conveyancer) should have been cited I do not agree. I do not see the relevance of the Estate Lucious Kaura in this application. The transaction between Lucious Kaura and the second respondent occurred and was finalized during Lucious Kaura’s lifetime. I further cannot, discern what interest Lucious Estate would have in the circumstances of this application. Neither do I appreciate the citing of the conveyancer. The conveyancer has not been demonstrated to have any helpful contribution to the application as framed as a party. Non-joinder is in any case not fatal to the proceedings. I dismiss this point in limine. The next point in limine is that of prescription: - According to the second respondent the following factors prove that this application has prescribed -20 years have elapsed since the liquidation and distribution account was finalized and since Lucious Kaura was issued with a certificate of authority. 19 years have elapsed since Violet Kaura’s estate was wound up under DR KK 639/03. The record respondent has been in occupation and possession of the property for the past nineteen years. On Mr Ziro’s part for the applicant his response to the issue of prescription is short. It is to the effect that applicant was appointed an executrix in 2022 and that this application could only be made once an executor/trix was appointed. Mr Zinto further submits that a declarator does not prescribe. The case of Ndlovu v Ndlovu HH 18/13 was cited as authority. The facts of this matter however, appear different from those in the Ndlovu v Ndlovu case (supra) for there was no challenge of prescription raised against the plaintiff in that case. To the contrary prescription was raised by the plaintiff against the first defendant in that case. This is buttressed by the fact that the order granted in that case included clause (d) wherein the first defendant’s counter claim was dismissed after finding that the first defendant’s counter claim had prescribed. Closer to the circumstances of this case is the case of National Social Security Authority v City of Mutare HH 385-18 wherein Chikowero J found as follows at p 6:- “I am not being asked to decide whether the plaintiff is entitled to the remedy sought. All I am bearing asked to determine is whether the cause of action has prescribed. I have found that the plaintiff’s main claim is declaratory in nature. It is not susceptible to prescription.” The finding that a declarator is not subject to prescription accords with the submission by Mr Zinto. The order sought in this case is declaratory. It seeks in the main to have an agreement to sale and rights declared cancelled. In the circumstances I am in agreement with applicants submissions that the matter seeks a declaration of rights and is not subject to prescription. I accordingly dismiss this point in limine. The next point in limine raised is that there are material disputes of fact. Averments were made questioning various issues including the issue of when Violet Kaura’s beneficiaries became aware of the sale of the property effected by Lucious Kaura to second respondents, the ages of the beneficiaries, the inventory. The issue of the memorandum of cession preceding the certificate of dispute. I take a robust approach to the matter and find that the issues as raised can indeed be resolved without viva voce evidence at this stage. I say this in particular upon consideration of the relief sought. The relief sought entails that the gates will be open for oral testimony is any party is inclined to legal evidence. I dismiss this point in limine. Second respondent also raises the preliminary point trial that there is no causa for declaratory relief sought. It is averred that Rule 34 of the Rules relied on, by the applicant is misplaced. Rule 34 of the High Court Rules, 2021, indeed, deals with consolidation of actions and was erroneously cited by the applicant. Whilst errors such as this are discouraged it does not appear to me in the totality of the application that any party was prejudiced due to that error. I say so because the title to the application is clear, the draft order and the founding affidavit build a case for the relief as sought. There is also reference to s 8 of the Deeds Registries Act [Chapter 20:05] I also dismiss this point in limine. Lastly, as a point of law it was raised that the estate of Violet Kaura was registered at Kwekwe Magistrates Court and it was wound up. The Master thus became functus officio. The applicant if she was unhappy about the distribution of the estate her remedy would be to have the proceedings of the Kwekwe Magistrates Court set aside. Applicant instead sought to obtain other letters of administration for the same estate. Applicant’s response is that there is no evidence that the estate of Violet Kaura was wound up. That there is no final distribution account on record. Further, that if the sale is a nullity the court can properly deal with it. Indeed no evidence was proferred on record to prove that the estate of Violet Kaura was finalized. The ultimate result of the application, if one goes by the documents filed will ultimately deal with the estate as registered at Kwekwe. I also note her that there is correspondence reflecting that the relevant file could not be located at Kwekwe Magistrates Court. To that end I dismiss this point in limine. I move to the merits. It is common cause that Violet Kaura bought the property from the first respondent. The first respondent also confirms the same. How the property ended up being transferred to second respondent is not clear. The meetings, forms or representations were made by Lucious Kaura to the Magistrates Court, Kwekwe are not on record. What is on record is the certificate of authority. The file relating to that certificate of authority and other supporting documents is missing. If Violet Kaura had no real rights how then could her son acquire more substantive rights than her. The certificate of authority preceded the sale of the property. The second respondent emphasized that he bought the property in good faith. A lot has been made impugning the order sought. The order as sought seeks the cancellation of the agreement of sales and cession of the property, the cancellation of the title deed, the declaration that the property forms part of the Estate of Violet Kaura and costs. I am of the considered view that the transactions and transfers between Lucious Kaura and the seemed respondent was irregular and did not follow the proper legal procedures. On whose authority and in what capacity, Lucia Kaura obtained a certificate of authority culminating in second respondent gaining ownership of the property is unclear. In the circumstances of this case, I am of the considered view that the application is meritorious. The draft order contains an order of costs against the second and third respondents in para 5. Third respondent did not file opposing papers or appear at the hearing I see no reason to order costs against third respondent in the circumstances. To that end para 5 of the draft order shall relate only to second respondent to the exclusion of third respondent. I order as follows: Application be and is hereby granted in terms of the draft order as amended by the deletion of para 5 thereof to be substituted as follows: “The second respondent to pay costs of suit.” Wamambo J:……………………………………. Takandisa Law Chambers, applicants legal practitioners Sibanda & Partners, second respondents legal practitioners 4 HH 29-26 HCH7290/22 4 HH 29-26 HCH7290/22 PATRICIA DARANGWA N.O DULY REPRESENTING ESTATE LATE VIOLA KAURA DR 962/22 versus ZIBUTE SAMUEL MAKAIPA and JOHN NYAMBI and REDCLIFF MUNICIPALITY and MASTER OF THE HIGH COURT and REGISTER OF DEEDS (N.O) HIGH COURT OF ZIMBABWE WAMAMBO J HARARE, 9 January 2026 Opposed Application L Ziro, for the applicant No appearance for the first respondent Ms A Chihombori, for the second respondent No appearance for the 3rd to 5th respondents WAMAMBO J: This is a Court application wherein the applicant seeks the following relief:- “1. The application for cancellation of the agreement of sale, cession and title deed be and is hereby granted. 2. The Agreement of sale and cession of rights regards House Number 19 Masvingo Road, Redcliff Kwekwe also known as Stand 659 Rutendo Township of Redcliff Townlands situate in the district of Que Que between the second respondent, third respondent and the late Lucious Kaura is hereby cancelled. 3. The title deed 577/2009 regards House Number 19 Masvingo Road, Redcliff Kwekwe also known as Stand 659 Rutendo Township of Redcliff Townlands situate in the district of Que Que registered with and issued by the fifth respondent is hereby cancelled. 4. House Number 19 Masvingo road, Redcliff Kwekwe also known as Stand 659 Rutendo Township of Redcliff Townlands situate in the district of Que Que is declared to form part of Estate late Violet Kaura DR 962/22 and the applicant and fourth respondent shall register and administer the immovable property as required by law. 5. The second and third respondents to pay costs of suit jointly or severally the one paying the other to be absolved.” Violet Kaura bought House number 19 Masvingo road, Redcliff also called Stand 659 Rutendo Township of Redcliff Townlands situate in the district of Que Que (hereafter called the property) from the first respondent. An agreement of sale was entered into by Violet Kaura and first respondent. However, before the completion of the cession rights Violet, Kaura died. After Violet Kaura’s death her son Lucious Kauara sold the property to the second respondent. An agreement of sale was signed between Lucious Kaura and the second respondent. Lucious Kaura in turn died on 12 December 2005. A certificate of authority had been issued to Lucious Kaura to administer and distribute Violet Kaura’s estate. Further and more poignantly the certificate of authority empowered Lucious Kaura to :- “Transfer the following shares sign all documents necessary for the transfer of House no 19 Masvingo Road Rutendo into self (sic).” The said certificate of authority was issued on 8 December 2003 by O Mudzonganiso representing the Master of the High Court. Second respondent completed the cession of rights to himself culminating in a title deed for the property being issued in his favour. The applicant is acting in her official capacity as executrix dative in the Estate of Violet Kaura D.R 962/22. Applicant avers that the cession of rights to second respondent and that the agreement of sale between Licious Kaura and second respondent was unlawful. Further that Lucious Kaura and second respondent skirted the administration of estates laws as Lucious Kaura had no authority from fourth respondent and that he could not transfer more rights than he held. It is further averred by applicant that Violet Kaura died intestate and had other children apart from Lucious Kaura. In the same vein third respondent is alleged to have unlawfully endorsed and confirmed the sale and cession of the property unlawfully. To that end the applicant seeks an order as reflected earlier in this judgment. I note here that only the applicant and second respondent were represented at the hearing while there was no appearance for the rest of the parties. First respondent however filed an affidavit confirming that he sold the property to Violet Kaura. Further, that he never transacted with second respondent. He avers that he will abide by the court’s ruling. The second respondent is opposed to the granting of the relief as sought by applicant. The second respondent raised a number of points in limine. One of them, however, fell by the wayside through a correction by applicant and a concession by second respondent. The letters of administration issued to applicant had been impugned for an apparent typographical error which was corrected by the issuing authority and is no longer a live issue before me in the circumstances. The following were the points in limine raised by the second respondent. It is averred that the founding affidavit is invalid because applicant does not attest that she has personal knowledge of the information contained or alternatively that she has verified the correctness of the information. In the heads of argument Ms Chihombiro for the second respondent relied in Rule 58(4) of the High Court Rules, 2021. Rule 58(4) of the High Court Rules, 2021 reads as follows: “(4) An affidavit filed with a written application- Shall be made by the applicant or respondent as the case may be, or by a person who can swear to the facts or averment set out therein and …” My reading of Rule 58(4) of the High Court Rules reflects that the person deposing to the affidavit should swear to the facts or averments. Applicant in this case established that she is the executor of the Estate of the late Violet Kaura. Her founding affidavit is clear that she is under oath and further that where she refers to the law she does so under the advice of her legal practitioners. She refers to attached documents and sets out the detailed background in motivating the application. She is a person who can swear to the facts in the circumstances. In that light I find this point in limine without merit and I dismiss it. As adverted to earlier the point in limine of lack of locus standi by applicant has since been abandoned by the second respondent. The next point in limine as per second respondent's heads of argument, is that of non-joinder. It is averred that the executor of the Estate Lucious Kaura and Jonathan Tawona Tsvangirai (the conveyancer) should have been cited I do not agree. I do not see the relevance of the Estate Lucious Kaura in this application. The transaction between Lucious Kaura and the second respondent occurred and was finalized during Lucious Kaura’s lifetime. I further cannot, discern what interest Lucious Estate would have in the circumstances of this application. Neither do I appreciate the citing of the conveyancer. The conveyancer has not been demonstrated to have any helpful contribution to the application as framed as a party. Non-joinder is in any case not fatal to the proceedings. I dismiss this point in limine. The next point in limine is that of prescription: - According to the second respondent the following factors prove that this application has prescribed -20 years have elapsed since the liquidation and distribution account was finalized and since Lucious Kaura was issued with a certificate of authority. 19 years have elapsed since Violet Kaura’s estate was wound up under DR KK 639/03. The record respondent has been in occupation and possession of the property for the past nineteen years. On Mr Ziro’s part for the applicant his response to the issue of prescription is short. It is to the effect that applicant was appointed an executrix in 2022 and that this application could only be made once an executor/trix was appointed. Mr Zinto further submits that a declarator does not prescribe. The case of Ndlovu v Ndlovu HH 18/13 was cited as authority. The facts of this matter however, appear different from those in the Ndlovu v Ndlovu case (supra) for there was no challenge of prescription raised against the plaintiff in that case. To the contrary prescription was raised by the plaintiff against the first defendant in that case. This is buttressed by the fact that the order granted in that case included clause (d) wherein the first defendant’s counter claim was dismissed after finding that the first defendant’s counter claim had prescribed. Closer to the circumstances of this case is the case of National Social Security Authority v City of Mutare HH 385-18 wherein Chikowero J found as follows at p 6:- “I am not being asked to decide whether the plaintiff is entitled to the remedy sought. All I am bearing asked to determine is whether the cause of action has prescribed. I have found that the plaintiff’s main claim is declaratory in nature. It is not susceptible to prescription.” The finding that a declarator is not subject to prescription accords with the submission by Mr Zinto. The order sought in this case is declaratory. It seeks in the main to have an agreement to sale and rights declared cancelled. In the circumstances I am in agreement with applicants submissions that the matter seeks a declaration of rights and is not subject to prescription. I accordingly dismiss this point in limine. The next point in limine raised is that there are material disputes of fact. Averments were made questioning various issues including the issue of when Violet Kaura’s beneficiaries became aware of the sale of the property effected by Lucious Kaura to second respondents, the ages of the beneficiaries, the inventory. The issue of the memorandum of cession preceding the certificate of dispute. I take a robust approach to the matter and find that the issues as raised can indeed be resolved without viva voce evidence at this stage. I say this in particular upon consideration of the relief sought. The relief sought entails that the gates will be open for oral testimony is any party is inclined to legal evidence. I dismiss this point in limine. Second respondent also raises the preliminary point trial that there is no causa for declaratory relief sought. It is averred that Rule 34 of the Rules relied on, by the applicant is misplaced. Rule 34 of the High Court Rules, 2021, indeed, deals with consolidation of actions and was erroneously cited by the applicant. Whilst errors such as this are discouraged it does not appear to me in the totality of the application that any party was prejudiced due to that error. I say so because the title to the application is clear, the draft order and the founding affidavit build a case for the relief as sought. There is also reference to s 8 of the Deeds Registries Act [Chapter 20:05] I also dismiss this point in limine. Lastly, as a point of law it was raised that the estate of Violet Kaura was registered at Kwekwe Magistrates Court and it was wound up. The Master thus became functus officio. The applicant if she was unhappy about the distribution of the estate her remedy would be to have the proceedings of the Kwekwe Magistrates Court set aside. Applicant instead sought to obtain other letters of administration for the same estate. Applicant’s response is that there is no evidence that the estate of Violet Kaura was wound up. That there is no final distribution account on record. Further, that if the sale is a nullity the court can properly deal with it. Indeed no evidence was proferred on record to prove that the estate of Violet Kaura was finalized. The ultimate result of the application, if one goes by the documents filed will ultimately deal with the estate as registered at Kwekwe. I also note her that there is correspondence reflecting that the relevant file could not be located at Kwekwe Magistrates Court. To that end I dismiss this point in limine. I move to the merits. It is common cause that Violet Kaura bought the property from the first respondent. The first respondent also confirms the same. How the property ended up being transferred to second respondent is not clear. The meetings, forms or representations were made by Lucious Kaura to the Magistrates Court, Kwekwe are not on record. What is on record is the certificate of authority. The file relating to that certificate of authority and other supporting documents is missing. If Violet Kaura had no real rights how then could her son acquire more substantive rights than her. The certificate of authority preceded the sale of the property. The second respondent emphasized that he bought the property in good faith. A lot has been made impugning the order sought. The order as sought seeks the cancellation of the agreement of sales and cession of the property, the cancellation of the title deed, the declaration that the property forms part of the Estate of Violet Kaura and costs. I am of the considered view that the transactions and transfers between Lucious Kaura and the seemed respondent was irregular and did not follow the proper legal procedures. On whose authority and in what capacity, Lucia Kaura obtained a certificate of authority culminating in second respondent gaining ownership of the property is unclear. In the circumstances of this case, I am of the considered view that the application is meritorious. The draft order contains an order of costs against the second and third respondents in para 5. Third respondent did not file opposing papers or appear at the hearing I see no reason to order costs against third respondent in the circumstances. To that end para 5 of the draft order shall relate only to second respondent to the exclusion of third respondent. I order as follows: Application be and is hereby granted in terms of the draft order as amended by the deletion of para 5 thereof to be substituted as follows: “The second respondent to pay costs of suit.” Wamambo J:……………………………………. Takandisa Law Chambers, applicants legal practitioners Sibanda & Partners, second respondents legal practitioners