Adonia Makombe and Others v Gushungo Holdings (Private) Limited and Others

The applicants had obtained an order in case HC 5860/18 granting them restoration of possession of their plots and eviction of persons claiming occupation through the 5th respondent. The first, second and third respondents appealed against this order. The applicants then filed an application for leave to execute the order pending appeal, which was set to be heard on 30 October 2019. However, on 1 October 2019, counsel for the first to third respondents notified the court by letter that the second respondent (Robert Gabriel Mugabe, a former Head of State) had passed away. The estate was still in the process of being registered and an Executor had not yet been appointed. Counsel requested that the matter be held in abeyance pending the appointment of an Executor who could properly prosecute the matter on behalf of the estate.

• Whether the court should take judicial notice of the death of a former Head of State
• Whether a matter should be removed from the roll pending appointment of an Executor to substitute a deceased party
• The proper procedure for substitution of a deceased party under Order 13 Rule 85A of the High Court Rules
• Whether a formal chamber application for substitution is required before a matter can be removed from the roll

1. The matter is removed from the roll pending appointment of Executor to the Estate of the 2nd respondent and the lodgment of the chamber application for his replacement in case HC 1263/19. 2. There is no order as to costs.

Under Order 13 Rule 85A of the High Court Rules, 1971, where a party dies before the hearing of an opposed matter has commenced, it is permissible to substitute that party with an Executor or legal representative. A matter may be removed from the roll pending the appointment of an Executor and the filing of a proper chamber application for substitution, particularly where insufficient time has elapsed for the estate registration process to be completed. Courts may take judicial notice of matters that are public knowledge, including the death of a former Head of State where such death was widely announced and days of mourning were declared. The removal of a matter from the roll in such circumstances does not prejudice the other parties as the matter can proceed once the necessary processes have been completed.

The court observed that it would not be feasible to require a formal substitution application to be made when the Executor who is to substitute the deceased party has not yet been appointed and is not known. The court also noted that counsel for the fourth to eighth respondents did not oppose the matter. The court distinguished the cases of Catherine Guri v Claudius Guri HH-08-14, Patronella Charumbira v Hudson Musasa HH-152-09, and Andrew Magarasadza & 34 others v Freda Rebecca Gold Mine Holdings Limited SC-46-2017 cited by counsel, noting that in those cases the procedural circumstances were different from the present case.

This case establishes important principles regarding the procedure to be followed when a party to litigation dies before the matter is heard. It clarifies that a matter may be removed from the roll to allow for the appointment of an Executor and subsequent substitution application, even where the formal chamber application for substitution has not yet been filed. The case also confirms that courts can take judicial notice of matters of public knowledge, such as the death of a former Head of State. The judgment provides practical guidance on the application of Order 13 Rule 85A of the High Court Rules, particularly in circumstances where the estate registration and executor appointment process is still ongoing.