Agreanah Kangara v Darlington Kangara and Others

The applicant resided at 193 Fleetwood, Bindura, a property registered in the name of the late Kudzanai Kangara. The first respondent was the son of the late Kudzanai Kangara, while the applicant was his sister. The late Kudzanai Kangara had purchased the Fleetwood property as a replacement for property at 3046 Aerodrome, Bindura, which had belonged to their mother, the late Rachel Kangara. The late Kudzanai Kangara had changed the Aerodrome property into his name without his mother's knowledge, and agreed to provide the Fleetwood property as replacement. The late Rachel Kangara was residing at the Fleetwood property at the time of her death on 12 January 2021, two days after the death of Kudzanai Kangara on 10 January 2021. Before the Fleetwood property could be transferred to Rachel Kangara's name, she passed away. On 16 December 2021, the first respondent violently ejected the applicant from the Fleetwood property and blocked the entrance with granite stone rubbles. The applicant was forced to seek alternative accommodation until 19 December 2021. The first respondent removed the blockage on 18 December 2021 after receiving legal advice. The applicant brought an urgent application to restore her peaceful possession of the property pending finalization of the estate.

• Whether the applicant was entitled to undisturbed possession of the Fleetwood property pending finalization of the deceased estate
• Whether costs on a higher scale (attorney and client scale) were justified in the circumstances
• The appropriate scale of costs where a respondent cooperates and agrees to a consent order

The court ordered: (a) Pending finalization of the estate late Kudzanai Kangara DR No. 4168/21, the first respondent is ordered to restore undisturbed and peaceful possession and occupation of house number 193 Fleetwood, Bindura; (b) The first respondent shall bear the costs of the application on an ordinary scale.

Where a respondent initially acts wrongfully but subsequently cooperates by remedying the wrong and agreeing to a consent order, thereby saving the applicant time and resources, costs on an ordinary scale rather than a higher (attorney-client) scale are appropriate. Costs on a higher scale require special circumstances such as vexatious and frivolous proceedings, dishonesty, fraud, reckless or malicious proceedings, or a deplorable attitude towards the court. The award of costs is a judicial discretion that must be exercised on reasonable grounds, taking into consideration the circumstances of each case, the conduct of the parties, and any other relevant circumstances to ensure a fair and just outcome.

The court noted that the applicant and first respondent were relatives, and observed that costs on a higher scale may negatively affect family relationships. The court gave the first respondent the benefit of the doubt regarding the exact timing of removing the rubble on 18 December 2021, particularly in light of the fact that he had to hire vehicles for the removal, which would likely take time. The court commented that ordinary costs would be reasonably sufficient and would serve to discourage the first respondent from taking the law into his own hands in future.

This case illustrates the Zimbabwean courts' approach to granting interim relief in estate disputes where competing family members claim rights to estate property. It demonstrates the court's willingness to maintain the status quo pending estate finalization and protect vulnerable beneficiaries from self-help remedies. The case is also significant for its examination of when costs on a higher scale are appropriate, emphasizing that cooperation by a respondent and agreement to a consent order may mitigate against punitive cost orders, even where the respondent's initial conduct was wrongful. The judgment reinforces that costs on an attorney-client scale require special circumstances beyond mere wrongdoing, such as vexatious conduct, dishonesty, or malicious proceedings.