Emily Chihota v Gundasi Luya and City of Harare; Emily Chihota v Estate Late Noria Luya and 2 Others

In 1991, the plaintiff sued the late Gundasi Luya for transfer of a house she claimed to have purchased from him. Gundasi Luya had sold a City Council rental house to the plaintiff illegally. City Council officials discovered the illegal sale and called the parties to regularize it. Gundasi Luya admitted the sale and agreed to regularization. Shortly thereafter, Gundasi Luya died and his estate was never registered. The City Council then sought to regularize the sale by giving Noria Luya (Gundasi's widow) the tenancy with a view that she would exercise the right to buy and subsequently transfer to the plaintiff. Noria Luya also subsequently died. The plaintiff brought proceedings against both deceased estates. Luya Luya appeared to represent both estates but could only produce letters of appointment as executor for the estate of Noria Luya. The estate of Gundasi Luya had never been registered and had no appointed executor.

• Whether proceedings against a deceased person can be validly continued without a duly appointed executor representing the deceased estate
• Whether evidence led in proceedings against an unrepresented deceased estate can be relied upon in related proceedings
• The effect of s 44(1) of the Administration of Estates Act on proceedings against deceased estates
• Whether the case against the estate of Noria Luya could succeed based on evidence from the nullified proceedings against Gundasi Luya

1. The proceedings against Gundasi Luya were declared a nullity. 2. The evidence led in the case between the plaintiff and Gundasi Luya was declared a nullity. 3. The defendants in the case against the estate of late Noria Luya were absolved from the instance. 4. The plaintiff was ordered to pay the defendants' costs of suit.

In terms of s 44(1) of the Administration of Estates Act [Chapter 6:01], proceedings against a deceased person can only be continued through a duly appointed executor. Any proceedings against a deceased estate without proper representation by an appointed executor are a nullity, and any evidence led in such null proceedings is also a nullity and cannot be relied upon. Evidence obtained in null proceedings against one estate cannot be used to establish a claim against another estate where that evidence forms the foundational link necessary to prove the claim.

The court noted that counsel for both parties failed to clarify the issue of proper representation of the deceased estates until the court itself intervened through questioning the witness. The court had to address this deficiency by directly questioning Luya Luya about his capacity to represent the estates. The court observed that the facts of the two cases were interwoven, with evidence concerning Gundasi Luya's involvement intended to prove why the estate of Noria Luya should transfer the property to the plaintiff, creating a situation where the nullification of one set of proceedings inevitably affected the other.

This case reinforces the strict requirements for bringing proceedings against deceased estates in Zimbabwean law, emphasizing that no legal action can be validly maintained against a deceased person without a duly appointed executor representing the estate. It demonstrates that procedural irregularities in estate representation cannot be overlooked and that evidence obtained in null proceedings cannot form the foundation for related claims. The judgment protects the integrity of the estate administration process and ensures compliance with the Administration of Estates Act.