Harold Chinogurei v Shamiso Chiseko and The Deputy Sheriff

The property in question, House No. 50 Nzungu Street, Zengeza 1, Chitungwiza, formed part of the estate of the late Alfred Kudiwa who died in 2003. On 4 March 2009, Marshal Kudiwa (the deceased's son) was appointed Executor Dative of the estate. On 9 March 2009, he obtained authority from the Master of the High Court to sell the immovable property otherwise than by public auction. Marshal Kudiwa entered into two agreements of sale for the same property: first with the first respondent on 7 August 2008 for US$9,000.00 (before receiving letters of administration or Master's authority), and second with the applicant on 9 April 2009 for US$7,000.00 (after receiving proper authority). The applicant paid the full purchase price and the property was ceded to him by Chitungwiza Municipality. When the applicant attempted to evict the tenant and take possession, the first respondent appeared claiming ownership based on her earlier agreement of sale.

• Whether an agreement of sale of estate property entered into by a person who had not yet been appointed executor and without authority from the Master of the High Court is valid and enforceable
• Whether the first respondent's earlier agreement of sale should prevail over the applicant's later agreement on the basis of chronological priority
• Whether the applicant, as the holder of a properly authorized sale, has the right to vindicate the property and evict the first respondent

The court ordered that the first respondent and all those claiming through her vacate House 50 Nzungu Street, Zengeza 1, Chitungwiza on or before 30 April 2011, failing which the second respondent (Deputy Sheriff) was authorized to eject them from the property. Costs were awarded in favor of the applicant.

An agreement of sale of immovable property forming part of a deceased estate entered into by a person who has not been appointed executor and who has not obtained authority from the Master of the High Court is null and void ab initio for non-compliance with the Administration of Estates Act [Cap 6:07]. A surviving spouse, child or next of kin has no right to dispose of estate assets without lawful authority granted by the courts, the Master, or a duly appointed executor. Section 120 of the Act requires that even a duly appointed executor must seek the Master's authority to sell immovable property otherwise than by public auction. An unauthorized sale, being void from inception, cannot prevail over a later properly authorized sale, even if the unauthorized sale was concluded earlier in time.

The court observed that purchasers and their legal practitioners have a duty to act in good faith when purchasing property from a deceased estate. They must verify that the seller holds letters of administration and has obtained proper authority from the Master. The court noted that the first respondent's recourse should be against the seller (Marshal Kudiwa) for any losses suffered. The court also commented that it would be against public policy to uphold an unauthorized sale of estate property. While the court mentioned that in a normal case of double sale, chronological priority might be considered, this principle cannot apply where one of the sales is void for legal impropriety.

This case is significant in Zimbabwean law as it reinforces the strict requirements of the Administration of Estates Act regarding the disposal of estate property. It establishes that agreements of sale entered into without proper authority from the Master of the High Court are void ab initio, regardless of whether they were entered into before a properly authorized sale. The case emphasizes the importance of compliance with statutory provisions governing estate administration and the protection of estate assets. It also highlights the duty of purchasers and their legal representatives to conduct proper due diligence when purchasing property from a deceased estate, including verification of letters of administration and Master's authority.