Ishmael Madamombe (in his capacity as the Executor Dative of Estate Late Nyembesi Kapungu DR 781/11) v Winnifildah Madamombe and Others

The plaintiff, Ishmael Madamombe, is the Executor Dative and a beneficiary to the Estate of the late Nyembesi Kapungu. He is also the father of the four defendants, who are his late wife's children and also beneficiaries of the estate. The dispute centered on Stand Number 9208 Paradise Park, Highfield, Harare. Under Case No. HC 6089/21, the court had previously granted an order allowing the sale of the property to enable beneficiaries to receive their shares. The Master of the High Court authorized the sale, but the defendants failed to cooperate with the executor. The defendants obtained a protection order barring the plaintiff from visiting the house and prevented prospective buyers and evaluators from accessing the property. The defendants were also collecting rentals from the property without sharing them with the plaintiff. The plaintiff filed summons seeking eviction of the defendants to facilitate the sale and to recover his share of rental income.

• Whether the defendants' defence should be struck out under Rule 49(12) of the High Court Rules 2021
• Whether there were any issues to be referred to trial at the pre-trial conference
• Whether eviction of the defendants was appropriate to give effect to the existing court order for sale of the property
• Whether the defendants' proposal to buy out the plaintiff's share was a valid defence to the eviction claim

1. The defendants' defence is struck out. 2. Eviction of the first, second, third and fourth defendants and all those claiming occupation through them from Stand Number 9208 Paradise Park, Highfield, Harare, be and is hereby granted. 3. Defendants to pay costs of suit on an Attorney client scale.

Where a court has made an order directing the sale of estate property to enable beneficiaries to receive their shares, beneficiaries who are in occupation cannot frustrate the executor's compliance with that order. At a pre-trial conference, where defendants concede there are no disputed issues for trial and their proposed defence does not relate to the existing court order, the court may strike out the defence under Rule 49(12) of the High Court Rules 2021 and grant the relief sought without referring the matter to trial. A proposal to buy out a co-beneficiary's share, which is not contemplated in the existing court order, does not constitute a valid defence to eviction proceedings brought to facilitate compliance with the court order for sale.

The court endorsed the principles outlined by Matanda-Moyo J in KM Insurance v Mr Reuben Marumahoko HH 678/14 regarding the duties of a judge during pre-trial conference, including: (1) identification of issues to be resolved at trial; (2) identifying common cause areas; (3) eliminating frivolous claims or defences; (4) identifying witnesses and documents; and (5) discussing possibilities of settlement. The court agreed with the observation that a pre-trial judge cannot simply refer a matter to trial where there are no disputed issues to resolve, as doing so would defeat the real purpose for which a trial court is constituted. Regarding the issue of rental payments, the court noted that this could be addressed through fresh summons if necessary, or parties could let bygones be bygones for the sake of settlement.

This case demonstrates the court's power at the pre-trial conference stage to strike out defences and enter judgment when there are no genuine issues for trial. It reinforces the principle that court orders must be complied with and that beneficiaries cannot frustrate the executor's duty to administer an estate in accordance with court directions. The case also illustrates the proper application of Rule 49(12) of the High Court Rules 2021, which empowers judges to dismiss claims or strike out defences at the pre-trial stage when appropriate. It affirms that alternative proposals (such as buying out co-beneficiaries) that are not part of existing court orders do not constitute valid defences to enforcement proceedings.