Karren Sekai Chayitara v Davison Kanokanga and Others

The applicant was a 50% co-owner of an immovable property (Stand 317 Waterfalls Induna Township) with the third respondent. The third respondent was a judgment debtor in Magistrates Court case MC 418/18. A writ of execution was issued authorizing the Messenger of Court (fifth respondent) to attach and sell the third respondent's 50% share in the property. However, the Messenger of Court sold 100% of the property at public auction to the fourth respondent on 15 February 2019, without the applicant's knowledge or consent. The applicant only became aware of the sale when an attempt was made to remit 50% of the proceeds to her. The applicant was not a party to the original proceedings and was not a co-debtor. She filed an urgent chamber application seeking an interdict to stop the transfer of the property. A provisional order was granted on 9 August 2019, and the matter came before the court for confirmation or discharge of that order.

• Whether the sale in execution of 100% of the property was valid when the writ only authorized the sale of 50% share
• Whether a co-owner's 50% share in indivisible immovable property can be sold in execution without the consent of the other co-owner who is not a judgment debtor
• Whether the intended transfer of the property to the fourth respondent should be stopped
• What are the rights of co-owners in relation to execution against property

1. The sale in execution by the fifth respondent to the fourth respondent on 15 February 2019 of the property was set aside. 2. The first and fifth respondents were ordered to instruct their conveyancers to stop any transfer process of the property. 3. The sixth respondent (Registrar of Deeds) was directed to uplift caveat number 362/18 dated 16 July 2018 placed on the property. 4. The fourth respondent was ordered to pay costs of suit on an attorney and client scale. 5. The applicant's legal practitioners were granted leave to serve the order on the fourth respondent.

A Messenger of Court cannot attach and sell 100% of a property when the writ of execution only authorizes the sale of a 50% share belonging to the judgment debtor. Where property is co-owned, the share of a co-owner who is not a judgment debtor cannot be attached and sold in execution without that co-owner's consent. The real rights of a registered co-owner prevail over the personal rights of a judgment creditor. A sale in execution that exceeds the authority granted in the writ is void ab initio and constitutes a nullity that requires no court order to set aside. An act that is void is incurably bad and automatically null and void, and all proceedings founded upon it are also void.

The court observed that every co-owner has the right to freely alienate his or her share without reference to other co-owners. Every co-owner may insist on partition of property at any time, and if co-owners cannot agree on the manner of division, the court will make an order that is fair and equitable, either ordering one co-owner to buy out the others or ordering a sale with proceeds divided according to shares. The court noted that the fourth respondent failed to extend any courtesy to engage with the applicant to map the way forward before proceeding with the purchase. The court commented that if the whole property was to be attached and sold, there would need to be a court order first, and for the Sheriff to proceed without such an order amounts to a complete disregard of constitutional property rights.

This case is significant in Zimbabwean property law as it reinforces the constitutional protection of property rights and the rights of co-owners in execution proceedings. It establishes that a Messenger of Court cannot exceed the authority granted in a writ of execution by selling more than what is authorized. The judgment protects innocent co-owners from having their property interests violated through execution proceedings to which they are not party. It affirms the principle that real rights of registered owners prevail over personal rights of judgment creditors, and that consent of a non-debtor co-owner is required before their share can be sold in execution. The case provides important guidance on the proper procedure for execution against co-owned property and the limits of the Sheriff's powers.