Mary Nyamutata v John Chikomo and Arimando Bread and Epworth Local Board

The plaintiff claimed to have purchased stand number 2110 Solani Epworth from the first defendant on 12 March 2000, but did not take cession (possession) of the property. The first defendant subsequently sold the same property to the second defendant, who took cession on 21 March 2003. This cession was duly registered by the third defendant (Epworth Local Board) in its capacity as the Local Board and owner of the property. On 27 June 2006, the plaintiff issued summons against the defendants claiming nullification of the sale agreement between the first and second defendants. The defendants raised a special plea that the plaintiff's claim had prescribed.

• Whether the plaintiff's claim for nullification of the sale agreement had prescribed under the Prescription Act
• When prescription begins to run in relation to a debt arising from a property sale agreement
• Whether the issuing of summons more than three years after the debt became due could interrupt the running of prescription

The plaintiff's claim was dismissed with costs.

A debt arising from a property sale agreement becomes due when the purchaser becomes entitled to acquire cession and the seller becomes obliged to facilitate cession. In terms of sections 15 and 16 of the Prescription Act [Cap. 8:11], such a debt prescribes after 3 years from when it becomes due. The issuing of process under section 7 of the Act can only interrupt the running of prescription if issued before the prescription period has expired; once a debt has already prescribed, the subsequent issuing of summons cannot interrupt or revive the claim.

The court noted that the dispute was essentially between the plaintiff and the first defendant, both claiming to have purchased the same property from different sources. While the court did not make extensive obiter remarks, the judgment implicitly recognizes the principle that a party who has taken actual cession and had it registered (as the second defendant did) is in a stronger position than one who merely claims to have purchased but never took possession.

This case reinforces the strict application of prescription periods under the Prescription Act in Zimbabwe, particularly in property disputes. It demonstrates that a purchaser who fails to take timeous action to enforce their rights to cession of property may lose their claim through prescription. The case emphasizes that prescription begins to run from when a debt becomes due (in this case, when the obligation to transfer arose), and that process issued after prescription has already run cannot interrupt or revive the claim. It serves as a warning to property purchasers to act promptly in enforcing their rights to transfer and possession.