Tarisai Chikuwe and Others v Abigail Maguna and Others

The late Taruvinga Misheck Chikuwe acquired immovable property (Stand Number 1970/12 Dendera Road, Dzivarasekwa 2, Harare) during his first marriage. His first wife (applicants' mother) died on 9 October 1990. In 2005, the late Taruvinga married the first respondent in terms of the Marriages Act. Within three months of this marriage, on 30 September 2005, he ceded 50% of the property to the first respondent. The late Taruvinga died within six months of the marriage on 7 April 2006. The second respondent was appointed executor dative and in the course of distributing the estate, awarded the first respondent the deceased's remaining 50% share, making her the 100% owner. The applicants, children from the first marriage, were aware of the distribution plan at edict meetings 5-6 years prior but took no action until eviction proceedings were threatened. They then approached court in March 2013 seeking to have 50% of the property awarded to them or alternatively to be granted life usufruct.

• Whether the High Court had jurisdiction to entertain an application to vary a distribution plan that had been confirmed by the Master of the High Court
• Whether the applicants were barred from challenging the distribution plan given their delay and failure to follow the statutory procedure for objecting to distribution plans
• Whether the court could interfere with a distribution plan in the administration of estates outside the statutory framework provided in the Administration of Estates Act

The application was dismissed with costs.

The High Court does not have jurisdiction to entertain an application to vary or redraw a distribution plan in an estate that has been confirmed by the Master of the High Court where the applicants failed to follow the statutory procedure for objecting to distribution plans as set out in sections 68D and 68F of the Administration of Estates Act. The proper procedure requires objections to be lodged with the Master, whose decision may then be subject to review. Parties cannot invoke the court's inherent jurisdiction to bypass statutory procedures designed for resolving disputes over estate distribution. Where parties are aware of a distribution plan, participate in edict meetings, and fail to object timeously, they cannot subsequently challenge the plan years later through ordinary court application.

The court observed that even if the application were to be treated as a review application, it would fail on two grounds: (1) it was brought well outside the 8-week period prescribed for bringing review applications, the applicants having been aware of the distribution plan for 5-6 years; and (2) no proper grounds for review were advanced as required for review applications. The court also noted with apparent disapproval that the applicants' counsel conceded they deliberately chose the ordinary application route to avoid the time limitations applicable to review applications, having realized they were well out of time.

This case reinforces the importance of adhering to statutory procedures in estate administration matters in Zimbabwe. It establishes that parties cannot bypass the administrative dispute resolution mechanism provided in the Administration of Estates Act (sections 68D and 68F) by bringing direct court applications. The judgment emphasizes that the High Court will not exercise inherent jurisdiction to interfere with confirmed distribution plans where statutory remedies existed but were not pursued. It also confirms that delay and acquiescence in estate distribution matters will bar parties from subsequently challenging distribution plans, particularly where they were aware of the plan and participated in edict meetings but failed to object timeously.