Togara Kunjenjema and Obram Trust Company (Private) Limited and Master of High Court v Annamore Ngirichi (N.O)

The applicant was the son of the late Hebert Kunjenjema who died intestate on 24 November 2005. The applicant claimed he was appointed by the deceased's family to be executor and heir to the estate. However, on 21 December 2016, Mr Oliver Masomera on behalf of the first respondent (Obram Trust Company) was appointed by the Master of the High Court (second respondent) as executor of the estate. The estate property, Stand 2640 Gaza O, Chipinge, was sold to Bernadette Makichi (a minor, third respondent) on 2 July 2019 to meet estate liabilities. After the sale, the first respondent advised the applicant and the deceased's family to vacate the house. The applicant claimed he did not know the first respondent and was unaware of how the house was sold without consulting the deceased's family. The first respondent contended that from 2017, the applicant had directly dealt with them and received correspondence, including notice about the disposal of the house to meet estate liabilities. The family had been invited to purchase the house but no one did so. The third respondent, as purchaser, sought to take occupation and approached the magistrate's court for eviction, which was postponed pending the High Court application.

• Whether the applicant established a clear right patently established in law to warrant an interdict
• Whether the applicant suffered actual injury or had a reasonable apprehension of injury
• Whether there was no other ordinary remedy available to the applicant
• Whether the balance of convenience favored granting the interdict
• Whether the applicant had any real or personal rights to the property that had been sold to the third respondent

The application was dismissed for lack of merit. No order as to costs was made.

To succeed in an application for an interdict, an applicant must establish: (i) a clear right patently established in law; (ii) actual injury or reasonable apprehension of injury; (iii) no other ordinary remedy available; and (iv) balance of convenience. The first two requirements form the backbone of an interdict application and failure to satisfy them is fatal to the application. Where an executor has been validly appointed by the Master and has obtained the Master's consent to dispose of estate property, and that property has been sold to a third party who has acquired registered rights, a family member claiming to be an informal 'heir' has neither real nor personal rights to the property and cannot establish the clear right required for an interdict. Such a person must instead challenge the executor's appointment or the sale transaction through proper legal proceedings.

The court observed that the applicant genuinely believed he was the 'heir' and executor to his father's estate based on what he understood to be a family appointment. The court noted that the applicant was under a false perception that the first respondent was fraudulently imposed as executor. These observations supported the court's decision not to award punitive costs against the applicant, despite the respondents' requests for costs on a legal practitioner-client scale. The court indicated that this was an appropriate case for no order as to costs given the applicant's genuine, albeit mistaken, belief about his legal position.

This case provides guidance on the application of interdict requirements in the context of estate administration disputes in Zimbabwe. It reinforces that parties challenging estate administration must properly establish their legal rights and cannot rely on informal family appointments to override formal appointments by the Master. The case also demonstrates the importance of following proper legal procedures to challenge executor appointments or estate transactions, rather than seeking interdicts without establishing the foundational legal rights. It illustrates the court's discretion in costs matters where an applicant acts under a genuine, albeit mistaken, belief about their legal position.