Esther Mwanyisa v Eneti Jumbo and 5 Others

HH 3-2010

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Case Details

Court

Harare High Court

Date

13 January 2010

Citation

HH 3-2010

Neutral Citation

[2010] ZWHH 3

Outcome

unknown

Case Type

Application

Bench

Presiding

MAKARAU JP

Full Bench

MAKARAU JP

Areas of Law

Property lawCivil procedure

Keywords

Cession of rightsProvisional orderIntestate successionProperty transfer*Res judicata*

Key Issues

{"issue_text":"Whether the provisional order granted on 17 July 2002 was erroneously granted in absence of applicant who had acquired rights in the property","issue_type":"procedural","dispositive":"yes","related_facts":"Applicant had purchased property in May 2002, not cited in June 2002 application"}
{"issue_text":"Whether the applicant is barred by *res judicata* from challenging the provisional order","issue_type":"law","dispositive":"no","related_facts":"Applicant's previous failed joinder application"}
{"issue_text":"Whether applicant approached court with dirty hands","issue_type":"procedural","dispositive":"no","related_facts":"Applicant retook possession after lawful eviction"}

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background

Facts of the Case

Background

The dispute concerns immovable property (No. 22 Hunyani Road, Mabvuku) originally purchased by Moffat Phiri under a suspensive deed of sale from City of Harare. After Phiri's intestate death in 1996, his brother Lekinala Moffat was appointed heir and the property transferred to him. After Lekinala's death in 2002, the third respondent (Mtikumbura Moffat) was appointed executrix and sold the property to the applicant (Esther Mwanyisa) in May 2002. The first respondent (Eneti Jumbo), claiming to be Phiri's surviving spouse, obtained a provisional order in June 2002 declaring the property part of Phiri's estate and evicting the applicant.

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