Diana Kumbirai Makani v Getrude Hazvinei Makani

### Preamble
1
HH 209-12
HC 1004/08
DIANA KUMBIRAI MAKANI
versus
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DIANA KUMBIRAI MAKANI
versus
GETRUDE HAZVINEI MAKANI

HIGH COURT OF ZIMBABWE
CHITAKUNYE J
HARARE, 13 September, 2011 and 24 May 2012

Civil trial

M. Motsi, for plaintiff
S. Rugwaro, for defendant.

CHITAKUNYE J: The plaintiff is a daughter to defendant’s ex-husband, Charles Makani. At the time of instituting this suit the two were still married.

The plaintiff’s father acquired an immovable property, namely no. 9 Dorset Road East, Avondale Harare for the plaintiff in the year 2001. The property was registered in the plaintiff’s name. The plaintiff was a minor then.

In the same year the plaintiff’s father married the defendant under customary law. Defendant was based in Finland. In about 2002 the defendant’s marriage to the plaintiff’s father was solemnized in terms of the Marriages Act, [Cap 5:11] of the Laws of Zimbabwe.

When the defendant and the plaintiff’s father returned from Finland they initially lived in some rented accommodation in Hatfield. In the year 2003 they moved to live at 9 Dorset Road East, Avondale, Harare.

In 2007 the plaintiff’s father and the defendant had some matrimonial problems which led to him vacating the property. The defendant remained in the property.

In 2008 the plaintiff sued for the eviction of the defendant and all those claiming occupation through her. She also claimed holding over damages from January 1, 2008 to date of eviction and costs of suit. The plaintiff averred that as the registered owner of the property she now needed the property for her own use.

The defendant resisted the plaintiff’s claim. She contended that the property is matrimonial home irrespective of how title was registered.


A pre-trial conference was held at which the defendant persisted with her resistance and contended that she had in fact contributed to the purchase of the property in question.

As the matter was pending a parallel divorce action was also in motion. The property in question was also subject of contention between the defendant and her then husband Charles Makani. In HH 74-2010 (HC 2432/08) the presiding judge ruled that No. 9 Dorset Road East, Avondale Harare, was not matrimonial property and was thus not subject to distribution.

As at the time of this trial on 13 September 2011 the defendant had not appealed against that decision. She admitted that she had not even intimated that she would appeal. The position was thus clear that no. 9 Dorset Road East was not matrimonial property. That property belongs to the plaintiff. The defendant nevertheless refused to vacate the premises despite the owner’s demand. The issue therefore revolves around the defendant’s right to continue staying in the property in question.

The plaintiff gave evidence through her father whom she had given a Special Power of Attorney to represent her in this case.

Charles Makani’s evidence was to the effect that he acquired the property for the plaintiff in the year 2001 before he married the defendant. The defendant did not contribute anything towards its purchase. At the time of purchase the plaintiff was a minor. At his instance he moved into the plaintiff’s property with the defendant in 2003. This was on a verbal lease agreement with the plaintiff whereby he would meet the plaintiff’s University fees. Mr. Makani categorically stated that the defendant had no legal right to continue staying in the property after he moved out of the property in 2007. Now that the two of them have divorced the defendant has no justification to continue living in that property as she has not been paying any rentals for her occupation. The defendant has also not been paying utility bills; she has virtually been living rent free.

It was also his evidence that the defendant has not been maintaining the property to an extent whereby it is now imperative for extensive repairs to be effected. As the one who has been administering the property he has asked the defendant to vacate the property but the defendant has refused.


The defendant, on her part, conceded that she has known at least as from 2007 that the property is the plaintiff’s. She has been advised to vacate but has not done so and she is not going to do so. In her evidence in chief the defendant was asked questions in the following line:

“Q. Who is the owner of the house?

A. I have always considered that it to be ours

Q. Now do you know the owner?

A. Yes

Q. Who is he?

A. Diana, the plaintiff

Q. When did you know this?

A. In 2007 when Charles left the home

Q. How did you come to know this?

A. He told me the house was not his it was in the name of his daughter.”

Later on she was asked-

“Q. When your ex-husband left the house what was your basis for remaining in the house?

A. It is that during the marriage and as I was abroad I used to send money to my husband for him to buy matrimonial home.”

Further on the following exchange took place between the defendant and her legal practitioner

“Q. Do you still want to continue in occupation of the property?

A. Yes

Q. Do you want to pay rent?

A. I do not want to pay rent. I want Diana’s father to refund me my money.”

From the above exchange it is clear that the defendant wishes to remain in occupation of the property for as long as possible without paying any rent. The only reason she wishes to continue in occupation is that whilst she was abroad she used to send money to her ex-husband to buy a matrimonial house. She therefore wants the ex-husband to refund her. Whilst in her evidence in chief she put the figure she sent her ex-husband at USD 10 000, under cross examination she conceded that at some point she had said the amount was USD 20 000 and at yet another stage the figure was USD 15 000. The defendant could not provide a reasonable explanation for the differences in the figures save to say it is a long time since this occurred. She now insisted on USD15 000 as the correct figure yet in her evidence in chief it was USD 10 000.

The defendant’s position is highly untenable in the circumstances. Her claim, if any, is against her ex-husband and not the plaintiff. Logically she cannot resist eviction from the plaintiff’s property because her ex-husband owes her a refund. Her recourse is to claim against her ex-husband. Such a claim is no defence to an action for eviction.

It may be necessary to emphasize that it was never the defendant’s contention that she was leasing the property from the plaintiff. Her evidence makes it clear that there is no contractual relationship between her and the plaintiff. Her stay at the property was purely through her ex-husband and nothing more.

In *Omarshah v Karasa* 1996 (1) ZLR 584 (H) GILLESPIE J discussed in some detail the law pertaining to tenants who would be resisting eviction on the basis of having made some improvements to the leased property. At p 589E-F thereof he concluded thus-

“The effect of this law is unequivocally that a lessee, and consequently, the defendant, has no right of retention of occupation of leased property after the termination of the lease as a lien against compensation for improvements.

At p 585A-B that case makes it clear that:-

“A tenant who has effected improvements has no *ius retentions* in respect of the leased property. His right is limited to claiming compensation only after the property has been vacated.”

In *casu* Charles Makani said he leased the property from the plaintiff and when he left the property he told the defendant to vacate the property but she refused. He told her to pay rent in the sum of USD1500 per month to the owner and she again refused. The defendant had no contractual relationship with the plaintiff outside what Charles Makani had. In the circumstances if a recognized lessee has no right of retention based on alleged improvements would a person in the defendant’s position have any? I am of the view that the defendant has no right of retention of the occupation in the circumstances. She clearly has no defence to the action for eviction.

The next issue pertains to holding over damages. The defendant confirmed that from the time of issuance of the summons she was aware of the plaintiff’s claim for holding over damages. Despite this knowledge she did not make any payment choosing to occupy the premises for free. She also confirmed Charles Makani’s evidence that whilst the initial claim was in Zimbabwe dollars, later she was told to pay rent at a rate of USD1500 per month. She thus has known the quantum of claim on monthly basis for some time. Despite that knowledge she did not contest the quantum being claimed. The only inference is that she agreed with the quantum as being reasonable for a property of that nature. The only hiccup with the claim is that the plaintiff did not indicate any amendment as to when the holding over damages should be paid. Is it still to be as from 2007? If so what would be the justification for wanting to be paid in United States dollars for the period before the multi-currency regime? Plaintiff did not also make it clear whether the rentals which she chose to use as a method of calculating her damages, have been static over the period in question.

I am of the view that the plaintiff’s evidence on quantum of holding over damages has not been well adduced. In the circumstances I will grant an award as from September 2011 when the matter came for trial. That is the period one may say the quantum of USD1500 was proved. The quantum before this was not sufficiently proved. Whilst it is true that she lost out and suffered damages as a result of the defendant’s continued occupation without paying rent, there was need to clearly articulate the damages for the period being demanded.

The other issue pertains to costs of suit. The plaintiff asked for costs against the defendant. In that regard it may be necessary to point out that from the onset the defendant’s defence was shaky. When this court pronounced in the divorce case HH 74-2010 that the property in question was not matrimonial property, any hope the defendant had of remaining in the premises vanished. Despite that the defendant persisted with an untenable defence. I am of the view that the plaintiff deserves an award of costs. The defendant’s intransigence and stubborn refusal to accept the truth has prejudiced the plaintiff in having to go through a trial when this could have been avoided.

Accordingly it is hereby ordered that: –

1. The defendant and all those claiming occupation through her shall vacate house number 9 Dorset Road East, Avondale, Harare within 30 days from the date of this judgment.

2. Should the defendant and all those claiming occupation through her fail to vacate within the period stated the Deputy Sheriff be and is hereby directed to evict the defendant from the aforesaid premises.

3. The defendant shall pay holding over damages at a rate of USD 1 500 per month with effect from 1 September 2011 to the date of eviction from the said property.

4. The defendant shall pay the plaintiff’s costs of suit on the ordinary scale.

Mabulala & Motsi, plaintiff’s legal practitioners
Baera & Company, defendant’s legal practitioners.
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