The High Court has dismissed an application seeking to cancel a Harare property title deed, ruling that the executor of an estate failed to first challenge a standing court order that authorised the transfer.
Justice Maxwell Takuva struck the matter off the roll after finding that the application brought by Billy Boy Joseph, acting as executor testamentary of the estate of the late Stephenson Joseph Joseph, was procedurally flawed.
Joseph had approached the High Court seeking cancellation of title deed number 1325/2025, currently registered in the name of Timothy Mwapinzeudyi, and restoration of the property’s previous registration.
The dispute relates to an Ardbennie property in Harare that had originally been registered in the deceased’s name. Joseph argued that the transfer was unlawful and allegedly founded on forged documents, including an affidavit claiming the property had been sold to Mwapinzeudyi.
Court records show that Mwapinzeudyi secured a default judgment from the Mutare Magistrates’ Court in May 2021 ordering transfer of the property. That ruling was subsequently relied upon by the Deeds Registry to register ownership in his name.
Joseph challenged the validity of the transfer, contending that the Mutare Magistrates’ Court lacked jurisdiction over property situated in Harare. He further argued that the Master of the High Court had not authorised any sale of estate property and maintained that no agreement of sale had ever been concluded.
Mwapinzeudyi opposed the application, maintaining that he had lawfully purchased the property. He told the court that Joseph had been aware of the Mutare proceedings but failed to defend the claim, resulting in the default judgment.
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In his ruling, Justice Takuva held that Joseph’s objections could not succeed while the Mutare Magistrates’ Court order remained legally binding.
“The order from the Mutare Magistrates’ Court enjoys a presumption of validity until declared otherwise by a competent court of law,” the judge said.
The court found that the executor should first have sought rescission of the default judgment before attempting to invalidate the title deed, rendering the High Court application premature.
Justice Takuva also rejected arguments that failure to cite the Master of the High Court invalidated earlier proceedings, noting that the law requires service of documents on the Master rather than formal joinder as a party.
Having upheld the respondent’s preliminary objection, the court declined to consider the substantive merits of the property dispute.
“The application be and is hereby struck off the roll with costs,” ruled Justice Takuva.
The judgment leaves the contested title deed intact unless the underlying Mutare Magistrates’ Court order is successfully set aside through proper legal channels.
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