In chambers in terms of Rule 5 of the Rules of the Supreme
Court, 1964.
The applicant is the executrix dative of the estate late
Juliet Munjeri. Juliet Munjeri was the late Bookwet Jonathan Munjeri's
customary law wife married to him in terms of a registered customary law
marriage. Bookwet Munjeri was allegedly
already married to Ella Munjeri, the first respondent, in terms of the Marriage
Act Chapter 37 now [Chapter 5:11]. The record is not clear on the correct
status of Ella Munjeri as it talks about the need for them to go back to court
about custody of their children and difficulties in establishing whether or not
she had properly divorced the late Bookwet Jonathan Munjeri. In his last will,
the late Bookwet Jonathan Munjeri describes Ella Munjeri as his divorced wife.
The second respondent is the executor dative of the estate
of the late Bookwet Munjeri. The third respondent is the Master of the High
Court cited in his official capacity. The fourth respondent is the Registrar of
Deeds also cited in his official capacity. The fifth respondent is the late
Bookwet Munjeri's customary law wife married to him under an unregistered
customary law union.
The applicant applied for condonation of the late noting of
an appeal to this Court against the judgment of the High Court which declared
Ella Munjeri the late Bookwet Jonathan Munjeri's surviving spouse.
Ella Munjeri prevailed in the High Court because it
accepted her claim that she was still married to the late Bookwet Jonathan
Munjeri, in terms of a monogamous marriage, at the time of his death. However,
the way she conducted herself prior to his death, and after she registered his
estate, tell a different story. She left
him between 1979 and 1980 and married a Mr Mupfumira with whom she had a
daughter. That union was terminated in 1985. It was succeeded by her marriage
to a Mr Dzova with whom she is still staying and had children with. She
remained in that union till Bookwet Jonathan Munjeri died on 13 October 2002.
On his death, she registered his estate as the surviving spouse but abandoned
it when the late Juliet Munjeri sent, to the Master of the High Court, an
affidavit challenging her status. On realising the challenge from Juliet
Munjeri, Ella Munjeri chickened out of the race for appointment as executor of
the late Bookwet Jonathan Munjeri's estate in the capacity of surviving spouse.
Subsequent to Juliet Munjeri's, affidavit Ella Munjeri was, on 9 July 2003, in
writing, invited to an edict meeting. She endorsed on the face of the letter of
invitation the following:
“Please close the file. Thank you. Mrs E. T. Munjeri.”
The Master of the High Court's office thereafter invited
her to edict meetings on two further occasions, on 7 August 2003 and 25
November 2003. On 17 December 2003, Ella Munjeri wrote a second letter to the Master
of the High Court in which she said;
“I have decided to close this file. I am no longer
interested anymore. Thank you for sending this letter to me. Thank You. Yours
faithfully E. T. Munjeri (Mrs).”
The late Juliet Munjeri thereafter registered the estate
and administered it till its distribution account was confirmed by the Master
of the High Court on 1 September 2006. Ella Munjeri kept her silence till soon
after Juliet Munjeri's death on 13 July 2013, when she resumed her claims to
the late Bookwet Jonathan Munjeri's estate. During Bookwet Jonathan Munjeri's
lifetime, Ella Munjeri wrote him letters complaining about his allowing their
children to visit her at her matrimonial home with a Mr Dzova. She, on a number
of occasions, reminded him of their divorce and her now being someone else's
wife, and to go back to court where he had been granted custody if he no longer
wanted the children's custody….,.
The applicant intends to raise the following issues on
appeal;
1. That the court a quo erred by failing to appreciate that
the 1st respondent's application was not properly before it because
the 1st respondent had failed to seek a review of the 3rd
respondent's decision to confirm the final distribution and liquidation account
in the estate of the late Bookwet Munjeri within thirty days from 1st
September 2006 as required by section 52(9) of the Administration of Estates
Act [Chapter 6:01].
2. That the 1st respondent had waived her rights
through her two letters to the Master of the High Court.
3. That the court a quo grossly misdirected itself both on
the facts and on a point of law in failing to appreciate that the 1st
respondent's own admissions that the marriage between her and the late Bookwet
Jonathan Munjeri had been dissolved by the High Court, coupled with proof of a
subsequent registered customary law marriage between the deceased and the late
Juliet Munjeri, constituted sufficient evidence to prove that the marriage
between the 1st respondent and the deceased was lawfully dissolved.
4. The court a quo erred and misdirected itself in
disposing of the matter on the papers filed by the parties without having
regard to the Master's Report as envisaged by Rule 248(1)(a) of the High Court
Rules and/or hearing oral evidence to clarify material disputes of fact.
In respect of the proposed first ground of appeal, the
applicant applied for the order granted by the High Court more than six (6)
years after the confirmation of the distribution and liquidation account. The
applicant has an arguable case on appeal especially in view of Ella Munjeri's
letters to the late Bookwet Jonathan Munjeri and the Master of the High Court
and her silence till Juliet Munjeri's death.
The issue of waiver is also arguable entitling the
applicant an opportunity to argue her case on appeal….,.
I am satisfied that this case should be allowed to proceed
on appeal for the above-stated reasons, and for its importance as it raises
serious questions on whether a spouse who abandons or divorces the other for
over twenty-three (23) years and thereafter gets married to two other spouses
can, on the death of the abandoned/divorced spouse, claim to be the deceased's
surviving spouse and inherit from the abandoned/divorced spouse's estate.
In the result, the applicant's application is
granted in terms of the draft order.
