Tessy Zvemisha and Eunice Zvemisha were both married to
Kennedy Zvemisha, who died on September 30, 1995.
The late Zvemisha’s will awarded Eunice the only property
he shared with Tessy as their matrimonial home.
The court went on to give Tessy rights to the property,
until her youngest child turned 18.
In protest, Tessy filed a High Court application for a
declaratory order seeking to declare the late Kennedy’s will as invalid.
She also applied that the distribution of the said property
to Eunice under deed of transfer 8277/99 be declared invalid, and of no legal
force. Tessy also prayed that the Registrar of Deeds revisit, reopen the estate
of the late Kennedy and appoint a neutral executor.
In response, Eunice went on to obtain an order dismissing
Tessy’s application for want of prosecution.
Eunice argued that the application for rescission was filed
out of time and in clear violation of High Court rules.
Justice Emilia Muchawa ruled that: “I am proceeding to use
the discretion vested in me by Rule 7 of the 2021 rules, in the interests of justice,
by saving the incurring of further costs, to grant a default order, instead of
referring the matter to the unopposed roll.
“I, therefore, make the following order, the application
for rescission of judgment succeeds with costs.
“The judgment granted in matter HC8648/19 on February 11,
2020, be and is hereby set aside.
“The matter, under case number HC8824/18, shall proceed in terms of the rules of this court.” H Metro
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