Zimbabwe: High Court Cannot Be Substituted for the Executor - Judge Dismisses $193k Estate Claim

28 August 2025
New Zimbabwe (London)
By Mary Taruvinga

The High Court has thrown out businessman Julian Martin Hamilton Barns' bid to be registered as a secured creditor in the estate of the late Phillip Mugadza, ruling that his application was "clearly incompetent" and wrongly sought to force the court to step into the shoes of the executor.

In a judgment handed down in Harare, Justice Sylvia Chirawu-Mugomba said Barns had misconceived the law on claims against deceased estates and tried to bypass the executor's statutory powers.

"The order sought is akin to asking this court to step into the shoes of the first respondent and literally force the acceptance of the claims, as if to ask this court to now act as the executor," the judge said. "This court cannot be substituted for the executor."

Barns argued that he had advanced payments amounting to US$193,600 on behalf of Mugadza to stave off foreclosure of his Gunhill property, and sought to compel executor Emmanuel Ngwarati to register him as a secured creditor. But the executor rejected the claim, citing a lack of supporting documents, absence of any lending agreement, and the fact that some payments were made to third parties and not to the deceased himself.

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Mugomba said the executor had duly provided reasons for rejecting the claim.

"Whether they are adequate or not is neither here nor there," she observed. "The applicant wants this court to put all the claims under a microscope and literally force the first respondent to accept them. All these questions and issues can only lead to one logical conclusion. This court cannot be substituted for the executor."

The judge also criticised both sides' legal representatives for failing to properly engage with the key legal issues. "Had all the legal practitioners applied their minds, perhaps they would have been more helpful to the court. Because they did not, this impacts the order of costs."

Concluding, Justice Chirawu-Mugomba dismissed the application, ordering each party to bear its own costs.

"The application is akin to one for review disguised as a court application to compel. It is clearly incompetent," she ruled.

Read the original article on New Zimbabwe.

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