KAPUYA v KAPUYA (NEE MAKAYA) (7 of 2026) [2026] ZWHHC 5 (5 January 2026)

1 HH 07-26 HCH 6821/23 PAUL KAPUYA versus LILIAN KAPUYA (NEE MAKAYA) HIGH COURT OF ZIMBABWE MAXWELL J HARARE; 2 OCTOBER 2025 & 5 January 2026 TRIAL – DIVORCE H Chinyan,i for the plaintiff C Rivha, for the defendant MAXWELL J Plaintiff and Defendant married on the 30th October 2015 in terms of the then Marriage Act [Chapter 5:11]. The marriage was blessed with two children who have since attained majority status. On the 19th of October 2023 the Plaintiff issued summons claiming a decree of divorce and ancillary relief. He stated in the declaration that the marriage relationship has irretrievably broken down to such an extent that there are no reasonable prospects for the restoration of a normal marital relationship. Plaintiff stated that he had inherited stand 151 Adylinn Township 7 of stand 12 of Adylinn North otherwise known as 151 Purley Close Marlborough, Harare. During the subsistence of the marriage the parties developed the stand. He stated that when the parties married, they went to stay on the property where there was a three roomed cottage. He proposed that Defendant be awarded 50% of the value of the improvements they effected on the properly. Defendant gave notice of entering appearance to defend. She confirmed that the marital relationship had broken down irretrievably and a decree of divorce should be granted. She disputed that the plaintiff inherited the property in question. According to her, the property was a marriage gift donated to the parties on the occasion of their customary union in 1989 by the plaintiff’s father. Further that the condition of the donation was that the parties had to construct their matrimonial home thereat, which they did jointly. They settled on the property in 1994. Plaintiff moved out in 2016 to Budiriro Township Harare where he was HH 07-26 HCH 6821/23 staying with another woman. Plaintiff’s father passed on in 1991. The property was still registered in the name of the original seller at the time of the Plaintiff’s father’s passing on. It was subsequently registered in the name of the plaintiff. Defendant averred that the parties considered the property, the land and its improvement to be their matrimonial home therefore her share is not limited to the improvements only. Defendant stated that neither party is gainfully employed or financially well-placed to afford starting afresh and acquiring another property. She proposed that the land be subdivided into two equal portions and each party be awarded a portion. She further proposed that the parties jointly contribute to the subdivision costs in equal shares and each party bear the cost of registration of his or her subdivided portion. In the alternative she proposed that the property be sold to the best advantage and the net proceeds be shared equally between them. In his replication, the plaintiff stated that his father passed away in 1991before the customary union in 1993 therefore the property could not have been a wedding or marriage gift as the possible donor passed away before any marriage or union between the parties. Further that as the property was inherited, it is not subject to distribution by the court in divorce proceedings. He insisted on the valuation of the improvements and sharing of the same equally between the parties. Pleadings were exchanged and a pre-trial conference was held. The issues referred to trial were a) whether or not the plaintiff inherited the property (stand number 151 Adylinn Township 7 of stand 12 of Adylinn North otherwise known as 151 Purley Close Marlborough, Harare) from his late father, if so, what constitutes a fair and equitable distribution of the improvements on the property. b) If not, how should the property be distributed between the parties. The matter went to trial. Plaintiff testified as follows. Defendant eloped to him in 1989. Things were difficult and he did not manage to pay lobola until after 4 years. His father passed away on 31 August 1991. A family meeting was held and it was agreed that he be in charge of the property left by his late father. Together with the Defendant they built a house on the stand left by his father. The property was subsequently transferred into his name after a meeting at the High court. In 2015 he solemnised his marriage with the Defendant. They however separated in 2016. HH 07-26 HCH 6821/23 Under cross-examination he indicated that he left the matrimonial home because of physical abuse. He disputed paying part of the bride price in 1989. He indicated that his father had a stroke in 1982 and was not able to talk thereafter. On being asked by the court, he indicated that the parties built a 9-roomed structure on the property and the improvement should be shared equally. Irene Kapuya testified as follows. She is a sister to the plaintiff. She confirmed that Defendant eloped to the Plaintiff in 1989. She disputed that the property was gifted to the parties by her late father but rather that they were allowed to use it as they had nowhere to stay. She stated that Plaintiff paid lobola after her father’s death. Lilian Kapuya testified in her case. She married the Plaintiff in 1989. Plaintiff paid part of the lobola in the same year. They were staying in the rural home. Plaintiff was not working. In 1991 her father-in-law informed a family gathering that Plaintiff and her should go to Marlborough and stay there permanently. She was later taken to the house by her brothers-in- law to see it after which they went back to the rural home. They stayed in the rural home until the death of her father-in-law. They started staying at the property in 1994. They spruced up the yard and started building the main house in 2002. In 2007 they moved into the house before final touches were done. She confirmed being aware of affidavits from Plaintiff’s siblings confirming that the property was an inheritance from their late father. She indicated that she did not challenge the affidavits as she did not think it necessary. The evidence on record shows that the property cannot have been a gift to the parties. Defendant had stated in her plea. “….. the property was marriage gift donated to Plaintiff and Defendant on the occasion of their customary union in 1989 by the Plaintiff’s father and Defendant’s father-in-law who had acquired it as a residential stand, of four thousand square meters in extend, with a small cottage erected thereon” The parties are agreed that Defendant eloped in 1989. Defendant claimed in her evidence that Plaintiff paid part of the lobola in 1989. She did not say how much was paid. She later admitted that only a token was paid and a beast. This was disputed by the Plaintiff and his sister who indicated that Plaintiff was only able to pay lobola years after the death of his father. In oral evidence Defendant said the donation was made in 1991shortly before the demise of the Plaintiff’s father. When challenged to explain the departure from the plea, she indicated that the customary marriage was in 1989 but the donation was in 1991. HH 07-26 HCH 6821/23 The position stated by the Defendant in her plea is not common under customary law. The usual practice is for gifts of such magnitude to be given on the solemnisation of a marriage. It is rare to hear of a couple being gifted an immovable property after an unregistered customary union. The fact that Defendant shifted the alleged date of the donation must be held against her. It can be taken as a realisation that what she had stated as the time of the donation is contrary to customary norms. Plaintiff disputed that his father could speak audibly in1991 when he called a family meeting. His sister contradicted him and indicated that his speech was still audible. She however further indicated that if one did not hear him clearly he would write down. Defendant in a way corroborated the Plaintiff’s evidence concerning her late father-in-law’s ability to speak audibly. She indicated that during the family meeting, some sections of her late father-in- law’s speech were not audible. She testified that her sisters-in-law would interpret what she did not hear. Be that as it may, whether or not Plaintiff’s father was able to speak audibly in 1991 does not help the Defendant who claimed that the donation was made in 1989. Defendant was not able to call a single witness to corroborate her position that the property was given to her and to the Plaintiff after their customary law union. She indicated that there are two witnesses who are still alive but she did not know their whereabouts. In addition, she did not challenge affidavits by Plaintiff’s siblings in which they stated that the Plaintiff should inherit the property left by the late Phillip Kapuya. The affidavits were deposed to in 1997. It is trite that what is not disputed in affidavits is taken as admitted. The transfer process commenced in 1997. In 2000 the title deed came out in Plaintiff’s name. It follows that when the parties commenced building on the property in 2002, they were aware that they were building on property acquired through inheritance. Section 7(3) of the Matrimonial Causes Act [chapter5:13] provides as follows “(3) The power of an appropriate court to make an order in terms of paragraph (a) of subsection (11) shall not extend to any assets which are proved, to the satisfaction of the court, to have been acquired by a spouse, whether before or during the marriage – (a) Buy way of an inheritance; or (b) ………” I am satisfied that the property in issue is excluded from property in which the court has jurisdiction to divide, apportion or distribute by virtue of it having been acquired by way of an inheritance. The proposal by the Plaintiff is therefore appropriate in the circumstances. The parties are to share the value of the improvements they effected on the property. HH 07-26 HCH 6821/23 The following order is appropriate. 1. A decree of divorce be and is hereby granted. 2. Defendant be and is hereby awarded 50% of the value of the improvements effected on stand 151 Adylinn Township 7 of stand 12 of Adylinn North otherwise known as stand 151 Purley Close, Marlborough, Harare. 3. The improvements are to be evaluated by a valuer registered with the Estate Agents Council agreed between the parties within seven days of this order. 4. If the parties fail to agree on a valuer, one is to be appointed by the Registrar of the High Court on request by either party. 5. Plaintiff is to pay the Defendant 50% of the value improvements with 12 months of receipt of the valuation report or such other time as agreed by the parties. 6. Each party bears its own costs. MAXWELL J……………………………. Chihurumani Law, Chambers. Plaintiff’s Legal Practitioners. Crutsa and Parmers, Defendant’s Legal Practitioners