Online Reporter
Chief Court Reporter
The High Court has removed a man from his position as executor of his late father’s estate after finding that his fraud conviction and conduct in administering the estate rendered him unfit to continue holding the fiduciary office.
Justice Amy Tsanga granted an unopposed application by Caroline Njeke seeking the removal of her half-brother, Jemias Njeke, as executor of the estate of their late father, Eliphas Ndide Njeke.
The dispute concerns Estate DR No. 1752/12, which comprises a single immovable property situated in Kuwadzana, Harare.
According to the court record, the deceased died in April 1999, leaving behind nine children from three wives.
The estate remained unregistered until 2012, when Jemias Njeke registered it without the knowledge of most beneficiaries and was subsequently appointed executor.
Caroline Njeke told the court that she only discovered the estate had already been registered after she and other siblings attempted to register it in 2014.
While pursuing administration of the estate, she learned that the property’s sole asset had already been sold.
Investigations at the Master’s Office later revealed that the estate had been registered years earlier by the first respondent. The High Court subsequently set aside the sale of the property.
Caroline Njeke further alleged that her half-brother had been criminally prosecuted and convicted of fraud arising from misrepresentations made to the Master and forged documents submitted during the administration of the estate.
Documentary proof of the conviction was placed before the court. In her application, she argued that the executor had acted dishonestly, advanced his own interests at the expense of beneficiaries and created an irretrievable breakdown of trust among family members.
Jemias Njeke, who was served with the application in March 2023, did not oppose the matter. The Master of the High Court, cited in an official capacity, also filed no response.
In a judgment that examined the recently amended provisions of the Administration of Estates Act, Justice Tsanga reaffirmed that beneficiaries and other interested parties retain a direct common-law right to approach the courts for the removal of executors whose continued presence is prejudicial to an estate.
The judge said Parliament’s 2024 amendments to Section 117 of the Act expressly preserved the common-law remedy alongside the statutory powers of the Master to seek removal of executors.
Justice Tsanga emphasised that an executor occupies a position of trust and is required to administer an estate with honesty, impartiality and diligence.
The court found that the first respondent’s conduct extended beyond ordinary family disagreements and demonstrated a lack of candour incompatible with the responsibilities of an executor.
Particular weight was placed on the fraud conviction, which arose directly from the administration of the estate.
“A conviction for fraud committed in the administration of an estate strikes at the very foundation of the fiduciary relationship that must exist between an executor, the beneficiaries and the Master,” the judge held.
The court found that the respondent’s misrepresentations, the setting aside of the sale of estate property and the fraud conviction established that he was no longer a fit and proper person to hold office.
Justice Tsanga further ruled that while loss of confidence by beneficiaries does not automatically justify removal, such loss of trust becomes entirely justified where it is founded on proven dishonesty and fraudulent conduct.
Finding that the continued tenure of the executor posed a risk to the proper administration of the estate and the interests of beneficiaries, the court concluded that good cause had been shown for his removal.
The application was accordingly granted, and Jemias Njeke was removed as executor of Estate DR No. 1752/12.
