Online Reporter
Fidelis Munyoro-Chief Court Reporter
The Supreme Court has dismissed a woman’s bid to overturn a High Court judgment that denied her a share of a Borrowdale property, awarded custody of her minor child to her ex-husband, and ordered her to share maintenance responsibilities.
Justice George Chiweshe, ruling in chambers, found no merit in Memory Kanyekanye’s application for condonation and extension of time to appeal.
He criticised her for inordinate delays, lack of plausible explanations, and weak prospects of success.
“This application is a clear example of unnecessary delays in the administration of justice. It has no merit,” said Justice Chiweshe.
The case stemmed from a divorce between Memory and her former husband, Celestino Kanyekanye, after nearly 20 years of marriage.
At the centre of the dispute was the ownership of a Borrowdale double-storey property, custody of their minor child, and financial obligations for their children, including a major child studying in Poland.
The High Court had previously ruled in favour of Celestino, granting him sole ownership of the Borrowdale property.
The court found that Memory had neither contributed to the purchase of the stand nor the construction of the house.
Instead, she had acquired another property, 23 Kimmich Heights, with her own resources during the marriage, which the court awarded to her.
Justice Chiweshe upheld the lower court’s findings, stating, “The court a quo exercised its discretion fairly and judicially after a thorough interrogation of the facts. An appeal court will not lightly interfere with such discretion.”
Memory had argued that the lower court erred by failing to recognise her contributions to the marriage, including providing household support and selling suits to supplement the family income.
She also challenged the court’s reliance on a post-nuptial agreement, claiming she signed it while sleepy and unaware of its implications.
The superior court rejected these arguments, noting that the post-nuptial agreement was valid and binding.
The court also dismissed her claim that the High Court had ignored constitutional provisions on the equality of spouses during marriage and its dissolution.
“The purpose of an appeal is to test the correctness of the judgment of the court a quo. The court a quo did not and could not determine an issue not put before it,” Justice Chiweshe said, adding that the constitutional argument was being raised for the first time.
On custody, the High Court had awarded the minor child to Celestino, reasoning it was in the child’s best interests.
The court found that Memory’s job in Shamva kept her away from Harare during weekdays, leaving the child in the care of a maid.
Evidence showed the child’s academic performance was deteriorating under this arrangement. Justice Chiweshe agreed with the High Court, stating, “The order granting custody of the minor child to the respondent was arrived at with the best interests of the child in mind. There is no basis upon which an appeal court would interfere with the decision of the court a quo (Lower Court).”
Memory also sought to challenge the High Court’s maintenance order, which required both parties to share the costs of the minor child’s upkeep equally.
However, the Supreme Court found that this issue had been settled during the pretrial conference and was not contested in the High Court.
The delay in filing the appeal was a pivotal factor in the Supreme Court’s decision.
Memory claimed her previous lawyer, Mr Katsuwa, had failed to file the appeal despite being paid $800.
She alleged that she later discovered he was unreachable.
However, Justice Chiweshe dismissed her explanation as implausible, noting her failure to produce receipts or an affidavit from Mr Katsuwa.
“The applicant’s explanation cannot be plausible. The story about Mr Katsuwa’s misconduct raises more questions than answers,” he said.
The Supreme Court also took issue with the execution of the High Court judgment.
Between June and August 2022, Memory had engaged lawyers to enforce parts of the judgment, collecting items awarded to her and arranging maintenance payments.
This, the court said, demonstrated acquiescence to the judgment.
“The respondent has since moved on with his life. There is no reason why he should be endlessly engaged in legal suits over a matter that all along he had been made to believe had been finalised,” Justice Chiweshe ruled.
The court dismissed the application with costs.
The ruling brings finality to a protracted legal battle, leaving Memory with no share of the Borrowdale property but retaining ownership of her Kimmich Heights property.
Celestino, who has since remarried, retains custody of the minor child and will continue sharing maintenance responsibilities with his ex-wife.
