MW
REPUBLIC OF MALAWI
IN THE SUPREME COURT OF APPEAL
MSCA CIVIL APPEAL NO. 27 OF 2026
(Being High Court, Civil Division, Civil Cause No. 373 of 2020)
BETWEEN:
MAMA CECELIA KADZAMIRA (APPELLANT)
AND
SUB-TRADITIONAL AUTHORITY KAWERE (1ST RESPONDENT)
GABON KAPHWITI (2ND RESPONDENT)
MRS KAPHWITI (3RD RESPONDENT)
YERIKO MATEYU (4TH RESPONDENT)
CASE SUMMARY
PRESIDING JUSTICES: Chief Justice Mzikamanda, SC; Deputy CJ Chikopa, SC; Kapanda,SC, JA; Potani, SC, JA; Mkandawire, SC, JA; Kalembera, SC, JA; Madise, SC, JA.
DELIVERED ON: 05th November 2026
BRIEF FACTS
The Appellant instituted proceedings in the High Court claiming that she was the leasehold owner of approximately 1,536.495 acres of land comprising Chalimbana Estate and Tichitenji Estate in Mchinji District. She alleged that the Respondents had unlawfully entered upon the land and purported to reallocate it to themselves, thereby committing continuing acts of trespass.
The Appellant relied on a 99-year lease granted by the Minister responsible for Lands with effect from 1 April 1978 and registered under Deed No. 61705. The 2nd and 3rd Respondents disputed the Appellant's title, contending that the disputed land had previously been leased to the late Elias Zakeyo Kaphwiti Banda under a 99-year lease commencing on 1 April 1967.
The 2nd and 3rd Respondents maintained that the earlier lease remained subsisting when subsequent interests in the same land were created. They challenged the validity and priority of the Appellant's lease and relied on the earlier lease as the basis for denying the Appellant's entitlement to the land.
In the course of the proceedings, the 2nd and 3rd Respondents applied for permission to join the Attorney General, representing the Ministry of Lands, as a third party. They contended that the Ministry had improperly granted a subsequent lease to the Appellant while the earlier lease remained subsisting. Among the reliefs sought were indemnity and rectification of the land register by cancellation of the Appellant's lease.
Following trial, the High Court, dismissed the Appellant's claim. The learned Judge examined the competing leasehold interests and found that the earlier lease in favour of Elias Zakeyo Kaphwiti Banda had priority and had not been shown to have been lawfully cancelled, surrendered or forfeited. The Court consequently found that the Appellant had failed to establish a valid and enforceable title to the disputed land. The Court also made a declaration concerning the priority of the earlier title.
Being dissatisfied with the decision, the Appellant appealed to the Supreme Court of Appeal on eight grounds. The grounds challenged, among other matters, the Court's grant of relief allegedly not pleaded by the Respondents, the application of limitation principles, the legal principles governing trespass, the evaluation of evidence concerning the alleged trespass, the rejection of the plea of res judicata and the Court's treatment of the claims against the 1st and 4th Respondents.
THE LEGAL ISSUES
The principal issues for determination were:
a) Whether the Court below was entitled to examine the competing leasehold interests in determining the Appellant's claim in trespass.
b) Whether the Appellant established an enforceable right to possession sufficient to sustain her claim in trespass.
c) Whether the Court below properly made a declaration concerning the priority of the earlier lease, having regard to the pleadings and the absence of a counterclaim by the 2nd and 3rd Respondents.
d) Whether the 2nd and 3rd Respondents' reliance on the earlier lease was barred by limitation.
e) Whether the earlier proceedings in Judicial Review Case No. 25 of 2020 rendered the question of ownership res judicata.
f) Whether the Court below properly determined the claims against the 1st and 4th Respondents.
THE FINDINGS
The Supreme Court dismissed the appeal in its entirety.
The Court held that the learned Judge was entitled to examine the competing leasehold interests because the Appellant had founded her claim in trespass on her alleged leasehold title and the right to possession arising from it. The evidence supported the finding that the earlier registered lease in favour of Elias Zakeyo Kaphwiti Banda had not been lawfully cancelled, surrendered or forfeited. The Appellant consequently failed to establish an enforceable right to possession.
The Court further held that although trespass is founded upon possession rather than ownership, the Appellant had failed to establish the possessory right underlying her claim. The principles governing trespass therefore did not avail her.
With respect to the declaration concerning priority of title, the Court considered the competing claims of title placed in issue by the parties and found no sufficient basis to disturb the determination made by the Court below.
The Court also rejected the arguments founded on limitation and res judicata. It found that the earlier proceedings had not finally determined the proprietary rights in issue in the present proceedings and that the reliance on the earlier lease in answer to the Appellant's claim was not barred by limitation.
The remaining grounds of appeal were found to disclose no error of law, misapprehension of the evidence or improper exercise of judicial discretion sufficient to warrant a different conclusion.
THE ORDERS
The Supreme Court made the following orders:
a) The appeal was dismissed in its entirety.
b) The judgment and consequential orders of the High Court were affirmed.
c) The Respondents were awarded the costs of the appeal.
- 109 views