THE High Court has dismissed an attempt by an engineering firm and its director to escape a multimillion-dollar poultry construction lawsuit at the halfway stage of trial, ruling that the farmer who commissioned the project has established a prima facie case that must be answered.
In a judgment delivered on 2 October, 20 October and 20 November 2025, Justice Chirawu-Mugomba refused an application for absolution from the instance by Ben Muchenje and BMJ Engineering (Pvt) Ltd, saying it would be premature and unjust to shut the door on Engelbert Mudzimba’s claim for more than US$50,000 and alleged monthly business losses.
“I am loath to non-suit the plaintiff at this stage of the trial,” the judge ruled.
“He has, in my view, established a prima facie case that the defendants must answer to.”
Mudzimba is suing the defendants jointly and severally for US$50,000—said to be the cost of reconstructing two specialised chicken fowl runs—plus damages for loss of business and profits calculated at US$5,000 per month from October 2019. He alleges that shoddy workmanship rendered the structures unusable for a commercial poultry project in Chegutu.
According to the court record, the parties entered into an oral agreement in May 2019 for the construction of two 600-square-metre fowl runs, built to specifications required by Sable Chickens (Pvt) Ltd, which had contracted Mudzimba. The agreed price was US$45,000 on a fix-and-supply basis. Mudzimba testified that he paid up to US$50,000, borrowed at steep bank rates, after being assured by Muchenje, an engineer, that he had the expertise to deliver.
Mudzimba told the court that construction defects became apparent, prompting him to stop payments. He said the roof was blown off in February 2020 and again completely destroyed by rains in August that year. An independent report by Engineer Chirume, commissioned by agreement of the parties, concluded that the workmanship was substandard.
The defendants deny poor workmanship, claiming the structures were completed in December 2019 and later vandalised after the plaintiff ran out of funds and abandoned the site. They also argued that Mudzimba failed to prove how much of the money paid related specifically to the fowl runs and that he had not properly quantified his alleged losses.
At the close of the plaintiff’s case, the defence asked the court to dismiss the claim outright, arguing that no liability or damages had been proved.
Justice Chirawu-Mugomba rejected that argument, stressing that the threshold at this stage was low.
“The test to be applied is not whether the evidence led by the plaintiff establishes what will finally have to be established,” she said, citing settled authority. The question, she added, was whether there was evidence upon which a court “could or might find for the plaintiff.”
Applying that test, the judge found several critical issues had been established prima facie: the existence of an oral contract, payment of substantial sums, and evidence through an agreed expert report, that the workmanship “was not up to standard.”
“It has not been denied by the defendants that there was an oral contract and their actions of going to the site and constructing bears credence to this,” the court said. “It is not denied that money was paid and received by the first defendant.”
The judge also highlighted a point the defendants would have to explain at trial: despite denying liability, they had offered to refund “Zimbabwean currency 45,000 on a one-to-one basis.”
“This offer was not made on a without prejudice basis,” she noted, adding that the defendants “must explain why it was made in the face of denial of liability.”
On damages, the court said the plaintiff had placed figures before it and that whether those amounts were justified would be determined after hearing all the evidence.
Emphasising constitutional rights to a fair hearing, Justice Chirawu-Mugomba warned courts to be “extremely wary” of granting absolution too readily, as it can deny a litigant the chance to hear and test the other side’s case.
The application for absolution was dismissed with costs, and the court ordered that the trial proceed on a date to be set, clearing the way for the engineers to present their defence to the poultry project dispute.
