Peter Salai Mwalagaya V Murtaza Hussein Bandali  EKLR
|Civil Appeal 10 of 1980||30 Oct 1980|
Eric John Ewen Law, Cecil Henry Ethelwood Miller, Kenneth D Potter
Court of Appeal at Mombasa
Peter Salai Mwalagaya v Murtaza Hussein Bandali
Peter Salai Mwalagaya v Murtaza Hussein Bandali  eKLR
Mwalagaya v Bandali
Court of Appeal, at Mombasa October 30, 1980
Law, Miller & Potter JJA
Civil Appeal No 10 of 1980
(Appeal from the High Court at Mombasa, Kneller J)
Civil Practice and Procedure – originating summons – procedure of –Registration of Titles Act (cap 281) section 57(5) – matters which originating summons may deal with – procedure where questions of right arise – whether parties should proceed by suit in such circumstances – Civil Procedure Rules order XXXVI rule 10.
Statute – interpretation of – statute law and subsidiary legislation – conflict between -Registration of Titles Act (cap 281) section 57(5) – Civil Procedure Rules order XXXVI rule 10 – Civil Procedure Rules allowing dismissal of originating summons and reference of dispute to ordinary suit where question of law arises – statute allowing originating summons to continue in such circumstances – how such conflicts are resolved.
Caveat – withdrawal of – procedure of - Registration of Titles Act (cap 281) section 57(5) – how jurisdiction of court to withdraw a caveat is invoked – originating summons – procedure where questions of right arise.
The appellant, who had lodged a purchaser’s caveat against the title to the disputed land, made an application to the High Court by way of originating summons under section 57(5) of the Registration of Titles Act (cap 281) and order XXXVI of the Civil Procedure Rules seeking to have another caveat later lodged by the respondent on the same land withdrawn and a declaration made that he (the appellant) was the rightful purchaser of the land. The respondent raised a preliminary objection to the application on the ground that the application touched on disputed questions of fact which could not be dealt with by way of originating summons. The High Court upheld the preliminary objection and dismissed the summons. The issue arising on the appellant’s appeal was the interpretation of section 57(5) of the Registration of Titles Act and the procedure prescribed therein.
1. The jurisdiction conferred on the court by the Registration of Titles Act (cap 281) section 57(5) is invoked by the procedure of originating summons.
2. The question arising in this case as to which of the two opposing caveats was valid in law was a “question of right” as contemplated within the Registration of Titles Act section 57(5).
3. Where a question of right arises in proceedings commenced by originating summons under the Registration of Titles Act section 57(5), that section does not require that the proceedings shall subsequently be continued by a civil suit in the ordinary way but, rather, that the originating summons proceedings shall conform as nearly as possible to proceedings by way of civil suit.
4. It was a mandatory requirement of section 57(5) that a question of right arising in the originating summons proceedings should be proceeded with using the rules of the court in civil cases and the order discontinuing the originating summons was incorrect.
5. The Civil Procedure Rules order XXXVI rule 10 which empowers a judge to dismiss an originating summons and refer the parties to a suit is inconsistent with the Registration of Titles Act section 57(5) which did not permit such dismissal or reference.
6. As Section 57(5) of the Registration of Titles Act was a provision of statute, it would prevail over rule 10 of order XXXVI of the Civil Procedure Rules which is subsidiary legislation.
1. Kulsumbai v Abdulhussein  EA 701
2. Boyes v Gathure  EA 385
3. Taylor v Taylor (1875-1876) 31 LR Ch D 426
Odgers, W.B., Principles of Pleading and Practice, 21st Edn. p 319-320.
1. Registration of Titles Act (cap 281) sections 24, 29, 57(5)
2. Civil Procedure Rules (cap 21 Sub Leg) order XXXVI rules 9, 10
3. Civil Procedure Act section 81(2)(g)
Mr Inamdar for Appellant
Mr Lakha for Respondent