REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT KISUMU
CIVIL APPEAL NO 23 OF 1986
BARASA WANAGWE..................APPELLANT
v.
JAFETHA KIMOKOTIANI..............RESPONDENT
JUDGMENT
An interesting issue of law under section 6(2) (b)(section 6(3) in the old Act) of the land control Act 1967 has been raised.
Counsel for the appellant tells us correctly that the judge raised the particular point for the first time in his judgment and so no submissions were made. The exact position was not raised in the pleadings. The defences will have to be amended to include a specific reference to section 6(2) (b) to ensure that the issue whether consent is necessary or not, is considered. We think that it was improper for the judge to decide that issue of law without giving counsel for the appellant an opportunity to exhibit the title and documents and make submissions on the scope of section 6(2) (b). A similar situation seems to have arisen in Cleophas Wasike v. Mucha Swala CA 6 OF 1983 where in part the…