[1987] KECA 24 (KLR)
The Court of Appeal held that it was improper for the trial judge to decide the issue of whether consent under section 6(2)(b) of the Land Control Act was necessary without giving the parties, particularly the appellant, an opportunity to present evidence and make submissions on the matter. Since the issue was not...
Source-derived case information.
- Citation
- [1987] KECA 24 (KLR)
- Parties
- Appellant: Barasa Wanagwe; Respondent: Jafetha Kimokotiani
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 23 of 1986
- Procedural Posture
- Civil Appeal / Judgment on Appeal
- Outcome
- Appeal allowed; High Court judgment and order for costs set aside; case remitted for re-trial.
- Legal Topics
- Land Control Act, Consent Requirement, Pleadings Amendment, Retrial Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Barasa Wanagwe
Appellant
Jafetha Kimokotiani
Respondent
Procedural Posture
Civil Appeal / Judgment on Appeal
Legal Issues
- 1 Whether it was proper for the trial judge to decide on the necessity of consent under section 6(2)(b) of the Land Control Act without giving parties an opportunity to address the issue.
- 2 Whether the pleadings should be amended to specifically reference section 6(2)(b) of the Land Control Act.
- 3 Whether a re-trial is necessary to properly address the legal issue raised.
Ratio Decidendi
The Court of Appeal held that it was improper for the trial judge to decide the issue of whether consent under section 6(2)(b) of the Land Control Act was necessary without giving the parties, particularly the appellant, an opportunity to present evidence and make submissions on the matter. Since the issue was not raised in the pleadings and the appellant was prejudiced by the lack of opportunity to address it, the court set aside the High Court's judgment and ordered a re-trial before a different judge on amended pleadings that specifically reference section 6(2)(b).
Court Disposition
Appeal allowed; High Court judgment and order for costs set aside; case remitted for re-trial.
Orders
- The judgment of the High Court and order for costs are set aside.
- The record is remitted to the High Court Kakamega for a re-trial before a different judge on amended Defence pleadings.
Full Case Text
Judgment text and source record
16 paragraphs
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 exact interpretation of section 6(2) (b) was left open.
Mr Wafula has been embarrassed by having to put before the court the titles showing the history of the ownership of land which he has not been able to do in full. He makes the valid point that the appellant has been prejudiced.
In view of the decision we are about to make it is not necessary for us to decide if the documents now shown to the court would have been admissible as additional evidence under R 29. Mr Wafula has helpfully urged that a re-trial should be held to decide the issue which was omitted.
Accordingly, we order that the judgment of the High Court and order for costs be set aside and the record be remitted to the High Court Kakamega for a re-trial to be held before a different judge on amended Defence pleadings.
No order as to costs.
March 27, 1987
NYARANGI, PLATT & GACHUHI JJ A