https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3419

Obuya v Odhiambo s/o Antony Oloo Osoro (Enviromental and Land Originating Summons E017 of 2022) [2026] KEELC 3419 (KLR) (4 June 2026) (Judgment) Neutral citation: [2026] KEELC 3419 (KLR) Republic of Kenya In the Environment and Land Court at Kisumu Enviromental and Land Originating Summons E017 of 2022 E Asati, J June 4, 2026 Between Joel Obuya Applicant and Wycliffe Odhiambo (S/O Antony Oloo Osoro) Respondent Judgment Introduction 1.Vide the Originating Summons dated 12th May 2022, the plaintiff/applicant sought the determination of the following issues.a.Leave of the court under Section 8 (1) of the Land Control Act Cap 302 to extend time to apply for Land Control Board Consent to sub-divide and transfer a portion measuring approximately 0.7 acres (0.2775 Ha) of the property known as L. R. NO. Kisumu/Wawidhi A1/5309 purchased by Plaintiff from the Defendant ( as owner) on the 17th November 2012 at Kshs. 35,000/- paid in agreed instalments until completion and specific performance of the contract for the vendor to procure and provide all necessary consents and certificates to effect the transfer of the purchased property to the Plaintiff.b.Sub-division and transfer of 0.7 acres (0.2775 Ha) portion of property purchased from the property known as L. R. No. Kisumu/Wawidhi A1/5309.c.Injunctive relief to the Defendant’s trespass, wastage and interference of and with the Plaintiff’s property. 2.The Plaintiff sought Judgment against the Defendant for:1.That this application be heard ex parte and certified urgent and heard on priority.2.Permanent injunction restraining the defendant, his agents, successors, employees, antecedents and assigns, from wasting, alienating, disposing of a portion of property measuring approximately 0.7 acres (0.2775 Ha) of the property known as L. R. No. Kisumu/Wawidhi A1/5309 purchased and occupied by the plaintiff, and further from trespassing into, remaining in and/or interfering in or with the said property and/or the plaintiff’s beneficial proprietary interest in the same.3.Leave of this Court, under s. 8(1) Land Control Act Cap 302, to extend time to apply for Land Control Board Consents, to sub-divide and to transfer a portion measuring approximately 0.7 acres (0.2775 Ha) of the property known as L. R. No. Kisumu/Wawidhi A1/5309 purchased by the Plaintiff from the defendant (as owner on 17th November 2012 at Kshs. 35,000/- paid in agreed installments till completion and specific performance of the contract for the vendor to procure and provide all necessary consents and certificates to effect the transfer of the purchased property to the plaintiff.4.The defendant is hereby directed to execute the relevant applications for Land Control Board Consent to effect the sub-division and transfer of a portion measuring approximately 0.7 acres (0.2775 Ha) of the property known as L. R. No. Kisumu/Wawidhi A1/5309 to the plaintiff and or his nominee, mutations, transfers and relevant completion documents, to obtain all the necessary consents and certificates in order to effect the sub-division and transfer of the subject property to the plaintiff, and to transfer the area of the said property purchased to the plaintiff, and, in default, the Court’s Deputy Registrar to execute all necessary applications, mutations and completion documents in his stead under S. 98 Civil Procedure Act Cap 21 to enable the transfer of the property to the plaintiff.5.Specific performance of land sale agreement dated 17th November 2012 to sell, sub-divide and transfer to the Plaintiff or his nominee 0.7 acres (0.2775 Ha) of the property known as L. R. No. Kisumu/Wawidhi A1/5309.6.Costs and interest.7.Any other order the court may deem fit and just. 3.The Originating Summons was supported by the averments in the Supporting Affidavit of Joel Obuya sworn on 20th April 2022 and the annexures. The Plaintiff’s/applicant’s case 4.The Plaintiff’s case is that the Defendant sold him 0.7 acres (02775 Hectares) of land parcel known as L. R. No. Kisumu/Wawidhi A1/5309 vide a Land Sale Agreement dated 17th November 2012 for Kshs. 35,000/- which he paid in instalments till payment in full. 5.That then he took possession of the sold portion of the property, fenced it using sisal plants and planted a forest of trees in it even as the Defendant undertook to formally sub-divide the land. 6.That the Defendant, in February and March 2022, invaded and trespassed onto the sold portion of the property, cut down some of the trees, uprooted part of the sisal fence, thus showing that he was not interested in completing the sale despite receiving the full purchase price.The Plaintiff therefore seeks the intervention of the court. 7.The Plaintiff contended that it was an implied term of the land sale agreement that the Defendant shall sub-divide a portion measuring 0.7 acres of the subject property and thereafter transfer it to the plaintiff/applicant. The Respondent’s case 8.The Originating Summons was unopposed. The record shows that the Originating Summons was served upon the Respondent personally. 9.Vide its ruling dated 16th February 2023, the court gave directions on the mode of disposal of the Originating Summons and timelines for parties to file their respective pleadings. Analysis and determination 10.The Originating Summons is stated to be brought pursuant to the provisions of section 8(1) of the Land Control Act, Cap 302 of the Law of Kenya, Order 37 Rules 1 & 2 and Order 40 Rules 1 & 2 of the Civil Procedure Rules. Section 8 (1) of the Land Control Act provides :An application for consent in respect of a controlled transaction shall be made in the prescribed form to the appropriate Land Control Board within six months of making of the agreement for the controlled transaction by any party thereto.Provided that the High Court may, notwithstanding that the period of six months may have expired, extend that period where it considers that there is sufficient reason so to do upon such conditions, if any, as it may think fit.” 11.Order 37 Rules 1 & 2 of the Civil Procedure Rules provide for who may take out Originating Summons and in respect of what matters. 12.And Order 40 Rules 1 and 2 provide for grant of temporary injunctions and interlocutory orders. 13.I have considered the Originating Summons, the Supporting Affidavit, the Further Affidavit and annexures. 14.The law vests this court with discretionary powers to extend the period for seeking consent of the Land Control Board, where the court considers that there is sufficient reason to do so. In the present case it is conceded that the period for applying to the Land Control Board long expired under section 8 of the Land Control Act after six months from the date of the land sale agreement. 15.The land sale agreement having taken place on 17th November 2012, it was not until 25th July 2022 that the Originating Summons herein was filed. There is no explanation for the inordinate delay. 16.There is no evidence of full payment of the purchase price. While the agreed purchase price was Kshs. 35,000/- (Thirty-five thousand only), the acknowledgements exhibited show that only Kshs. 24,500/- was paid. 17.Further, there is no evidence of occupation or possession of the sold portion of land by the applicant. The photographs attached to the Further Affidavit are stated to have been taken in the year 2024, long after the Originating Summons had been taken out, and there is no evidence that the activities, if any, shown in the photographs portray the activities alluded to in the Originating Summons. 18.I find that no sufficient cause has been shown for this court to exercise the discretion to extend time for making the application for consent of the Land Control Board under Section 8 (1) of the Land Control Act. 18.The result is that: -i.The Originating Summons is dismissed.ii.No orders as to costs, as the Originating Summons was not defended.Orders accordingly. JUDGMENT DATED AND SIGNED AT Kisumu AND DELIVERED VIRTUALLY THIS 4TH DAY OF JUNE, 2026.E. ASATI,JUDGE.In the presence of:Atika: Court Assistant.Parties absent.