MICHAEL MUCHIRI NDERITU VS PRISCILLA NYAKABI NDIKWE

1.    Before the Court for determination is the Notice of Motion dated 12th November 2025 seeking the following orders:
1)    THAT this Honourable Court be pleased to rectify orders granted on 10th July 2025 before Hon. Kamau Mugo J., where a clerical error was made on the land entry as NANYUKI/MARURA/BLOCK 4/1102, which should read as NANYUKI/MARURA/BLOCK 4/1120.
2)    THAT this Honourable Court be pleased to order the Land Registrar at Nanyuki Land Registry to remove the land restriction on the following parcels of land with immediate effect- NANYUKI/MARURA/BLOCK 4/1120, NANYUKI/MARURA/BLOCK 4/1101 and NANYUKI/MARURA/BLOCK 4/1040.
3)    THAT the costs of this application be in the cause.
2.    The grounds in support of the application are contained in the Affidavit of the Advocate for the Applicant, where he states that this suit was filed by Michael Muchiri Nderitu, who was later substituted by Veronicah Wangu Kamau by way of Originating Summons. During the course of the suit, a restriction was placed on the suit parcels of land, namely NANYUKI/MARURA/BLOCK 4/1120, NANYUKI/MARURA/BLOCK 4/1101, and NANYUKI/MARURA/BLOCK 4/1040.

3.    Counsel stated that a decision was made in this suit in favour of the Respondent. The Applicant herein appealed to the Court of Appeal in Civil Appeal No. 027 of 2023, and the decision of this court was overturned in her favour, restoring the previous status quo and ownership of the suit lands to her. The Applicant claims that to fully enjoy her rights to the parcels of land, she needs the removal of the restriction.

4.    Counsel deposed that on 14th April 2025, they filed a Notice of Motion where orders were granted on the 10th day of July 2025. He claims that the order granted had a clerical error, as one of the parcels of land should be NANYUKI/MARURA/BLOCK 4/1120 instead of  NANYUKI/MARURA/BLOCK 4/1102.

5.    It is also deposed that the Applicant is the rightful owner of the parcels NANYUKI/MARURA/BLOCK 4/1120, NANYUKI/MARURA/BLOCK 4/1101 and NANYUKI/MARURA/BLOCK 4/1040, but despite all facts being in favour of the Applicant, she has not been able to enjoy her parcels of land due to the restrictions.
6.    The application was heard on 2nd December 2025, and Counsel for the Applicant informed the Court that parcel number 1102 was the mother title that led to the subdivisions creating title number 1120, which was not captured, thus necessitating the filing of this application.
7.    The Respondent, though served, did not file any documents in response to the application herein.

Analysis and Determination
8.    The instant application is brought pursuant to the provisions of Section 99 of the Civil Procedure Act, CAP 21 and Section 78 of the Land Registration Act, CAP 300. Section 99 of the Civil Procedure Act provides that:
        “Clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court either of its own motion or on the application of any of the parties.”

9.    The provision the Applicant relies on for removal of the restriction is Section 78 of the Land Registration Act, which stipulates that:
        “Upon the application of a proprietor affected by a restriction, and upon notice to the Registrar, the court may order a restriction to be removed, varied, or other order as it deems fit, and may make an order as to costs.”

10.    This suit was filed on the 29th of August 2023 by Michael Muchiri Nderitu, who passed away and was later substituted by Veronicah Wangu Kamau, his sister and administrator of the Estate. The case was fully heard and judgment delivered by Hon. J.O. Olola J on the 28th of September 2022, who found that the Defendant, who is the registered proprietor of Land Parcels Nanyuki/Marura Block 4/1101, Nanyuki/Marura Block 4/1102 and Nanyuki/Marura Block 4/1040, holds them in trust to the extent of 7.7375 Ha for the family of the late Ndikwe Mungatu and Nguju Ndikwe.
11.    Aggrieved by the decision of the Court, the Applicant appealed to the Court of Appeal in Nyeri in appeal number E027 of 2023. The Court of Appeal allowed the appeal, overturning the decision of this Court.

12.    The Applicant then filed the Notice of Motion dated 14th April 2025 seeking to remove the Land restriction placed on the suit parcels during the pendency of the suit. The same was allowed by Hon. Mugo Kamau J. on the 10th July 2025. The Applicant claims that the resultant order erroneously reads that one of the parcels with a restriction is LR Nanyuki/Marura Block 4/1102 instead of Nanyuki/Marura Block 4/1120. The Applicant seeks rectification of the Order.

13.    The Court has looked at the Green Card attached to the supporting affidavit to the application herein which shows that Nanyuki/Marura Block 4/1120 is a subdivision of Nanyuki/Marura Block 4/1102, the mother title, and the restriction was placed on parcel 1120 pursuant to an order of this Court dated 29th August 2013.

14.    Section 76(2) of the Land Registration Act provides that:
“A restriction may be expressed to endure—
(a)    for a particular period;
(b)    until the occurrence of a particular event; or
(c)    until a further order is made, and may prohibit or restrict all dealings or only or the dealings that do not comply with specified conditions, and the restriction shall be registered in the appropriate register.”

15.    From the foregoing, it is clear that a restriction is not a permanent entry on the register. In this case, an order of the Court to remove the restriction placed on the suit parcels of land was made on 10th July 2025. There is an apparent clerical error, and even though the error runs through the judgment of this court and the Court of Appeal, it was nevertheless confirmed by the Green Card submitted by the Applicant that Nanyuki/Marura Block 4/1120 is a subdivision of Nanyuki/Marura Block 4/1102, the mother title.

16.    It is also confirmed that on 10th October 2013, the following order was placed against title number Nanyuki/Marura Block 4/1120: “Prohibitory order no dealings until civil suit No. 172 /2013 at Nyeri is finalised. Order dated 29.8.2013”

17.    Having confirmed that this suit and the appeal thereof have been heard and determined, there is no reason why the orders placed against the title herein should remain.  The Court thus finds that the rectification sought under Section 99 of the Civil Procedure Act is merited. 

18.    The final order of the court is that the Notice of Motion dated 12th November 2025 is hereby allowed as prayed.

Dated, Signed and Delivered via Microsoft Teams at Nairobi, this 27th day of January, 2026
In the Presence of:-
Janice Kendi: Court Assistant
Kamuthu for the Applicant
No appearance for the Respondent