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ELCPartially AllowedNotice of Motion dated 23rd November 2023 (arising from ELC Case No. 67 of 2018, Murang'a)· [2024] KEELC 1305 (KLR)

Muiruri v Land Registrar-Murang’a Lands Registry (Environment and Land Miscellaneous Application E007 of 2023) [2024] KEELC 1305 (KLR)

Environment and Land Court
7 March 2024
LGL. Gacheru
1,641 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court lifted a land restriction placed on the wrong parcel because of a one-digit typing error, freeing the owner to deal with his property.

What this practically means

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Executive summary

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The Applicant, Mugira Muiruri, moved the Court by Notice of Motion dated 23rd November 2023 seeking lifting of orders issued on 17th August 2018 in ELC Case No. 67 of 2018 (Murang'a) and directing the Land Registrar, Murang'a, to remove the orders registered against Land Parcel No. Kakuzi/Kirimiri Block 7/247. He explained that he was not a party to that suit, that the suit land was not subject to its claim, and that the restriction resulted from a typographical error - the court order had intended to place a caveat on Kakuzi/Kirimiri Block 7/249, distinguishable only by the last digit. The Applicant purchased the suit property in 2007 from the deceased registered owner, Ngugi Mwai, whose administrators had executed transfer documents, and the restriction was discovered only when he presented transmission forms in May 2023. The Respondent was properly served on 10th January 2024 but did not enter appearance or file a response, leaving the application unopposed. The court framed a single issue: whether the Applicant was entitled to the orders sought. Perusing the Decree dated 16th November 2022, the court found it referred to Block 7/249 and Block 7/37 but never the suit property, confirming that the suit land was not subject to ELC Case No. 67 of 2018. Relying on section 73 of the Land Registration Act and the Milkah Muthoni Wagoco decision, and noting no evidence of a caution and no objection from any cautioner, the court held the caveat/caution was placed on the suit land in error and should not subsist. Prayers 1 and 2 were allowed with no orders as to costs.

Key legal issues

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Whether the Applicant is entitled to lifting/removal of the court order erroneously registered against Land Parcel No. Kakuzi/Kirimiri Block 7/247

Holding

Yes. The Decree in ELC Case No. 67 of 2018 referred to Block 7/249 and not the suit property, so the order on 7/247 was placed in error and should not subsist.

Reasoning

The court compared the Decree dated 16th November 2022 in ELC Case No. 67 of 2018 with the restriction entry on the register. The Decree mentioned Kakuzi/Kirimiri Block 7/249 and Block 7/37 but never the suit property 7/247. The two descriptions differ only in the last digit, indicating a typographical error when lodging the order. The Applicant, who was not a party to that suit, had purchased the suit land in 2007 from the deceased registered owner, and no cautioner objected.

p. 4

Legal principles established

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  • A caution or restriction placed on land pursuant to a court order does not properly subsist where the parcel affected was not the subject of the underlying proceedings, and the court may order its removal.

Court orders

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  1. 1.Lifting of the orders dated 17th August 2018 placed on Land Parcel No. Kakuzi/Kirimiri Block 7/247, issued in ELC Case No. 67 of 2018
  2. 2.Order directing the Land Registrar, Murang'a to remove the orders dated 17th August 2018 placed and/or lodged on Land Parcel No. Kakuzi/Kirimiri Block 7/247
  3. 3.No orders as to costs

Authorities

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Legislation

  • Land Registration Actsection 73

Cases cited (1)

  • Milkah Muthoni Wagoco Vs County Council of Kirinyaga & 2 Others
    [2017] eKLR
Jurisdiction invoked
Land Registration Act, 2012, section 73 (removal of caution); inherent jurisdiction to correct court orders placed on the register in error

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Muiruri v Land Registrar-Murang’a Lands Registry (Environment and Land Miscellaneous Application E007 of 2023) [2024] KEELC 1305 (KLR)", Case Analysis (2024). Notice of Motion dated 23rd November 2023 (arising from ELC Case No. 67 of 2018, Murang'a). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1305/eng@2024-03-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.