' REPUBLIC OF KENYA
IN THE HICH COURT OF KENYA
AT BUNGOMA
SUCCESSION CAUSE NO. 312 OF 2010
IN THE MATTER OF THE ESTATE OF DAVID MAKARI (DECEASED)
JANE SIMIYU……………………………………………….1ST PETITIONER
ISAAC KITUYI MAKARI……………..2ND PETITIONER/RESPONDENT
VERSUS
GERITA NAKHUMICHA SITATI………….1ST OBJECTOR/APPLICANT
DAVID MAKARI SITATI…………………..2ND OBJECTOR/APPLICANT
DAVID KIZITO SITATI…………………….3RD OBJECTOR/APPLICANT
RULING
Background
1. The gist of this matter is that on 21st July 2023, this Court under the stewardship of my colleague, the erudite Justice David Kemei, issued a judgement revoking the Grant issued to the 1st Petitioner herein on 17th May 2012, and the Certificate of Confirmation subsequently issued on 21st May 2012. He directed that a fresh Grant be issued in the names of the 1st and 2nd Petitioners herein and that the registration of parcel number Bokoli/Chwele. 358 in the name of the 1st Petitioner be revoked and/or cancelled and the same revert in the name of the deceased herein. Finally, he directed the Administrators to file fresh summons for confirmation within thirty (30) day from the date of the Judgement and have the same fixed for mention on 18th October 2023.
2. Vide Court proceedings dated 17th February 2025, this Court established that the Summons for Confirmation application dated 12th July 2024, was mentioned before me for directions and 1st Petitioner/Administrator herein filed their response dated 12th October 2024, opposing the same. It was clear that both the Petitioners/Administrators were not in agreement on the mode of distribution. This Court directed the 2nd Petitioner herein to file his respective submissions with 14 days from 17th February 2025.
3. The parties appeared before this Court on 17th March 2025, wherein the Court established that from the perusal of the 1st Petitioner’s submissions that the 2nd Petitioner was well provided for and that the 2nd Petitioner had capture different properties which did not form part of the estate of the deceased and that he raised an issue of distribution under the Law of Succession Act. Counsel for the 1st Petitioner insisted that there was a need to summon the Land Registrar and Surveyor Bungoma County, and that he would also need to summon the chief and the elders on customary law. Finally, he requested that this Court reviews its directions made on 17th February 2025, due to the emerging position taken by the 2nd Petitioner’s Counsel.
4. On inquiry by this Court, I was able to establish that the Petitioners/Administrators herein were not able to agree on the issues of properties that did not form part of the estate of the deceased herein.
5. Subsequently, the Petitioner’s Counsels were able to reach a consensus that Counsel for the 1st Petitioner/Administrator should make a formal application for the review of the Court directions made on 17th February 2025.
6. This Court proceeded to direct the Counsel for the 1st Petitioner/Administrator to proceed and file a formal application for review of the directions made on 17th February 2025 within 7 days from 17th March 2025.
Review Application
7. Vide an application for review dated 25th March 2025, the 1st Petitioner/Administrator herein seeks the review of orders made by this Court on 14th October 2024. Subsequently, that the 1st Petitioner/Administrator be granted leave to file a supplementary affidavit and a witness statement or Affidavit evidence of the customary law that informed the distribution of the estate of the deceased herein.
8. The application was grounded on the Supporting Affidavit sworn by the 1st Petitioner/Administrator, Jane Simiyu, who averred that she is seeking the distribution of land parcel Bokoli/Chwele/358 in her name exclusively, but the 2nd Petitioner/Administrator in his sworn Replying Affidavit dated 12th October 2024, averred that the same parcel ought to go to the 3rd Objector/Applicant herein, David Kizito Sitati, who is a grandson of the deceased herein. Further, she averred that according to the 2nd Petitioner/Administrator land parcel Bokoli/Chwele/337 was already distributed according to the wishes of the deceased and that land parcel E. Bukusu/N. Nalondo/420 was part of the estate of the deceased and not the personal property of one Jemba Makari Simiyu. She refuted that allegations that land parcel E. Bukusu/N. Nalondo/420 formed part of the estate of the deceased. Finally, she averred that the deceased herein died in the year 1967 prior to the commencement of the Law of Succession Act and that his estate ought to be distributed in accordance with the Bukusu Customary Law and that evidence ought to be adduced on the same before this Court. She urged this Court to review its directions as issued on 14th October 2024, to allow the re-opening of Court proceedings and grant her leave to file a Supplementary Affidavit and a witness statement of the elders to provide proof that particular customs were applied and informed the distribution of the estate of the deceased herein.
9. In response to the review application dated 25th March 2025, the 2nd Petitioner/Administrator herein filed his Replying Affidavit sworn on 26th April 2025, wherein he averred that the 1st Petitioner/Administrator was duly cross-examined by his Counsel she had all the evidence with her and her allegations that she wants to introduce more evidence is an attempt to steal a match at the 2nd administrator. Further, he averred that the distribution of the estate of the deceased herein is strictly limited to land parcel number Bokoli/Chwele/358 which the 1st Petitioner/Administrator’s bone of contention and that he has elaborated to the Court on why she is not supposed to be solely awarded the same. Finally, he averred that re-opening the proceedings will be prejudicial to the other beneficiaries as the 1st Objector/Applicant never sought for rectification to include the properties referred to in the list of assets. He urged this Court to proceed and make a ruling based on the available evidence.
10. Vide Court directions issued on 18th June 2025, this Court directed the parties to file and exchange their respective written submissions. Both parties complied with the Court directives.
1st Petitioner/Administrator’s written submissions
11. Vide submissions dated 2nd July 2025, Counsel argues that the proceedings on Court record were not on distribution of the estate of the deceased, but on revocation of the Grant and Certificate of Confirmation of Grant issued to her on 17th May 2012 and 21st May 2012 respectively. According to Counsel, the 1st Petitioner commenced succession proceedings in regards to land parcel Bokoli/Chwele/358 as land parcel Bokoli/Chwele/337 had already been shared out amongst the 4 brothers of the deceased herein including the 2nd Petitioner/Administrator herein. Counsel argues that the siblings to her deceased husband were catered for under land parcel Bokoli/Chwele/337 and as per the land registrar the said titled does not exist as the same was sub-divided. Further Counsel argues that David Kituyi Sitati is the son to one Zebedee Sitati Makari who was duly catered for under land parcel Bokoli/Chwele/337 and is a trespasser on the land parcel Bokoli/Chwele/358, and that the same is a subject in suit in the lower Court. That, the 3rd Objector herein is the grandson of the deceased herein and that he also benefited from his father under land parcel Bokoli/Chwele/337 as he is the son of one Zebedee Sitati Makari. Finally, Counsel argues that since the deceased herein died prior to the commencement of the Law of Succession Act, this Court should apply Bukusu Customary Law in the final disposition of her application dated 12th July 2024 as provided for under Section 2(2) of the Law of Succession Act as the same cannot be waived. Counsel placed reliance on the following cases: Ernest Kinyanjui Kimani vs Muiru Gikanga & Another (1965) EA 735, Wambugi w/o Gatimu vs Stephen Nyaga Kimani (1992) eKLR (2002) 1 EA 261 and Re the Estate of Lerionka Ole Ntutu (Deceased) 2008 eKLR. Counsel also placed reliance on Section 48 of the Evidence Act.
12. Counsel urged this Court to allow the 1st Petitioner’s application for review as he seeks to introduce new evidence that has been necessitated by the pleadings of the 2nd Petition and the same was not placed before this Court.
2nd Petitioner/Administrator’s written submissions
13. Vide submissions dated 16th July 2025, Counsel submits that on two issues namely: review in Succession matters and whether the Application meets the threshold.
14. On the 1st issue, Counsel submits that the issue of review a Probate Court is governed by Rule 63 of the Probate and Administration Rules and that review applications can be by a party to the proceedings, but it is subject to the dints of Order 45 of the Civil Procedure Rules. Counsel placed reliance on the cases of John Mundia Njoroge & 9 Others vs Cecilia Muthoni Njoroge & Another (2016) eKLR and National Bank of Kenya Limited vs Ndungu Njau (1997) eKLR.
15. on the 2nd issue, Counsel submits that it is not clear on what grounds the 1st Petitioner wants the Court to review directions given on 17th February 2025 and that the said orders were made in the presence of the parties and their respective advocates. Counsel maintained that a consent order cannot be reviewed, varied or set aside unless by consent and noted that the 1st Petitioner is simply on a fishing expedition. He urged this Court to dismiss the 1st Petitioner’s application for review.
Determination
16. Order 45 of Civil Procedure Rules deals with reviews and Section 80 of the Civil Procedure Act too, a party seeking a review of an order must meet the substantive requirements of an application brought for review as set out in Order 45 of the Civil Procedure Rules in succession matters.
17. Pursuant to Order 45 of the Civil Procedure Rules, it’s clear that the facts herein do not support review an d I thus dismiss the application herein for want of merit.
18. Each party to bear its own costs.
Delivered, Signed and Dated at Bungoma this 27th day of November 2025.
Mwanaisha S. Shariff
Judge
IN THE PRESENCE OF :
N/A FOR 1ST PETITIONER
2ND PETITIONER/RESPONDENT
N/A FOR 1ST OBJECTOR/APPLICANT
N/A FOR 2ND OBJECTOR/APPLICANT
3RD OBJECTOR/APPLICANT
PETER MACHONI COURT ASSISTANT
'
IN THE HICH COURT OF KENYA
AT BUNGOMA
SUCCESSION CAUSE NO. 312 OF 2010
IN THE MATTER OF THE ESTATE OF DAVID MAKARI (DECEASED)
JANE SIMIYU……………………………………………….1ST PETITIONER
ISAAC KITUYI MAKARI……………..2ND PETITIONER/RESPONDENT
VERSUS
GERITA NAKHUMICHA SITATI………….1ST OBJECTOR/APPLICANT
DAVID MAKARI SITATI…………………..2ND OBJECTOR/APPLICANT
DAVID KIZITO SITATI…………………….3RD OBJECTOR/APPLICANT
RULING
Background
1. The gist of this matter is that on 21st July 2023, this Court under the stewardship of my colleague, the erudite Justice David Kemei, issued a judgement revoking the Grant issued to the 1st Petitioner herein on 17th May 2012, and the Certificate of Confirmation subsequently issued on 21st May 2012. He directed that a fresh Grant be issued in the names of the 1st and 2nd Petitioners herein and that the registration of parcel number Bokoli/Chwele. 358 in the name of the 1st Petitioner be revoked and/or cancelled and the same revert in the name of the deceased herein. Finally, he directed the Administrators to file fresh summons for confirmation within thirty (30) day from the date of the Judgement and have the same fixed for mention on 18th October 2023.
2. Vide Court proceedings dated 17th February 2025, this Court established that the Summons for Confirmation application dated 12th July 2024, was mentioned before me for directions and 1st Petitioner/Administrator herein filed their response dated 12th October 2024, opposing the same. It was clear that both the Petitioners/Administrators were not in agreement on the mode of distribution. This Court directed the 2nd Petitioner herein to file his respective submissions with 14 days from 17th February 2025.
3. The parties appeared before this Court on 17th March 2025, wherein the Court established that from the perusal of the 1st Petitioner’s submissions that the 2nd Petitioner was well provided for and that the 2nd Petitioner had capture different properties which did not form part of the estate of the deceased and that he raised an issue of distribution under the Law of Succession Act. Counsel for the 1st Petitioner insisted that there was a need to summon the Land Registrar and Surveyor Bungoma County, and that he would also need to summon the chief and the elders on customary law. Finally, he requested that this Court reviews its directions made on 17th February 2025, due to the emerging position taken by the 2nd Petitioner’s Counsel.
4. On inquiry by this Court, I was able to establish that the Petitioners/Administrators herein were not able to agree on the issues of properties that did not form part of the estate of the deceased herein.
5. Subsequently, the Petitioner’s Counsels were able to reach a consensus that Counsel for the 1st Petitioner/Administrator should make a formal application for the review of the Court directions made on 17th February 2025.
6. This Court proceeded to direct the Counsel for the 1st Petitioner/Administrator to proceed and file a formal application for review of the directions made on 17th February 2025 within 7 days from 17th March 2025.
Review Application
7. Vide an application for review dated 25th March 2025, the 1st Petitioner/Administrator herein seeks the review of orders made by this Court on 14th October 2024. Subsequently, that the 1st Petitioner/Administrator be granted leave to file a supplementary affidavit and a witness statement or Affidavit evidence of the customary law that informed the distribution of the estate of the deceased herein.
8. The application was grounded on the Supporting Affidavit sworn by the 1st Petitioner/Administrator, Jane Simiyu, who averred that she is seeking the distribution of land parcel Bokoli/Chwele/358 in her name exclusively, but the 2nd Petitioner/Administrator in his sworn Replying Affidavit dated 12th October 2024, averred that the same parcel ought to go to the 3rd Objector/Applicant herein, David Kizito Sitati, who is a grandson of the deceased herein. Further, she averred that according to the 2nd Petitioner/Administrator land parcel Bokoli/Chwele/337 was already distributed according to the wishes of the deceased and that land parcel E. Bukusu/N. Nalondo/420 was part of the estate of the deceased and not the personal property of one Jemba Makari Simiyu. She refuted that allegations that land parcel E. Bukusu/N. Nalondo/420 formed part of the estate of the deceased. Finally, she averred that the deceased herein died in the year 1967 prior to the commencement of the Law of Succession Act and that his estate ought to be distributed in accordance with the Bukusu Customary Law and that evidence ought to be adduced on the same before this Court. She urged this Court to review its directions as issued on 14th October 2024, to allow the re-opening of Court proceedings and grant her leave to file a Supplementary Affidavit and a witness statement of the elders to provide proof that particular customs were applied and informed the distribution of the estate of the deceased herein.
9. In response to the review application dated 25th March 2025, the 2nd Petitioner/Administrator herein filed his Replying Affidavit sworn on 26th April 2025, wherein he averred that the 1st Petitioner/Administrator was duly cross-examined by his Counsel she had all the evidence with her and her allegations that she wants to introduce more evidence is an attempt to steal a match at the 2nd administrator. Further, he averred that the distribution of the estate of the deceased herein is strictly limited to land parcel number Bokoli/Chwele/358 which the 1st Petitioner/Administrator’s bone of contention and that he has elaborated to the Court on why she is not supposed to be solely awarded the same. Finally, he averred that re-opening the proceedings will be prejudicial to the other beneficiaries as the 1st Objector/Applicant never sought for rectification to include the properties referred to in the list of assets. He urged this Court to proceed and make a ruling based on the available evidence.
10. Vide Court directions issued on 18th June 2025, this Court directed the parties to file and exchange their respective written submissions. Both parties complied with the Court directives.
1st Petitioner/Administrator’s written submissions
11. Vide submissions dated 2nd July 2025, Counsel argues that the proceedings on Court record were not on distribution of the estate of the deceased, but on revocation of the Grant and Certificate of Confirmation of Grant issued to her on 17th May 2012 and 21st May 2012 respectively. According to Counsel, the 1st Petitioner commenced succession proceedings in regards to land parcel Bokoli/Chwele/358 as land parcel Bokoli/Chwele/337 had already been shared out amongst the 4 brothers of the deceased herein including the 2nd Petitioner/Administrator herein. Counsel argues that the siblings to her deceased husband were catered for under land parcel Bokoli/Chwele/337 and as per the land registrar the said titled does not exist as the same was sub-divided. Further Counsel argues that David Kituyi Sitati is the son to one Zebedee Sitati Makari who was duly catered for under land parcel Bokoli/Chwele/337 and is a trespasser on the land parcel Bokoli/Chwele/358, and that the same is a subject in suit in the lower Court. That, the 3rd Objector herein is the grandson of the deceased herein and that he also benefited from his father under land parcel Bokoli/Chwele/337 as he is the son of one Zebedee Sitati Makari. Finally, Counsel argues that since the deceased herein died prior to the commencement of the Law of Succession Act, this Court should apply Bukusu Customary Law in the final disposition of her application dated 12th July 2024 as provided for under Section 2(2) of the Law of Succession Act as the same cannot be waived. Counsel placed reliance on the following cases: Ernest Kinyanjui Kimani vs Muiru Gikanga & Another (1965) EA 735, Wambugi w/o Gatimu vs Stephen Nyaga Kimani (1992) eKLR (2002) 1 EA 261 and Re the Estate of Lerionka Ole Ntutu (Deceased) 2008 eKLR. Counsel also placed reliance on Section 48 of the Evidence Act.
12. Counsel urged this Court to allow the 1st Petitioner’s application for review as he seeks to introduce new evidence that has been necessitated by the pleadings of the 2nd Petition and the same was not placed before this Court.
2nd Petitioner/Administrator’s written submissions
13. Vide submissions dated 16th July 2025, Counsel submits that on two issues namely: review in Succession matters and whether the Application meets the threshold.
14. On the 1st issue, Counsel submits that the issue of review a Probate Court is governed by Rule 63 of the Probate and Administration Rules and that review applications can be by a party to the proceedings, but it is subject to the dints of Order 45 of the Civil Procedure Rules. Counsel placed reliance on the cases of John Mundia Njoroge & 9 Others vs Cecilia Muthoni Njoroge & Another (2016) eKLR and National Bank of Kenya Limited vs Ndungu Njau (1997) eKLR.
15. on the 2nd issue, Counsel submits that it is not clear on what grounds the 1st Petitioner wants the Court to review directions given on 17th February 2025 and that the said orders were made in the presence of the parties and their respective advocates. Counsel maintained that a consent order cannot be reviewed, varied or set aside unless by consent and noted that the 1st Petitioner is simply on a fishing expedition. He urged this Court to dismiss the 1st Petitioner’s application for review.
Determination
16. Order 45 of Civil Procedure Rules deals with reviews and Section 80 of the Civil Procedure Act too, a party seeking a review of an order must meet the substantive requirements of an application brought for review as set out in Order 45 of the Civil Procedure Rules in succession matters.
17. Pursuant to Order 45 of the Civil Procedure Rules, it’s clear that the facts herein do not support review an d I thus dismiss the application herein for want of merit.
18. Each party to bear its own costs.
Delivered, Signed and Dated at Bungoma this 27th day of November 2025.
Mwanaisha S. Shariff
Judge
IN THE PRESENCE OF :
N/A FOR 1ST PETITIONER
2ND PETITIONER/RESPONDENT
N/A FOR 1ST OBJECTOR/APPLICANT
N/A FOR 2ND OBJECTOR/APPLICANT
3RD OBJECTOR/APPLICANT
PETER MACHONI COURT ASSISTANT
'