syomuti@gmail.com Phone: - 0724649652
P.O.BOX 100-90200
KITUI.
Dear Sir/Madam,
RE: EXPOSING AN ANCESTRAL LAND RIGHT DENIAL, BY KITUI SUBORDINATE COURT MAGISTRATE.
Name of Magistrate: (Hon. J. A. Asiago (Mr) – Resident Magistrate, Kitui Court).
This is a grievous, outrageous and a real life account which has transpired, concerning an ancestral land succession cause No. 60 of 2007, in Kitui County.
Step No. 1- See the image below, showing the names of the bona fide beneficiaries of the estates, as per the chief’s letter dated 10/8/2006. (See the image below).
Step No. 2. Was it in order for the subordinate court to give
Juliana Munai Mutisya grant of confirmation, without the presence of the other beneficiaries?
Question No. 3 – Could it not have been better, after the revocation
of grant, to revert the estates to the original owner Wambua
Mwendwa alias Syomuti Mwendwa (deceased), instead of the
magistrate giving the confirmation of grant hurriedly to Juliana Munai
Mutisya?
Step No. 2 – The above succession cause was done and finalized by the subordinate court, giving James Mbotela Syomuti (in the presence of the other three beneficiaries), the role of being the administrator and the grant of confirmation was also given to him.
(See the images below)
2. The judgment was given by the subordinate court magistrate, the
Hon. M Kasera as per the beneficiaries proposal and distribution mode. The distribution was partially implemented by the issuance
3of titles to parcels – Kyangwithya /Kaveta/534 and Kyangwitya
/Kaveta/540.
Step No. 3 – After a couple of months, one of the beneficiaries,(
Juliana Munai Mutisya) complained, which was an afterthought. She launched her complaint/application in the same subordinate court, instead of proceeding to the high court. Was it right for the court of the same level to allow her application or did the sitting
magistrate have any special interest?
Step No. 4 – The same court revoked the initial grant and the
previous judgment of the same court.
(See the image of revocation below)
Step No. 5 – When the grant was revoked, a civil appeal was
launched in Kitui High Court, (No. E099 of 2023), dated
4/12/2023, by James Mbotela Syomuti, as the appellant. The civil appeal is yet to be heard and determined. Legally, the High Court authority supersedes any other dealings of the subordinate court.
(See the image below)
4Step No. 6 – Two months after the appeal was launched, on
27/2/2024, the same subordinate court took it upon itself, the
mandate of giving Juliana Munai Mutisya grant of confirmation
without our (beneficiaries) presence.
Question No. 1- Is it the role of the court to appoint an administrator or is it the mandate of the beneficiaries to appoint their administrator when all the beneficiaries are present in court?
Question No. 2 – Was it in order for the subordinate court to give
Juliana Munai Mutisya grant of confirmation, without the presence of the other beneficiaries?
5Question No. 3 – Could it not have been better, after the revocation of grant, to revert the estates to the original owner Wambua Mwendwa alias Syomuti Mwendwa (deceased), instead of the magistrate giving the confirmation of grant hurriedly to Juliana Munai
Mutisya?
Step No. 7 – Two months later (16/4/2024), the subordinate
court made a ruling with a confusing schedule of mode of
distribution.
Confusion No. 1 – The parcels Nos. 534 and 540 had already been
titled.
*Confusion No. 2 – The names of two beneficiaries, namely
James Mbotela Syomuti and Cosmus Kyalo Syomuti were
DELIBERATELY removed from the latest schedule for mode of
distribution for the deceased property! (See the image below).
Does the magistrate have legal powers to remove (discard) the
names of the above two beneficiaries, as per the chief’s letter, dated 10/8/2006? (See the image of chief’s letter again, below).
Confusion No. 3 – In the above schedule for mode of distribution,
the subordinate court brought in an intruder (Joyce Mbaika Peter
Kikemu) who has never produced any document to the other
beneficiaries, to prove that she should be one of the beneficiaries.
Step No. 8 – During the hearing which was conducted by the
magistrate in question (Hon. J. A. Asiago (Mr) – Resident
Magistrate, Kitui Court), he allowed the intruder to appear in the
chamber court but he did not allow us to be present, so that we
could hear what she was saying. Yet, during the time when he was
hearing us, he did it in the open court room when the intruder was present.
Question. 1. Now that the names of the two beneficiaries who are very much alive have been discarded/removed intentionally by the magistrate, does the law of our land (Kenya) give him powers to do so?
Question 2. Is this what we call justice?
CONCLUSION OF THE MATTER/FINAL REMARKS
1. This grievous and deliberate act by the magistrate disregarding the chief’s letter and removing our names from the schedule for mode of distribution, barring us from inheriting our father’s property, is another way of suggesting that we, the two aggrieved beneficiaries, are nonexistent.
2. This is very painful, treacherous, demoralizing and extremely inhuman!
3. We don’t know how many other people might have suffered after encountering a similar predicament like ours, in the corridors of our judicial system.
4. Even though some of us have not studied law, is the above act lawful, according to the laws of our land?
5. To those who have done law, we have a question, which requires an answer from you. Does a magistrate have legal powers to remove/discard the name(s) of a beneficiary which appear in a chief’s letter, in a succession cause?
6. May the Judicial Service Commission(JSC) or any other relevant senor authorities hit the ground running, by dealing with the concerned magistrate firmly, who has violated our legal and as well as our God given right of the inheritance of our father’s estates.
Yours faithfully,
James Mbotela Syomuti and Cosmus Kyalo Syomuti – the petitioners /complainants.
