By Our Reporter

Kisumu based Magistrate Phylis Lusia Shinyada who set free four men who violently robbed a Kisumu based journalist has been sacked and found unsuitable to be a judicial officer by the Sharad Rao led Judges and Magistrates Vetting Board .

Shinyada had in late 2012 freed the four men ostensibly due to what she said was luck of evidence despite crucial exhibits having been brought to court by the Police.

While releasing its ninth announcement on determination on suitability of Magistrates and Judges the board also found the following Judges unsuitable to be judicial officers; Anne IreriRuguru, Douglas Musa Machage, Gilbert Kimutai Too,George Rachemi Sagero,Joseph Riitho Nduruni, Kinaro Dennis Abraham, Ruth Benta Maloba and Timothy Ole Tanchu .

In regard to Hon Shinyada the board made the following recommendations after having received four complaints against the Magistrate;

. In Complaint one, the complainant alleged that in Kisumu CMCCR. No. 393 of 2012: the magistrate did not take down accurate proceedings, and was bribed. He claimed that the magistrate omitted part of his testimony from her court record. The complainant, who appeared and testified, stated before the Board that the magistrate was on her phone all the time intermittently recording his evidence and paying little or no attention to his testimony. The complainant further averred that he believed the bribe was paid because the accused’s parent indicated their intention to bribe the magistrate if the out of court settlement failed.

In her response the magistrate vehemently denied ever receiving a bribe in the matter or ever in her practice. The Board was not convinced that the magistrate kept a proper court record. The Board also wondered why she was quick to find that no prima facie case had been established through argumentative reasoning in her ruling that went

against the known principles enunciated in Bhatt vs Republic36. The magistrate after a discussion of the issues admitted that she may have acted hurriedly. She attributes it to lack of experience and mentorship. She stated that there is no training or guidance given to junior magistrates on joining the bench. She states she was not bribed and that her action were very honest and above board.

36Ramanlal Trambaklal Bhatt versus Republic [1957] E.A. 332 it was stated thus:-“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution; the case is merely one which on full consideration might possibly be thought sufficient to sustain a conviction.”

The Board finds that the bribery claim remains unproven. After a lengthy discussion the magistrate appreciated that it would have been prudent to put the defendants on their defence.

The second complaint was that in Kisii CMCC No. 88 of 2007 and No. 67 of 2009, the magistrate issued orders releasing the complainant’s motor vehicle to the plaintiff contrary to the orders issued by the High Court in Kisii. In her response the Magistrate stated that the case before her was not the High Court Case and that she had no intention of undermining the High Court’s findings on the same issue in a separate case. The Magistrate indicated that she took over the matter at the execution stage. It is clear that she never concerned herself with the decision of the High Court thereby making a contrary decision one year down the line. The Magistrate regretted her action. The Board finds that the Magistrate failed to exercise sufficient diligence in the matter.

The third complaint was that in Kisii CMCCR. No. 799 of 2011, the Magistrate threatened the accused with civil jail if he continued requesting to cross examine the witness. That the Magistrate was hostile to the complainant’s wife when she appeared before her to inform the court that her husband who was the accused was not feeling well. That the Magistrate further denied the accused the chance to cross examine the witnesses and refused to recuse herself. That she further rejected the probation report issued to her and ordered the probation officer to amend it to her desires.

The Magistrate’s response to the complaint was well explained. The complainant was unable to substantiate the issues and therefore the claim remained conjuncture and unproven. It was clear however that the Magistrate failed on her part to explain to the

Accused person his right to recall witnesses who had testified, when she took over the matter37. The Magistrate was well aware of this right but failed to ensure the accused enjoyed it. The Board felt that the conduct of the Magistrate on this specific matter painted a bad picture of the judiciary to the public. The Magistrate acknowledged the oversight and was remorseful for the same.

In complaint number four the complainant alleged that in Kisii CMCC No. 730 ‘A’ of 2009, the Magistrate adopted an incompetent surveyor’s report to determine a land matter and disallowed the complainant’s application for review on grounds that the complainant had filed an appeal despite having knowledge that the said appeal had been withdrawn.

In her response, the Magistrate was unable to substantiate why she never heard the review application despite the withdrawal of the appeal having been brought to her knowledge. The magistrate failed to quote authorities she relied on in her ruling. The Board felt that it was the duty of the Magistrate to ascertain that expert witnesses appearing before her are competent. Her failure so to do in this matter resulted in her recording evidence from an imposter surveyor. The Board concluded that the magistrate greatly relied on technicalities when writing her judgment in the matter. This was a deliberate infringement of the accused’s rights contrary to the provisions of the Kenyan constitution.

Complaint number five was from by a Law Firm who alleged that in Kisii CMCC No. 62 of 2010, the magistrate made an ex-parte order on an application which was already spent. That she declined the complainant’s application to summon the agricultural officer. She further proceeded with the matter ex parte and without ascertaining whether the mention notice was properly served thus denying the advocates the opportunity to peruse the agricultural officer’s report and or to cross examine the officer and proceeded to deliver the ruling on the matter ex parte.

Although the Magistrate denied all the allegations, it came out clearly that the Magistrate failed in several respects. The Board noted that the matter actually proceeded severally

without the defendants, and no notation is made on the Court record on whether the defendants had been served or not. On one occasion the defendant appeared ex parte and had interim orders that had lapsed extended. The Board felt that this conduct was inconsistent with judicial requirements of impartiality and fairness. The record indicates that the Magistrate greatly compromised the defendant’s rights to a fair hearing. The Magistrate explains that it was not intentional and regrets the same. The Magistrates conduct in this matter was quite despicable.

The Board felt that although the Magistrate’s language and writing skills in her judgments were commendable, she constantly failed to quote the law and decided cases in her judgments and rulings. Her judgments lacked good legal reasoning and displayed a poor analysis of the issues. She cited lack of proper induction, mentoring and training as the cause of her errors. The magistrate states that this is the first time in her career of about five years that anyone is pointing out her mistakes to her, and that she is very grateful to the vetting process, as it is also a learning curve. The Magistrate admitted that regular intervals of training and assessments would greatly improve their delivery. The Board unanimously determines that the Honorable Phylis Lusiah Shinyada is NOT SUITABLE to continue serving as a Magistrate.