21 March 2018

Kenya: Lawyers Tell of Controversial Magistrate John Mcready

Never before had a judicial officer been so famous, revered, feared and loved by both lawyers and their clients, as was the case with Senior Resident Magistrate (SRM) John Robert McReady.

Mr McReady attracted controversy, criticism and praise in equal measure from parties who appeared before him in court, and he remained so until his death in 1985 aged 74, when "unknown persons" sneaked at night into his Oltarakwai farmhouse in a forest overlooking Naro Moru, on the Nyeri-Nanyuki Road, and clobbered him to death.

Mr McReady was appointed resident magistrate in Nairobi on July 26, 1949 and ascended to SRM on January 9, 1969, the highest rank for some time after independence.

The position of chief magistrate was introduced much later.

SENTENCING

During the peak of his career in the 1960s and 1970s, advocates who argued cases in his court nicknamed him "Mr Maximum"advocates who argued cases in his court nicknamed him "Mr Maximum" because he used to impose the maximum sentence laid down in the Penal Code.

For instance, if the penal sentence stipulated that an accused person found guilty would be liable for imprisonment of up to 14 years, Mr McReady would go for the 14 years.

Long-serving lawyer John Khaminwa says that even after passing such a sentence, Mr McReady would say, "I wish I could add you more".

Retired Court of Appeal Judge John Walter Onyango Otieno, a prominent criminal lawyer in the 1970s, said:

"I still remember very well about a case I had argued before him. The maximum sentence was supposed to be 10 years.

"We had entered a plea of guilty. My client was an elderly man of over 60 years and was a first offender," retired Justice Otieno recalled.

MITIGATION

Mr Otieno had pleaded for a lenient sentence, given the elderly man had family responsibilities back home, was apologetic and had pleaded for mercy.

"I did my best in mitigation. I pleaded for a lenient sentence and asked for the person to be committed to probation, since what he had done was not all that serious.

"McReady [listened] to me attentively, and even praised me, saying I had done very well in mitigation."

"When he read the sentence, it was nine-and-a-half years, so it means he had taken away only six months. And that was a case I felt he would have given a maximum sentence of one year," Mr Otieno said.

Despite all this, one good thing about Mr McReady was that if you argued based on the law, and the law favoured the accused, he would not hesitate to acquit him or her.

RACIST

But most lawyers did not like to appear before Mr McReady because there was a perception he did not like Africans.

"Anybody who appeared before him who was black was almost certain to be convicted. He was an anti-black racist who also thought black lawyers could not do it," lawyer Pheroze Nowrojee said.

And whereas some of his decisions were solid and grounded in the rule of law, retired High Court Judge Nicholas Ombija remembers only too well how, in some instances, McReady allowed his personal opinion to guide his decisions and some of the accused who appeared before him were convicted because of ethnic profiling.

"When the charge related to, say, robbery with violence, assault or a sexual offence, and he felt such an offence is common with people of your tribe, then you could almost be certain he would pass a sentence against you. He would say to the accused, 'You must have done it,'" Mr Ombija said.

APPEAL

Some of the victims of McReady's harsh punishment who appealed, "especially those who were profiled according to their tribes", finally secured their freedom at the High Court.

Mr Ombija was in the 1970s a University of Nairobi law student and, as an academic requirement, law students had their clinical programmes in court. He used to attend Mr McReady's court.

"It used to be called Criminal Court Number Three in the present-day Supreme Court building. I still remember, because it was on the first floor and through the window, you could see the 'naked boy' statue," he said.

Former Imenti Central MP Gitobu Imanyara, a seasoned lawyer, remembers Mr McReady as a racist who used to lecture advocates in court.

In one of the first cases Mr Imanyara handled, he represented an accused person before Mr McReady.

FIRST IMPRESSION

He said to me, "Why do you think the police will pick up this fellow (accused) and bring him to court, from all the people out there, if he had not done anything? He must be guilty."

Mr McReady also disliked accused people who had dreadlocks and he did not hide his feelings.

Lawyer Khaminwa said that before the hearing started, he would tell the accused with long hair:

"I notice you have got long hair, may I say to you, in my view a prima facie (at first appearance) case has already been made against you before trial and all I need is some evidence to sentence you to imprisonment."

"That, of course, made accused persons with long hair to cut it so that they would look neat and tidy before him," Khaminwa said.

WITNESSES

Once, when a doctor came to give evidence and the lawyers referred to him as doctor, Mr McReady interjected and told them not to refer to him by that title.

"Mr Otieno, don't address him as doctor." "I asked, 'Can I address him as Mr?" "No, he is a witness, just call him as such."

"According to him, this was a person who did not deserve to be called a doctor," Mr Otieno said.

There were many election petitions following the 1974 General Election, and the government wanted some SRMs to be appointed acting judges to help clear the cases.

Most of the magistrates, including Surrender Kumar Sachdeva and John Henry Sydney Todd, were called to Mombasa but Mr McReady was told to clear his desk before he could be appointed judge.

ACTING JUDGES

Among the cases he was to clear was one where Mr Otieno, then a lawyer in private practice at Onyango Otieno and Company Advocates, was representing a suspect accused of robbery with violence.

"He called me to his chambers and pleaded with me to persuade the accused to plead guilty so that he could clear his desk in time and travel to Mombasa to be appointed judge.

"That time, robbery with violence attracted 14 years imprisonment. I refused and so he was not able to travel to Mombasa," Mr Otieno said.

The other magistrates were appointed acting judges and later confirmed as judges of the High Court but Mr McReady did not have such luck and he later retired as SRM.

Controversy would follow him to retirement. Unknown people ambushed and clobbered him to death on his veranda on the night of February 16, 1985 when he, his wife and a cook were fixing the door of a fridge that he had bought in Nairobi.

MURDER

Lawyer Khaminwa believes Mr McReady must have paid a heavy price for the strict sentences he used to pronounce in court and that some of those who attacked him must have been allied to victims of his harsh sentences or were victims themselves.

"When McReady retired, he should have gone back to the United Kingdom. In my view, he made the wrong decision to retire to his farm in Nyeri, where he was unfortunately killed," Mr Khaminwa said.

One of the alleged attackers was shot dead by police and some of the items allegedly stolen from the McReadys were recovered.

Another died mysteriously, according to police records.

ROBBERY

Mr Duncan Wahome Wamae was tried and sentenced to death by Principal Magistrate Omondi Tunya on March 18, 1987 after circumstantial evidence linked him to the robbery with violence at the McReadys.

He vigorously challenged his conviction, saying he was not involved and that the magistrate relied on uncorroborated evidence, but the sentence was upheld by High Court judges David Christopher Porter and John Wycliffe Mwera on May 31, 1991.

Court of Appeal judges Johnson Evan Gicheru, Riaga Samuel Cornelius Omolo and Abdulrasul Ahmed Lakha also upheld the sentence in a judgment delivered on July 17, 1998.

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