• The Exit of a Colossus-By Edward Maroncha

    In October 2010, I joined the University of Nairobi as a first year law student. I had never lived in the city before, and I was quite apprehensive. How many times would I get lost? How many items would I lose to pickpockets? The late Majorlie Oludhe Macgoye’s novel, Coming to Birth, which we had studied in high school English Literature, did not help. I was sure I would be Paulina the moment I stepped into the city. I had actually been tempted to apply to Moi University Law School, because I thought Eldoret would be friendlier than the infamous Capital. But vanity did not let me. I had to go to THE University of Nairobi.

    My idea of a University professor was an old man with long, unkempt hair and an overgrown beard, wearing an oversize, creased cotton shirt over baggy trousers. He would always be seen walking around the campus with a bunch of books in his hands, peering at young idiots over a pair of huge spectacles with heavy rims and thick lenses. So I was quite baffled when he strode in one morning in those early days of October 2010. He was wearing a fitting grey suit, a white shirt and a maroon tie. His white hair was neatly trimmed and his beard clean shaven. Though an old man, he walked upright, with the agility and confidence of a young military administrator.

    My name is Professor, Justice Onesimus K. Mutungi. When you come of age you will know what K stands for. Those who are of age call me OK but do not try because you are far from that age. I am a professor of law fully qualified to teach. I say qualified because these days people acquire Masters or doctorate degrees in law and imagine they can teach. I took a course in teaching so I am properly a teacher. I will be teaching you the law of torts. Here we will determine who are lawyers and who are not. Because a brilliant mind is not necessarily a legal mind. Just because you got an A in Biology does not mean you can grasp the dynamics of the law. There is nothing in our school system that prepares one to be a lawyer before they join the university…”

    That was how Prof Mutungi introduced his class. A brilliant mind is not a legal mind? What did that even mean? Being a JAB student, I had spent close to two years at home, from the time I completed high school to the time I was admitted to the University. All this while I had walked around the village with an arrogant air of self-importance because I was now a lawyer. See, having scored an A-, and having declared I wanted to be a lawyer, the respect came naturally. Even the elders of the local church had forgotten my name. They simply called me Wakili. Yet here was an old man suggesting I wasn’t. Yet.

    At that point we were still green and did not know who this man was. But it did not take us long to find out. This man was not your typical grandfather. It was alleged that he had failed 90% of the students in the class ahead of us. And by failing I do not mean he gave them Cs and Ds. I mean he E(xempted) them from the first four letters of the alphabet. But we were still naïve and assumed that the class was dumb. We soon got a taste of our own. One day, as he concluded his lesson, he instructed us to read the Occupiers’ Liability Act, so that we would discuss it in the next class. The following week he showed up.

    “Who is an Occupier as per the Occupiers’ Liability Act?”

    Silence.

    “Did you read the Occupiers’ Liability Act?”

    Silence.

    “Okay. Bring all your books and materials in front.”

    There and then, he gave us a CAT. On the very subject he knew we had not studied. I heard there is a rule in the University regulations that required us to be given a two week notice by the lecturer before he administered a CAT. In fact, we successfully applied it against a few lecturers during our four years at Parklands. But this was Professor Mutungi. At the University of Nairobi, he was an institution within an institution. And I suspect he was the greater institution of the two.

    He was there when the University College, Nairobi, became the University of Nairobi in 1970.  He had been teaching law at Dar el salaam, but when the faculty of law was opened at the newly established University of Nairobi, he came over. He became an Associate Professor in 1975, and a full Professor in 1977. He rose through the ranks to become the Deputy Vice Chancellor, Academic Affairs, in 1992. This was the position that one Jacob Kaimenyi held before he was plucked by President Kenyatta to join the cabinet. At Parklands campus, when I used to be there, there used to be 7 reserved parking spots:

    1. Dean, School of Law
    2. Associate Dean, School of Law
    3. Chairman, Department of Public Law
    4. Chairman, Department of Commercial Law
    5. Chairman, Department of Private Law
    6. Director, CASELAP
    7. Prof O.K. Mutungi

    The last one was also an office at the school. But only one man was qualified to hold it.

    Anyway, God heard our juvenile cries. That December (2010), the TJRC commissioners’ squabbles and infighting became intense. President Kibaki appointed Prof Mutungi to chair the tribunal to investigate the conduct of the TJRC Chairman, Ambassador Bethuel Kiplagat. That is how Yash Vyas became our torts teacher mid-semester. And since Yash is more grandfatherly, we sweet talked him into giving us another CAT, and therefore saved our grades for the semester.

    Prof Mutungi came back when we were in second year, to teach us the Law of Sale of Goods and Agency. This time we were prepared for him. We read. And read. Cap 31 is still embedded in our hearts and souls. He spent time in his classes criticizing the Act, and threatening to make us redraft it in the exam. So we studied it. We reviewed it. We discussed it. We turned it upside down. No one wanted to dare this man. Never again. Opinion is still split in my class on whether this was a good way to teach. Some think it was a lazy and miserable way to teach. Some think it was a good way to teach, but not to first years and second years. Others, like me, think it was simply brilliant. I mean, I don’t get why some University lecturers insist on dictating notes. At undergraduate level people are capable of reading for themselves. A lecturer’s role should be, according to me, to provoke thought, analysis and discussion. And I think that is what Prof Mutungi did.

    Okay, maybe I am a bit biased, because the Professor gave me an A in the Law of Sale of Goods. This remains my most valued grade. Not because it was an A, but because Prof Mutungi gave it. He always said that he had taught only one truly brilliant student in his life, and that was the late Dr. Bonaya Godana. So getting an A from him was a big deal. He may not have known me by name, but he gave me an A. And that counted for something. So much so that when I got a D in Company Law the following year, this was my consolation:

    If Prof Mutungi thought I was worth an A, who on the planet is Dr Jacob Gakeri to say otherwise? Vain, I know. But yea, it made me feel better then. Of course I had also been feeling relieved for having survived Dr. Gakeri’s affinity for the letter E.

    Prof Mutungi was a High Court Judge from 2003 until he retired in 2009, hence the title Justice. And yes, he was always one to speak his mind. For instance, the law made it illegal for someone to be held in custody for more than 24 hours without being taken to court. There was always some debate as to whether that meant the accused should be released, or whether they became entitled to other remedies such as damages against the state or the detaining officers. But when the opportunity to interpret what this means presented itself in ANN NJOGU & 5 OTHERS v REPUBLIC [2007] eKLR , Prof Mutungi did not mince words:

    The applicants were arrested on 31/7/07, at 12.00 and no attempt had been made to bring them before any court, till today, 2/8/07…Under Section 72(3) of the Supreme Law of this country, the Constitution, the applicants should have been brought before the court by 12 noon, on 1/8/07…I dare add that the Section is very clear and specific – that the applicants can only be kept in detention or the cells, for up to, 24 hours. At the tick of the 60th minute of the 24th hour, if they have not been brought before the court, every minute thereafter of their continued detention is an unmitigated illegality as it is a violation of the fundamental and constitutional rights of the applicants…And that is so, and will remain so, irrespective of the weight of the evidence that the police might have in support of their case…Finally, all should note that there is as yet NO known cure for the nullity that results from attempted prosecution of any person, in this country, once it is shown that his/her constitutional and fundamental rights were violated prior to the purported institution of the criminal proceedings complained against. Accordingly, I order their immediate release, unless they are otherwise lawfully held.”

     

    Quite some choice words to prove Prof Mutungi’s will of steel in enforcing what he believed in.

    Some loved him. Some hated him. Some admired him. Some feared him. But one thing is true. You did not encounter him and forget him the following day. Because he always left his mark. This week I received the news that the professor had passed on. It had never occurred to me that this guy could go. He seemed invincible even to the grim reaper. But I guess all of us mortal men must exit the planet at some point. Rest in Peace Professor. Your legacy is intact.

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