I have known the Hon Kenneth Matiba [Ken] for many years, at the beginning, as a client in the mid-seventies when I acted for him in a libel suit arising from KFF elections and in later years both as a friend and a client.
Following the infamous 1988 Mlolongo elections, I teamed up with Bill Deverell as his lawyer in an election petition which was filed against him.
When he resigned from the Cabinet following rigging of the party elections which followed the Presidential and Parliamentary elections of 1988, I drafted his resignation letter.
When I was elected chairman of the Law Society in 1990, Ken and I worked closely with others in what came to be dubbed “second” liberation. I accompanied him to Nyayo House to deliver the request for a permit from the then Nairobi Provincial Commissioner to hold the Saba Saba (July 7 ) rally at Kamukunji. He accepted my legal advice that constitutional freedom of “assembly” was separate and distinct from freedom of “association”. The restriction of the latter by reason of the provisions of Section 2A, which made Kenya a Party State, was not a bar to the freedom of assembly.
When Matiba was arrested and detained in the run-up to the Saba Saba (July 7, 1990 ), I saw him in detention a number of times as his lawyer.
I saw him at Naivasha Maximum Prison, Shimo La Tewa, Kilifi and several times at the then Nairobi Area police headquarters opposite Nairobi Club. The other person who saw him from time to time was the late Dr Jim Nesbitt, Ken’s physician prior to his detention.
I remember as if it happened yesterday. The conversation I had with Nesbitt one early morning in my office around October 1990 was after he had been to see Ken the previous evening.
That morning, I found Nesbitt waiting for me in my secretary’s office. Nesbitt’s office was on the third floor of Electricity House while mine was on the sixth floor. Nesbitt looked worried, concerned.
He said, “Paul, I never discuss my patients with my wife Mary, but last night, I couldn’t but discuss your client’s condition with my wife.”
He narrated to me Ken’s worrying condition — his hair, skin, eyes. He told me before detention, Ken had a mild case of hypertension which was completely under control because Ken exercised regularly and took drugs.
Nesbitt told me that from the first time he had been allowed to see Ken in detention, at the end of July or early August 1990, he had sought to hand him over drugs to control the hypertension.
Nesbitt had been stopped from doing so by security agents and the government doctor identified only as Dr Mwongera. Nesbitt was on each occasion told the GoK will provide any necessary drugs to Ken. Nesbitt told me how on several occasions he tried to reason with Mwongera to see the packet of drugs he sought to pass on to Ken was “unopened”, but he was unsuccessful.
The government did not make any drugs available to Ken. His condition continued to rapidly deteriorate. It was then that Nesbitt came to the office to ask me to save Ken.
Nesbitt’s last words stuck in my brain; “if nothing is done, at best, Ken is going to suffer a stroke, at worst, he is going to die.”
I sent a fax to Amnesty International pleading for intervention.
Less than two months after my conversation with Nesbitt, Ken suffered a stroke in the middle of the night in solitary confinement at Kamiti Maximum Prison. When “eventually” Ken was admitted to Nairobi Hospital, I was able to get from him the relevant details. Ken realised he had suffered a stroke as soon as it happened. He accordingly knocked very loudly on his cell door. He requested the two guards who went into his cell to each hold him under the armpit and to walk him round the cell the reminder of the night. This was to keep blood circulating.
In the morning when Mwongera came, he prescribed pain killers.
A couple of days passed with arguments as to where he was to be admitted. Forces Memorial Hospital, the government’s preferred choice, made it clear that even their own stroke cases are transferred to Kenyatta National Hospital. They did not have equipment and expertise. There was further delay because, of course, retired President Daniel Moi had the last word over the matter.
I have no doubt in my mind whatsoever that Ken’s stroke was deliberately induced by the government.
There was deliberate denial of drugs to contain his hypertension and refusal to have his doctor, Jim Nesbitt, make the drugs available to him.
The GoK was fully liable and responsible for Ken’s situation and its consequences.