Kenya case ruling 'a major victory'
Thursday 21 July 2011
Four elderly Kenyans today won a "historic" ruling which takes them one step nearer to winning damages from the Government over alleged colonial atrocities during the Mau Mau uprising.
Mr Justice McCombe, at London's High Court, said that they had "arguable cases in law" and cleared the way for a month-long hearing before Easter when they will tell their stories.
Solcitor Martyn Day said that this hearing, which will decide the Government's argument that the claims cannot proceed because they have been brought outside the legal time limit, was in itself a "major victory".
"A lot of the evidence about what happened will be put into the public domain, and people will be able to judge for themselves.
"So, even if the judge rules that the trial cannot go ahead because of the time that has passed, just having that trial is a major victory."
The Foreign and Commonwealth Office (FCO) had asked the judge to block the litigation now on the basis that any claim could only have been brought against the direct perpetrators of the alleged assaults or their employer at the time - the Colonial Government in Kenya - and not the British Government.
But, the judge rejected the strike out application because the FCO had not established that the claims were bound to fail.
He said: "The rival factual contentions are hotly disputed. I have found that it is impossible at this stage of the proceedings to decide that the FCO must be correct in its factual assessments and arguments.
"It has been necessary, therefore, to consider the case on the basis that the claimants' version of the facts may prove at trial to be correct and to ask whether, on that basis, they have an arguable claim in law against the UK Government."
He added: "I emphasise that I have not found that there was systematic torture in the Kenyan camps nor that, if there was, the UK Government is liable to detainees, such as the claimants, for what happened."
The claimants, Ndiku Mutwiwa Mutua, Paulo Muoka Nzili, Wambugu Wa Nyingi and Jane Muthoni Mara - all but one of whom are in their 80s - flew 4,000 miles from their rural homes for the trial this spring which concentrated on events in detention camps between 1954 and 1959, but were not in court today.
At that hearing the judge was told that Mr Mutua and Mr Nzili had been castrated, Mr Nyingi was beaten unconscious in an incident in which 11 men were clubbed to death, and Mrs Mara had been subjected to appalling sexual abuse.
In his ruling, the judge rejected the FCO's case that the claim did not have a real prospect of success, essentially because there was no relevant duty of care.
He commented: "In my judgment, it may well be thought strange, or perhaps even 'dishonourable', that a legal system which will not in any circumstances admit into its proceedings evidence obtained by torture should yet refuse to entertain a claim against the Government in its own jurisdiction for that Government's allegedly negligent failure to prevent torture which it had the means to prevent, on the basis of a supposed absence of a duty of care.
"Furthermore, resort to technicality, here the rules of constitutional theory, to rule such a claim out of court appears particularly misplaced at such an early stage of the action."
Hailing today's "historic" judgment, Mr Day, senior partner at Leigh Day & Co, said his clients did not seek to become rich through bringing the action.
"What they seek is justice by way of an apology and a Mau Mau welfare fund to ensure that in their final days they and their fellow freedom fighters can live with an element of dignity.
"That does not seem to me a great deal to ask after all they have been through."
Foreign Office minister for Africa Henry Bellingham said: "It is right that those who feel they have a case are free to take it to the courts.
"We understand the pain and grievance felt by those, on all sides, who were involved in the divisive and bloody events of the emergency period in Kenya.
"Despite today's judgment, the Government will continue to defend fully these proceedings, given the length of time elapsed and the complex legal and constitutional questions the case raises. We have taken note of the judgment and are considering next steps.
"Our relationship with Kenya and its people has moved on since the emergency period. We are now partners and the UK is one of the largest bilateral donors in Kenya."
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