Three elderly Kenyan victims of torture during the Mau Mau uprising can pursue their compensation claims against the government. It already having been established that the claimants have ‘arguable cases in law’, a judge has rejected arguments put forward by the Foreign and Commonwealth Office (FCO) that the claims should be struck out, having been brought outside the statutory limitation period.
The FCO had submitted that it faced ‘irredeemable difficulties’ in relation to the availability of witnesses and documents in defending the claims. However, Mr Justice McCombe exercised his discretion to waive the limitation period and allow the claims to proceed to trial.
The FCO had conceded that the claimants had been subjected to ‘torture and other ill-treatment at the hands of the colonial administration’ during the Mau Mau uprising in Kenya during the 1950s.
In ruling that a fair trial of breach of duty allegations remains possible, the judge said that there was ‘an amply sufficient documentary base’ on which to test what was known in London about excessive use of force by the colonial authorities and what London’s reaction to that knowledge was.
An FCO spokesman said after the ruling: ‘The British Government is disappointed with today's judgment. The judgment was not a finding of liability but a procedural decision following a preliminary hearing on limitation, which allows the cases to go to a full trial.
‘The judgment has potentially significant and far reaching legal implications. The normal time limit for bringing a civil action is three to six years. In this case, that period has been extended to over 50 years despite the fact that the key decision makers are dead and unable to give their account of what happened.
‘Since this is an important legal issue, we have taken the decision to appeal. In light of the legal proceedings it would not be appropriate for the Government to comment any further on the detail of the case.
‘At the same time, we do not dispute that each of the claimants in this case suffered torture and other ill treatment at the hands of the colonial administration. We have always said that 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, and it is right that those who feel they have a case are free to take it to the courts.
‘Our relationship with Kenya and its people has moved on since the emergency period. We are now partners and the UK is not only one of the largest bilateral donors in Kenya, but also Kenya's biggest cumulative investor, and a key partner on security and other issues of benefit to both countries. Our people-to-people ties are and will remain strong and deep.”
The claimants’ solicitors said that the government would now face potentially thousands of claims from Kenyans who suffered similar torture. ‘This is an historic judgment which will reverberate around the world and will have repercussions for years to come’.