The Mau Mau uprising, which took place in central Kenya between 1952 and 1961, was a rebellion against British colonial rule. Claims were brought by four Kenyans for serious personal injuries and torture suffered whilst in detention in Kenya during the uprising. The events to be investigated would extend back to 1952 at least, a period of 60 years or more by the likely date of trial.
In the judgment, Mr Justice McCombe exercised his discretion under s.33 of the Limitation Act 1980 to disapply the 3 year limitation period for personal injury claims and allow the claims by the three surviving claimants to proceed to a full trial. One of the claimants had sadly died and her claim was not allowed to proceed.
At the hearing, the Foreign & Commonwealth Office accepted that the three surviving Claimants had suffered torture and other mistreatment at the hands of the Colonial Administration, but legal responsibility by the UK government is denied. Mr Justice McCombe found that a fair trial of this issue was possible in light of the existing documentation and remaining witnesses.
The Foreign and Commonwealth Office had also accepted that the Claimants’ delay in bringing the claim was excusable or at least understandable in light of the ban on discussing the Mau Mau in Kenya, which persisted until 2003. The Claimants were also indigent, poorly educated and came from remote rural areas. The torture that they had suffered had inhibited their ability to talk openly about their experiences. The possibility of bringing a claim was only brought to their attention in 2006 or 2008. In light of all of these factors, the three surviving claimants had established a proper case for the court to exercise its discretion to disapply the limitation period provided for in section 11 of the Limitation Act 1980.
Permission was also granted to amend the claim to add a wider basis of vicarious liability that had been advanced in argument.
Guy Mansfield QC appeared on behalf of the Foreign and Commonwealth Office, instructed by the Treasury Solicitor.
Elizabeth-Anne Gumbel QC appeared for the intervener, Redress, a human rights organisation which assists victims of torture to seek reparation and compensation.
Henry Witcomb was one of a number of counsel acting on behalf of the claimants, instructed by Leigh Day & Co. He was assisted by Maria Roche.