In this massive litigation, Stewart J has given judgment in the first of 25 test cases to be heard to conclusion. The Kenya Emergency Group Litigation, encompasses claims for damages by over 40,000 Kenyans against the UK Government (the Foreign & Commonwealth Office). They allege abuse during the Kenyan Emergency in the 1950s. The claims all concern events in the Kenyan Emergency (Mau Mau insurgency) in the period 1952 to 1962. The judge dismissed the first claim to be tried to conclusion. In a long judgment the judge declined to exercise his discretion under section 33 Limitation Act 1980 to extend time in the Claimant’s favour.

The judgment is significant. It provides detailed guidance for the trial of ‘stale’ claims. It is of particular importance where a defendant alleges that by reason of lapse of time it has sustained prejudice such that a court should not proceed to determine the claim on its merits. That is particularly where documentation of background or circumstantial significance remains available, but its full original extent is uncertain and/or witnesses are dead or missing, and recollections faded. Guy Mansfield QC who has acted from the outset in 2012, appeared on behalf of the FCO, instructed as first Leading Counsel of the counsel team. Other members of 1COR who have appeared or advised in the course of the action are Peter Skelton QC, David Manknell, Matthew Donmall and Jo Moore. Copies of the judgment can be obtained here or the clerks at 1COR.

The judge found that this test claimant had ‘not proved in respect of any of his core allegations that his prejudice would outweigh that of the Defendant. The prejudice to [him]in losing the chance of establishing his claims is of substantial importance. Those claims, though diminished in cogency for the reasons I have given, cannot be demonstrated to be lacking in merit. …The effect of the delay in issuing the claims on the cogency of TC34’s evidence and, in particular, on the evidence of the Defendant is very significant. The Defendant has had no fair opportunity to investigate the core allegations. The Defendant’s ability to defend has been severely compromised by the delay. Had the claim been brought in time, or even at some stage during the mid-1960s, the evidence available to the Defendant, both documentary and witness, would have been much greater. What is clear is that there cannot now be a fair trial of any of the core allegations. That is because of the delay. The position is encapsulated in the words of Lord Brown in A v Hoare already cited: “By no means everyone who brings a late claim for damages…however genuine his complaint may in fact be, can reasonably expect the court to exercise the section 33 discretion in his favour”. In Davies v SoS for Energy and Climate Change Tomlinson LJ said at [55] that section 33: “…is a corrective for injustice where the circumstances allow.” The circumstances do not so allow in [this test claimant’s] claims.