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Ndiki Mutua, Paulo Nzili, Wambugu Wa Nyingi, Jane Muthoni Mara and Susan Ngondi v. The Foreign and Commonwealth Office

Court The High Court of Justice, Queen’s Bench Division, Great Britain (UK)
Case number HQ09X02666
Decision title Approved Judgment
Decision date 5 October 2012
  • Ndiku Mutua (notice of discontinuance)
  • Paulo Nzili
  • Wambugu Nyingi
  • Jane Muthoni Mara
  • Susan Ngondi (now deceased)
  • The Foreign and Commonwealth Office
Other names
  • Mau Mau Veterans (2012)
Categories Torture, War crimes
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The claimants in this case claimed that they were victims of severe atrocities at the hands of the colonial government during the struggle for independence in Kenya. They argued that the British government carried responsibility for this. In this phase of the proceedings, the British government basically argued that the events in Kenya happened too long ago to be considered on trial. The Court rejected this argument, stating that British law allowed Courts to let cases proceed which happened a long time ago. Moreover, the Court held that there were sufficient primary sources to establish what took place in the detention camps in Kenya and the UK Government’s involvement in this matter.  

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Procedural history

This case revolves around an action for damages for personal injuries brought by five claimants in respect of alleged torts of assault and battery and negligence, for which it was said the defendant was liable as representing the government in the United Kingdom. These claimants are veterans of the Mau Mau movement which participated in the struggle for an independent Kenya during the 1950s. They claimed to have suffered injuries, including sexual assault and castration, during the repression of the independence movement by the Colonial administration. The ‘Colony and Protectorate of Kenya’ was at that time part of the British Empire. Therefore, the claimants argued, defendants are liable for acts of assault, or in the alternative, owed a duty of care which it negligently failed to discharge.

The defendants did not deny that "if the claimants’ allegations are well founded, they would have had proper claims at the time against the perpetrators of the assaults and, most probably, also against the former Colonial Administration in Kenya on a vicarious liability basis"; nevertheless, they argued that no claim could be brought against the UK government, since the Colonial Administration had acted on its own. Therefore, they filed an application for orders striking out the claims and/or for summary judgment dismissing the claimants' claim.

The High Court of Justice dismissed this application on 21 July 2011, stating there was some evidence of torture in pre-independent Kenya and of UK government involvement. This evidence, the Court reasoned, should be assessed in Court.  

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Related developments

In June 2013, it became public that the UK and the claimants had agreed to settle the matter out of court.

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Legally relevant facts

In the 1950s, anti-colonial groups initiated the Mau Mau uprising, a revolt against British colonial rule in Kenya. In response to this, a formal state of emergency was declared that lasted from 1952 until 1960. The torts alleged by the claimants were all committed during this period.  As a part of the process of proclaiming the Emergency, the Governor promulgated the Emergency Regulations 1952. These regulations allowed for wide powers of arrest and detention of suspected persons. From about March 1953 detention camps were built for the large numbers of detainees.

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Core legal questions

  • The High Court of Justice had to assess the defendant’s claim that the claim should be barred from proceeding as the facts to be investigated at any trial would go back to 1952. Therefore, the defendant had argued that the Limitation Act did not allow the case to proceed. 

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Specific legal rules and provisions

  • Articles 11, 14 and 33 of the Limitation Act 1980.
  • Art. 3 of the European Convention on Human Rights 
  • UK Human Rights Act

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Court's holding and analysis

The Court allowed the case to proceed. Article 33 of the Limitations Act 1980 authorizes the Court, after it has assessed the circumstances of the case, to allow an action to proceed even after the time limit has elapsed. In assessing whether Article 33 should be applied here, the Court held that ‘at the heart of the matter is whether a fair trial is still possible after the delay’, although is not the only factor (para. 9). The Court considered the voluminous documentation on the issue and the numbers of witnesses and held that a fair trial was still possible after all these years and that ‘evidence on both sides remained significantly cogent for the Court to complete its task satisfactorily.’ (para. 95).

Hereafter, the Court considered that both the colonial government and the British government had tried to limit investigations into abuses during the Emergency. The Court stated that this had had some influence on its decision to let the case proceed (para. 140). Thereafter, the Court held that this decision neither contravened the Human Rights Act, the European Convention on Human Rights, nor public international law (paras. 141-159).

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Further analysis

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Instruments cited

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Additional materials

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