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Historic judgment as UK Government loses court battle on Kenyan colonial torture

High Court rejects Government's attempt to strike out Kenyan torture claims

Photo of Kenyan claimants: Daniel Hughes

21 July 2011

In an historic judgment, the High Court today rejected the British Government’s attempt to strike out the claims of Kenyan victims of British Colonial torture on the grounds of “state succession”. 

Leigh Day represents four Kenyans who were victims of grave acts of torture at the hands of British officials during the Kenya Emergency in the 1950s and 1960s.  The claimants have each suffered unspeakable acts of brutality, including castrations and severe sexual assaults.

The claimants represent the wider community of hundreds of elderly Kenyans who are still alive and were the victim of abuses during the Emergency.  President Obama’s grandfather was among those who were detained and abused at the time.
The Kenya Human Rights Commission and the Kenyan Government are supporting the claims.  Three leading academic experts on the Kenya Emergency have all put in lengthy statements in support of the claimants.

At a two-week hearing in April 2011, the British Government sought to have the case thrown out on the grounds that it is the Kenyan Government who is legally responsible for any abuses committed by the British colony.  They argued that all liabilities were transferred to the Kenyan Republic upon independence in 1963 and that in no way could the British Government be held liable today.

In a strongly worded judgment, the High Court held that there is clearly an arguable case against the British Government and that the claims are fit for trial.  

Referring to the state of Emergency declared by the British Government in Kenya during the time of the uprising the Judge, Mr Justice McCombe, said:

“There is ample evidence even in the few papers that I have seen suggesting that there may have been systematic torture of detainees during the Emergency.” (Paragraph 125)…. “The materials evidencing the continuing abuses in the detention camps in subsequent years are substantial, as is the evidence of the knowledge of both governments that they were happening and of the failure to take effective action to stop them.” (Paragraph 128)

The Court was also critical of the Government’s attempt to block the case with the use of technicalities:

“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… to rule such a claim out of court appears particularly misplaced at such an early stage of the action.” (Paragraph 154)

Today’s judgment has been welcomed by leading figures in the human rights movement, including Archbishop Desmond Tutu who urged the British Government to deal with the Kenyan victims honourably and said today:
"Responding with generosity to the plea of the Kenyan victims is not a matter of legal niceties.  No, it is about morality, about magnanimity and humaneness, about compassion."

Martyn Day, Senior Partner at Leigh Day said today:

“Our clients are delighted that the High Court has rejected the British Government’s arguments so emphatically.  It is an outrage that the British Government is dealing with victims of torture so callously.  We call on the British Government to deal with these victims of torture with the dignity and respect they deserve and to meet with them and their representatives in order to resolve the case amicably”.

For more information, please contact: George Morara at the Kenya Human Rights Commission on 00254 7122 88400 or Rebekah Read on 07835638648 or David Standard on 07540 332717 at Leigh Day.

Information was correct at time of publishing. See terms and conditions for further details.

Information was correct at time of publishing. See terms and conditions for further details.

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