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Kenyan colonial torture victims win right to full trial against the British Government after 50 years

Tortured Kenyans can continue with their claim against the British Government

Photo of Mau Mau claimants and Martyn Day on steps of High Court

5 October 2012

In an historic judgment, the High Court today rejected the British Government’s attempt to strike out the claims of three Kenyan victims of British Colonial torture on the grounds that the claims were time barred. The judgment means the Government will now have to face potentially thousands of claims from Kenyans who suffered similar torture.

The Government will now face a full trial or seek settlement with those which it accepts have been tortured by the British colony.  

The Judge, Mr Justice McCombe ruled that “…a fair trial on this part of the case does remain possible and that the evidence on both sides remains significantly cogent for the Court to complete its task satisfactorily”

The Judge also made reference to the ‘Hanslope archive’ of secret documents, stating that the ‘lost’ archive of some 8,800 files ‘filled in the gaps’ in the knowledge of both parties making a fair trial possible.

This is the second time in two years that the British Government has lost in its efforts to use legal technicalities to have the case against it thrown out.

Last year it argued on the grounds that the Kenyan Government was legally responsible for any abuses committed by the British colony.  The Court rejected those arguments in April 2011.

During the latest two-week hearing in the High Court, in July 2012, leading Counsel for the British Government conceded the claimants had been tortured by British officials.  This is the first time the British Government has accepted that the colonial regime in Kenya was responsible for torture of Kenyans prior to independence.

Despite this admission, the Government continued to deny legal responsibility by claiming that the case was out of time.   They argued that it was impossible to have a fair trial after more than fifty years primarily because so many witnesses had died. This argument was rejected today by Mr Justice McCombe who, after a detailed review of the evidence, held that the documentary and witness evidence is so extensive that a fair trial is possible.

In the first Judgment in 2011 he held:

“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)

In the second Judgment, given today, he held:

“I have reached the conclusion….that a fair trial on this part of the case does remain possible and that the evidence on both sides remains significantly cogent for the Court to complete its task satisfactorily.  The documentation is voluminous….and the governments and military commanders seem to have been meticulous record keepers.  The Hanslope material has filed the gaps in the parties’ knowledge and understanding and that process is still continuing.  I am not satisfied that the defendant has adequately taken into account the number of potential witnesses, presently identified or otherwise, at levels of government and the army lower than politicians, senior civil servants and generals, who might be able to supplement its case on the documents.”  (paragraph 95)

Martyn Day, Senior Partner at Leigh Day said today:

“This is an historic judgment which will reverberate around the world and will have repercussions for years to come.

The British Government has admitted that these three Kenyans were brutally tortured by the British colony and yet they have been hiding behind technical legal defences for three years in order to avoid any legal responsibility.  This was always morally repugnant and today the Judge has also rejected these arguments.

Following this judgment we can but hope that our Government will at last do the honourable thing and sit down and resolve these claims.

There will undoubtedly be victims of colonial torture from Malaya to the Yemen from Cyprus to Palestine who will be reading this judgment with great care.”

Background:

Leigh Day represents three 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.

For more information please contact David Standard, Head of Media Relations at Leigh Day & Co: 07540 332717 or Rebekah Read (at the RCJ) on 07835 638648.

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

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