Kenyan torture camp claims will go to court

Mr Justice McCombe, at London's High Court, said that they had "arguable cases in law" and cleared the way for a month-long hearing early next year when they will tell their stories.

Their solcitor, Martyn Day, said that this hearing, which will decide the Government's argument that the claims cannot proceed because they have been brought outside the legal time limit, was in itself a "major victory".

He said: "A lot of the evidence about what happened will be put into the public domain, and people will be able to judge for themselves. So, even if the judge rules that the trial cannot go ahead because of the time that has passed, just having that trial is a major victory."

The Foreign and Commonwealth Office (FCO) had asked the judge to block the litigation now on the basis that any claim could only have been brought against the direct perpetrators of the alleged assaults or their employer at the time - the Colonial Government in Kenya - and not the British Government.

But, the judge rejected the strike out application because the FCO had not established that the claims were bound to fail.

He said: "The rival factual contentions are hotly disputed. I have found that it is impossible at this stage to decide that the FCO must be correct in its factual assessments and arguments.

"It has been necessary, therefore, to consider the case on the basis that the claimants' version of the facts may prove at trial to be correct and to ask whether, on that basis, they have an arguable claim in law against the UK Government."

He added: "I emphasise that I have not found that there was systematic torture in the Kenyan camps nor that, if there was, the UK Government is liable to detainees, such as the claimants, for what happened."

The claimants, Ndiku Mutwiwa Mutua, Paulo Muoka Nzili, Wambugu Wa Nyingi and Jane Muthoni Mara - all but one of whom are in their 80s - flew 4,000 miles from their rural homes for the trial this spring which concerned events in detention camps between 1954 and 1959, but were not in court yesterday.

That earlier hearing was told Mr Mutua and Mr Nzili had been castrated, Mr Nyingi was beaten unconscious in an incident in which 11 men were clubbed to death, and Mrs Mara had been subjected to sexual abuse.

In his ruling, the judge rejected the FCO's contention that the claim did not have a real prospect of success, essentially because there was no relevant duty of care.

He commented: "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."Hailing yesterday's judgment, Mr Day, senior partner at Leigh Day & Co, said: "What they seek is justice by way of an apology and a Mau Mau welfare fund to ensure that in their final days they and their fellow freedom fighters can live with an element of dignity."

"That does not seem to me a great deal to ask after all they have been through."

Foreign Office minister for Africa, Henry Bellingham, said: "We have taken note of the judgment and are considering next steps."

Background: Bloody history of British Empire

THE latest legal action will cast the spotlight on one of the British Empire's bloodiest conflicts.

Kenyans regard the uprising as one of the most significant steps towards freedom from British rule.

The Mau Mau fighters were mainly drawn from Kenya's major ethnic grouping, the Kikuyu.

More than a million strong, by the start of the 1950s the Kikuyu had been increasingly marginalised as years of white settler expansion ate away at their land holdings Since 1945, nationalists like Jomo Kenyatta of the Kenya African Union (KAU) had been pressing Britain for political rights and land reforms, with valuable holdings to be redistributed to Africans.

But radicals within the KAU set up a more militant nationalist group. By 1952 Kikuyu fighters, along with some Embu and Meru recruits, were attacking political opponents and raiding white settler farms. In October 1952 Britain declared a state of emergency, which lasted until 1960.

Officially the number of Mau Mau and other rebels killed was 11,000, including 1,090 hanged by the British administration. Just 32 white settlers were killed.

The Kenya Human Rights Commission has said 90,000 Kenyans were executed, tortured or maimed, and 160,000 were detained in appalling conditions.