Kenyans win right to sue government over Mau-Mau treatment

Four elderly Kenyans were give the go-ahead at the High Court today to sue the British government over alleged colonial atrocities committed during the Mau Mau uprising.

The Foreign and Commonwealth Office (FCO), which says it cannot be held legally liable, had asked Mr Justice McCombe to rule on the preliminary issue of whether to throw out the claims and grant summary judgment in its favour.

The FCO's counsel Robert Jay QC had argued that the case was "built on inference" and ended in a "cul-de-sac".

But the judge rejected the strike out application today saying: "I have not found that there was systematic torture nor, if there was, the UK government is liable.

"I have simply decided that these claimants have arguable cases in law."

The test case claimants, Ndiku Mutwiwa Mutua, Paulo Muoka Nzili, Wambugu Wa Nyingi and Jane Muthoni Mara, who are in their 70s and 80s, flew 4,000 miles from their rural homes for the trial this spring which concentrated on events in detention camps between 1952 and 1961.

They were not in court for the judgment today but were attending a press conference in Nairobi.

At the earlier hearing the judge was told that 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 appalling sexual abuse.

But the FCO argued that legal responsibility was transferred to the Kenyan Republic upon independence in 1963.

The case will now proceed to a further hearing - before Easter next year - at which the court will consider the Government's argument that the claims should not proceed to trial as they have been brought outside the legal time limit.

In his ruling today, the judge said the underlying documentary base and direct witness evidence was "voluminous".

A large number of documents had already been produced but no formal obligation had yet arisen for any party - including the FCO - to give disclosure of relevant documents.

"Criticism of late disclosure of papers by the UK Government is and would be misplaced insofar as it is based on a misunderstanding of the court rules and procedures.

"If criticism is based on the failure to make documents available in the public archive earlier than was achieved, this is not a matter for the court."

He said the Kenyans, whose case was supported by the Kenya Human Rights Commission and the Kenya government, relied on the evidence of three distinguished academic historians.

The FCO produced arguments based on its own inferences from its own analysis of the constitutional arrangements between the UK and Kenya in the 1950s and the documents produced so far.

"The rival factual contentions are hotly disputed. I have found that it is impossible at this stage of the proceedings 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.

"I have simply decided that these five claimants (one has died since the proceedings were begun) have arguable cases in law and on the facts as presently known that there was such systematic torture and that the UK Government is so liable.

"Accordingly, I decided that the FCO have not established that the claims are bound to fail."

The solicitors for the Kenyans, Leigh, Day & Co, hailed it as a "historic judgment".

It was welcomed by Archbishop Desmond Tutu, who said: "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 & Co, said: "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".