At least 41,000 Kenyans who are of high hope to get compensation from Britain due to torture by the colonial government in the 1950s have been sent back empty-handed by a London court.
This group had hoped to get an allocation from the UK just like the 5,228 Kenyans, mostly Mau Mau veterans, who had sued earlier and got a total of Sh2.7 billion in an out-of-court settlement reached in 2013.T
The second batch of claimants will, however, not be entitled to a single cent after Justice Stewart of the Queen’s Bench Division of the High Court said the time difference from the time the alleged atrocities happened and when the case was lodged was too long to enable a competent trial.
The judge made the finding last Thursday at the end of the hearing of a test-case from one of the claimants, who was granted anonymity and only called TC34.
The man had told the court that he was tortured during the State of Emergency that lasted between 1952 and 1959.
He said he was interrogated and tortured after his arrest in 1954 and witnessed the violent rape of a young girl.
TC34 also said he was forced to work at Mackinnon Road, Mwea, and Gathigiri without remuneration; and that he was once detained and sent to Embakasi despite not having been convicted.
Here, he claimed, he lived in poor conditions where he was threatened with castration.
“He was detained at Fort Jesus, Mukoe Camp in Lamu and Hola where he was assaulted,” reads the judge’s summary of his evidence.
One of the grounds England used to oppose TC34’s case is the long time it had taken for the case to be filed.
The case started by a claim form filed in March 2013.
The British Foreign and Commonwealth Office, the sued party, used the Limitation Act of 1980 to argue its case, which stipulates in its Section 33 that people who suffer personal injuries should sue not later than three years after they are harmed.
Lawyers for the over 40,000 Kenyans tried to counter that argument by saying those suing were “illiterate, do not speak English to a conversational standard, are unsophisticated (as their evidence demonstrated) and are largely impecunious in terms of being able to fund a legal action against the UK government”, as captured in the judgment.
The judge further stated: “TC34 gave evidence that he could read and write and that the reason he had not signed his statement is because he was not asked to sign it but asked to put a thumb print on it. Nevertheless, he did not speak English and was relatively unsophisticated.”
In the end, however, the judge ruled that the suit could not stand due to time constraints.
One of the reasons he gave was that it would be hard for the British Foreign and Commonwealth Office to properly respond to the case as it had no “fair opportunity” to investigate the allegations.
“It is difficult, given the loss of witnesses and documents over time, to determine up to when there could have been a fair trial of some or all of TC34’s claims,” said the judge.
He went on: “Had the claim been brought in, say, the 1970s or even later, the evidential position then obtaining would have had to be examined in the sort of detail in which it has now been done. What is clear is that there cannot now be a fair trial of any of the core allegations. That is because of the delay.”
The judge also gave reasons why the case by the 41,005 people is different from the one that led to the award of Sh2.7 billion — called the Mutua case in legal parlance because Ndiku Mutua led a group of litigants who had sued Britain.
In the Mutua case, the judge said, it was not a group litigation.
The case also had specific allegations relating to deliberately inflicted injuries where the colonial government was liable.
“The claimants in the present case brought claims on a much wider range of alleged tortious behaviour,” stated Justice Stewart, adding that the claimants in the Mutua case did not also rely on the Limitation Act that those in the second case were using.
It is from the Mutua case that Britain decided to issue a public acceptance of wrongdoing a June 6, 2013 statement by the then Foreign Secretary William Hague to Parliament where he said that the settlement was a recognition of suffering and injustice that took place in Kenya.
Mr Hague also announced that Britain would construct a memorial in Nairobi.
It was launched at the Freedom Corner of Uhuru Park in September 2015.
The case dismissed last week, reports the UK Human Rights Blog, was a “mammoth” hearing that lasted 223 days.