Ndiki Mutua, Paulo Nzili, Wambugu Wa Nyingi, Jane Muthoni Mara and Susan Ngondi v. The Foreign and Commonwealth Office

Court	The High Court of Justice, Queen’s Bench Division, Great Britain (UK)
Case number	HQ09X02666
Decision title	Approved Judgment
Decision date	21 July 2011
Parties	Ndiku Mutua Paulo Nzili Wambugu Nyingi Jane Muthoni Mara Susan Ngondi The Foreign and Commonwealth Office
Other names	Mau Mau Veterans (2011)
Categories	Torture, War crimes
Keywords	anti-colonial struggle, illegal detention, Kenya, other cruel treatment, outrages against personal dignity, prisoners of war, torture, war crimes
Links	Approved Judgment

Summary

The claimants in this case claimed that they were victims of severe atrocities at the hands of the colonial government during the struggle for independence in Kenya. They argued that the British government carried responsibility for this, while the British government argued that they could not be held responsible for atrocities which, if proven, were committed by the Colonial government in the 1950s. Therefore, the British government requested the Court to dismiss the case before it would come to a trial. The Court refused to do this, stating that evidence existed of torture in pre-independence Kenya and of some UK involvement. This evidence, the Court reasoned (without establishing the liability of the British government), should be assessed in Court.

Procedural history

This case revolves around an action for damages for personal injuries brought by five claimants in respect of alleged torts of assault and battery and negligence, for which it was said the defendant was liable as representing the government in the United Kingdom.

The claimants are veterans of the Mau Mau movement which participated in the struggle for an independent Kenya during the 1950s. They claimed to have suffered injuries, including sexual assault and castration, during the repression of the independence movement by the Colonial administration. The ‘Colony and Protectorate of Kenya’ was at that time part of the British Empire. Therefore, the claimants argued, the defendants (the United Kingdom) are liable for acts of assault, or in the alternative, owed a duty of care which it negligently failed to discharge.

The defendants did not deny that "if the claimants’ allegations are well founded, they would have had proper claims at the time against the perpetrators of the assaults and, most probably, also against the former Colonial Administration in Kenya on a vicarious liability basis"; nevertheless, they argued that no claim could be brought against the UK government, since the Colonial Administration had acted on its own. Therefore, they filed an application for orders striking out the claims and/or for summary judgment dismissing the claimants' claim.

Related developments

On 5 October 2012, the High Court of Justice allowed the case to go ahead based on a provision under the UK Limitation Act 1980, which gives the courts the discretion to extend the period within which the claims can be brought. In June 2013, it became public that the UK and the claimants had agreed to settle the matter out of court.

Legally relevant facts

In the 1950s, anti-colonial groups initiated the Mau Mau uprising, a revolt against British colonial rule in Kenya. In response to this, a formal state of emergency was declared that lasted from 1952 until 1960. The torts alleged by the claimants were all committed during this period. As a part of the process of proclaiming the Emergency, the Governor promulgated the Emergency Regulations 1952. These regulations allowed for wide powers of arrest and detention of suspected persons. From about March 1953 detention camps were built for the large numbers of detainees (paras. 8-9).

Core legal questions

The High Court of Justice had to decide whether the claimants had arguable cases on the facts known at the time of proceeding that there was systematic torture,
and whether the UK government carries liability for this.

The claimants had argued that the British government were at least arguably liable on five legal bases: First, they argued, relying on common law and customary international law, that the liabilities of the Colonial Government transferred to the UK Government when Kenya became independent. Secondly and thirdly, the claimants stated that the British Government was directly liable for having created a system of torture and ill-treatment of detainees ‘as part of a common design shared with the Colonial Government in Kenya’. Fourthly, they argued that in July 1957 the British government gave instructions to the Colonial government to mistreat the detainees. Lastly, they argued that the UK Government knew that abuses were taking place, that it could have prevented these abuses and still did nothing to stop it. This, the claimants argued, was a breach of the colonial power’s duty of care.

Specific legal rules and provisions

Parts 3 and 24 of the Civil Procedure Rules
Articles 11, 14 and 33 of the Limitation Act 1980
British Settlements Act 1887
Foreign Jurisdiction Act 1890
Section 3 of the Emergency Powers Order-in-Council 1939
Vienna Conventions on Succession of States in Respect of Treaties
Succession of States in respect of State Property, Archives and Debts

Court's holding and analysis

The Court only dismissed the first legal ground argued by the defendants, stating that Kenya had not excluded its government from the liabilities of the colonial administration (para. 83). Neither did it consider there to be an ‘extensive and virtually uniform’ rule of customary international law clearly transferring the colonial government’s liability to the British government after independence (para. 95). Based on the other four legal bases, the Court held that the claimants had arguable cases. The judge had to take into consideration ‘the stark evidential dispute’ between the parties (para. 120). Still, the Court referred to ‘materials evidencing the continuing abuses in the detention camps (...) are substantial’ and evidence of knowledge of both the British and the Colonial government that they were happening and of the failure to take effective action to stop them’. ‘The matter is not conclusive, but it is a proper issue for trial’, the Court held (para. 128). Still, the Court emphasized that it did not find that the defendant is liable for the injuries inflicted upon the claimants or that a system of torture of detainees existed. Merely, it decided that there was viable evidence which should be considered at trial (para. 134).