An interesting aspect of Kimathi and Others v Foreign & Commonwealth Office  EWHC 2066 (QB) is how thoroughly it confirms that the past is a foreign country. Britain’s past comprises many foreign countries, once part of its Empire. The Kimathi litigation (also known as the ‘Mau Mau litigation’, after the Mau Mau rebellion that was instrumental in Kenya’s independence movement) has come probably at the only time it could come in these postcolonial days, but it has come too late to be suitable for the forensic process that is civil litigation.
Members of 12 King’s Bench Walk’s International & Travel team have been instructed at various points throughout the course of this litigation by the Claimants, the FCO, and Intervening Parties. This post considers the implications of Stewart J’s first judgment on the merits and assesses the suitability of the civil litigation process for determination of the issues raised.
Given the passage of time since the relevant events, it is not surprising that section 33 of the Limitation Act 1980 dominated the judgment handed down on 2 August 2018 with respect to Test Claimant number 34 (‘TC34’). TC34 was the first of forty test claimants, in a Group Litigation Order that encompassed over forty thousand, to be the subject of a judgment on the merits of his individual claim. It concerns allegations of ill-treatment said to be perpetrated by Britain and/or its representatives in the final ten years of colonial rule in Kenya. In 1952, a State of Emergency was declared that lasted until 1963. Measures to counter the Mau Mau rebellion during that period included detaining Kikuyu, Embu and Meru peoples in camps across Kenya. Despite being in the relatively recent past, the period is occluded and contested, with wildly divergent accounts from historians as well as first-hand witnesses.
The Kimathi litigation picks up where the earlier Mutua litigation left off, although there are important differences between the cases. Among the differences are limitation (more on which below), and whether the FCO is the correct defendant. That is, the defendant denies that responsibility for any torts lay with Her Majesty in Right of Britain as opposed to Her Majesty in Right of Kenya (i.e. the colonial government, whose liabilities were transferred to the Republic of Kenya upon independence). However, the judge was anxious to make clear that this was not a public inquiry (paras 20-22). It was a court case and the court was bound to apply law rather than to make moral or political assessments. He stressed that he would not, for example, make findings about whether the colonial administration overreacted to the Mau Mau threat.
After Mutua, the then-Foreign Secretary made a statement in Parliament. He said:
‘During the Emergency Period widespread violence was committed by both sides, and most of the victims were Kenyan. Many thousands of Mau Mau members were killed, while the Mau Mau themselves were responsible for the deaths of over 2,000 people including 200 casualties among the British regiments and police. […]
However I would like to make clear now and for the first time, on behalf of Her Majesty’s Government, that we understand the pain and grievance felt by those who were involved in the events of the Emergency in Kenya. The British Government recognises that Kenyans were subject to torture and other forms of ill treatment at the hands of the colonial administration. The British government sincerely regrets that these abuses took place, and that they marred Kenya’s progress towards independence. Torture and ill treatment are abhorrent violations of human dignity which we unreservedly condemn. […]
The agreement [concluding Mutua] includes payment of a settlement sum in respect of 5,228 Claimants, as well as a gross costs sum, to the total value of £19.9 million. The Government will also support the construction of a memorial in Nairobi to the victims of torture and ill-treatment during the colonial era.’
If the forty test claimants in the Group Litigation Order succeed in establishing the facts grounding their allegations, the court will go on to rule upon generic issues (such as the identity of the correct defendant).
The defendant did not advance a positive case in TC34’s claim because it said the delay had made this impossible. Rather, it submitted the claimant had not proved his case and that the judge should not exercise his section 33 discretion to extend the limitation period.
Summary of the TC34 Judgment
At the time the judgment was handed down, the matters in issue had been whittled down from unlawful detention/forced labour and were now restricted to claims for general damages for personal injury (paras 25-26). Many claimants alleged brutal, unspeakable horrors perpetrated against them by British forces and/or by the Kenyan Administration. TC34 was no exception to the norm, alleging (inter alia) frequent beatings, interrogation where soil was forced into his anus, and carrying dead bodies whose intestines fell on his face and that he almost swallowed. He alleged several one-off assaults and other beatings that were courses of conduct over a period of detention. The medical expert recorded that he had PTSD which he self-medicated with alcohol (para 149), leading to alcoholism and functional impairment, but there was no claim for psychiatric injury brought in the proceedings (fn 174).
Limitation was the main issue between the parties, as it coloured the court’s ability to investigate any of the other facts in issue. The defendant made submissions in respect of inconsistencies in the pleadings and the claimant’s witness statement. TC34 stated in written evidence that he was not beaten at Mwea Camp; in oral evidence he said that he had been, but immediately contradicted himself when asked to clarify. He was inconsistent about the number of soldiers who he alleged had interrogated him, and initially said that one assailant forced soil into his anus but later said that two had. He volunteered in court that he was an active supporter of Mau Mau and helped to provide them with weapons by offering soldiers a prostitute’s sexual services in exchange for ammunition. His written evidence gave the impression that he did little in support of Mau Mau and was swept up against his will. Stewart J did not disparage his credibility on honesty grounds, but rather on the quality of his memory. TC34 gave inconsistent accounts to two medical experts who he saw on the same day. In TC34’s case, the limitation period expired more than fifty years ago (para 439). There was no doubt in the court’s mind that his evidence was rendered less cogent as a result (para 461). The judge concluded, ‘TC34 has not proved in respect of any of his core allegations that his prejudice would outweigh that of the Defendant.’ (para 475) This was so despite TC34’s claim having merit. Stewart J accepted that the claimant had been detained at three detention camps (para 433) and that detainees were made to carry dead bodies (para 316). However, he declined to extend the limitation period.
Stewart J was critical of the fact that there was no evidence from TC34 on why no claim had been brought earlier (paras 144, 157). He canvassed some matters that could be said to apply, but did not feel he could read factors across from Mutua (where the limitation bar was lifted) when there was no evidence from the claimant himself.
It was crucial to the judge’s reasoning that the defendant was prejudiced in even proving prejudice (paras 196, 204, 213, 219, 226, 229). That is to say, it did not know what it did not know. It could not point to specific documents or persons it would have relied upon had they been available, because it did not know what would have been available. There were no comprehensive schedules of destroyed records, nor could lists of employees of the colonial administration be found, for example. Stewart J summarised the difficulty thus: ‘There are various theoretical possibilities why there are no such documents in relation to TC34 (or any TC) e.g. such documents were not located despite being available and despite the Defendant’s extensive searches and/or the documents were lost or destroyed during or after the Emergency and/or there never was any such document; alternatively that TC34 was not detained at all or at some of the places where he says he was detained.’ (para 192) He rejected submissions that the destruction of documents was ‘irresponsible’ on the Defendant’s part, noting that deliberate destruction is not necessarily irresponsible or done in bad faith (para 209).
The prejudice suffered by the defendant over documents affected witnesses too. Stewart J said, ‘Apart from the witnesses whom the Defendant has called to give evidence, everybody named in TC pleadings and evidence and mentioned in the Defences is believed by the Defendant to be deceased, untraceable or uncontactable. In no TC case has an alleged perpetrator or direct witness to an alleged tort been found by the Defendant to be identifiable, traceable and contactable.’ (para 219) TC34 had forgotten the name of one of the assailants (para 229). He could only remember vague details and the racial characteristics of other assailants, giving rise to questions whether the Defendant was responsible for them in law.
The Mau Mau Litigation is not simply a test case within the meaning of the Civil Procedure Rules but also tests the possibilities of doing transitional justice. Transitional justice is the justice around regime change. Unusual features of the litigation discussed above will not have escaped the readers’ notice. Why had TC34 not brought the claim earlier? We do not know, but we can imagine (as the judge did) that the claimants’ solicitors’ advertising prompted him. At a certain level of abstraction, it is only recently that the global discourse about empire has changed. This is too nebulous a factor to fall within section 33, but it is perhaps a partial explanation. That it does not easily find recognition in private law but demonstrates how limited a tool private law is for transitional justice. Nor is the bipartite, adversarial nature of civil litigation ideally suited to cashing out the particulars of history.
An obvious indicator of the unique difficulties thrown up by cases of transitional justice is the amount of meta-litigation, that is, litigation about the litigation. TC34’s judgment is the first judgment on the merits but there have been fifteen judgments in Kimathi already, many on procedural points. One judgment concerned the faithfulness of the translation of the claimants’ evidence from Kikuyu into English. The judge also referred to witness statements from the legal representatives in the proceedings to demonstrate what steps they had taken to locate potential witnesses and how thoroughly they had searched the Kenya National Archives (para 221). For solicitors to be witnesses in proceedings they are also conducting is unusual, and shows that even conducting the litigation required traversing new ground.
One of the broader themes in the case was what kind of administration ran Kenya during the State of Emergency. This is a staggeringly large issue to be in contention in a court of law. It shows not only that the past is a foreign country, but that its very foreignness obscures from us the kind of country it is. TC34’s allegation that he had been threatened with a drawer full of severed heads at the CID headquarters was only settled by determining that it need not be settled (paras 402, 403, 409). The claimants urged the court to consider the ‘mood music’ of widespread irregularities and abuses (para 314) but courts’ ears, by their nature, are attuned to probable facts on discrete occasions (see e.g. para 459).
Courts also have particular methods of proving those facts, and these rely on certain background assumptions about the participants in the trial process. Take the example of language. Translators were used, however contentiously, but translation itself has shortcomings even when it is accurate. For example, how to translate the words for specific colours? Say a uniform would naturally be described in English as ‘maroon’, how would one go about putting that in a language that recognizes only ‘red’ or ‘brown’? Linguistic translation can never, in any event, convey a complete picture of the cultural context which implicates the words people use. The Kikuyu names of places in Kenya were transcribed into English in different ways by different Claimants. This made the locations harder to identify. The problem was compounded by place-names having changed since colonial days, and by Claimants who could not read being unable to mark maps accurately.
A second example of the problems in carrying out transitional justice is literacy and socioeconomic circumstances. TC34 was not educated to a high level, although he was able to read and write. Many test claimants could only verify their statements of truth by thumb prints. Stewart J referred to the effect of illiteracy on cross-examination requiring Claimants to consider documents (para 86). Lack of sophistication (as well as lapse of time) doubtless contributed to Claimants’ inability to identify tortfeasors’ status within the colonial administration or otherwise.
One final example of a particular feature of civil litigation that does not work well in the context of cases like Kimathi is the reliance on contemporaneous medical records to prove injury. Stewart J referred to the fact that TC34 may not have had access to medical advice and/or that records may not have been kept even if medical attention was available.
It is more difficult to do justice as time passes. TC34’s case was no exception. Transitional justice cases often involve lengthy delays as public discourse around past events evolves slowly. Particular features of civil litigation and of private law make it hard to do transitional justice through the court process.
The Kenya Emergency Group Litigation has produced a number of important judgments, including on whether fear counts as personal injury (the previous judgments are listed in a glossary to the TC34 judgment). The disposal of the remaining test cases will similarly be of importance. As Stewart J said, quoting the claimants’ submissions, ‘If… these TCs cannot fairly have their cases adjudicated then it must be said of all TCs. Otherwise the GLO has failed to achieve its object…. The logical outcome is that many people were abused, but none of the 40,000 people in this action can show they were abused.’ (para 429)
The difficulties that beset TC34 in terms of lack of (i) documentary evidence, (ii) corroborative evidence, (iii) clarity and consistency over dates and details, and (iv) defendant witnesses, are likely to affect other test cases to a similar degree.
  EWHC 1913 and  EWHC 2678 (QB)
 If a barrister had to do such a thing, he/she would no longer be able to act under professional conduct rules. The judge also referred to the rareness of jointly-instructed medical experts giving oral evidence (para 236(c)).