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One Crown Office Row’s Guy Mansfield QC has lost a High Court case for the Government after Mr Justice McCombe ruled that Mau Mau veterans could claim against the Government despite being out of time.
McCombe J dismissed the Government case that too much time had elapsed for there to be a fair trial, using his discretion under the Limitation Act to allow personal injury claims against the Government. Thousands of claims are now expected to come forward.
The Mau Mau uprising, which took place in central Kenya between 1952 and 1961, was a rebellion against British colonial rule. Claims were brought by four Kenyans for serious personal injuries and torture suffered whilst in detention in Kenya during the uprising.
Leigh Day & Co partner Martyn Day instructed Matrix Chambers’ Richard Hermer QC and Doughty Street Chambers’ Phillippa Kaufmann QC to lead the fight for the Kenyans - which has already been through the High Court.
Last July the court dismissed the Foreign and Commonwealth Office (FCO) defence that actions could only be brought against the perpetrators of the alleged assaults or their employers at the time (21 July 2011). In that case 39 Essex Street’s Robert Jay QC was instructed by the Treasury Solicitor for the FCO.
At the latest hearing, the FCO accepted that the three surviving claimants had suffered torture and other mistreatment at the hands of the colonial administration, but legal responsibility by the UK government is denied.
It was also accepted that the claimants’ delay in bringing the claim was excusable or at least understandable in light of the ban on discussing the Mau Mau in Kenya, which persisted until 2003.
McCombe J ruled found that a fair trial of this issue was possible in light of the existing documentation and remaining witnesses.
He concluded: “The seriousness of the allegations made obviously gives any court cause to pause for thought before it holds that the claim cannot be brought, while applying to the full the law that the burden of establishing the case for an extension of the permitted limitation period lies upon the claimant.”
For the claimants
Matrix Chambers’ Richard Hermer QC, Doughty Street Chambers’ Phillippa Kaufmann QC, Doughty Street Chambers’ Alex Gask and One Crown Office Row’s Henry Witcomb instructed by Leigh Day & Co parter Martyn Day
For the defendants, Foreign and Commonwealth Office
One Crown Office Row’s Guy Mansfield QC, 39 Essex Street’s Alex Ruck Keene and Jack Holborn of the same set instructed directly by the Treasury Solicitor
For the intervener, Redress
One Crown Office Row’s Elizabeth-Ann Gumbel QC instructed by Redress