A group of Kenyans who are suing the British government over claims they were horrifically beaten and tortured during British rule in Kenya during the 1950s will be able to take their lawsuit to trial, the High Court ruled on Thursday.
The four allege that they suffered torture by the British administration during the Mau Mau rebellion in Kenya between 1952 and 1960. The Foreign Office says it is not legally liable for their treatment and had argued that the case ought to be struck out before it went to trial.
A High Court judge ruled on Thursday that the five cases, which include one Kenyan who has died since the claim was issued, can now proceed to trial as the claimants have “arguable cases in law”.
During the hearing in April, court documents described claims by one of the Kenyan men bringing the lawsuit that he had been arrested and brutally beaten by police and later by European and African officers and then castrated.
The High Court had also heard claims by another of the men that he had beenarrested, threatened with hanging and beaten as well as allegations by two women involved in bringing the lawsuit that they were sexually abused and beaten at the hands of prison guards
Mr Justice McCombe ruled: “I am not finding that the defendant is liable for the injuries inflicted upon the claimants. I am simply deciding that the issue of whether it is so liable, on these formulations of the claimants’ case, is fit for trial.”
The judge also made it clear that he was not deciding whether there was a system of “torture of detainees in the camps in Kenya“. He said: “I merely decide that there is viable evidence of such a system which will have to be considered at trial.”
The Kenyans had claimed that the liabilities of the old colonial government that ceased to exist in 1963 devolved on the UK government after Kenya’s independence.
They also alleged that the UK government was and is directly liable to the Kenyans for having instigated through the army and the former Colonial Office a system of torture and ill treatment of detainees as part of a common design shared with the colonial government in Kenya.
They also allege that the UK government is liable to the claims as a result of an instruction or authorisation of particular treatment of Kenyans given in July 1957 and is liable for failing to put a stop to the use of torture and violence of detainees in camps.
The Foreign Office had argued that any claim the Kenyans might have had could only be brought against direct perpetrators of the alleged assaults and the colonial government in Kenya and not against the British government.
Martyn Day, senior partner at Leigh Day, the law firm representing the Kenyans, 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.”
Henry Bellingham, foreign office minister for Africa, said in a statement: “It is right that those who feel they have a case are free to take it to the courts. We understand the pain and grievance felt by those, on all sides, who were involved in the divisive and bloody events of the Emergency period in Kenya.
“Despite today’s judgment, the government will continue to defend fully these proceedings given the length of time elapsed and the complex legal and constitutional questions the case raises. We have taken note of the judgement and are considering next steps.
“Our relationship with Kenya and its people has moved on since the Emergency period. We are now partners and the UK is one of the largest bilateral donors in Kenya.”
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