Kimathi v Foreign and Commonwealth Office

Test Claimant

Paragraph amended

Amendment

Agreed?

Claimants Response

Judge

5 – Nyambura

Kanuthu

Kang’ang’ira

9

Summary of Detentions

The Claimant was detained at

Kairiua

Camp for about 6 months. The Claimant was allowed home for a short time but then removed to and detained at Mbaaini Village for about one year before being transferred to Mecha Village for about 6 months, from where she was allowed to return home to Thunguma.

The Claimant was later detained in Kairiua Camp for about 6 months.

No.

1) The justification for the proposed amendments is unclear. No explanation has been given.

2) The content of the paragraph, i.e. the sequence of locations and periods at each, is not consonant with TC5’s account in oral evidence.

3) If the amendment were allowed, D would need the opportunity for further XX of TC 5.

4) This would greatly delay the already elongated trial timetable. 5) To refuse the amendment would not be unfairly prejudicial to TC 5. Specific requests for further particulars as to her factual account were made by Part 18 request. TC 5, assisted by her legal representatives, said she could not answer – see [4-80 to 4-85]. She had more than ample opportunity to represent the sequence and timing of events in her original pleadings, Part 18 responses, first and second statements, and before the conclusion of her oral evidence, given on 1 July 2016. The delay in seeking to amend has not been explained. TC 5 can pursue the case previously advanced on the existing pleading/evidence, insofar as it is proper for her to do so.

See §22 of the Skeleton Argument.

1) Cs cannot locate an order requiring this. However, it reflects the overall evidence as Cs see it.

2) Timings given at §6 agreed. TC corrected the sequence in examination in chief [33-2454] - first time she left her village, she was taken to Kiariua.

3) Given that clarification given in chief evidence is required of why D did not cross-examine on the point. None is provided.

4) Given that clarification to D’s advantage, because, it puts part of case outside limitation, further cross-

examination would be disproportionate. This is a threat.

5) This is an argument advanced in April. There is no sense in which this falls outside the guidance already available.

Allowed.

Not now objected to.

29

Forced Labour and assaults

No.

Allowed.

During her detention at Mbaii-ini village,

the Claimant was forced to dig a deep trench that was about 8 feet deep to surround the village. Wooden spikes were put up next to the trench. Work at the trench started at about 8am and finished at about 5pm.

a. The Claimant was probably

forced to

move to Mbaa-ini Village in 1955; b. The digging of a trench specifically to surround the village probably commenced in or around

May1955;

c. The Claimant will refer to documentation in support of her claim for its full terms and effects in due course; by way of example, the inhabitants of Mbaa-ini village were

ordered to dig a ditch around itself as a punishment measure [32-34364].

The proposed amendment renders TC 5’s case hopeless. It substantially changes the dates and circumstances of the events alleged, contrary to TC 5’s sworn oral evidence that:

1) She was removed from her home village about 2 weeks [33‐2476 to 33‐2477], or 2 months [33‐33‐2466 to 33‐2469], following the start of the Emergency (i.e. late 1952 or

January 1953).

2) She was then in Kiariua camp for

6 months [33‐2471].

3) She was then a month at

Thunguma [33‐2471].

4) She was then about one year at

Mbaa‐ini [33‐2472].

Her oral evidence is therefore to the effect that she would have been at Mbaa‐ini between mid‐

1953 and mid‐1954.

The timings are of critical importance to limitation, to the role/relevance of TC 5’s account, and to its testing. Time cannot equitably be extended under s.33 Limitation Act 1980 in circumstances where TC 5, with the help of a professional legal team throughout, did not present a critical aspect of her case in her original pleadings, Pt18 responses, first and second statements, then did address it on two occasions in oral evidence, and now invites the court to accept a case which

contradicts that oral evidence.

Case now puts some of the injuries outside limitation, on the documents. Otherwise this is merely a submission. It has nothing to do with amendment.

The evidence includes the documents. Why D seeks to assert the primacy of one part of the evidence over another is both unknown and unargued. It is unfair to prevent her and the other TCs relying on documents.

Where the document supports a change in the date, Cs have not just pleaded the date, but the document to explain the change.

The limitation argument is available to D, if the facts (from whatever source) do not support the TC. The amendment is a separate issue. By conflating the 2 D seeks an advantage – that it does not have to make a submission because TC cannot rely on the evidence. This was argued as strongly as D wished in April. Moreover, D assume a disadvantage, rather than adducing evidence to prove it.

(i) This goes little if at all further than the scope of the amendment allowed in the April 2017 judgment. There (para 31.1) it was D’s case that TC1’s and TC30’s oral evidence was consistent with the incidents complained of being pre June 1954.

(ii) On the pleadings and Part 18 Request TC5 could not give any dates.

(iii) The Claimants do not take issue with the effect of TC5’s sworn oral evidence. They rely upon the documents as changing the effect of that evidence.

(iv) The evidence from TC5 which was said to be that she would have been at Mbaaini between mid 1953 and mid 1954 arose in cross-examination.

(v) There is nothing inconsistent with TC5’s IPOC at paragraph 5, 9 or 29 by virtue of the proposed amendment.

(vi) It is a matter for submissions as to what extent the Court should accept TC5’s oral evidence or the documentary evidence on which the Claimants rely.

(vii) As to the effect of the documentation and whether it supports what the Claimants aver, this a matter for final submissions.

(viii) I do not accept that the Defendant would need the opportunity further to crossexamine TC5 if the amendment is allowed. She was carefully cross-examined as to dates. If there is any merit on scrutiny in

Further or alternatively, the justification for the proposed allegation that TC 5 ‘probably’ arrived at Mbaa‐ini village in 1955

(§29.a) is unclear, as is the assertion that the digging of a trench commenced in or around May 1955 (§29.b). Neither follows from the document cited at §29.c and no other explanation has been given.

As to prejudice:

1) If the amendment were allowed, D would need the opportunity for further XX of TC 5 informed by further documentary research. She was not asked about details that may have confirmed her evidence re: timing and/or cast doubt upon the amended case. E.g. the proposed amendment at §29.c assumes that TC 5’s evidence about trench‐digging refers to the digging of a single trench around the village, referenced in a document dated May 1955. In her oral evidence, TC 5’s chosen description of the work was that it entailed ‘digging trenches’ at Mbaa‐ini over the course of a year [33‐2472]. She was not asked for further details about that work (e.g. whether it may have been irrigation work), or its timing, the significance of which is only now suggested by way of the proposed amendments.

2) Additional searches within the documents would anyway be necessary if the amendment were allowed. The amended case now

D cannot seriously have mistaken the argument here. The date comes from the document ordering the digging of the trench. To pretend that the 2 issues are separate and therefore there is no connection between the arrival and the digging of the trench (which TC5 has always pleaded) is unfair. The doc is dated August 1955. It records events that that happened since January 1955. It records the digging of the ditch at Mbaaini. The assertion that the pleading does not flow from the document indicates that the document has not been read in any detail.

As to prejudice:

1) It is obvious from the unamended IPOC that TC5 was describing the moat round a punitive village. If D was really going to ask whether a trench with wooden spikes might be for irrigation then it could have done so. However, Cs do not accept that this would sensibly have happened. D is casting around for a reason to object, rather than arguing a serious point. As made clear in the substantive Skeleton Argument, Cs do not accept

final submissions that the Defendant might be at any disadvantage by not having cross-examined TC5 about digging trenches at Mbaaini, the Court can take into account the fact that the amendment post dated the Claimant’s evidence.

(ix) Nor is the Court persuaded that because of this amendment there will be extra work in relation to documents which cannot be properly and timeously done by D. There may be some, but I do not accept that it is consistent with the overriding objective to refuse the amendment on this basis.

seeks to tie TC 5’s time at a particular place to a particular task, with implications for the timing of the entirety of the remainder of her case. The original searches are of limited usefulness.

3) Those matters would greatly delay the already elongated trial timetable.

4) To refuse the amendment would not be unfairly prejudicial to TC 5. Specific requests for further particulars as to dates were made by Part 18 request. TC 5, assisted by her legal representatives, said she could not answer – see [4‐82]. She had more than ample opportunity to date events in her original pleadings, Part 18 responses, first and second statements, and before the conclusion of her oral evidence, given on 1 July 2016. The delay in seeking to amend has not been explained. TC 5 can pursue the case previously advanced on the existing pleading / evidence, insofar as it is proper for her to do so.

that D was unaware of the document until recently and D has not adduced evidence that this was so. Indeed, the reference to ‘significance’ suggests that D may actually have known about the document.

2) The evidence of Ms Howard (3^rd witness statement relied upon by Mr Robertson) (§31) was that D searched by name and location. Ms Howard does not mention dates in §31 and the explanation appears to be given at §50 where she says D could not search by date because dates were not given. The closest D gets to a search on dates is Mr Murphy’s oral evidence that when a date was identified the search was for 6 months either side [33-14732]. However, it is clear other searches were used as well (location and names). There is no evidence that D is prejudiced. Mr Murphy’s 7^th witness statement does not deal with dates [49-4132 §§10; 12], presumably for the same reason as Ms Howard provides. Mr Robertson simply avoids reference to this evidence.

3) this is a threat.

4) these are arguments advanced in April.

30

She was required to work during her

detention at Mbaa-ini. The Claimant and

other detainees were supervised by

Home

Guards when digging the trenches around the village. The Claimant was beaten routinely causing pain to her ribs. The Home Guards would hit the Claimant on the back with sticks if she stopped walking.

No.

D objects to the word ‘routinely’. 1) The justification for that proposed amendment is unclear. No explanation has been given. It does not reflect TC 5’s oral

evidence.

2) If the amendment were allowed, D would need the opportunity for further XX of TC 5.

3) This would greatly delay the already elongated trial timetable. 4) To refuse the amendment would

not be unfairly prejudicial to TC 5. She had more than ample opportunity to set out her allegations of assault in her original pleadings, Part 18 responses, first and second statements, and before the conclusion of her oral evidence, given on 1 July 2016. The delay in seeking to amend has not been explained. TC 5 can pursue the case previously advanced on the existing pleading/evidence, insofar as it is proper for her to do so.

Whether “routinely” reflects the evidence is a submission. D can challenge it. There is no prejudice in the amendment.

1) There is no requirement for justification. However, the evidence [33-2485 – 2486] shows the TC would be beaten when she stopped working on the trenches TC5 said “I was hit on a few occasions but it was not worth much …. Compared to the beatings we would receive elsewhere this was not worth reporting but if you stopped working you would be hit once but not as hard as it used to happen in the other areas.” Cs will submit that people were routinely hit and beaten but if it didn’t leave an injury or a mark they didn’t think that much of it. 2) – 4) as above

Allowed.

(i) I accept the Claimants’ submissions here.

(ii) I do not accept that allowing this amendment would entitle the Defendant further to cross-examine TC5.

9

Anonymised

11

On arrival at Mung’aria village the Claimant discovered houses had already been built. They were made of mud and

had thatched roofs of grass. The Claimant

was moved into one house, which she had to share with four other families which caused cramped living conditions with no privacy. The Claimant was forced to live in this house for approximately three months until she was allowed to build her own individual family

No.

D has not had the opportunity to XX TC 9 as to the alleged dates. D was entitled to assume that TC 9 would not be advancing a more specific case as to dates, especially given TC 9’s Pt18 responses to the effect that she was unable to remember any relevant dates. No questions were put to TC 9 during XX as to dates. D would wish to XX on the dates which TC9 now expressly alleges she was moved to

TC 9 cannot remember dates. D cannot be prejudiced by not crossexamining her about what she cannot remember.

Cs also refer to §51b of their Skeleton Argument.

The documents assist TC9.

It would be entirely prejudicial to a vulnerable elderly TC who cannot remember dates to prevent her advancing a case where the documents help her.

Allowed.

(i) This is not a case where the document essentially contradicts the oral evidence of TC9.

(ii) TC9’s evidence and Part 18 responses were that she was unable to remember any relevant dates. She was therefore not questioned as to dates.

(iii) I am not persuaded that allowing the amendment would disrupt the trial and/or require

TC9 to be further cross-

home with help from others. The village held approximately one hundred people.

a. The said village was probably built as part of the villagisation programme in Fort Hall;

b. The Claimant was probably removed to the village after June

1954;

c. The Claimant will rely on the documentation in support of her claim for its full terms and effects in due course; for example, that relating to the progress of villagisation in the Fort Hall area including the report of the Fort Hall District Commissioner dated 8

January 1955 [32-28517], telegram February 1955 [32-29589] and Handing Over notes.

Mung’aria.

Further:

1) This is a general point not fully canvassed at the hearing of 6 April 2017. In a case where a TC has not specified a date as to when an incident occurred, it may be possible within the scope of the pleading for a Court to find that a matter occurred on a specific date. However, D would submit that in the circumstances a Court could not fairly reach a conclusion (and therefore time should not equitably be extended under s.33 Limitation Act 1980) where a TC is unable to specify such a date. D may therefore fairly take the view that it need not XX in any great detail upon the date of alleged events – the uncertainty is a matter that goes to show that the Court cannot fairly reach a conclusion. If, on the other hand, a TC specifies a date within a pleading, D may well take a very different view as to what questions need to be asked.

2) That is precisely the case here. D did not ask detailed questions of TC 9 upon the dates of relevant events. Had TC 9 specified dates, further questions could have been asked as to various factual matters that might assist D in showing that the alleged matters are more likely to have occurred at an earlier date rather than relying upon the lack of evidence as to relevant dates. 3) This is different from TC 30, who did, at least, give some indication as to the date of relevant events

1) This argument is a second bite of the cherry. TC1 was permitted to amend dates. D does not appeal that decision. D’s submission is that because a document in evidence may provide a date, it would be unfair to accept that evidence unless the witness can also specify the date. No authority is advanced to support that contention. It is a bad point. This is not a guessing game. Moreover, what D may fairly do in crossexamination is a matter of professional judgement. There is no evidence here that D was unaware of the date. Mr Robertson does not say so. The opening actually set the position out. 2) D fails to acknowledge that TC9 could not specify dates. Had the matter been pleaded as the amended IPOC sets out, D could have asked whether the TC could specify dates. The answer was no. D has specified no documents, nor adduced any evidence to justify the mere assertion that questions “could have asked as to various factual matters which might assist”. The whole issue is simply speculation.

examined. I understand the principle that the Defendant, in a given situation, may fairly take the view that it need not cross-examine in any detail upon the date and that it may be different if a TC specifies a date within a pleading. Also that it may have wished to crossexamine on dates by reference to documents. However, I have heard the witness here and I am un-persuaded that any further cross-examination as to date would have made any difference of real significance.

(iv) In those circumstances it seems to me that this is very similar, though not identical, to the amendments allowed in respect of TC1 and TC30 in paragraph 31 of the April 2017 judgment.

(v) See (ix) above re TC5 for the position re documents.

(namely after the Lari massacre) and was cross‐examined on that issue and the dates of subsequent events by reference to that – see

33‐3109 to 33‐3110.

4) This is also somewhat in contrast to TC 1, who was asked on a number of occasions either her age or to attempt to specifically date incidents ‐ see 33‐1633 & 331689 – albeit the questions as to events may have still been somewhat different. 5) That being the case, if the amendment were to be allowed, D would require to XX TC 9 following research and production of an Amended

Individual Defence.

6) To refuse the amendment would not be unfairly prejudicial to TC 9. Specific requests for further particulars as to dates were made by Part 18 request. TC 9, assisted by her legal representatives, said she could not answer – see [6‐75]. She has had more than ample opportunity to set outdates in her original pleadings, Part 18 responses, first and second statements, and before the conclusion of her oral evidence, given on 17 June 2016. The delay in seeking to amend has not been explained. TC 5 can pursue the case previously advanced on the existing pleading / evidence, insofar as it is proper for her to do so.

7) Allowing the amendment means that D for good reason did not ask what are now necessary

3) This is an argument as to why it is just to permit the amendment. Otherwise, D’s submission is no more than that those TCs with a poor memory for dates (not the primary focus of D’s preparation) should be treated differently from those with a good memory for dates. That may be a submission. It is not a basis for disallowing the amendments.

4) Cs refer to §51d of their Skeleton Argument.

5) this is a threat. There is not even a hint of a suggestion of what the research might produce. How on earth can D say it would require to crossexamine TC9. It has not the first idea of whether that is true or not. 6) as above.

questions of TC9 as to the date of the events. D has relied upon the lack of direct evidence as to the date of alleged incidents and the pleaded case.

8) Even if the Claimants were to be debarred from making any such complaint, it would not change the fact that TC 9 was advancing a positive case as to the dates of certain events that D has not been able properly to test. The potential practical impact of that upon the Court’s view of the evidence would be unknown but potentially profound.

7) There is no pleading to this effect. Rather, D says that the matters are not admitted. This argument would require a pleading that because C cannot give dates, she should not be entitled to rely on documents, even though the matter was Opened. Further, there is no definition of direct evidence here. The documents are direct evidence.

8) This is merely the same argument rephrased. D could not test the dates with TC9. She has no memory of dates. The way D test the evidence is to adduce documentation that the incident was likely to be at another time, or by asserting that the evidence

is insufficient. This is not an

argument about amendment.

10 – James Mugo

Kibande

16

After the three weeks the Claimant was released and returned to his home.

a. The Chief’s camp referred to by the Claimant is probably near to

Ishiara town;

b. He was probably engaged in labour on an irrigation scheme in the area;

c. Planned irrigation work in the Ishiara area probably became

No.

D does not object to the amendments at §§16.a and b. The justification for the amendment at §16.c is wholly unclear. If it were allowed, D would need the opportunity for further XX of TC 10 informed by further documentary research

The other proposed amendments

D has made no attempt to set out how its case would be advanced by crossexamination of TC10. He could not say when or why the irrigation work probably began.

TC 10 gives no date for his 3 week detention. The only date he gives is 1954, when

Allowed.

(i) In the IPOC at paragraph 6 it is said that the Claimant voluntarily took the oath in or around 1954. No other relevant date is pleaded.

(ii) This date is repeated in paragraph 3 of the witness statement. The witness statement goes on to say that during that time his father

operational once labour was available from local camps in the area.

d. The Claimant will rely on documents in support of his claim and for its full terms and effects to support his case. For example:

i. The “short rains” were, at the material time, autumnal [32-

17953]; ii. Labour for the irrigation work probably became available in or about October 1954 [32-24586; 32-

26284];

e. The events he complains of probably took place after the short rains ended in early 1955.

render TC 10’s case hopeless. They substantially change the dates and circumstances of the events alleged, contrary to:

1) TC 10’s sworn oral evidence that he was at the camp in the fourth month of the long (not short) rains [33‐2547 to 33‐2548] – cf the proposed amendment at §16.d.i. 2) TC 10’s references to relevant events having occurred in 1954 (with no reference to 1955) in his original IPOC (§6) and first statement (§§3, 18) – cf the proposed amendment at §16.e. The timings are of critical importance to limitation, to the role/relevance of TC 10’s account, and to its testing. Time cannot equitably be extended under s.33 Limitation Act 1980 in circumstances where TC 10, with the help of a professional legal team throughout, failed accurately to present a critical aspect of his case in his original pleadings, Pt18 responses, witness statement and oral evidence, and now invites the court to accept a contradictory case.

As to prejudice:

1) If the amendment were allowed, D would need the opportunity for further XX of TC 10 informed by further documentary research. He was not asked about details that may have confirmed his original account, which seemed to place all relevant events within 1954, or matters which supported that timing and/or cast doubt upon the

he took the oath. Cs will submit that the oath was what made him liable to be detained i.e. a “person of interest”.

In his Part 18, he says he took the oath in the 4^th month of the short rains [759]. D’s reliance on the oral

evidence founds a submission. It is not an issue for an amendment. The documents used place the short rains in the autumn. The time of his detention is linked to that and the fact that irrigation work, such as he describes, was ongoing in his area at that time.

The translator confirms in RX that Ichiara is the same as Ishiara, thus confirming the link [33-2559]; and also confirming the Pt 18 response at [7-62] that Gathige Chief’s camp is near Ishiara town.

The documents found a submission that he is post limitation.

A case is not hopeless if the documents assist it. If a C is so vulnerable and elderly as to be unable himself to be specific, it would clearly be prejudicial not to permit him to advance a reasonably arguable case based on documentation.

was living in a school and was arrested. He and his family then ran to the forest, stayed there for about 2 weeks and then went back home. There he was arrested and taken to dig canals. He stayed there for 3 weeks.

(iii) TC10’s oral evidence was that he was at the camp in the 4^th month of the long rains. In his Part 18 response he said he took the oath in the 4^th month of the short rains. Subsequently in his Part 18 response he says he was detained “on the 4^th month, in the beginning of the rainy season.” [See also reply 41]. D says that all this looks like 1954. It may do, but there is nothing specific on the pleadings that it was not 1955.

(iv) I do not accept that the proposed amendments render TC10’s case hopeless. The Defendant may well have good points to make on the pleadings and other documents, but these are matters for final submissions.

(v) It may be also, as referred to in paragraph (2) of the prejudice allegation that the Defendant has documents which may assist it.

(vi) Nevertheless I do not regard the proposed amendment as inconsistent with the present IPOC/Part 18 response.

(vii) Nor am I persuaded that there is any realistic prejudice

amended case.

2) Additional searches within the documents would anyway be necessary if the amendment were allowed. The amended case now seeks to tie TC 10’s time at a particular place to a different year from that pleaded originally. The original searches are of limited usefulness, because related to a single account rather than the relative merits of two rival accounts. At this stage D can observe that the documents indicate that the school referred to in §7 was destroyed in early 1954 and that in spring 1954 digging work was carried out to divert water to the Ishiara camp site from the local river.

3) Those matters would greatly delay the already elongated trial timetable.

4) To refuse the amendment would

not be unfairly prejudicial to TC 10. He had more than ample opportunity to date events in his original pleadings, Part 18 responses, first and second statements, and before the conclusion of his oral evidence, given on 11 July 2016. The delay in seeking to amend has not been explained. TC 10 can pursue the case previously advanced on the existing pleading / evidence, insofar as it is proper for him to do so.

1)

2)

This cannot be right. D’s best point is the one it already has about the rains being the long rains. Cs rely on the points made in respect of other TCs above (no evidential basis for suggestion). The issue is one of factual submission as D makes clear by referring to other documents. Nor is it clear what the value of the argument is, if the digging work began in spring 1954. TC10 gave evidence that he was in Ruiru in 1953 when the Queen visited [33-2527]. He went home after he joined the Mau Mau [33-2532]. He was arrested shortly after his father was killed [332543]. When he arrived Kainoko – in charge of prisoners – had been left in charge of digging trenches [33-2545]. That digging must, therefore, already have begun. The trench went from Gathigi to the scheme and he was released when the work was completed [33-2549]. D does not adduce any evidence of its propositions but, assuming them to be broadly accurate, it is unknown when the canal

which would be obviated by recalling TC10.

(viii) The proposed amendments are similar though not identical to those allowed in respect of TC1 and TC30.

(ix) See (ix) above re TC5 for the position re documents.

was complete.

3) There is no basis for further crossexamination.

4) As above.

13 – Ndogo

Gatutu

7

In or about January 1953 April 1954, the Claimant was arrested at his home in Bahati.

No.

The proposed amendment renders TC 13’s case hopeless. It substantially changes the dates and circumstances of the events alleged, contrary to TC 13’s sworn oral and written evidence. The timings are of critical importance to limitation, to the role/relevance of TC 13’s account, and to its testing. Time cannot equitably be extended under s.33 Limitation Act 1980 in circumstances where TC 13 effectively asserts, a year following his oral evidence and months following the close of Cs’ case, that, with the help of a professional legal team throughout, he could not accurately present critical aspects of his case in his original pleadings, Pt18 responses, first and second statements or oral

evidence. He now invites the court to accept a contradictory case, and

D must respond.

The fact that a change of case was intimated in submissions on behalf of TC 13 in late May 2016 does not affect the position. No change was made to TC 13’s pleaded case or written statements prior to his oral evidence or at any stage thereafter until now. D could not fairly cross‐examine him other than on his pleaded case and his evidence as confirmed under oath.

It is more than arguable that TC13 is describing Anvil. See §51q of Cs’ Skeleton Argument.

D always knew TC13 was said to be describing Anvil. The Langata documents (see below) support a more precise timing.

The lack of alteration in the SOL is an obvious mistake, and it should refer to 1954. If given permission, it will be corrected. This is a poor point.

It would be singularly prejudicial to TC 13 to force him to maintain a case where evidence is available that makes an alternative case arguable, and where his own account fits that evidence save for a mistake in date.

Otherwise, as above and in the Skeleton Argument.

Allowed

(i) D’s best point here is that there is a specific alteration of the date in paragraph 7. D can properly say that it is entitled to rely upon those pleadings. Nevertheless, in my judgment there are specific circumstances here which would make it contrary to the overriding objective not to allow the amendment.

(ii) In the original opening served by the Claimants on 20 May 2016 it was specifically said that TC13 was arrested during Operation Anvil which was in April 1954. It was that that gave rise to the discussion on 23 May 2016, part of the transcript to which I referred to in the judgment. A passage not contained in the judgment is as follows: “Mr Myerson: In respect of that particular Claimant, they must know about it because I actually put that in the opening.

Mr Justice Stewart: Yes, but if there are more like that.” This was specifically by reference to TC13. The Defendant relies upon Mr Skelton QC saying, prior to any of the TCs giving

evidence, that the focus of the

Defendant’s cross-

The amended case is moreover inconsistent with TC 13’s schedule of loss, which continues to assert that TC 13 was detained from

about 1953. As to prejudice:

1) TC 13 was clear in evidence that he took a Mau Mau oath in December 1952 and was picked up very soon (‘immediately’) thereafter [33‐1836 to 33‐1838]. His statement (see §§4, 9 and 17) specifies that he was arrested, taken to Langata, then taken to

Manyani, in each case in 1953.

2) If the amendment were allowed, D would need the opportunity for further XX of TC 13 informed by further documentary research. He was not asked about details that may have confirmed his evidence re: 1953 and/or cast doubt upon the amended case re: 1954 (Anvil).

3) D would also need the opportunity to re‐approach and if appropriate recall any of its witnesses potentially able to assist with the dating of relevant events/features of TC13’s changed account. Recalled witnesses could include Messrs Gordon, Grounds, McKnight, Kearney and Nazer. D would wish to consider whether it is possible to obtain further witness evidence. D has not, for example, ascertained whether

witness evidence as to events at Mackinnon Road in 1953 could be called (see below).

4) Considerable additional searches within the documents would

examination of the Test Claimants would be on their claims as pleaded in the individual Particulars of Claim. This is understandable. It was a position the Defendant was

entitled to take. (cf Al-

Medenni v Mars UK Limited [2005] EWCA Civ. 1041); nor was the Defendant required to

clarify, in the light of what had happened in May 2016, whether the Claimants had overlooked the amendments. Nevertheless, I am entitled to take into account, in exercising my discretion in accordance with the overriding objective, what had gone before in May 2016.

(iii) The evidential “hinterland” also supported the case now sought to be pleaded. I do not propose to go into detail about this. The Defendant responds that it is not necessarily the case that

TC13 was detained during Operation Anvil and that it might have been during a prior detention in that area of Nairobi; further, it is possible he may have been in Langata prison in 1953 even though Langata camp and Manyani camp were constructed to take those people who were rounded up in Operation Anvil. These are points which the Defendant can make in final submissions based on the documentation.

anyway be necessary if the amendment were allowed. Original searches have limited usefulness because related to a single account rather than the relative merits of two rival accounts. At this stage D can observe that the documents suggest there were pick‐ups in Nairobi during 1953, that Langata was operating as a prison during 1953, and that Mackinnon Road (if not Manyani) was operational in Coast Province in 1953 and may have had WWII buildings (see §17 of TC 13’s statement).

5) Those matters would greatly delay the already elongated trial timetable.

6) To refuse the amendment would

not be unfairly prejudicial to TC 13. He ha more than ample opportunity to date his pick‐up in his original pleadings, Part 18 responses, first and second statements, and before the conclusion of his oral evidence, given on 20 June 2016. The delay in seeking to amend has not been explained. TC 13 can pursue the case previously advanced on the existing pleading / evidence, insofar as it is proper for him to do so.

7) There are other test claimants who allege involvement in Op Anvil, with whom related points can be tested.

I am not persuaded that the Defendant would be prejudiced by not crossexamining TC13 further and/or approaching/recalling any of its own witnesses. If it seeks to do the latter, an application to re-call or introduce a new witness on this basis may well be looked on favourably. In terms of dates, TC13’s personal evidence as it stands is of assistance to the Defendant.

(iv) I accept that the Claimants have made a mistake in not seeking to amend this date beforehand. Nevertheless, given the Claimants’ May 2016 opening, the hearing of 23 May 2016 and the hinterland to which I have referred, it would be wrong to allow the Defendant to take advantage of what was an error and one which was apparent at the time as the very probable explanation.

(v) The schedule of loss will also need amendment, as the Defendant has pointed out.

(vi) See (ix) above re TC5 for the position as to documents.

11

Once inside the hall, the Claimant was told to queue. He was made to walk past people whose heads were covered by sacks with holes cut out

See Above.

As above.

D is not barred from saying he is describing an earlier pickup. Rather, D wishes to

See above.

for eyes. One of the people nodded at the Claimant and he was put in a truck and taken to Langata camp. a. The events described by the Claimant probably took place in

1954;

b. It is probable that the events described by the Claimant were during Operation Anvil in April 1954.

The Claimant will rely on documentation in support of his claim and refer to its full terms and effects at trial, in particular, documentation that demonstrates that Langata camp was under construction as of February 1954 [32-13987] and, as to the progress of screening in general and the movement of those screened to Manyani camp, 3222011 by way of example.

avoid having to make a submission by seeking a procedural advantage, in circumstances where it always knew Cs case was that the witness had made a mistake.

12

The Claimant remained in Langata for a period of about 2 weeks months in 19534.

No. Even if the amendment above were allowed, this one does not follow. It is not only contrary to TC 13’s sworn oral and written evidence (see 33‐1841 and §9 of his

first statement), but also: The justification for this

amendment from the documents

or otherwise is unclear. If it relates to the use of bracelets at Manyani, the

Defendant notes that: 1) TC13 gave evidence that bracelets were given to detainees (§19 first statement), but did not specify that bracelets were given to detainees on arrival at Manyani; 2) Cs have not adduced any evidence as to the use of bracelets at Mackinnon Road. This is a

D’s have not read the Reply [10-131] (which attaches a statement of truth]; his supplemental witness statement [10-187] and what was said to Professor Abel. In those parts of the evidence, TC13 says that on reflection he thinks he was at Langata for about 2 months.

It is extraordinary that D

should make this submission without providing a fair picture of the evidence.

1) This question could have been asked by D. The issue was canvassed before TC13 gave evidence, because he was the example used by D

Allowed.

Essentially for the reasons given by the Claimants. [The amendment from weeks to months was not objected to.]

matter D would have to investigate were

the amendment allowed. Were the amendment allowed, D would wish to have the opportunity to XX following further documentary research. D would also wish to seek out witnesses as to the system used at Mackinnon Road.

to complain about changes of case.

2) There is no evidence as to why this is relevant. D says it would “have” to investigate this matter. That is an improper approach to take. The proper approach is to explain why the system at a different camp is relevant, adduce the documents relied upon, set out what research is referred to, explain why it has not been carried out in the 15

months since D knew about this issue, and justify the contention.

17

In about 19534

No. See objection to § 7 amendment above.

Same points as above.

Allowed.

As above.

29

The Claimant was taken to

Gathigiriri prison in Mwea in about 19567.

No. See objection to §7 amendment above. D’s research as to Gathigiriri prison also related to a different time and further research would be required.

This is a logical consequence of a finding that the C was detained later at Langata and Manyani.

Documents already exist and D should already have done this work. Cs note that D’s evidence was that any factual averments were investigated at length. Here, D’s actually had a precise date. It is noteworthy that Mr Robertson neither acknowledges the fact, nor explain why D has done nothing. D is the author of any misfortune it may prove.

Allowed. As above. I am un-persuaded that there would have to be further substantial research in relation to this change of date.

31

Detention and assault during forced labour in Kangema Post

No. See objection to §7

amendment above. D’s research as

Allowed.

See above. It is the date which is objected to and not the allegation of

At some point, in about 19578

to Kangema Post also related to a different time and further research would be required.

assault during forced labour.

14 – James

Njuguuna

Mwaura

7

In about 1952 the latter part of

1954 or early

1955 at the latest, when the Claimant was about 14 years of age, he was forced out of his home with his mother and his four siblings.

No.

The proposed amendment renders

TC 14’s case hopeless: 1) The paragraph is self contradictory, since TC 14’s date of birth is 1938 and the IPOC continues to assert that the removal happened when he was 14 years old, i.e. in 1952.

2) It substantially changes the dates and circumstances of the events alleged, contrary to TC 14’s sworn oral and written evidence (the former confirming his date of birth, the latter the year of birth, year of removal (1952), age at the time (14), period of residence (5 years) and date of departure (1957) – §§4,

30).

3) The timings are of critical importance to limitation, to the role/relevance of TC 14’s account,

and to its testing.

4) Time cannot equitably be extended under s.33 Limitation Act 1980 in circumstances where TC 14 effectively asserts, a year following his oral evidence and months following the close of Cs’ case, that, with the help of a professional legal team throughout, he could not accurately present critical aspects of his case in his original pleadings, Pt18 responses, first and second statements or oral evidence. He now invites the court to accept a

1) The pleading with respect to his age is “in or round 1938” and that he was “about” 14 years of age. D here treats the pleading as if the dates were literal, because it assists. There is no principled basis for doing so.

D thought his date of birth was 1938 [33-2719] based on his age group and the time of circumcision when he was “about” 18.

2) This is an utterly partial reading of the evidence. For example, D put to him that he was present when Karatina village was constructed [33-2736]. TC14 said that was so. The documents demonstrate why Cs can put a date on that event.

3) Again, there is no evidence that D was unaware of this documentation. It would have come up on a search by location. Mr Robertson entirely avoids giving evidence about this, but the Court can rely on Ms Howard and Mr Murphy.

4) as above.

Refused.

(i) Paragraph 5 IPOC says that the Claimant “was born in or around 1938.” Paragraph 7 states “in about 1952, when the Claimant was about 14 years of age, he was forced out of his home with his mother and his four siblings.” The Claimants complain that the Defendant is treating the pleading as if the dates were literal. That is not the point.

The point is that the Claimants, by this amendment and by the further amendments in relation to this Claimant, now put more specific dates on the essential allegation. These more specific and very different dates are 2-3 years later than pleaded.

(ii) The IPOC dates are substantiated by TC14’s witness statement. See paragraph 4 and paragraph

30.

(iii) In oral evidence TC14 confirmed his year of birth as 1938.

(iv) From these pleadings, documents and TC14’s evidence, it would have appeared to D that this was the best evidence as to dates available. They should not be faced a year later with what is in effect a change of case as to

contradictory case, and D must

respond. As to prejudice:

1) If the amendment were allowed, D would need the opportunity for further XX of TC 14 informed by further documentary research. He was not asked about details that may have confirmed his evidence re: removal in 1952 and associated dates in the sequence of events (e.g. regarding his strength of recollection, temporal yardsticks, etc) and/or tested the amended case re: 1954/5 (e.g. details in the documents at §29).

2) Additional searches within the documents would anyway be necessary if the amendment were allowed. Original searches have limited usefulness because related to a single account rather than the relative merits of two rival

accounts.

3) Those matters would greatly delay the already elongated trial timetable.

4) To refuse the amendment would

not be unfairly prejudicial to TC 14. He had more than ample opportunity to clarify the date of his removal in his original pleadings, Part 18 responses, first and second statements, and before the conclusion of his oral evidence, given on 13 July 2016. The delay in seeking to amend has not been explained. TC 14 can pursue the case previously advanced on the existing pleading/evidence, insofar as it is proper for him to do so.

1) There is no evidence of prejudice. It depends entirely on what D knew – of which there is no evidence – or ought to have known – of which the evidence suggests that D must have known the date of building Kamiti village as now pleaded. There is no prejudice to D if it chooses not to ask questions in the hope that Cs will make a mistake. Until the research is completed D cannot properly say it needs to cross-examine further. 2) as above. It is not appropriate for D to make an unevidenced assertion that original searches were of limited usefulness when it refuses to say what those searches revealed and condescend to set out why it says new searches may reveal something else and what that may be. Indeed the question asked about a social hall in the new village [33-2758] suggests that D did have some information. 3) as above

4) as above.

date. See my comments on 23 May 2016 referred to in the judgment.

(v) D would be entitled further to cross-examine TC14 in the light

of these substantial amendments.

(vi) The comments by the Claimants that “there is no prejudice to D if it chooses not to ask questions in the hope that Cs will make a mistake” is misguided. These are substantial amendments sought to be made over a year after TC14 gave evidence and by reference to documents the significance of which has not previously been advanced by the Claimants in relation to this TC. This is not a tightening up exercise. It goes further than was permitted by the April 2017 judgment.

(vii) It is correct that during his evidence TC14 said that he had been in Karatina village for maybe 3 years and left in 1957. This is, in the light of the above, an insufficient base on which to allow the amendment. It is a potential internal inconsistency which will have to be grappled with in final submissions.

(viii) I appreciate the potential serious prejudice to TC14’s case by not allowing the amendment.

(ix) It was floated as a possibility by Mr Myerson QC when I

indicated that this amendment may not be allowed, that it may be

proportionate to consider recalling TC14. I have considered this carefully in the light of all the other reasons. I do not accept this. It would be disproportionate, given all the other real

pressures on this trial, [a number caused by amendments I am permitting] to consider re-calling TC14 and for the Defendant and the Court to adapt to and accommodate a very different case on dates.

(x) The points made in the main judgment about the cumulative effect of amendments is relevant.

(xi) The points made in the main judgment about the lack of explanation for the amendment and the delay are also relevant.

(xii) The fact that on its reamended Defence (served in June 2016) the Defendant refers to Karatina village in 1955 does not affect the above points. It cannot be deduced that that would be the earliest reference in any document to Karatina village, nor does that have any necessary impact on how D would prepare its case and cross-examine TC14 re dates and surrounding circumstances.

29

After Karatina Village was built, the Claimant was forced to move from Karatina Post to Karatina Village. He was

No – see objection to §7 above.

Same point as above.

Refused.

See above.

not allowed to return permanently to his homestead, although he and his family were allowed to return to their shambas/farms to gather food.

The Karatina Village was probably completed as of around August 1955 and the Claimant moved to it shortly thereafter; the Claimant will rely on the documentation for its full terms and effects at trial, for example:

a. There was no serious policy of villigisation in Kiambu prior to

July 1954 [32-20432];

b. Karatina is not mentioned as a village

under construction as of November

1954 [32-

25073];

c. By February 1955, only 3 villages had been

constructed, Karatina Village not being one of them [32-30795]

d. By May 1955, 39 villages had been

constructed in the Githunguri area [32- 338971.

e. November 1955 contains the first reference found by the Claimant to Karatina village [3241268], referring to gangs in the area receiving assistance over the previous three months.

45

Added ‘He left Karatina Village after being there

for about 3 years and went to the

Rift Valley.’

No – see objection to §7 above. The justification for alleging that TC 14 was in Karatina Village for 3 years is unclear, save perhaps retrospectively to fit his evidence re: date of departure (1957) to the

D asked how long TC14 was in the new village before he went to Rift Valley.. The reply was about 3 years [33-2762]. D has simply not read the

Allowed. Not now objected to.

other proposed amendments. But TC 14’s full relevant evidence is that he was at Karatina Village for 5 years, leaving in 1957 (first

statement §30).

evidence properly.

18 – Estate of

Mwangi

Macharia

9 (new para 12)

Added at end:

a. It is probable that “Kwa Rubai” is a reference to “Kwa Lubai” or “Kwa Luvai”, any difference in the phonetic spelling of a name being rendered from Kikuyu into English being of no assistance;

b. “Kwa Rubai”, “Kwa Lubai” or “Kwa Luvai” was a nickname for the K.E.M. Mau Mau Investigation Centre (MMIC), sited at Embakasi near Nairobi some time after July

1954;

c. The nickname referred to Louvain T.

Dunman who worked at the MMIC as of January 1955 and then transferred to Mombasa;

d. Interrogations started in MMIC in about August 1954;

e. Special Branch were involved in the work of MMIC as of September 1955 and the centre continued its operations until about

June 1957;

f. The MMIC was noted for its brutality in interrogation and screening. The Claimant will rely on documentation in support of his claim for its full terms and

effects at trial, for example,

concerning a proposed KEM Mau

Mau Investigation centre, [32-

No.

This amounts to a wholly new location for the allegation, namely the MMIC.

1) D has not investigated the MMIC for the purposes of TC18, nor in any great detail for the litigation more widely. None of the other test claimants allege that they were detained at the MMIC.

2) Whilst one of the claimants in Mutua made allegations that he was at the MMIC, he specifically alleged assault by Mr Dunman, who appears to have left the MMIC by November 1954. D therefore did not research the period relevant to

TC18’s Amended Claim.

3) The research to respond to such an allegation would be substantial. (a) D has identified 9 files that are likely to be of relevance and that it would certainly wish to review in order to answer the claim;

(b) One of these files is an African Affairs file at KNA. However, the series was, as at October 2015, being substantially reorganised and weeded, so the file may be either unavailable or now destroyed.

(c) D has identified a further 14 files of possible relevance that it is likely

Cs have dealt with this at

§§21b; 51e – l of their

Skeleton Argument. 1) There is no evidence that D did not identify the MMIC as being the place in issue here. Indeed, on the evidence it should have done so.

2) D clearly already knows about the link between

Dunman and the MMIC. This paragraph appears to concede that D did identify the MMIC as the detention c entre being referred to by TC1§8. The point about dates is irrelevant because D’s evidence is that dates was not the principle (or perhaps any) basis of searching.

3) Unless D can establish it did not know the MMIC

was the place referred to, this is irrelevant. If D can so demonstrate, then it is impossible to know why, what and how long the research will take, or to make any finding as to proportionality, because D has chosen not to provide evidence of any of the relevant facts.

Refused.

(i) TC18 died on 28 May 2015. He did not therefore give oral evidence.

(ii) The proposed amendments go into some detail as to why Kwa Rubai refers to the MMIC.

(iii) In paragraph 21b of the Claimants’ skeleton it says that the addition is that Cs can now identify the Kwa Rubai location as the MMIC. It is not explained why they did not identify it before or when they became aware of it and, if it was recently, why they did not become aware of it before.

(iv) The Claimants criticise the Defendant on the basis that it

should have realised it was MMIC because of TC’s marking on a map and because the drive from Nairobi has been pleaded as taking some ½ hour. Again that begs the question as to why the Claimants did not plead their case properly in good time. It is not for the Defendant to guess/try to make inferences about the Claimants’ pleaded case. In

20309]; Handing Over Report, September 1955 [32-37804]; correspondence regarding closure [32-54950–32-55255].

to wish to review. In addition, the documents may point to other files that need to be reviewed. 4) In addition, D must seek to obtain relevant witness evidence. D has not checked that it has searched for all relevant witnesses mentioned in documents who were at the MMIC at therelevant time. There may well be witnesses that have not been searched for, or whose evidence was not obtained because they could not say anything relevant to the Test Case allegations. It may be that fresh searches need to be undertaken after documents have been obtained.

5) As such, the task of responding to this allegation is very substantial, encompassing research in both TNA and Kenya, and would take many months.

6) TC18 is, in any case, dead. D does not understand how instructions can have been obtained at this late stage as to what TC18’s estate is now alleging, the timing and circumstances of the amendment having not been

explained.

7) D will therefore be unable to XX

TC18 upon any of this new claim. 8) It is submitted that in the circumstances, the claim is hopeless – there cannot possibly be a fair trial on such a substantial allegation only properly raised long after TC18 has died.

9) In any event, to refuse the amendment would not be unfairly

4) Again, D has not given evidence of which witnesses were proofed or what they were asked about. Absent this, D cannot simply assert prejudice. It must be evidenced.

5) as above.

6) the amendment is clear. If D is asserting that the legal representatives are acting without instructions it should say so. Otherwise, this is merely an irrelevant piece of prejudice.

the Individual Defence (paragraph 11a) the Defendant said it had no knowledge of any place for screening centre known as “Kwa Rubai”. Nothing in the reply put them on notice as to the case now sought to be advanced.

(v) In those circumstances the Defendant is fully entitled to say that it has not investigated the MMIC for the purposes of TC18 (or generally in the litigation because no other TC alleges they were detained at the MMIC).

(vi) The extent of the research which would now have to be done as set out in the

Schedule and supported by Mr Robertson’s witness statement (paras 144-146) risks serious disruption of the trial.

(vii) Further, in this case given the proposed amendment and the present state of the pleading, the Defendant is entitled to say that it would have to embark on a search for relevant witness evidence. I do not accept the Claimants’ criticism that the Defendant has to give evidence as to which witnesses were proofed or what they were asked about. This is not an assertion of prejudice; it is sufficiently evidenced in

Mr Robertson’s witness statement (see paragraph

prejudicial to TC 18’s estate. He had more than ample opportunity to set out the location in his original pleadings, Part 18 responses and witness statement, all produced before he died. The delay in seeking to amend has not been explained. TC 18’s estate can pursue the case previously advanced on the existing pleading/ evidence, insofar as it is proper for it to do so.

7) there is no new claim. The only question that could conceivably be asked

as a result of the amendment is whether TC18 knew he was referring to the MMIC. His answer would make no difference.

8) This is a submission. It is irrelevant to amendment. 9) as above, although with the addition that it appears that D knew what the issue was here and chose to ignore it.

146).

(viii) Mr Myerson QC submitted

that D did not assert that it was unaware that Kwa Rubai was the same as MMIC. I had read the first four lines of para 144 of Mr Robertson’s witness statement as doing just that. Mr Mansfield QC, after taking instructions and my having raised with D that that was how I was reading it, confirmed in open court that that was correct.

(ix) Mr Myerson QC also submitted that it would have been open to him absent the amendment, to say in final submissions that Kwa Rubai was in fact MMIC. I disagree for the reasons set out above for refusing the amendment. Also, para 9(b) of the Reply may be taken as suggesting that Kwa Rubai was a remand centre.

(x) The points made in the main judgment about the cumulative effect of amendment is relevant.

(xi) The points made in the main judgment about the lack of explanation for the amendment and the delay are also relevant.

Para 19

(new para

22)

The deceased Claimant was

detained at five different locations from approximately 1956 to 1959/1960 as follows:

a) Kwa Rubai industrial area for

two weeks in or around June 1956.

No.

See objection to §9 (new §12) above.

Also:

1) The amended sequence of locations and timings contradicts TC18’s Pt18 response at [14‐86],

1) There is no contradiction:

§11 IPOC always pleaded removal in or around 1956

14-74 : Pt 18– removed

June 1956

§14 IPOC always pleaded taken to Kwa Rubai for 2

Allowed.

Not now objected to.

b) Kianjiru village for three hours following the detention at Kwa Rubai and prior to being detained at Karaba detention camp; and

c) Kianjiru for the second time for a week in 1958;

d) Karaba detention camp for three months

from about June 1956;

e) Kangaita detention camp for three months in the latter part in

1956; and

f) Kibirigwi village for three years from early 1957, save for a second period of about a week in 1958 when he was held at Kianjiru Village for a second time because it was alleged that he had taken an oath there.

which avers that TC18 was detained:

(a) In Karaba Camp for 3 months in

June 1956; then

(b) In Kangaita Camp for 3 months in 1956; then

(c) At Kibirigwe Village for 3 years

from 1957.

2) The justification for that proposed amendment is unclear. No explanation has been given. 3) D is unable to XX TC18 upon any of these matters.

4) To refuse the amendment would not be unfairly prejudicial to TC 18’s estate. He had more than ample opportunity to set out and/or clarify and/or correct his factual case about the sequence and timing of events in his original pleadings, Part 18 responses and witness statement, all produced before he died. The delay in seeking to amend has not been explained. TC 18’s estate can pursue the case previously advanced on the existing pleading/evidence, insofar as it is proper for it to do so.

weeks

14-76: Pt 18 in the industrial area marked 144c on map §20 IPOC always pleaded taken to Kianjiru village for

3 hours;

14-86 Pt 18: Karaba camp for 3 months;

14-86: Kangaita Camp for 3 months also in 1956 14-86: Pt 18 Kibirigwe village from 1957 for 3 years save for:

14-85: in Kianjiru village for a second time in 1958; §22 IPOC always pleaded that was for a week. It was because he was alleged to have taken and oath [14-122

§14]

2) as above.

3) TC18 is dead.

4) as above.

21 – Nelson

Njao

Munyoike

14

Towards the end of 1953 at At

Githiga, the

Claimant was again arrested by two Home

Guards at his father-in-law’s farm for allegedly taking the Mau Mau oath. He was not charged or taken through any court process. The Claimant was forcibly taken toGithunguri Camp. He was severely beaten on

the way to Githunguri camp and also once they arrived at the camp. The Home Guards had guns, one was short called John Kaara and the other one was called Karera. It is probable that the Claimant was arrested and taken to Githunguri camp in June 1954.

No.

The proposed amendment renders

TC 21’s case hopeless:

1) It substantially changes the dates andcircumstances of the events alleged, contrary to TC 21’s evidence (statement, §§15 & 16) and his accounts to Prof Mezey (17162, §23) and Mr Heyworth (17132).

2) The timings are of critical importance to limitation, to the role/relevance of TC 21’s account,

and to its testing.

3) Time cannot equitably be extended under s.33 Limitation Act 1980 in circumstances where TC 21 effectively asserts, a year following his oral evidence and months following the close of Cs’ case, that, with the help of a professional legal team throughout, he could not present a critical aspects of his case in his original pleadings, Part 18 responses, statement or oral evidence. He now invites the court to accept a contradictory case, and

D must respond.

As to prejudice:

1) If the amendment were allowed, D would need the opportunity for further XX of TC 21 informed by further documentary research. He was not asked about the date of his arrest and removal to Githunguri (which were then asserted to be pre‐June 1954), or associated details about those and other dates in the sequence of events (e.g. regarding his strength of recollection, temporal yardsticks,

1) TC21 is content to amend the wording to “… in or around June 1954” The amendments take into account his oral evidence in order to reconcile inconsistencies. The transcript bears reading; the confusion that develops over placenames

(Gatamaiyu has a different name, Gituamba [33-2019] and he regards them as the same place) leads to confusion later on when he is talking about where he was beaten [33-2066]. He says nothing happened at Gatamaiyu [33-2062], but later says it was where he received the beatings. Cs will submit that some of the confusion is caused by the manner of his crossexamination which does not follow the guidance on vulnerable witnesses. 2) Given the evidence that D searched locations, it must have known much of the evidence pleaded at §15. That being so, it always knew about timings. It simply chose not to ask.

3) as above.

Prejudice:

1) TC21 was asked about when he moved to Rift Valley and how old he was [33-2011]. He was asked how long he worked in the Rift Valley 33-2013. He took the oath in 1952 at Limuru [33-2022-23]. He

Allowed in part.

(i) This amendment is allowed save as to the change of date. The Claimant’s statement (paragraph 15 & 16) was that he was detained from towards the end of 1953 for some 9 months-1 year at Githunguri camp. Professor Mezey’s report (paragraphs 23 & 24) states that TC21 believed that the year he was arrested and taken to Githunguri camp was 1953 and he was held there for approximately 1 year.

(ii) The development of the proposed amendments as to dates at Githunguri is set out in relation to paragraph 15 below. It relies upon documentation and inferences from documentation in support of the allegation now proposed that “It is probable that the Claimant was arrested and taken to Githunguri camp in June

1954” (or “as of August

1954.”). These amendments are refused essentially for the reasons (iv)-(vi), (viii)-(xi) given in relation to TC14. The fact that Claimant was asked about other dates/times does not undermine these points that, had the pleading been clarified earlier, and in any event prior to TC21 giving evidence, D would have cross-examined him on the new dates informed by relevant documentation.

etc), nor was there opportunity to test the new case now sought to be made.

2) Additional searches within the documents would anyway be necessary if the amendment were allowed. Original searches have limited usefulness because related to a single account rather than the relative merits of two rival

accounts. (See further in relation to

§15 below.)

3) Those matters would greatly delay the already elongated trial timetable.

4) To refuse the amendment would

not be unfairly prejudicial to TC 21. He had more than ample opportunity to clarify the date of his removal in his original pleadings, Part 18 responses, witness evidence, and before the conclusion of his oral evidence, given on 23 June 2016. The delay in seeking to amend has not been explained. TC 21 can pursue the case previously advanced on the existing pleading/evidence, insofar as it is proper for him to do so.

was in the Rift Valley then [33-2015]. Then he left Rift Valley after the 2 men were shot [33-2034]. He then spent time in Gatamaiyu in hiding [33-2037]. He was shot and then treated [332043]. He went back to Gatamaiyu for a year and then to his father-in-law’s house [33-2045]. He was arrested there [33-2046-7]. There is no basis for saying TC21 was not asked about dates. 2) as above. 3) as above 4) as above.

(iii)

On some specific points:

• D did cross-examine on whether TC21 may have been in a village rather than a detention/works camp. (Caselines 332055). TC21 said he was in the camp before being released into the village.

• Mr Fetto said on this application, and it was he who cross-examined TC21, that his crossexamination would have been different had he

been facing the amendments now proposed.

• I do not accept Cs’ point that because Mr Murphy said that D searched documents 6 months either side of any given

date, therefore an amendment from

‘towards the end of

1953’ to ‘(in or around) June 1954’ would cause no documentary consequences. Instead of searching from about June 1953 to June 1954, D’s search would now in addition, have to be from June 1954 to December 1954, an extra 6 months.

(iv)

The amendment that TC21 “was not charged or taken through any court process” is permitted as mere clarification.

(v)

The allegation that the Test Claimant was “severely beaten on the way to Githunguri camp and also once they arrived at the camp” is permitted. It could be said that it is already sufficiently pleaded in paragraphs 28 & 29 IPOC. It is also consistent with the medical evidence.

15

The Claimant was detained at

Githunguri

Camp for approximately nine months to one year, during which time he was made to work. The Claimant probably arrived when it was a Work camp; while there he was engaged upon, amongst other things, agricultural projects (see under Forced labour below). The Claimant will rely on documentation in support of his claim and on its full terms and effects at trial, for example:

a. It is probable that the Claimant was taken to Githunguri Works camp after June 1954;

b. Githunguri camp opened as a Works camp in February 1954 [3220314]; there was a plan to move it to Githiga, but this was not effected until at least April 1955 [32-32808a] and the camp was still operating as Githunguri Works camp as of February 1955 [32-

29821];

c. It is probable that the Claimant’s arrival at the camp coincided with the need for labour on important agricultural projects which were being undertaken as of August 1954 [32-21122].

No – see objection to §14 above.

Further:

1) The amendments at §§14 and 15 are mutually inconsistent. §14 asserts that TC 21 was probably arrested and taken to Githunguri ‘in June 1954’; §15 asserts that he was probably taken to Githunguri both ‘after June 1954’ (§15.a) and in August 1954 (§15.c).

2) The proposed amendment to the date of detention relies upon a document to the effect that Githunguri opened ‘as a Works camp’ in February 1954 (§15.b). That does not justify selection of a date of June 1954 or later, for which no explanation has been given.

3) D can observe at this stage that there are documents showing that there was a Githunguri prison camp prior to the inception of the works camp. Further documentary searches will be required, extending searches of existing documents to cover later dates and rival accounts, and including a review of all files potentially relevant to Githunguri prison camp. 4) D would have wished to XX TC 21 about the possibility that he was detained at Githunguri prison camp.

1) TC21 is content to amend the wording to read “in or around June 1954” if permission is granted. 2) This is a submission on the evidence.

3) this is contrary to Ds evidence that numerous searches have been performed on location names. Even if that search was restricted by the date (against the weight of the evidence), D would have searched – per Mr Murphy – 6 months either side. It would, accordingly have searched for Githunguri up to at least June 1954. That limitation would depend on D assuming that the events described in §14 of the unamended IPOC followed from each other without interruption. There is no such evidence.

4) TC21 was asked about whether he was in

Githunguri camp [33-2048]. That wording was chosen by D. TC21 said he was detained by the chief [332049]. That is incompatible with detention in a prison camp, which would have had a white commandant. The TC21 was specifically asked if it was a detention camp [33-2053], and then asked if it was possible that he was in a prison camp [33-2055]. This point is pure padding and it appears that D has not properly read

Allowed in part.

(i) This amendment is refused save for the addition of the words “during which time he was made to work”, though whether this is necessary is doubtful given paragraph 24 IPOC.

(ii) Otherwise see above.

transcript of TC21’s evidence.

21

In or around the end of 1954

Around or after

February 1955, the Claimant was forced by the Home Guard to construct a house at Gituamba village and thereafter he and his wife and children were forced to live there. The houses at the village were linear houses but were not surrounded by a trench. The Head man was in charge of the village and had three administrative officers called Tipi.

The Gituamba Village was probably completed as of around February 1955 and the Claimant moved to it shortly thereafter; the Claimant will rely on the documentation for its full terms and effects at trial, for example:

a. There was no serious policy of villigisation

in Kiambu prior to July 1954 [32-

20432];

b. Gituamba is not mentioned as a village

under construction as of November

1954 [32-

25073];

c. By February 1955, only 3 villages had been

constructed in Githunguri,

Gituamba Village not being one of them [32-30795];

d. By May 1955, 39 villages had been constructed in the Githunguri area [32-33897].

e. The villages were probably constructed as

No – see objections to §§14 and 15 above. Further:

1) The proposed amendment re: date refers to and relies upon documentation about Gituamba village, yet TC 21’s oral evidence was that on release from

Githunguri he moved to his original home/location in

Gituamba/Gatamaiyu [33‐2062 to

33‐2063].

2) This would have been the subject of further questions in XX if the nature of the proposed

amendment had been known when

TC 21 was giving oral evidence.

1) That is simply one interpretation of his evidence; he says he was at Gatamaiyu where nothing happened, it was peaceful, then he says he was in Gituamba in Gatamaiyu which is where his home had always been and where he bought a small house to stay in; he didn’t stay there long, about 2 months and then he went to the Rift valley [22—2063];

Then in re-examination he says he was beaten after the Emergency at Gatamaiuyu, when doing the hard labour; and when he left

Githunguri, he went to the village and there were HG there; the only reason he wasn’t beaten was because the Head man said he’d been beaten enough already. [33-2066 – 2067]

Cs are entitled to submit that he left Githunguri camp and was in a punitive village, in his home location. This is the most likely scenario as people were not generally let out of camps and just allowed back – and he had to wait for a passbook to go back to the Rift valley.

2) It is difficult to see what questions could have been asked about the dates derived from documents.

Refused.

See above.

The central issue relating to the amendment here is the change of date. The amendment is refused irrespective of the argument between the parties about the effect of TC21’s oral evidence.

a punitive measure; in any event, the villages in the area were regarded as penal and unpleasant by their inhabitants [32-33897].

Schedule 1

Addition of claim for 15 sheep and 2 donkeys, and substitution of ‘the home in which he lived’ for ‘his home’.

No – The amended case has no prospect of success: TC 21’s oral evidence was that he did not know what happened to his animals [332035].

This clarifies what he says his loss is in evidence [33-

2035];

Recoverability of that loss is a matter of submission.

He left them because he was worried about being arrested after the shooting incident; he didn’t know what happened to them, but he never returned to his sheep and goats; given that it is our case that he ended

up in a camp and then a punitive village, it is a reasonable inference that they were confiscated.

Allowed.

The dispute here is whether what the Claimant said in the context of the evidence as a whole gives rise to an inference that the livestock was confiscated. That is properly a matter for submissions.

22

Margaret

Wanjiru

Kimani

11b-d

Detention: Karirau Village Camp

1. The Claimant arrived at Karirau village camp to discover that detainees had to build individual houses to stay in. This was a makeshift camp. Detainees were forced to sleep in huts, even when they were still unfinished and wet. Karirau camp had a trench around it that had spikes inside. This was to prevent people from leaving or entering the camp; those who tried would suffer serious injury.

a. she was removed and detained to one place in

Karirau;

b. it is probable that the Claimant was detained in a punitive village under

No. The Defendant has not had the opportunity to XX TC 22 as to either the specific allegation of being placed in a punitive village, nor as to the revised alleged dates. D was entitled to assume that TC 22 would not be advancing a more specific case as to dates, especially given her Pt18 responses to the effect that she could not remember dates beyond the year when she took the oath, her witness statement that she

“could not remember the year” she was removed from her home (§4).

Very few questions were put to TC22 during XX as to dates. D would wish to have the opportunity

to XX on the dates which TC22 now

In her evidence, this TC tends to use camp and village interchangeably. D acknowledged that at the very start of crossexamination [33-2075]. She cannot be expected to necessarily know the status of the place she was detained; the documents help establish it as a punitive village. She was cross-examined about the trench with spikes around the camp [33-2098].

It was up to D to crossexamine about dates if it wished to do so. If it chose not to do so in the hope that documents would not assist that was its own

(b) is refused. It is an unnecessary amendment, being a submission based on TC22’s evidence. Whether it is accepted depends on final submissions. It is not expressly permitted, as doing so might give rise to an argument that, by giving permission, the Court in effect sanctioned a change of date from that pleaded in the Schedule of Loss. Amendment (c): not allowed

 The Particulars of Claim state that the Claimant took the oath in or around 1952. No date is given for her forced removal save that it followed the declaration of the state of Emergency. She was asked about the date in the Part 18 and could not remember

conditions of punitive detention:

i. the punitive nature of the detention is why she refers interchangeably as being in a village and in a camp;

ii. her detention at Karirau is best described herein, to reflect the Claimant’s words and understanding, as a “village camp”;

c. she was probably removed to the village camp in

early 1955;

d. The Claimant will rely on documentation in support of her claim and for its full terms and effects at trial, including documentation that identifies the nature and progress of villagisation in the Kangema District, Fort Hall: for example, the Emergency

Administrative Policy from March 1954 [3214928], notes for the Governor regarding priorities for Fort Hall from July 1954 [3220470], Governor’s directive from January 1955 [32-28517] and concerning discipline and punishment in Fort Hall in January 1955 [32-29332].

alleges she was moved to Karirau.

Further:

1) The sole date given in TC22’s original pleading was that she took the oath in 1952. Further, in her Schedule of Loss, TC22 claimed for loss of earnings from 1952 to 1960 (this corresponds with the 8‐year claim in Cs’ ‘Summary of Special Damages Claimed’ document) and in her statement TC 22 referred to being assaulted “over 10 times between 1952 and 1960” (§28)). As such, her case was that she was removed to Karirau in 1952. The amended allegation that she was removed in early 1955 is therefore a radically different date upon which D has not had the opportunity to XX.

2) Even if no date had been pleaded, the point would be as for other similar TCs. In a case where a TC has not specified a date as to when an incident occurred, it may be possible within the scope of the pleading for a Court to find that a matter occurred on a specific date. However, D would submit that in the circumstances a Court could not fairly reach a conclusion (and therefore time should not equitably be extended under s.33 Limitation Act 1980) where a TC is unable to specify such a date. D may therefore fairly take the view that it need not XX in any great detail upon the date of alleged events – the uncertainty is a matter that goes to show that the Court cannot fairly reach a conclusion. If, on the

choice at its own risk, particularly as it had searched by locations and ought, therefore, to have known the information pleaded in §11d of the amended IPOC.

1) This is a submission. D is entitled to argue that TC22 really meant to say she went to a village in 1952, but her evidence was that she was driven out of her house and did not see her husband again, and that this happened before she moved to the village [33-2086]. She was married when she took the oath [332091] so, on any basis, there must have been a period of time when she was not detained. D’s submission is, accordingly, a poor one.

2) This is simply an attempt to re-argue the point argued in April. It is founded on a determination to ignore D’s own evidence that there was a search by location and name when no dates were specified. D has adduced no evidence to support this proposition.

3) This is evidence of

which month, day or season it was. This is reflected in paragraph 4 of her witness statement.

• TC22’s personal memory as to dates is apparent elsewhere e.g. Professor Mezey’s report paragraph 23.

• In the case pleaded on her behalf, the date of TC22’s removal is clearly stated to be around 1952: see paragraph 3 of the preliminary schedule of loss. In her statement at paragraph 28 the Claimant says she was “assaulted over

10 times between 1952 and

1960…”

• The Test Claimant was crossexamined in relation to the assaults (see references 332126 and following), but not in relation to the reliability of the dates.

• At that stage the case which the Defendant was facing was that there was uncertainty in TC22’s evidence as to dates, that the pleading suggested that she was removed “around 1952” and suffered losses for “an approximate period of 8 years”. It is insufficient for it to be stated (as it was) in submissions, that perhaps the Schedule of Loss with its statement of truth and paragraph 28 of her witness statement are in error.

• There is now reliance upon specific documents to date the removal to “early 1955”.

other hand, a TC specifies a date within a pleading, D may well take a very different view as to what questions need to be asked.

3) That is precisely the case here. D did not ask detailed questions of TC 22 upon the dates of relevant events, both because of the uncertainty and because the allegations on their face largely predated June 1954. Had TC22 specified these dates, further research would have been undertaken and questions could have been asked as to various factual matters that might assist D in showing that the alleged matters are more likely to have occurred at an earlier date rather than relying upon the existing pleading and the lack of evidence as to relevant dates.

4) A similar issue arises as to the allegation of being placed in a ‘punitive village’; TC22 may well have been XX in a different fashion had the allegation been put earlier. 5) That being the case, if the amendment were to be allowed, D would require the opportunity to XX TC22 following research and production of an Amended

Individual Defence.

6) To refuse the amendment would not be unfairly prejudicial to TC22. Specific requests for further particulars as to dates were made by Part 18 request. TC 22, assisted by her legal representatives, said she could not answer – see [1891].She had more than ample

4)

why questions were asked in crossexamination. No one has given that evidence and Cs do not accept it. It is bizarre that this submission is made only a few weeks after D’s witnesses had given evidence of the endless searches done and saved regarding locations.

TC22 described a punitive village (with a trench and spikes) in cross-examination. If D did not realise what she was describing it had not read the May Opening which, at §§506-509 identified these moats as typical of punitive villages.

The Defendant says that it did not ask detailed questions of TC22 upon the dates of relevant events because of the uncertainty and because the allegations largely pre-dated June 1954. The Claimants do not accept this, but I am not prepared to disregard it. This amendment goes further than the ones permitted in the April 2017 judgment. It is not clear why the amendment is sought to be made at this stage. There is a real risk of prejudice because of the Defendant’s approach to cross-examination based on the pleading before it.

• See also points (iv)-(vi) and (viii)-(xi) re TC14 above.

• As to amendment (d) this is evidential. To the extent that it supports amendment (c), it is not allowed.

opportunity to set out dates and her allegation that she was detained in a punitive village in her original pleadings, Part 18 responses, first and second statements, and before the conclusion of her oral evidence, given on 24 June 2016, and indeed did provide dates by reference to taking the oath, the period of 1952‐

1960 claimed in her Schedule of Loss and the reference in her evidence to assaults taking place during the period 1952‐1960. The delay in seeking to amend has not been explained. TC 22 can pursue the case previously advanced on the existing pleading/evidence, insofar as it is proper for her to do so.

7) Allowing the amendment would mean that D had for good reason not asked what are now necessary questions of TC22 as to the dates of relevant events. D has relied upon the lack of direct evidence as to the date of alleged incidents and the pleaded case.

8) Even if the Cs were to be debarred from making any such complaint, it would not change the fact that TC22 was advancing a positive case as to the dates of certain events that D has not been able properly to test. The potential practical impact of that upon the Court’s view of the evidence would be unknown but potentially profound.

5) As above

6) As above

7) As above.

8) As above

20

‘The Claimant recalls that Chief

Kingara

Ngure or Ngure Kingaru (the two formulations of the name are referring to the same person and any difference arises

out of translation difference and is of no assistance) and Headman Mina Kangara were in charge of the village camp.’

No.

(Save for the insertion of the word ‘village’.)

1) There is, so far as D is aware, no justification for the amendment. No

explanation has been given. 2) It does not arise from TC22’s account in oral evidence.

3) If the amendment were allowed, D would need the opportunity for further XX of TC 22.

4) This would greatly delay the already elongated trial timetable. 5) To refuse the amendment would

not be unfairly prejudicial to TC 22. She had more than ample opportunity to identify/describe relevant personnel in her original pleadings, Part 18 responses, first and second statements, and before the conclusion of her oral evidence, given on 24 June 2016. The delay in seeking to amend has not been explained. TC 22 can pursue the case previously advanced on the existing pleading/ evidence, insofar as it is proper for her to do so.

1) At 33-2113 the names

are given. At 33-2114 D confirms the position.

2) It appears that D has not properly read the transcript.

3) As above

4) As above

5) As above

Allowed.

I do not accept there is any material difference here. In any event the transcript is as the Claimants state. Further, I do not accept there is any real risk of any prejudice. This is a tidying up exercise.

39 – Ann

Watetu Nduhiu

11

Once the individual house was complete the Claimant was

No.

D has not had the opportunity

TC39 was cross-examined on dates in terms. She said she could not remember.

(i) The amendment to alleged punitive village is allowed –

forced to move into it. She was allowed to collect some belongings. She was unable to carry all of her belongings. Once villagers had moved out, their homes were burnt down and livestock confiscated by the Home Guards.

The house in which the

Claimant lived was not burnt down, but that of her sister was burnt.

a. It is probable that the Claimant was forced to move from her village into a punitive village some time between July and November 1954. The Claimant will rely on documentation in support of her claim and will rely on it for its full terms and effects at trial; in particular, the Weekly intelligences reports of the North Tetu Division and documents describing the progress of villagisation in Nyeri in 1954, for example:

showing the commencement of building villages: [32-20288a]; the progression of villagisation as of August 1954: [32-21328c]; as of October 1954: [3223435a] and as of November 1954: [3224577].

to XX TC 39 as to either the specific allegation of being placed in ‘a punitive village’, or as to the alleged dates. Few questions were put to TC 39 during XX as to dates. D would wish to have the opportunity to XX re: the time when TC39 now alleges she was moved to that village. Further:

1) TC 39’s schedule of loss asserts a claim for lack of remuneration for ‘an approximate period of 6 years’ from 1954 to

1960, which is consistent with (although not an averment of) arrival at the village in 1954, but TC 39 now seeks to allege for the first time that she was taken to the village after the June 1954 limitation cut-off date.

2) Specific requests for further particulars as to dates were made by Part 18 request. D was entitled to assume that TC 39 would not be advancing a more specific case as to dates, given TC 39’s relevant Pt18 response: ‘Do not ask me about the dates because I cannot remember’ [29-74].

3) In a case where a TC has

Her 3^rd oath was taken after Kenyatta’s arrest [33-1573].

The 4^th oath was taken in Ichagachiru [33-1575]. D is now saying that it took a chance, and regrets it. 1) TC39 is clarifying a date that is wholly in keeping with the IPOC. D concedes it always knew this. Further,

D pleaded that there was

Mau Mau activity in

Ichagachiru in 1954 and 1955 Defence §11]. It pleaded that villages in Nyeri were completed at end August 1955 [Defence §14a]. It was put to TC39 that she helped bring food to them [33-1579]. She agreed and said it was because they gave the Mau Mau food that she was told to build a new house at Wagitune [33-1582]. The evidence suggests that D has no need to ask further questions, because its own case was the same as Cs’ case.

2) D elides the TCs inability to give dates (repeated in evidence) and a lack of documentary evidence – some of which D itself pleaded. D was not entitled to assume that the TC would not advance a case that she was within limitation because she could not remember whether she was or was not. The proposition is fanciful. 3) As above. In this case D

see amendment 11b in relation to TC22.

(ii) The amendments as to dates are allowed:

a. The dates are consistent with the dates pleaded so far.

b. It is documentation which the Claimants rely upon to narrow down the start date in 1954.

c. This amendment is similar to those permitted as a result of the April 2017 judgment.

d. The Court is un-persuaded, given the evidence of TC39 herself, that the Defendant would have asked for any

further questions as to dates had the amendment been made before she gave evidence and/or that in any event she could have given any further assistance whatsoever in her oral evidence.

e. Nor, given the commencement period of 1954 from the schedule of loss, does the Court accept that the Defendant would have made any further documentary research and/or that any documentary research it

makes as a result of the amendments would be substantial and/or would risk serious disruption of the trial.

f. As to whether the Court, given the circumstances,

not specified a date as to when an incident occurred, it may be possible within the scope of the pleading for a Court to find that a matter occurred on a specific date. However, D would submit that in the circumstances a Court could not fairly reach a conclusion (and therefore time should not equitably be extended under s.33 Limitation Act 1980) where a TC is unable to specify such a date. D may therefore fairly take the view that it need not XX in any great detail upon the date of alleged events – the uncertainty is a matter that goes to show that the Court cannot fairly reach a conclusion. If, on the other hand, a TC specifies a date within a pleading, D may well take a very different view as to what questions need to be asked.

4) That is the case here. D did not ask detailed questions of TC 39 upon the dates of relevant events, because of the uncertainty. Had TC 39

advanced dates within a pleading and Cs look forward to hearing why this was done if the proposition advanced here is accurate. 4) as above. The evidence does not support a conclusion that D searched by date.

5) TC39 also gave reference dates. It was merely that they were further away from the event. The difference is minimal and irrelevant because dates were not D’s primary search tool.

6) As above.

7) TC39 describes the village in her witness statement (§§13-18 p108). It was always open to D to cross-examine her about that.

8) as above

9) as above

10) as above

11) as above

“could not fairly reach a conclusion (and therefore time should not equitably be extended under section 33 Limitation Act 1980) where a TC is unable to specify such date” - that is a matter for the final submissions.

specified these dates, further research would have been undertaken and questions could have been asked as to various factual matters that might assist D in showing that the alleged matters are more likely to have occurred at an earlier date rather than relying upon the existing pleading and the lack of evidence as to relevant dates. D notes for example that the proposed amendments as to dates rely upon reports from ‘North Tetu Division’ and ‘Tetu Location’, but TC 39’s Pt18 responses and oral evidence refer simply to ‘Tetu’. D should have had the opportunity to explore those points and their potential significance with TC 39 in XX.

5) This is different from TC 30, who did, at least, give some indication as to the date of relevant events (namely after the Lari massacre) and was cross-examined on that issue and the dates of subsequent events by reference to that – see 33-3109 to 33-3110.

6) This is also somewhat in

contrast to TC 1, who was asked on a number of occasions either her age or to attempt to specifically date incidents - see 33-1633 & 33-1689 – albeit the questions as to events may have still been somewhat different.

7) A similar issue arises as to the allegation of being placed in a

‘punitive village’; TC 39 may well have been XX’d in a different fashion had the allegation been put earlier. It is not moreover clear from the proposed amendment that TC 39 was moved into ‘a punitive village’ that this is confined to the village named as ‘Wagitune’ in the original (and current) wording of the remainder of TC 39’s pleaded case.

8) If the amendment were to be allowed, D would require the opportunity to XX TC 39 following research and production of an Amended Individual Defence.

9) To refuse the amendment would not be unfairly

prejudicial to TC 39. She had more than ample opportunity to set out dates and her allegation that she was detained in a punitive village in her original pleadings, Part 18 responses, first and second statements, and before the conclusion of her oral evidence, given on 24 June 2016, and indeed did implicitly provide a date by reference to taking the oath and her Schedule of Loss. The delay in seeking to amend has not been explained. TC 39 can pursue the case previously advanced on the existing pleading/ evidence, insofar as it is proper for him to do so.

10) If the amendments were allowed it would mean that D for good reason had not asked what are now necessary questions of TC39 as to the date of the events. D has relied upon the lack of direct evidence as to the date of alleged incidents and the pleaded case.

11) Even if the Claimants were to be debarred from making any such complaint, it would not change the fact that TC

39 was advancing a positive case as to the dates of certain events that D has not been able properly to test. The potential practical impact of that upon the Court’s view of the evidence would be unknown but potentially profound.

24

The Claimant was aware that some women were being sexually assaulted by the Home Guard. She heard of a woman called ‘Wanjiru’ being raped by members of the security forces the Home Guard whilst going to a farm in Kariua…

No.

1) The justification for the proposed amendments is unclear. No explanation has been given.

2) The paragraph is inconsistent with TC5’s account in oral evidence, which was that the alleged perpetrator was a

‘policeman’ [33-1591].

3) The proposed amendment is embarrassingly wide. TC39 must commit to a positive case;

alternatively permission should be refused.

4) To refuse the amendment would not be unfairly prejudicial to TC 39. Her oral evidence was clear. She had more than ample opportunity to set out her case clearly in her original

1) Cs are not obliged to explain, but the explanation is clear when the transcript is read: see 33-1591.

2) there is no inconsistency. 3) The amendment permits the Court to determine the matter on the evidence. 4) As above

Allowed.

The Claimants’ submissions are accepted.

pleadings, Part 18 responses, first and second statements, and before the conclusion of her oral evidence, given on 14 June 2016. The delay in seeking to amend has not been explained. TC 39 can pursue the case previously advanced on the existing pleading / evidence, insofar as it is proper for her to do so.

Test Claimant

Para amended

Amendment

Agreed?

Cs’ Response: pursued/ not pursued

Judge

16 – Marion Nkirote

M’Ichoro

8

One evening in or around 1953 after June 1954, probably as a result of punitive measures being inflicted on populations in the Ruiri area (near to Ncoroiboro) [32-19232], the Claimant was forcibly removed from her home…

No.

The proposed amendment renders TC16’s case hopeless:

1) It substantially changes the dates of the events alleged, contrary to TC16’s sworn oral and written evidence ([332973], §5 WS [1295]). TC16’s Pt 18 response clarifies

Proposed amendment not pursued as to date following draft judgment, save for the purposes of any cross – appeal.

1) The date was led in evidence – 33-2973. Cs do not complain

at that, but it diminishes the value of the reply. The documentation

The amendment in relation to paragraph 8 is not pursued.

2)

3)

4)

the pleaded case to say that she was removed in August

(1953) [12-63], so the amendment seeks to bring events forward by around a year.

TC16

The timings are of critical importance to limitation, to the role/relevance of TC16’s account, and to its testing.

It also adds significantly to the alleged circumstances/cont ext of TC16’s alleged removal.

The reference given is to a

document which does not support the amendment. Also, TC16’s Reply to Defence §8.b

relies upon a document allegedly describing ‘constant sweeps and patrol activity’ in TC16’s area ‘as of March 1954’ (i.e.

2)

3)

suggests that the TC

is likely to be wrong, because the events she describes are in keeping with forced villagisation, which was not – on the evidence – an issue in August 1953, but was in mid 1954.

It is admitted that the events are critical to limitation. But as the TC was not questioned on dates and said she did not know any, D’s overstate the position on testing the evidence.

The description has never altered. It is obviously a description of villagisation. The issue is when it happened. D has adduced many

documents showing that forced villagisation was not a policy in August 1953. It ought not to be allowed to

before June 1954).

5) Time cannot equitably be extended under

s.33 Limitation Act 1980 in circumstances where TC16

effectively asserts, a year following her oral evidence and months following the close of Cs’ case, that, with the help of a professional legal team throughout, she could not accurately present critical aspects of his case in her original pleadings, Pt18 responses, witness statement or oral evidence. She now invites the court to accept a contradictory case, and D must respond.

As to prejudice:

1) If the amendment were allowed, D would need the opportunity for further XX of TC 16 informed by further documentary

disavow its own case.

4) The reference ought to be 32-19239 – apologies. The reference to the reply is unfair. The document was pleaded in response to D’s pleading that it could not find any reference to Home Guard activity in

1953 (§9 Defence – 12-19). It did not

focus on villagisation.

5) As before

As before.

research. She was not asked about details that may have cast doubt upon the matters set out in support the proposed amended date, or about associated dates in the history/sequence of events (e.g. temporal yardsticks).

2)

Additional searches within the documents would anyway be

necessary if the

amendment were allowed. Original searches have limited usefulness because related to a single account rather than the relative merits of two rival accounts.

3)

Those matters would greatly delay the already elongated trial timetable.

6)

To refuse the amendment would not be unfairly prejudicial to

TC16. She had more than ample opportunity to clarify the date of her removal in her original pleadings, Part 18 responses, witness statement and (had she made one) supplemental statement, and before the conclusion of her oral evidence, given on 18 July 2016. The delay in seeking to amend has not been explained. TC16 can pursue the case previously advanced on the existing pleading / evidence, insofar as it is proper for her to do so.

13

During the attack the Claimant heard one of the Home Guard saying in Swahili “we’ve hit her, she’s nothing, finish her”. During this frenzied attack the Claimant’s baby suffered a cut to her hand. The

Meru Home Guard were operating in the Claimant’s area in July 1954 [32-20303] around about the time of year recalled by her (August).

No. This relates to the change of date. See objection to §8 above.

Not pursued – as above.

This amendment is not pursued.

18

The Claimant and her family had no home to return to; it having been burnt down. The

Claimant avers it is reasonable to conclude the family home was intentionally destroyed by the Home Guard, there being documentary evidence, upon which the Claimant will rely, that demonstrated that Home Guard burnt houses and confiscated cattle in areas which were loyal to the administration, for example, in about November 1954 [3225940] and December 1954 [32-27209].

No. This relates to the change of date. See objection to §8 above.

Pursued. Date is not the significant point. The documentary evidence demonstrates involvement of Home Guard in abuse against loyalists. TC evidence is that her family were part of the Methodist church [33-2971] and her family did not support Mau Mau [33-2972]. The documentation founds a submission.

Amendment not

permitted. This is a pleading of evidence not fact. There is nothing to stop the Claimant relying on any documentary evidence which has been adduced

so as to support a pleading of fact. Therefore, absent the amendment, the Claimant can rely upon adduced documents, including those referred to in this proposed amendment, in an attempt to found the proposition of fact in paragraph 18. Whether documents evidencing what happened in late 1954 can support the otherwise unamended

case is a matter for submission.

Test

Claimant

Paragraph amended

Amendment

Agreed?

Cs’ Response

Judge

17 -

Mwangi

Matheri

25

The Claimant probably stayed at Lang’ata for longer than about 6 months before

being sent to

Manyani

Detention Camp. He was not required to work while at Lang’ata and was mostly required to stay in the tent.

No.

1) The proposed amendment changes

the dates of (all of) the events alleged, contrary to TC17’s written and sworn oral evidence (statement §21 [13-190] (‘about 6 months’); t/s 33-1911 (‘3 to 6 months’)) and his account to Dr Davidsson (‘about 6 months’ [13251]).

2) The timings are of critical importance to the role/relevance of TC17’s account, and to its testing.

3) There is no evidence or explanation in support of the amendment. If, as appears to be the case, it is based upon the alleged presence of the ‘cattle dip’ at Manyani when TC17 was there, the documents to which those amendments refer (see §29 below) do not support it.

4) Time cannot equitably be extended under s.33 Limitation Act 1980 in circumstances where TC17 effectively asserts, a year following his oral evidence and months following the close of Cs’ case, that, with the help of a professional legal team throughout, he could not present an important aspect of his case in his original pleadings, Part 18 responses, witness statements or oral evidence. He now invites the court to accept a different case, and D must respond.

Pursued.

In accordance with draft judgment.

1) Permissible submission given TC is not precise as to dates. Moreover, D is interpreting “about 6 months“ as if it precludes any longer period. That is illogical.

2) Cs do not agree but see above paragraph.

3) Cs have pleaded the documents consistent with their approach. Whether the documents support the position is a matter for submission. 32-62433 describes the tank and the procedure in the same terms as that used by D’s witnesses.

4) As before

1) as before. D, again, is seeking to interpret “about 6 months” with

Amendment refused.

(i) Paragraph 8 of Particulars of Claim pleads that TC17 was removed to Langata in or about April 1954.

(ii) In the Claimant’s witness statement he says that he was arrested (and then taken to Langata) around April 24 1954. He confirmed that date in oral evidence and said it was during Operation Anvil which was broadcast on the radio.

Operation Anvil commenced in April

1954.

(iii) In paragraph (1) of the Defendant’s comments is the summary of the evidence in the case which the

Defendant had prior to TC17 being crossexamined. This was all consistent with paragraph 25 of the IPOC which was that TC17 stayed at Langata for about 6 months before being

As to prejudice:

1) If the amendment were allowed, D would need the opportunity for further XX of TC17 informed by further documentary research. Although he was asked about the period of detention at Lang’ata, he was not asked about associated details relating to that and other dates in the sequence of events (e.g. regarding his strength of recollection, temporal yardsticks, history of the ‘cattle dip’, etc – see further below), nor was there opportunity to test the new case now sought to be made.

2) Additional searches within the documents would anyway be necessary if the amendment were allowed. Original searches have limited usefulness because related to a single account rather than the relative merits of two rival accounts.

3) Those matters would greatly delay the already elongated trial timetable.

4) To refuse the amendment would not be unfairly prejudicial to TC17. He had more than ample opportunity to clarify the date of his removal in his original pleadings, Part 18 responses, witness evidence, and before the conclusion of his oral evidence, given on 21 June 2016. The delay in seeking to amend has not been explained. TC17 can pursue the case previously advanced on the existing pleading / evidence, insofar as it is proper for him to do so.

an unjustified degree of precision. The witness could not assist further.

2) There are not 2 rival accounts.

3) No delay would result.

4) As before.

sent to Manyani.

(iv) It appears from the proposed amendment to paragraph 29 IPOC that the Claimants now seek to say that TC17 “was probably at Langata for longer than the 6 months that he now recalls and he probably moved to Manyani

in the latter part of

1955.”

(v) In other words the “about 6 months” is in effect sought to be changed to something like 18 months.

(vi) Of course “about 6 months” does not preclude any longer period but in my judgment it cannot in the circumstances be extended at this late stage to something like three times as long.

(vii) I repeat points (iv) –

(xi) in relation to TC14.

(viii) I agree that

whether documents support a proposition is a matter for submission.

29

The detainees were required to squat while a further head count was undertaken after they had passed through the dip. The Claimant will refer to the

documentation

for its full terms and effects, but, by way of example, the cattle dip in

Manyani was in operation in mid1955 or later [see 32-62433].

Therefore, the Claimant was probably at Langata for longer than the six months that he now recalls and he probably moved to Manyani in the latter part of 1955.

No. See the objections to §25 above. The document cited does not support the premise underlying the amendment, namely that the ‘cattle dip’ was not present at Manyani until ‘the latter part of 1955’. It makes no comment on when the ‘cattle dip’ was introduced.

Pursued.

Permissible submission on the basis of documentation;

D will have a permissible submission in response.

No prejudice.

Refused.

See comments in relation to paragraph 25 above.

31

…The Claimant himself suffered diarrhea and typhoid.

No.

1) This amendment seeks to add a fresh claim for injury. It goes beyond issues established by the medical evidence and consistent with what is already pleaded (see §§28 and 29 of the judgment dated 27 April 2017). It

Pursued.

1) Permissible submission based on his evidence.

The issue of whether there was illness and typhoid in the camp is raised on the

face of his pleading and falls for consideration in any event as to the nature of conditions and the care taken

Refused.

(i) Paragraph 31 IPOC refers to the living conditions at Manyani Camp being very poor etc. It says “The

2)

is wholly unsupported by medical evidence: Mr Heyworth does not address, and was not asked about, whether TC17 suffered from typhoid.

Further and in any event, D would if this amendment were permitted require the opportunity further to cross-examine both TC17 and Mr Heyworth. Neither TC17 nor Mr Heyworth were asked about the detail of TC17’s alleged symptoms, whether they were diagnostic of typhoid, and/or if so what may have caused that condition.

(or the lack of it) by the authorities.

The amendment is in accordance with his evidence [33-1919 line 8 – 11];

2) TC’s claim always indicated he was ill and in hospital. He clarified in XX that his illness was typhoid. That D did not ask him about his symptoms is a matter for D.

The emergence of the evidence in crossexamination is in keeping with the medical evidence about how histories emerge. If D wishes to put further questions to the expert it can do so in writing, although Cs’ position is that there is not much assistance to be had.

No prejudice.

Claimant himself

suffered diarrhoea. He received treatment in a makeshift camp hospital. He received treatment for about 1 month. He was also aware that there was typhoid in the camp.” Therefore, on the face of the pleading, he distinguishes the condition from which he suffered from that which was generally in the camp.

(ii) In the medical report of Mr Heyworth it states, in relation to

Manyani “The food hygiene was poor and there were consequent recurrent episodes of diarrhoea with associated weight loss.” There is no suggestion that TC17 suffered from typhoid. In his oral evidence, when asked about the

diarrhoea, TC17 replied “Yes, a number of us were sick from the condition called typhoid because of the food we were eating.” He was then asked about this and asked why he had not mentioned it before. He said he had been admitted in the hospital camp for typhoid and not just for diarrhoea.

(iii) In paragraph 34 of his statement TC17 said “I suffered diarrhoea and was hospitalised for about 1 month in the camp’s dispensary.” Later in that paragraph he says “I believe there was an outbreak of typhoid because of the conditions we

were being kept in.”

(iv) I accept the

Defendant’s points

in relation to this proposed

amendment. The Claimants are here seeking to amend so as to rely upon specific injuries not pleaded in the

Particulars of Injury (see

paragraph 28 of the April 2017 judgment).

(v) Given the pleaded case and the other

documentation available at the time of crossexamination, there was no obligation upon the

Defendant to ask further questions about typhoid, either from TC17 or from Dr Heyworth when he gave evidence in early 2017.

I am not prepared to allow further evidence at this late stage by way of questioning of Dr Heyworth or TC17.

(vi) In oral submissions the Claimants said that

they did not seek to claim for typhoid as an injury. In that case the amendment is unnecessary.

66

While in Gachuku

village the

Claimant was forced to work on road construction, to dig terraces for agriculture, and

to assist in land surveying and making land boundaries. He was not remunerated for this work. Conditions of curfew and detention continued in the area of Gachuku village as of July

1957 and “unsavoury elements” were required to attend roll calls and be

subjected to visits by Kikuyu Guard and police patrols

[32-5711a and 32-

57290]. It is probable that the

Claimant

No.

1) These proposed amendments expand TC17’s factual allegations about Gachuku well beyond those made at the time that TC17 was cross-examined or beforehand when D was researching and drafting the Individual Defence.

2) Those expanded allegations are moreover not supported by the documents cited. The first [325711a] is an incorrect CaseLines reference, and the second [3257290] does not address the matters described. It moreover refers to bush clearing whereas TC17’s oral evidence described different work

[33-1928], and he told Dr

Davidsson he had worked ‘under a sous-chef’ from 1957 [13-253].

3) The allegation that TC17 ‘remained under such conditions until the end of the Emergency’ is discordant with TC17’s Pt18 response to the effect that at

Pursued.

1) Permissible submission, arising from cross-examination amongst other matters, that TC would have been regarded as unsavoury element and thus subject to curfew and the restrictions indicated; in cross-examination he expressly gave evidence that if you did not do work you would go back to detention and that was not challenged – 33-1928. He also tied it in to a time that was “easier”, which he timed by reference to the departure of Baring – 33-1931. No prejudice. 2) Typographical error: document reference is 32-57114a; Doc 32-57290 supports the range of work undertaken (as well as bush clearing in Gachuku) and founds a submission.

3) submission

4) as before. He gave evidence about how long he was there and about conditions. 5) Cs do not agree. D is being given information. The Defence pleads that D cannot admit anything about C’s account of Gachuko (§44h 13-45). That does not require amendment unless D proposes to advance a positive case that something did not happen (not put in crossexamination), or to admit something (unlikely).

6) Cs do not agree.

Refused.

(i) The crossexamination in

relation to

Gachuku

Village was short. The material part is as follows:

“Q. What did you do while you were there?

A. Well, we used to work under the area chief digging trenches, making roads, (inaudible) boundaries, circle boundaries, and digging those trenches where the land was hilly, and if the sub chief requested - - or it was requested by somebody, they would take us there to work there.

…

remained under such conditions until the end of the Emergency.

Gachuku village he did communal work ‘for about 6 months’ [13-147] (although D accepts that TC17 referred to working for a 2-year period during re-examination [331938]).

4) If the amendment were allowed, D would need the opportunity for further XX of TC17 informed by further documentary research. Although he was asked about the period for which he carried out communal work at ‘Gacuko’ (the name given by T17 in oral evidence), he was not asked about the associated details now pleaded, nor about the period for which he was at ‘Gacuko’.

5) Additional searches within the documents would anyway be necessary if the amendment were allowed. These would need to cover each individual fresh factual allegation made by way of this proposed amendment.

6) Those matters would greatly delay the already elongated trial timetable.

7) To refuse the amendment would not be unfairly prejudicial to TC17. He had more than ample opportunity to clarify the matters in this amendment, including the period

7) as before.

Mr Fetto

Q. So was this work for the benefit of the community?

A. Yes, but it was part of the

punishment because I was not being paid. If you didn’t work, the sub-chief would take you back for detention. It was not voluntary…”

(ii) This evidence supports paragraph 66 IPOC as at present pleaded.

Paragraph 64 and 65 plead that the village was guarded by the Home Guards at the entrance to the village and that entry and exit to the village was restricted.

(iii) The proposed amendment is said to be based on documents. Insofar as those documents support the present pleaded

spent at Gachuko, in his Part 18 responses, witness statements, and before the conclusion of his oral evidence, given on 21 June 2016. The delay in seeking to amend has not been explained. TC17 can pursue the case previously advanced on the existing pleading / evidence, insofar as it is proper for him to do so.

case, the

Claimants can rely upon them. However the proposed further amendments

alleging that conditions of curfew and detention continued and “unsavoury elements” were required to attend roll calls and be subjected to visits by the Kikuyu Guard and police patrols has not been pleaded and has not been the subject of investigation by the Defendant and/or crossexamination. These allegations are therefore new.

(iv) As to the allegation that “It is

probable that the Claimant remained under such conditions until the end of the Emergency”, there is nothing in

paragraphs 64-66 of the IPOC which is inconsistent with this.

However in the Part 18 response to paragraph 66 it is said “The

Claimant states he believes he carried out this kind of work for around 6 months”. As the Defendant accepts, in reexamination he said he undertook unpaid work in the village for

“About 2 years”.

(v) As to all the

amendments

under paragraph

66, I accept the Defendant’s

points numbered

1, 5, 6 and that the

Defendant would

need the opportunity for further crossexamination of TC17 informed by

further documentary research.

Test Claimant

Paragraph amended

Amendment

Agreed?

Cs’ Response

Judge

19 – James

Irungu

Gathunga

7

The Claimant was forcibly removed from Bahati, Nairobi, where he was living with his brother, Kafage Gathungu. It is probable that the Claimant was picked up in one of the Nairobi sweeps that followed Operation Anvil in April 1954.

No.

1) This amendment is not clearly expressed, but, from reading this paragraph together with the proposed amendments to §§22 and 26 (which need to be considered with it) it appears that Cs now propose to allege that the removal was in or about September 1954.

2) That is highly significant in that it seeks to place the entirety of TC19’s allegations beyond the June 1954 limitation cut-off date.

3) TC19’s current pleaded case is that he was removed ‘in or around 1954 and on a Saturday morning’, in circumstances suggestive of Operation Anvil. Operation Anvil commenced on

Saturday 24 April 1954. Cs’ pleaded case has for years therefore been strongly consistent with Anvil pickup. His witness evidence is to similar effect.

4) In its Pt18 request in early 2015 D requested further particulars of the date

Pursued.

1) He gives the year at

§8 as “In or around 1954”. Reference to being forcibly removed from Bahati clearly indicates Anvil; timing is a matter of submission as to the documentation as a whole; clarification given is within the year.

Amendment is within the scope of the draft judgment. No prejudice. 2) It is not highly significant. C has never put any of his case as being before June 1954.

3) It is astonishing that

D relies on a description of operation Anvil, whilst adopting a wholly different stance to TC14. D is invited to reflect on the inconsistency. Nor is Anvil limited to

Refused.

(i) It is true that the IPOC at paragraph 8 gives the date “In or around 1954”. The Part 18

Request asked “What day, month and/or season did the forced removal occur?” The response was “The Claimant confirms it was a Saturday, but he is unable to give further details of the day, month or season.”

(ii) That therefore was the state of the pleaded case and the Defendant was entitled to rely upon the fact that the Claimant’s case could not be more specifically pleaded. See in this regard the comments of Moore-Bick LJ set out in paragraph

18(b) of the

5)

6)

7)

of TC19’s removal. D was entitled to rely upon TC19’s response: ‘The Claimant confirms it was a Saturday, but he is unable to give further details of the day, month or season’.

There is no suggestion or explanation that TC19’s evidence corresponds with a post-Anvil pickup during a Nairobi ‘sweep’, let alone for it matching up less well with an Anvil pickup. (TC19 gave oral evidence that his brother – not TC19 – was released when first arrested, but then subsequently arrested again and detained [33-2819].)

There is no evidence or explanation in support of the amendment or its timing at all.

Time cannot equitably be extended under s.33 Limitation Act 1980 in circumstances where TC19 effectively asserts, a year following his oral evidence and months following the close of Cs’ case, that, with the help of a professional legal team throughout, he could not present an important aspect of his case in his original pleadings, Part 18 responses, witness statements or oral evidence. He now invites the court to accept a different case, and D must respond.

April. D’s own documents make clear that pick ups lasted until September. 4) That is C’s account

5) This is a

submission. As D knows, the foundation of the date is C’s account of which compound he was placed in at Manyani.

6) as before

7) as before

1) Cs disagree. C gave evidence of the compound he went into. The documents make the position clear. D has been denied nothing save the opportunity to obtain a disagreement with the documents. 2) Cs disagree. D has not identified any evidence from those witnesses which would assist. They agreed with documents. The documents support the amendment. 3) D should have done this already. Cs did

judgment.

(iii) All parties were aware that being picked up at Bahati was consistent with Anvil which commenced in

April 1954.

(iv) This amendment, as built upon in the amendments proposed at paragraphs 22 and

26 (below) effectively says that TC19 was picked up in a sweep following the main Anvil operation and, having spent two weeks at Langata, arrived at Manyani in or about September 1954. This is the reason for the more precise particulars in relation to paragraph 26 below.

(v) There is, therefore, here a proposed amendment which gives precise details of a date. That date is one which had never previously been communicated to

As to prejudice:

1) If the amendment were allowed, D would need the opportunity for further XX of TC19 informed by further documentary research. Although he was asked about his arrest, he was not asked about details regarding the date within 1954 that his arrest might have occurred. There was no opportunity to test the new case now sought to be made.

2) D would also need the opportunity to re-approach and if appropriate recall any of its witnesses potentially able to assist with the credibility of TC19’s new account. Recalled witnesses could include Messrs Gordon, Grounds, McKnight, Kearney and Nazer.

3) Additional searches within the documents would anyway be necessary if the amendment were allowed, addressing the specific features and plausibility of the case now sought to be made (i.e. post-Anvil pickup, by several months, during a Nairobi ‘sweep’).

4) Those matters would greatly delay the already elongated trial timetable.

5) To refuse the amendment would not be unfairly prejudicial to TC19. He had more than ample opportunity to clarify the date of his removal in his original pleadings, Part 18 responses, witness evidence, and before the conclusion of his oral evidence, given on 14 July 2016.

not specify when the TC arrived. D specifically did not admit pick up during Anvil – §12 15-23).

4) as before

5) as before

the Defendant, despite the request for particulars in the Part 18 questions. The Defendant was entitled to rely upon this lack of precision and the fact that, prima facie, TC19’s case was consistent with the main Anvil operation. The Defendant was therefore dealing with a case which was that the relevant matters occurred “In or around 1954” as to which no further precision could be

given. The amendment seeks to take the whole timeline out of the main Anvil operation to a period some weeks/months

later. The particular relevance of this is the effect of the limitation period in the Arnold case.

(vi) I accept the

Defendant’s points as to prejudice numbered 1-5.

The delay in seeking to amend has not been explained. TC19 can pursue the case previously advanced on the existing pleading / evidence, insofar as it is proper for him to do so.

(vii)The Claimant’s point number 3 about the Defendant adopting a wholly different stance to TC14 (I assume this means TC13) is not well made. The Defendant

is entitled to rely on the pleadings. In any event the Court has allowed the amendment in respect of TC13 because of the particular circumstances.

(viii) The Claimants say that nothing really turns on when TC19 was picked up and the amendment is working back from the amendments at paragraphs 22 and 26.

Nevertheless, I do not allow it.

22

The Claimant believes he was detained at Camp twenty one (probably Compound 21).

No.

This proposed amendment is highly significant in that it supports a major change of case, from strong consistency with pre-June 1954 removal, detention at Langata and movement to Manyani, to a positive case that

As above. This

amendment is not

significant. It equates camp 21 (which never existed) with compound 21 (which

Refused.

(i) This may have been allowed were it not for the significance given to this

all of those things happened months after June 1954. See D’s objections to the proposed amendments §§7 and 26 (which need to be considered together with this proposed amendment).

Further and in any event:

1) Cs have given no evidence or explanation for the failure to make this change/clarification at any time before or during TC19’s oral evidence, given over a year ago, or even subsequently until now. No application or attempt was made to correct or amplify TC19’s witness statement (§§19, 20) to this effect when he gave oral evidence.

2) Had D known of this change and the case it was intended to support, it would have cross-examined TC19 differently; in particular it would have focussed on the strength of TC19’s recollection about where he was allegedly detained at Manyani, whether he was detained at different compounds, and timings (by reference to temporal yardsticks, historical details from documents, etc). Accordingly, if the amendment were allowed, D would need the opportunity for further XX of TC19 informed by further documentary research.

3) If this amendment were permitted, D

did). D should have known this from the outset. Permissible submission; amendment is within

the scope of the draft

judgment No prejudice.

1) as above

2) there is no change. D could always have cross-examined on this issue. The timings are apparent on the documents. 3) This is fanciful. D obviously agrees that

the reference is to compound 21; otherwise it would want to ask whether there was a place known as Camp 21. In any event the documents provide the answer.

4) None are specified. What does D intend to do? Why has it not yet done it? How long would it take?

point under paragraph 26 below. However it is not merely tidying up but a proposed amendment of substance.

(ii) The refusal of this amendment and that at paragraph 26 does not stop TC19 alleging he was in Manyani.

would need the opportunity to reapproach and if appropriate recall any of its witnesses potentially able to assist with TC19’s new account and its alleged significance in relation to timing, by reference to the documents (e.g. D does not know whether there may have been a place at Manyani named ‘Compound 21’ prior to the building of Camp 3 – see the draft amendment to §26 below). Recalled witnesses could include Mr Burt and/or Professor Kahn.

4) Additional documentary searches would also (and anyway) be necessary if this amendment were permitted, not only to support further XX of TC19 if recalled, but also to give D a fair opportunity to respond to the specific case now being put.

26

During his detention in

Manyani Camp the Claimant was randomly assaulted and beaten. On occasions the Claimant was beaten as part of a collective punishment for the actions of a single detainee. The conditions in the camp were harsh and life threatening. The Claimant probably arrived in Manyani in or about September 1954, having spent two weeks at Langata camp. The

No.

See the objections to the amendments to §§7 and 22 above, which should be considered together with this proposed amendment. D’s reasons for objection include the following (in summary):

1) This is a highly significant amendment, making up a change of case which seeks to put the entirety of TC19’s allegations beyond the June 1954 limitation cut-off date.

2) The amendment and its timing are not

Pursued.

This amendment removes an allegation of random assault and collective punishment not supported by the evidence [33-2837; line 8 – 9: “I was only beaten when I was being interrogated”. It is odd that D objects to it. There is no prejudice.

As to the date and timeline, this is also pursued as above.

First amendment permitted as it removes an allegation of random assault and collective punishment. Second amendment refused for the reasons already given above.

Claimant will rely on documentation in support of his claim for its full terms and effects at trial, for example:

a. Compound 21 was part of Camp 3 which had not been built as of

May 1954 [3216482];

b. Camp 3 was fully functional as of September 1954 [32-23428] which coincides with the time that screening terms arrived in

Manyani in

September 1954;

c. The Claimant was screened at Manyani and categorised as a “grey”; it is likely that this categorisation took place on or after 6 September 1954 [32-22011].

evidenced or explained.

3) If the amendment were allowed, D would need the opportunity for further XX of TC19 informed by further documentary research. This applies both in relation to the matters addressed above and the further allegation made here, at 26.c, that TC19 must have been screened ‘grey’ following the arrival of a screening team at Manyani on 6 September 1954 and not before then (a proposition not supported in terms by the document at 32-22011).

4) D would also need the opportunity to re-approach and if appropriate recall any of its witnesses potentially able to assist with the credibility of TC19’s new account.

5) Additional and extensive documentary searches would also (and anyway) be necessary if this amendment were permitted, not only to support further XX of TC19 if recalled, but also to give D a fair opportunity to respond to the specific case now being put.

Permissible submission; amendment is within

the scope of the draft

judgment

No prejudice.

35

From Murang’a camp the

Claimant was taken to

Kamaguta in or about 1956

No.

1) The proposed amendment changes the

Follows from above. 1) Timeline from any given point is a matter

Refused.

(i) It is not known

which was a chief’s camp.

date of TC19’s arrival at Kamaguta,

contrary to his Pt18 response [15-34]

and sworn oral evidence, both to the effect that he arrived there in 1957 [33-2846].

2) The timings are of critical importance to the role/relevance of TC19’s account, and to its testing.

3) There is no evidence or explanation in support of the amendment.

4) Time cannot equitably be extended under s.33 Limitation Act 1980 in circumstances where TC19 effectively asserts, a year following his oral evidence and months following the close of Cs’ case, that, with the help of a professional legal team throughout, he could not present an important aspect of his case in his original pleadings, Part 18 responses, witness statements or oral evidence. He now invites the court to accept a different case, and D must respond.

As to prejudice:

1) If the amendment were allowed, D would need the opportunity for further XX of TC19 informed by further documentary research. TC19’s case would have been changed to depart from his oral evidence, without explanation.

of permissible submission. 15-34 refers to the

Amended Individual Defence, not the Part 18 response.

The Part 18 response at 15-134 does refer to 1957 rather than 1956; however, D evidently searched Muranga post in 1956 and 1957 in order to plead §30a of the AID [15-34]. So, as no date for

Kamaguta Chief’s camp in the IPOC was given, they would or should have searched the same timescale upon a reasonable analysis.

2) D queried an earlier date in XX [33-2846] and he fairly said that he could not tell. D on notice that date not fixed.

C entitled to use docs to assist.

3) as before

4) as before

No prejudice. 1) No research identified. No further cross-examination required.

2) No. No evidence of what D has done, why

the basis upon which “in or about 1956” is proposed to be pleaded.

(ii) The Part 18 response says that TC19 arrived at Kamaguta in 1957. When he was crossexamined he was asked the year when he came to Kamaguta and he said “1957”. The crossexamination continued:

“Q. Could it have been earlier than that?

A. I cannot tell that because I cannot remember those dates

very clearly.” A little later he seemed to confirm 1957.

(iii) In or around 1957 does not stop the Claimants fixing the date TC19 was taken to Kamaguta as sometime late in 1956.

2) Additional searches within the documents would anyway be necessary if the amendment were allowed. Original searches have limited usefulness because related to a single account rather than the relative merits of two rival accounts.

3) Those matters would greatly delay the already elongated trial timetable.

4) To refuse the amendment would not be unfairly prejudicial to TC19. He had more than ample opportunity to clarify the date of his removal in his original pleadings, Part 18 responses, witness evidence, and before the conclusion of his oral evidence, given on 14 July 2016. The delay in seeking to amend has not been explained. TC19 can pursue the case previously advanced on the existing pleading / evidence, insofar as it is proper for him to do so.

more is required, what it would be and how long it would take. 3) as before

4) as before.

39

The Claimant witnessed people being shot by the home guards for no apparent reason or for failing to stop when running away. During his detention in Kamaguta camp the Claimant was assaulted and beaten.

No.

1) If this goes no further than the allegations already pleaded at §37, (Footnote: ¹) relating to assault and battery when working off site during detention at Kamaguta, it is otiose.

2) If – as appears to be the case – it seeks

Pursued.

1) It goes further 2) It is in accordance with evidence [332849 – 33-2853], which founds a submission; a. It arises out of the same facts. TC explains that the Chief’s camp (referred

Amendment refused. (i) IPOC paragraph 37 alleges that the

Claimant was beaten at various times whilst working. He was beaten by various Home Guards with sticks and

to go further, it is a fresh claim of assault and battery.

a. It does not arise out of the same facts or substantially the same facts as a claim in respect of which TC19 has already claimed a remedy in the proceedings. He has made no prior allegation amounting or approximating to assault and battery at Kamaguta other than when taken off site for work.

b. Further, and in any event:

i. D did not have the opportunity to XX TC19 regarding allegations of assault at Kamaguta, allegations of assault being restricted to other locations.

ii. Without prejudice to D’s general submission that the amendments should be refused because made without instructions, and that statements of truth should not be

to in his claim) is a post. This founds a submission regarding translation, which is not the TC’s fault. He clarified in his evidence that there were two camps, the chief’s camp and a detention camp. In the Kikuyu, what has been translated by one translator as chief’s camp can also be translated as “office”. The words “Kamaguta Chief’s camp” could equally be “Chiefs office”.

§39 is amended in accordance with his evidence that he was also beaten during detention and not just while working.

b. i. D could have asked whatever questions it wished

once the issue became clear, as it did in evidence.

ii. It arises from C’s evidence. iii. As before iv. as before v. as before

pangas. Paragraph 38 says that while clearing bushes he was beaten by Home Guards resulting in his hand being cut. At present there is no further allegation of violence against this TC at Kamaguta.

(ii) In his oral

evidence TC19 explained (33-2949) that “Kamaguta was a detention camp and there was a different camp, a chief’s camp.” It appears, as the Claimants say, that there was a translation issue. However, it is not clear the basis of saying that paragraph 39 “Is amended in accordance with his evidence that he was also beaten during detention and not just while working.” (iii) Absent clear sworn evidence from TC19 on this point, the amendment must be refused. As the Defendant says, this is particularly the case where there is no statement of truth as to the amendment from the Claimant

iii.

iv.

dispensed with, this is manifestly not a proper pleading to make in the absence of direct instructions (if that is the case here). There are no allegations of assault at Kamaguta in the witness statements, Part 18 responses or in oral evidence. As such, the Court should not allow the Claimant to make this new allegation without the benefit of a properly signed statement of truth, affirming that TC19 (not just his lawyers) believes the new allegation to be true.

If the amendment were allowed, D would need the opportunity for further XX of TC19 informed by further documentary research.

Additional searches within the documents

would anyway be necessary if the

amendment were allowed, addressing the

himself.

specific features and plausibility of the case now sought to be made.

v.

To refuse the amendment would not be unfairly prejudicial to TC19. He had more than ample opportunity to set out his allegations in his original pleadings, Part 18 responses, witness evidence, and before the conclusion of his oral evidence, given on 14 July 2016. The delay in seeking to amend has not been explained. TC19 can pursue the case previously advanced on the existing pleading / evidence, insofar as it is proper for him to do so.

Test Claimant

Paragraph amended

Amendment

Agreed?

Cs’ Response

Judge

20 – Elizabeth

Wangui

Waithaka

13

The villagers were detained at

Thuita Village. Upon the

Claimant’s arrival, there were no houses. They had not yet been built. The Claimant’s arrival was probably in or after 1955. She will rely on the documentation for its full terms and effects for example, regarding the progress of villagisation in Fort Hall in 1955 [32-29589; 32-29332 and 3282524].

No.

The amendment changes the date of pleaded allegations.

1) The Claimant alleged at §7 that she was ordered out of her home at Magengo

“shortly after the commencement of the State of Emergency”. She then alleges she resided at Gikondo for around one year before being forcibly removed to Thuita village. This places TC20’s forced removal towards the end of 1953.

2) In addition, the Schedule of Loss pleaded that TC20 was first forced to work in 1952. She now seeks to amend this aspect of her claim to plead that such work began in 1954.

3) As such, the amendment changes the date of allegations made.

Pursued.

1) The timeline starts at §7 with “shortly after the State of Emergency”; the events at §8 in Majengo are a matter of submission - it will be submitted that this is likely to be one of the Anvil – raids [this is not a matter of pleading as C can say no more than is currently pleaded]; specific documentation assists her in terms of her removal to Thuita village which is clearly in the course of villagisation.

Permissible amendment in accordance with draft judgment.

2) This assists D. It is unclear why it objects.

3) Cs disagree.

No prejudice.

1) D did not cross-examine as to dates at all. If dates were important D could

always have made the

enquiry. It is illogical to assert that dates are only important if C herself

Refused.

(i) This amendment is not permissible in accordance with the draft judgment. The proper analysis of the pleadings so far is:

a. The Claimant’s neighbourhood was raided shortly after the commencement

of the state of the

Emergency, and then she lived in her home village in Gikonda for around 1 year before she was forcibly removed from there. (Paragraph 7 & 8 IPOC).

(ii) The commencement

of the state of the Emergency was October 1952. Therefore this gives the date of the forcible removal from Gikonda as towards the end of 1953.

(iii) The amendment sought to paragraph 13 deals with the date of detention at

As to prejudice:

1) D has not had the opportunity to XX TC 20 in respect of these revised dates. If the amendment were allowed, D would need the opportunity for further XX of TC 20.

2) Additional searches within the documents would anyway be necessary if the amendment were allowed in order to draft defences. The original searches are of limited usefulness. Original searches have limited usefulness because related to a single account rather than the relative merits of two rival accounts. D would need to search for documents to support TC 20’s original case and evidence that she moved to Thuita village in 1952/1953.

3) This would delay the already elongated trial

provides them.

2) as before

3) as before

4) as before

5) This is a submission. D can make it in due course.

(iv)

(v)

Thuita village. On the present pleadings this is said, by clear analysis of paragraphs 7 & 8 of the IPOC, to be about the end of 1953. This is in excess of 1 year prior to the proposed amendment of “probably in or after 1955”.

The fact that no specific date is stated on the IPOC does not detract from what the pleading says. Even allowing for latitude because of estimation of dates, late in 1953 cannot mean sometime “in or after 1955”.

The commencement

date of the claim under the schedule of loss is “around 1952”. This gives a date even earlier than that which arises on the basis of the present pleadings.

timetable.

4) To refuse the amendment would not be unfairly prejudicial to TC 20. She had more than ample opportunity to set out her allegations of assault in her original pleadings, Part 18 responses, first and second statements, and before the conclusion of her oral evidence, given on 1 July 2016. The delay in seeking to amend has not been explained. TC 20 can pursue the case previously advanced on the existing pleading / evidence, insofar as it is proper for her to do so.

5) In any event, the documents do not support the allegation that TC20 was placed in a village under a policy of villagisation in or after 1955. [32-29589] dated in February 1955 makes clear that a substantial number of villages had been built in Fort Hall by

1) §13 Defence says D has conducted reasonable research. Presumably that was without reference to date as none is pleaded. It is unclear how a need for a fresh search arises. At §16g, D alleges a Thuita Village existed in 1952. That provided a basis for crossexamination on dates. There was no such crossexamination.

2) D did not put its own case. However, it can still rely on the documents in submissions.

3) Cs see no practical impact and D has not advanced any.

(vi) The Defendant made a Part 18

Request in respect of

“shortly after the

commencement of

the state of

Emergency” in paragraph 7 of the IPOC, to which the Claimant said that she could not remember what day/month/season or year it took place.

(vii) The fact that the Defendant did not cross-examine as to dates does not suggest dates were unimportant to the Defendant. Rather it suggests that they were content with the dates which were apparent on analysis from the above paragraphs.

(viii) The Court accepts the Defendant’s points as to

prejudice numbered 1-3 and repeats points (iv)-(vi) and (viii)-(xi) in respect of TC14.

that date.

Even this were not a change of pleaded date case:

1) The Defendant will still be obliged to undertake fresh searches of documents in order to draft Defences.

2) Allowing the amendment means that D for good reason did not ask what are now necessary questions of TC20 as to the date of the events. D has relied upon the lack of direct evidence as to the date of alleged incidents and the pleaded case.

3) Even if the Claimants were to be debarred from making any such complaint, it would not change the fact that TC20 was advancing a positive case as to the dates of certain events that D has not been able properly to test. The potential practical impact of that upon the Court’s view of the evidence would be unknown but potentially profound.

23

The Claimant was detained at Githanga village for around 2 years. The living and working conditions were similar to those experiences at Thuita village including, for the avoidance of doubt, physical assaults while working.

No.

This is a fresh pleading of assault and not a clarification.

It does not arise out of the same facts or substantially the same facts as a claim in respect of which TC20 has already claimed a remedy in the proceedings. She has made no prior allegation amounting or approximating to assault and battery at Githanga. In any event:

1) D did not have the opportunity to XX TC20 regarding allegations of assault at Githanga, allegations of assault being restricted to her time at Thuita.

2) Without prejudice to D’s general submission that the amendments should be refused because made without instructions, and that statements of truth should not be dispensed with, this is manifestly not a proper pleading to make in the absence of direct instructions (if that is the case here). There are no allegations of assault at Githanga in the witness statements, Part 18 responses or in oral evidence. As such, the Court should not allow the Claimant to make this

Pursued. It arises out of the same facts. The original IPOC pleads that Githanga was similar to Thuita. In her witness statement [16140 §19] the same is said. D had opportunity to ask in Part 18 questions in what ways Thuita and Githanga were similar.

In oral evidence C says she was detained at both and that they were like camps and if you sneaked out to get food you were beaten [33-1975-6]. She was later asked why she went to her brother in Gitambaya and she replied “I was seeking greener pastures because at Githanga it was becoming chaotic, all the beatings …” [33-1984]. As that was said in answer to a question in cross-examination, D cannot object and it is inaccurate to say C made no allegation prior to amendment.

1) D had every opportunity but did not cross-examine in fact.

No prejudice.

2) This is simply incorrect. In cross-examination C said, “we used to sneak out and once you are caught they would come and punish you”. In re-examination she

Allowed.

(i) In relation to Thuita village, TC20 set out working conditions in paragraphs 16-18 including generally in paragraph 16 and more specifically in paragraph 18 the fact that whilst she was working she was subjected to repeated physical assault.

(ii) In paragraph 23, in relation to Githanga village, reference is made to working conditions being similar to those experienced at Thuita village. The question is whether this is sufficient pleading that assaults took place at Githanga as at Thuita.

(iii) In the context of those paragraphs and of the pleading as a whole (see for example paragraph 42 of the IPOC where reference is made to “The Claimant was physically assaulted on

new allegation without the benefit of a properly signed statement of truth, affirming that TC20 (not just her lawyers) believes the new allegation to be true.

3) To refuse the amendment would not be unfairly prejudicial to TC20. She had more than ample opportunity to set out his allegations in his original pleadings, Part 18 responses, witness evidence, and before the conclusion of his oral evidence, given on 14 July 2016. The delay in seeking to amend has not been explained. TC20 can pursue the case previously advanced on the existing pleading / evidence, insofar as it is proper for her to do so.

confirmed that she mentioned being beaten at Githanga to the doctors: [Professor Mezey: 16-197 §49] [33-1993].

3) as before

numerous occasions during forced labour”) “working conditions” could possibly be taken to include the physical beatings. However, it is

points (iv)-(vi) below which really permit the amendment.

(iv) Also this was specifically stated at paragraph 49 of Professor Mezey’s report where she states “Mrs

Waithaka said that there were frequent beatings at Githanga, as at Thuita. She was beaten on several occasions;

(v) There is no problem in this instance in relation to the statement of

truth since the Claimant specifically said in cross-examination:

“While in this camp (i.e. Githanga), it was a camp just like Thuita…we used to sneak out and once you are caught they would come and punish you because you are

supposed to work…”

(33-1975/6).

See also at 33-1984 where she said “I was running away from the chaos that were happening at Githanga, the beatings.” See also 33-1985.

(vi) I do not accept there is any prejudice arising out of this amendment. The Defendant did ask questions which elicited responses that she had been assaulted at

Githanga and could have explored them

at that stage. It is also very questionable as to whether the Claimant could say any more of assistance.

44

The Claimant relies upon paragraphs 45 to 46C (d) and 46A, 46B and 46D of the Rereamended Generic Claim…

D has confirmed that there is no objection.

Allowed as agreed.

Schedule 3

“…between around 1952 1954 through to the end of the State of Emergency [1960], an approximate period of 8 6 years…”

No.

See objection above to paragraph 13 amendment.

Amendment follows if §13 permitted.

Refused as paragraph 13 has been refused.

13

The Claimant was detained at Gitura Village from 1953 no earlier than June 1954 to 1960.

No. Not agreed for the reasons given in relation to paragraph 11, above.

As above

Refused as above.

Schedule 3

…the Claimant claims

No – see objection to paragraph 11

As above

remuneration for the periodic work he was forced to undertake

between around 1953 1954

above.

Refused as above.

Test

Claimant

Paragraph amended

Amendment

Agreed?

Cs’ Response

Judge

23 –

Wagicuhugu

Njuki

General objection

All

No.

The amendments as a whole render TC23’s claim hopeless. They amount to a substantial reordering and redating of events, including some new place-names, and new allegations. These amendments are:

(a) Substantially different from what was originally pleaded;

(b) Only in part based upon TC23’s evidence;

(c) It is presumed (in common with other amendments) made without instructions from TC23 (if that is the case here);

(d) Are an attempt by

TC23’s lawyers to ‘piece together’ a case based in part upon her evidence

and in part supposition as to what her evidence should have been.

Taken together, the amendments should not be

`

5) Each

amendment will be dealt with separately on its merits.

6) Nevertheless

all the amendments are

refused. The Claimant’s lawyers have done their very best to make a coherent whole out of TC23’s evidence.

Nevertheless the proposed amendments change her presently pleaded case in terms of time, 2 periods (not one) of detention in Kianyaga, pleading Kiamwathi (Gatutu) as a place of detention, pleading Kiberi as a place of detention and pleading Kiamwathi as a punitive village when TC23’s evidence was that the sharpened sticks etc were at Kiberi.

7) TC23’s

evidence on oath was not crystal clear and it would in this case in particular be difficult

permitted.

1) They substantially change the timings of the events alleged, contrary to TC23’s sworn oral and written evidence, which itself conflicts in large part.

2) The timings are of critical importance to limitation, to the role/relevance of TC23’s account, and to its testing.

3) It also adds significantly to the circumstances/conte xt of TC23’s alleged ‘detention’ at various locations.

4) Time cannot equitably be extended under s.33 Limitation Act 1980 in circumstances where TC16

effectively asserts, a year following her oral evidence and months following the close of Cs’ case, that, with the help of a professional legal team throughout, she could not accurately present

8)

to dispense with the statement of truth in these circumstances i.e. where the amendments are based on the lawyers’ interpretation of her evidence.

As to

prejudice

• The Claimants say the amendments do

not affect the cause of action.

• I accept the

Defendant’s points pleaded on this schedule.

• Cross-examination would be materially

different if the Defendant was seeking to challenge this new case.

• There was no crossexamination on the unpleaded allegation of punitive village.

• Document searches would have to be redone in respect of new locations and timings.

This would be too

critical aspects of his case in her original pleadings, Pt18 responses, witness statement or oral evidence. She now invites the court to accept a contradictory case, and D must respond.

As to prejudice:

1) If the amendment were allowed, D would need the opportunity for further XX of TC 23 informed by further documentary research. XX was governed by the case she put in pleading and written evidence, a case that changed markedly in oral evidence. TC23 now attempts to piece the evidence together to fit a new case that D has not had the proper opportunity to test.

2) Additional searches within the documents

would anyway be necessary if the

amendment were allowed. Original searches have limited usefulness because related to a single account rather than the relative merits of two



disproportionate and disruptive to the timetable. The overriding objective is clearly in favour of disallowing these amendments.

rival accounts.

3) Those matters would

greatly delay the already elongated trial timetable.

4) To refuse the amendment would not be unfairly prejudicial to TC23. She had more than ample opportunity to clarify the date of her removal in her original pleadings, Part 18 responses, witness statement and supplemental statement. The delay in seeking to amend has not been explained. TC23 can pursue the case previously advanced on the existing pleading / evidence, insofar as it is proper for her to do so.

Without prejudice to this general contention, D attempts to respond to the individual amendments below.

7 e.

a.

Fifth oath: at home in Kiamwathi, Gatuu; after which she moved to a place of detention near to Kiamwathi, which she describes in her evidence

No, in part.

This is a substantive change of location, from a Chief’s camp to a punitive village.

1) D has not had the opportunity to XX

As above.

The amendment follows the evidence; seeks to assist by clarification.

Permissible submission. 1) The amendment

As above.

as being a camp in Kibeeri; this was when the houses in her homestead were burnt [33-2177]; when she arrived there, she had to build somewhere to live as it was unfinished, this probably reflects the development of a punitive village at Kiamwathi associated with a nearby detention camp; The documentations supports the development of a punitive village in

Kiamwathi by November 1944 [31-40586 and 3239404].

2)

3)

TC 23 in respect of this revised

allegation. If the

amendment were allowed, D would

need the opportunity for further XX of TC 23.

Additional searches within the documents would anyway be necessary if the amendment were allowed in order to draft defences. The original searches are of limited usefulness. Original searches have limited usefulness because related to a single account rather than the relative merits of two rival accounts. D may wish to search for documents to support TC 23’s original case and evidence that she was detained at a Chief’s post.

This would delay the already elongated trial

derives from the evidence and the references have been given.

2) See above. D has done the searches required. That is confirmed in the Defence and the evidence. If D is to attempt to disavow its own evidence and pleadings it should provide evidence from someone with overall

control of the case. It is noteworthy that only relatively junior people had given evidence of how searches are carried out.

3) as before

4) as before

timetable.

4)

To refuse the amendment would not be unfairly prejudicial to TC 23. She had more than ample opportunity to set out her allegations of assault in her original pleadings, Part 18 responses, first and second statements, and before the conclusion of her oral evidence, given on 27 June 2016. The delay in seeking to amend has not been explained. TC 23 can pursue the case previously advanced on the existing pleading / evidence, insofar as it is proper for her to do so.

7 h-i

b.

It was while she was in detention, probably in a

punitive village in or around Kiamwathi that she was involved with an incident with a home guard, which lead to her being taken to court [32-

No.

See objections to amendment to paragraph … below.

As above and see below.

As above.

2177/33-2178]; from where she was taken to Gathigiriri and sentenced to 3 years detention for cooking food for the Mau Mau [33-2177]; having spent 14 days in detention at Kianyaga

[33-2204];

c.

On another occasion (separate and probably previous to the occasion when she was in Kianyaga prior to being sent to Gathigiriri) she had spent 9 months in detention in Kianyaga for taking food to the Mau Mau; she had been allocated a hut when in detention in Kianyaga

[33-2206];

7

d.

In view of the evidence that it was one year between the 5^th and 6^th oath, it is more likely that she was in conditions of detention for one year, rather than one week at Kibeeri [33-2177], before the incident that lead to her being sentenced to detention at Gathigiriri; it is probable that she was in a punitive village at Kiamwathi and taken to court in Kianyaga when accused of Mau Mau

No.

This amendments alters the timings of events not only from the original pleading, but also from her evidence. It amounts to the lawyers attempting to ‘piece together’ a case without taking any instructions from the client (if that is the case here).

1) Without prejudice to D’s general submission that the amendments should be refused because

As above. C has provided information so as to assist. The issue of instructions is a red herring because this is essentially a (valid) submission on the evidence; amendment is to assist by way of clarification.

1) It is unhelpful for D to approach matters in this way. Cs aver that D could not reasonably object to this submission

As above.

e.

f.

g.

h.

i.

j.

related activity;

The incident that lead to her detention in Gathigiriri is probably the incident where she was attempted to help a Home Guard and the Mau Mau attacked and hanged him [33-2188 - 2189]’

She is likely to have been in Gathigiriri after April 1955 as that is when the camp opened. She was 6 months in Gathigiriri and was then camp up in front of another committee which led to her release [332203]

She was detained a total of 5 years, during which she sent work, the

hardest work amounting to about 2 years in total [33-2212/33-2213]; The very bad punishment happened at Kiamwathi [33-2212] and there was a curfew at Kiamwathi [33-2211]

It is probable that the

Claimant was returned to conditions of restriction and detention when released from Gathigiriri until the end of the Emergency.

2)

made without instructions, and that statements of truth should not be dispensed with, this is manifestly not a proper pleading to make in the absence of direct instructions (if that is the case here). Timings are of critical importance to the litigation. As such, the Court should not allow the Claimant to amend timings contrary to the existing pleadings and evidence without the benefit of a properly signed statement of truth, affirming that TC23 (not just her lawyers) believes the new allegation to be true. To refuse the amendment would not be unfairly prejudicial to TC23. She had more than ample opportunity to set out his allegations in his original pleadings, Part 18 responses, witness evidence, and before the conclusion of his oral evidence, given on 14 July 2016. The delay in seeking to

being made because it is supported by the evidence, D’s own pleading and the documents. That does not mean the court has to accept it or that D cannot make a rival submission. However, if D is correct it would be able to prevent the submission. If not, the objection is merely semantics. If D is really saying that it could object to a submission (never previously argued) then C would be grateful for one of D’s (now famous) Speaking Notes setting out the basis of the submission and the authorities relied on.

2) as before.