Kimathi & Ors v The Foreign And Commonwealth Office

Having someone to support TC34 during questioning, preparing him in advance as to what to expect in the line of questions he would be asked, and taking the questions slowly and sensitively about experiences of trauma.

Providing TC34 with regular breaks.

It being helpful but not essential to have an intermediary. She said TC34 should be asked for his preference. An intermediary could merely be his son, or a family member, to support him and make him feel more secure when giving evidence.

That the witnesses should be given breaks during their evidence.

That both translator and witness should be visible at all times during the video link.

That the witness would be allowed a companion in the room whilst he or she gave evidence.

That wigs and gowns would not be worn.

It was agreed that intermediaries would not be used, it being impossible to find a suitable intermediary.

Gestmin SGPS SA v Credit Suisse (UK) Limited (Footnote: ⁴²) - Leggatt J (as he then was)

Lachaux v Lachaux (Footnote: ⁴³) - Mostyn J

Carmarthenshire County Council v Y (Footnote: ⁴⁴) - Mostyn J

Gestmin:

Lachaux:

Carmarthenshire County Council:

In AB he refused to allow the action to proceed. One of the factors was clear evidential prejudice to the Defendant due to the passage of time, the most significant prejudice being the inability to call specific witnesses at trial.

In CD he allowed the action to proceed on the basis that the effect of the delay on the cogency of the evidence was not significant, given the fairly narrow enquiry to establish whether the abuse took place, and the benefit of expert evidence and voluminous documentation to assist on the effects of the abuse. Most of the witnesses relevant to the allegations were still alive and able to give evidence for the Defendant.

In EF the judge refused to allow the action to proceed. Amongst other things there were concerns about the cogency of the evidence in terms of the Claimant’s vagueness on details, and the fact that two of the three alleged perpetrators who had given evidence had no memory of the Claimant. There was little or no contemporaneous documentation and the experts agreed that the paucity of documentation made their assessment of causation very difficult, if not verging on impossible.

In GH the judge allowed the action to proceed, albeit that the Claimant was “not a convincing witness” [65]. The main alleged perpetrator was available to give evidence. He denied sexual abuse and the judge said “it can be said that his evidence would have been no clearer 24 years ago than it is now. It is not something that he is likely to have forgotten.” There are explanations as regards three other potential witnesses for the Defendant. The judge said that the documentation in GH was “both extensive and illuminating” and that “what little documentation was unavailable had very little, if any, impact on the fairness of the trial.” (Footnote: ⁴⁹)

The three principles referred to in Bingham J’s article (Footnote: ⁵⁰).

“With every day that passes memory becomes fainter and the imagination becomes more active” (Footnote: ⁵¹).

Memories are fluid and malleable, being constantly rewritten. This is true even of memories of experiencing a particularly shocking or traumatic event.

Nevertheless, in my judgment, memories of a state of affairs, perhaps particularly very unpleasant ones, which take place and persist over a lengthy period of time are less likely to be erroneous as to their central facts, though many details will fade over the years.

The court must be aware of the biases introduced by the process of civil litigation as outlined in Gestmin.

Oral evidence given under cross-examination is the gold standard and a vital component of due process. The correct context is that the value of oral evidence lies largely in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny, and to gauge the personality and motives of a witness, rather than in testimony of what a witness recalls of particular events.

As the Claimants state (Footnote: ⁵²), the Claimants could not look at the documents. They were unable to read them, had no context against which to assess their contents, and lacked the ability to bring themselves to a point where they could sensibly comment. Their vulnerability left them (as both parties agree) able to rely only on recollection (and, occasionally, a map they had marked with the assistance of their legal representative) whilst giving evidence. The Claimants suggest that this means that they were disadvantaged as opposed to the Defendant. There is some force in this, but there is also force in the fact that they could not be cross-examined on documents. To what extent that would have been relevant in any event, given the lack of documents which pertained specifically to them, is difficult to assess. Further, the Claimants say that when the TCs’ recollections do correspond with the documentation, that provides a high degree of confidence that the evidence is reliable and accurate. This will need to be considered on a case by case basis.

I have been referred to an abundance of documents in this case and will need to consider to what extent these documents assist in testing/corroborating oral evidence (Footnote: ⁵³). A matter of some importance is that, unlike in many cases, there is nobody to comment on or put into context what documents there are.

There are no contemporaneous documents which refer to any incident of assault or battery alleged by a Test Claimant and, in particular, no medical or other records. There is no Defendant witness who is an alleged perpetrator of any tort on any TC. In TC34’s case there is no witness from either side, who can give direct evidence of any of the core allegations or of anything at all about him. The lack of documentation relevant to a particular Test Claimant means that the ability to test or respond to the Claimant’s oral evidence against any contemporaneous documents, coupled with the fact that the Defendant was not in a position to put a positive case to any Test Claimant, means that the potency of that evidence is reduced. The Defendant did call some witnesses, but it was very rare for a witness to have been the author of a document such that the document could properly be put into context by that witness.

The Claimants say it would be astonishing if there were corroborative witnesses to the particular assaults alleged. Further, the beatings alleged by TC34 (apart from possibly at Hola) would, on his account, have been witnessed by hardly anybody else. The Claimants postulate an extreme case: even if TC34 had been beaten every day at Manyani, that would amount to no more than 300 beatings; if each beating had been witnessed by 20 different people, only 6000 people would have ever witnessed TC34 being beaten there; if all were alive, the odds would be heavily stacked against finding a corroborative witness to a beating. I accept that it is likely to be difficult to trace any such person, even if still alive. Whatever the chances, however, (a) no evidence was given by the Claimants of any attempts to trace such witnesses; (b) if TC34 had been able to call substantial credible evidence which directly corroborated his account of the core allegations, that would have been a factor in his favour in the determination of whether there can still be a fair trial, and, consequentially, whether it is equitable to allow his claims to proceed; (Footnote: ⁵⁴) (c) the lack of witnesses is the position now; that is not to say there were not witnesses who could have been available much nearer the time.

It is difficult to say whether there is any merit in the Defendant’s argument that there is nothing from any family member, friend or associate who corroborates at least part of the case, e.g. as to TC34’s removal to a camp, presence in a camp or the happening of some of the core allegations (Footnote: ⁵⁵) or injuries. I do not know whether any such witnesses still exist or could be found. I have no evidence of any attempts made by the Claimants to trace any of them. Whether or not they could now have been found and called as witnesses, the position in relation to at least some core allegations, e.g. those at Ngong Forest and Gikuni, is that they were said by TC34 to have been witnessed by people not engaged by the Administration. In the absence of any direct evidence, the chances of those witnesses being available to give evidence must have diminished over time. (Footnote: ⁵⁶) It may also be that, had this trial taken place much nearer the time when TC34 says he suffered the assaults, he could have identified and obtained evidence from (for example) other detainees who witnessed those assaults in Manyani, MacKinnon Road and Hola. We shall never know. What we do know is that there is, for whatever reason, no evidence now that corroborates TC34’s account of any of the core allegations.

In the course of dealing with some matters later in this judgment, I shall refer to the evidence of some witnesses whom the Claimants submit are corroborative. Apart from questions of whether they can materially corroborate TC34’s account, they are all Claimants in this litigation, a factor which may be of some relevance. On the other hand, they do not, apparently, know each other and there is nothing to suggest that their evidence was cross-contaminated or tainted in any other way.

Burnett LJ (as he then was):

“It is not realistic to shut one's eyes to findings and conclusions reached following a full trial. It is what is done with them in the context of the substance of the reasons for the limitation decision that matters….”

“It is simply unreal to fail to appreciate adverse findings and conclusions reached at the end of a trial where limitation is in issue i.e. where it has not been dealt with as a preliminary issue. The correct approach is to adopt an overall assessment of the evidence and the effect of the delay on the same.”

That the legal burden under section 33 rests throughout upon the Claimant.

That I must approach section 33 as guided by the Court of Appeal in B and subsequent authority.

That the issue is whether “It would be equitable to allow the action to proceed.” That is the language of section 33(1). As Burnett LJ said in Bowen:

The language of section 33(1) is clearly discretionary (may direct etc.) but the question for the court is whether it would be equitable to allow the action to proceed. The Court may allow the whole or part of the claim to proceed. But it cannot be doubted that if a judge concluded that it would be equitable to allow the claim, or part of the claim, to proceed having regard to the relative prejudice to the parties, he should do so. The breadth of the discretion comes from the untrammelled evaluation of relevant factors that a judge may take into account, and the weight he gives to each. The factors identified in section 33(3) are all relevant but the decision on whether it is equitable to proceed will be based upon a broad consideration of all the circumstances.”

The central question is therefore whether it would be “equitable to allow an action to proceed”, having regard to prejudice to the Claimant and prejudice to the Defendant. Whether a fair trial can still take place is a very important question. So in McDonnell v Walker (Footnote: ⁶⁵), Waller LJ said

“In Cain v Francis the Court of Appeal allowed the appeal and disapplied the limitation period under s.33 but it is important to stress that the court was not simply applying some rather broad test as to whether a fair trial was still possible. The fact that the defendant could not show any forensic prejudice and that the limitation defence would have been a complete windfall was the key feature”

If a fair trial cannot take place it is very unlikely to be “equitable” for the Defendant to meet the claim. But if a fair trial can take place that is not the end of the matter. The possibility of a fair trial is a necessary but not sufficient condition for the disapplication of the limitation period. In RE v GE (Footnote: ⁶⁶) McCombe LJ said:

57.

Ms Gumbel argues that…..the judge went wrong in failing to put at the centre of his consideration the question whether a fair trial of the claim was possible and in asking whether it was fair for a trial to take place…... 

58.

Having had the benefit of argument on the point, I do not consider that this first ground of appeal is a good one. The question for the court under section 33 is whether it "would be equitable to allow the action to proceed", notwithstanding the expiry of the primary limitation period. That question is to be answered by having regard to all the circumstances of the case, including in particular the factors identified in section 33(3). 

59.

Whether it is "equitable" to allow an action to proceed is no different a question… from asking whether it is fair in all the circumstances for the trial to take place …. That question can only be answered by reference (as the section says expressly) to "all the circumstances", including the particular factors picked out in the Act. No factor, as it seems to me, can be given a priori importance; all are potentially important. However, the importance of each of those statutory factors and the importance of other factors (specific to the case) outside the ones spelled out in section 33(3) will vary in intensity from case to case. One of the factors will usually be the one identified by the judge in paragraph 29, by reference to the judgment of Bingham MR in Dobbie v Medway HA [1994] 1 WLR 1234, 1238D-E, namely that statutory limitation rules are 

"…no doubt designed in part to encourage potential claimants to prosecute their claims with reasonable expedition…but they are also based on the belief that a time comes when, for better or worse, a defendant should be effectively relieved from the risk of having to resist stale claims". 

Nor must it be forgotten that one relevant factor is surely the very existence of the limitation period which Parliament has decided is usually appropriate.”

Lewison LJ agreed with McCombe LJ and said:

“75.

……Organisations maintain document destruction policies fashioned according to limitation periods….

78.

Whether a fair trial can still take place is undoubtedly a very important question. However, it seems to me that if a fair trial cannot take place it is very unlikely to be "equitable" to expect the defendant to have to meet the claim. But if a fair trial can take place, that is by no means the end of the matter. In other words, I would regard the possibility of a fair trial as being a necessary but not a sufficient condition for the disapplication of the limitation period. Nor is it the case that in Cain v Francis …the court applied a broad brush test as to whether a fair trial was still possible. That was expressly disavowed by the Court of Appeal in McDonnell v Walker ….at [21]”

The basic question is whether it is fair and just in all circumstances to expect the Defendant to meet the claim on the merits notwithstanding the delay in commencement (Footnote: ⁶⁷).

Prejudice to the Defendant involves asking whether the Defendant has been disadvantaged in the investigation of the claim and/or the assembly of the evidence in respect of issues of both liability and quantum (Footnote: ⁶⁸).

Baroness Hale of Richmond

…A fair trial can be possible long after the event and sometimes the law has no choice. It is even possible to have a fair trial of criminal charges of historic sex abuse. Much will depend upon the circumstances of the particular case.”

…through the combined effects of Lister v Hesley Hall Ltd and departing from Stubbings v Webb, a substantially greater number of allegations (not all of which will be true) are now likely to be made many years after the abuse complained of. Whether or not it will be possible for defendants to investigate these sufficiently for there to be a reasonable prospect of a fair trial will depend upon a number of factors, not least when the complaint was first made and with what effect. If a complaint has been made and recorded, and more obviously still if the accused has been convicted of the abuse complained of, that would be one thing; if, however, a complaint comes out of the blue with no apparent support for it… that would be quite another thing. By no means everyone who brings a late claim for damages for sexual abuse, however genuine his complaint may in fact be, can reasonably expect the court to exercise the section 33 discretion in his favour. On the contrary, a fair trial (which must surely include a fair opportunity for the defendant to investigate the allegations – see section 33(3)(b)) is in many cases likely to be found quite simply impossible after a long delay.” (Footnote: ⁷⁰)

They say that the case involves consideration of conduct that breaches Articles 3, 4, 5 and 8 ECHR, and that to the extent that the UK Government may be responsible for widespread and deliberate breaches of voluntarily assumed international obligations to its own citizens, it is repugnant to public justice that it should seek to prevent a trial. In this regard they rely also upon Article 73 of the UN Charter and the UN Convention against torture, as well as the Forced Labour convention. The submission is that this is more than the resolution of a private dispute, and that any argument that the Claimants have only a limited time to ask the Courts to enforce their international rights is diminished by this analysis.

They say this is group litigation which the Claimants have brought to trial within five years of the first contact between clients and solicitors. Therefore they say that the speed of litigation has been truly remarkable. They accept this does not affect the cogency of the evidence. They submit it affects whether there ought to be a trial in the sense that the Claimants have unquestionably both exerted themselves and succeeded in moving an enormous legal action through its preparatory stages, and to substantive trial, in an impressive period of time.

AB v Catholic Child Welfare Society (Footnote: ⁸²) where the Judge said at [46]:

“Whilst I recognise and appreciate that it is typical for a victim of child sexual abuse to want to both repress the memory and avoid disclosure of the abuse, the justification for non-disclosure is not self-proving and requires some assessment of the individual alleged victim.” (Footnote: ⁸³)

The claimants had little education, no significant knowledge or understanding of English and no experience, prior to that claim, of legal or other professional advice. They had minimal financial means. The possibility of a claim being brought was only brought to their attention by the Kenya Human Rights Commission (KHRC) in 2006 and 2008.

Historical scholarship in 2005 “played a significant part in the decision of the KHRC to search out the Claimants and others in similar positions and to investigate the possibility of claims being brought by them”.

“A further important feature, and acknowledged by each of the Claimants who gave oral evidence before me, was that (quite apart from the illegal status of Mau Mau organisations prior to Kenyan Independence) any collective organisational meeting of Mau Mau activists or supporters was proscribed under legalisation of the Independent Kenya until 2002/3. Any acts that could be considered to be “organising or taking part in any activity for on behalf of” a proscribed organisation such as Mau Mau was punishable by up to 14 years imprisonment, a substantial fine or both. Each witness acknowledged that it was not practicably possible in that atmosphere for them to discuss with others what had happened to them while in detention or what remedies they might have.”

“On the other side of the argument, quite apart from any formal proscription of discussing what occurred during the emergency in immediate post-independence Kenya, the claimants point to the seriously humiliating (and partly sexual) torture and other ill-treatment to which each was subjected. They say that this had a psychologically debilitating effect upon their ability to speak openly, or in some cases even privately, about what had happened to them. By way of example, Mrs Mara has still not felt able to discuss these matters with her husband. They are supported in this by expert psychological reports. While this factor does not constitute a “disability” within section 33(3) (d) of the Act, it is submitted (in my judgment correctly) that it is one relevant factor in the overall balancing exercise for the court.”

The Claimants could not have brought an action prior to the issue of these proceedings, which were preceded by a letter notifying the Defendants of the claim dated 10^th October 2012. They say that there is no evidence that these TCs were approached by bodies such as the Kenyan Human Rights Commission, unlike the Claimants in Mutua, and that an inference should be drawn that the TCs were not on the lists of the various Veteran Associations with whom the Defendant settled Mutua.

It is likely therefore that the TCs first heard about the case when the Kenyan Agents of Tandem Law (Footnote: ⁹²) began to make clear that Tandem Law were prepared to take these claims on a CFA. Most Cs (and most TCs) did not conclude a retainer until post April 2013. That can sensibly be adopted as the date upon which they were aware that it was possible for them to bring a claim.

There is psychiatric evidence in respect of TC34 (see below), but there is no evidence that this was in any way a reason for the delay in bringing proceedings.

There is no evidence of when TC34 first became aware of a possible claim of merit. In any event, specifically in relation to the pleading that TC34 could only be said to have been aware after November 2013, other Claimants issued in March 2013 and the lead Solicitors had been previously engaged in Kenya (probably since 2011). There is no evidence before the Court as to when TC34 first instructed solicitors. Further, at paragraph 51 of the Reply it is said, verified by the Statement of Truth: “this Claimant was told not more than 5 years ago by people at the Chief’s Camp where he lived that he could claim for what happened to him during the Emergency. He had not considered making a claim before. He signed some forms which were taken away. Then about 2 years ago he was told to go to the Offices of Miller & Company in Nairobi where he signed some more forms and was told he could make a claim.” The Reply is dated 18 March 2016. This paragraph sits ill with paragraph 53(b).

There is no direct evidence of this.

I accept that TC34 is unsophisticated and comes from a rural area. There is no evidence as to his means.

There is no evidence as to the date from which he had, or could be expected to have had, this belief. See (b) above.

I have already dealt with this.

I have already dealt with this also.

Witness availability and quality of evidence

The vast majority of relevant documents ever held by the FCO have now been transferred to the National Archive (TNA) pursuant to the Public Records Act 1958.

The Defendant has not conducted a review akin to disclosure for the purposes of the present litigation and has not re-reviewed the majority of the files reviewed during the Mutua litigation. Therefore, there will be documents relevant to the litigation in the National Archive and Kenya National Archive (KNA) which have not been obtained by the Defendant. All such documents are publicly available and could have been obtained by the Claimants. However, the Defendant believes that given the methods and wide-ranging nature of its research, alongside the fact that documents are publicly available, it is unlikely that any substantial quantity of documents of significance has been missed. Where contemporaneous documents are unavailable regarding an issue, it is likely that they were never produced or have subsequently been destroyed.

The FCO’s current document management practice is for an initial weeding of documents to be carried out by the relevant department after three years. Any documents which are deemed to have corporate or historical value are then transferred to the main archive at Hanslope Park. Around two years before documents are due to be transferred to TNA under the statutory regime (the Public Records Act), the Defendant will commence the process of selecting files for transfer. The number of years in which this transfer must take place has changed over time, but since 1968 until recently it has been 30 years.

The proportion of documents selected for permanent preservation will vary according to the nature and the purpose of the documents. Documents not selected for permanent preservation are usually destroyed, although they may occasionally be transferred out of the public records system and held in institutions such as academic libraries.

It is reasonable to think that the Colonial Office’s historic approach to document retention and destruction would have been similar to the Defendant’s current approach.

Therefore, if the claims had been brought promptly, say within three years of the events complained of, the Defendant would have had access to Colonial Office documents which were weeded out at department level before being sent for archiving. The precise length of time would depend on matters such as whether the file was still in use, either for filing further material or for reference. It would have been within this initial period when the Defendant would have had the best opportunity to defend the allegations. There would have potentially been significantly more Colonial Office documents available, and the Defendant would also have been able to speak to those individuals responsible for the documents to put their content into context.

Had the claims been filed soon after the initial weeding exercise was completed, the Defendant would have potentially been able to speak to those handling the records, both in the Colonial Office and in Kenya, to establish what had been destroyed. Had the Defendant had the opportunity, following notification of the claims, to speak to the people who had dealt with the documents on a daily basis and who had carried out the weeding exercise, it would have been able to present evidence in that regard to the court.

The delay of over fifty years in bringing claims means that not only were some records destroyed or relocated in the initial weeding exercise, but the Defendant will also have carried out the Public Records Act review for many of the relevant documents. At that stage, documents not selected for preservation would have either been destroyed or sent elsewhere e.g. to academic libraries. Mr. Deane says he cannot say how much documentation has become unavailable to the Defendant.

The lack of available documents, coupled with the difficulty in knowing what there once was, or indeed may still exist outside the FCO’s possession, but be undiscovered, severely prejudices the Defendant’s ability adequately to defend the claim.

Had the claims been brought within the limitation period, the Defendant would probably have been able to obtain access to full unweeded files held by the Colonial Office (and War Office), including those sent back to the UK in the period preceding independence, and to records in Kenya which did not come back to the UK and are not, or have not been found, in the KNA. This may well have been the case, for the most part, even had the claims been brought within 3 years of independence, having regard to the fact that TC34’s case is that he was detained until then.

As to documents left in Kenya, it can be properly presumed that it would have been much easier to trace them in the early to mid 1960s, than after 2013. Everything would have been fresher in people’s minds. Many more people with knowledge of the documents would have been contactable, including a number who stayed on in Kenya, some of whom worked for the new government. It cannot be known with any precision what the records would have contained, save that the Watch policy (Footnote: ¹²¹) required that as much material as possible should be left for the functioning of the succeeding independent government and for the proper recording of the past. These were described as “legacy” documents. Documents which did not fulfil either of those functions could be destroyed. Those which had importance or antiquity, and which fell foul of the criteria inhibiting some documents being passed to the successive government, were to be retained. I deal later in this judgment with the problem of now knowing what was destroyed, retained or passed on to the successor government.

In respect of documentation in the UK, apart from the Hanslope archive documents, Mr. Deane referred to Colonial Office practice by reference to the present FCO policy. He said he thought that, at the initial weeding out, Colonial Office files would have left anything of material substance. The initial weeding would typically take place within three years of the file being closed. The exact practice would vary, but that would be the guideline. It would be highly unusual for it to be less than three years; it would be three years or perhaps somewhat more, depending on the backlog in the registry, the number of staff available etc. Therefore, it seems that the probabilities are that anything in the UK in the early 1960s would not have been weeded until the mid 1960s at the earliest. However, even if the claims had been filed soon after the initial weeding exercise was completed, the Defendant would potentially have been able to speak to those handling the records in the Colonial Office and in Kenya to establish what had been destroyed. Mr Deane said that the registry clerks who did that job would have been able to say what sort of thing had gone. So, had the claims been brought within the limitation period, or within 3 years of independence, again the probability is that documents which were initially weeded would have been available. Even if not all still available, the Defendant may well have been able to find out from the registry clerks what had been weeded and so what was missing. This would have presented a much clearer picture. This picture will undoubtedly have progressively become less clear as the years progressed, people have moved on and memories, particularly collective memory, have been lost.

At the thirty-year review in the UK, Mr. Deane agreed that papers would only be offered to academic institutions if they were not selected for preservation at the TNA (Footnote: ¹²²). When asked whether what would remain after this process, is that which would be required to get a proper sense of what was happening during the period, he responded: “I think in broad terms that would be correct. Obviously some details would not be there, but the broad policy directions I would hope have been preserved. That’s certainly the intention of the exercise.”

He said that, at the initial weeding, essentially ephemeral material would be weeded out and we could “remove quite a bit of the content of the file” and, at the second review, “anything of particular importance in the formulation of British government policy….. submissions to Ministers on policy issues of the day, that sort of thing” would be retained. The pool of documents available to the Defendant would therefore have been reduced again, and Mr Deane could not say how much documentation has thus become unavailable to the Defendant. Although the Defendant would not know what was removed at the initial weeding, typically the thirty-year review would not reduce the contents of a file very significantly.

It goes without saying that no part of Mr Deane’s evidence was that any criterion for keeping documents would be because they might be relevant to future litigation.

Mr. Deane did not know to what extent the Hanslope archive was weeded prior to arrival in the UK, though there has been no subsequent weeding of that archive in the UK.

In referring to the FCO’s own holdings (held at Hanslope Park, and among which the ‘Hanslope archive’ of documents sent to the UK from Kenya was discovered), on review of the files there, Mr Deane said he was satisfied that a significant cache of documents had not been missed, in the sense that the Defendant had a detailed inventory of all file holdings. By looking at the high-level file plan, one can see broadly what the documents cover. It is potentially the case that there are documents in there which have not been reviewed and which may be relevant, but all of the documents in the FCO’s possession are covered by the high-level file plan with a high degree of confidence.

Documents which did not fall foul of the Watch criteria should have been passed to the successor government on independence. As far as one can tell, this appears to have happened, at least to a substantial extent, as there are numerous documents in the KNA. Also, the Watch Policy emphasised that as much material as possible should be left for the functioning of the succeeding independent government and for the proper recording of the past. It is not known what may have been subsequently destroyed or what has been lost by the passage of time. Mr. Walton’s witness statement, paragraph 29, based on information from Junior Counsel attending the KNA, said “it appears likely that not all Kenyan Colonial Government files were preserved.” The KNA retains documents, but these are not easily searched as they are not computerised.

Documents which did fall foul of the Watch criteria, but which were not thought to be of historical significance, were to have been destroyed in Kenya pursuant to the Watch policy. There is, however, no comprehensive list of destroyed documents.

As appears in the section 32 judgment at [94]:

“[the Claimants] accepted that they cannot prove what has been destroyed, save by inference in relation to 2/3 classes of documents. These were the Prison Standing Order 1957 documents; also personal detainee files containing a dossier for each detainee and records of interrogation which may/may not have been kept in the personal detainee files”.

This acceptance is important as it quite properly exemplifies the difficulty in knowing to what extent the Policy was fully implemented. It is also the case that the Policy would have left significant leeway to individual interpretation and discretion. As to the 2/3 classes of documents which the Claimants said they could prove were destroyed, I did not accept this submission. My findings are at [96]-[98] of that Judgment. (Footnote: ¹²⁴) This means that these documents, among many others which have not been available to the Court, may still exist or may have been lost or destroyed in Kenya over the years.

I dealt first with the Prison Standing Order documents:

“96.

The Defendant points out that the duty to keep those documents was on the officer in charge of a prison. Detention camps were at different times and places under varying types of control. Importantly, there was no requirement to keep the documents centrally, whether in the KNA or elsewhere. There is no direct evidence that any such record was destroyed at all. Nor is it safe to infer that they were destroyed or, if so, by the Colonial Government or the Defendant. Some may still exist for the reasons already given. Some may have been destroyed, or lost, not by the Colonial Government or the Defendant. There was no statutory duty on the new Kenyan government to keep them. It may even be that the individual establishments did not in fact keep such records. 

97.

In my judgment there are various possibilities other than that these documents were deliberately destroyed by the Colonial Government or the Defendant. I cannot find on the balance of probabilities that they were so destroyed….”

As to the detainee records/records of interrogation, I said:

“98.

For similar reasons I do not feel able to draw any inference that, on balance of probabilities, the other classes of documents, i.e. the detainee records/records of interrogation were deliberately destroyed by the Colonial Government/Defendant. If they were sent to the central registry in Nairobi, and do not still exist, were they destroyed? Just as there is no evidence of destruction taking place at camps, so also there is no evidence of destruction at the central registry.”

Any documents which could not be left for the successor government but which had any political importance or antiquity were not to be destroyed. Many documents were clearly sent back to the UK. There are notes in May 1963 (Footnote: ¹²⁵) which appear to be in a London document. They suggest that Kenya was/would be sending back more than just documents of historical interest. There is this handwritten endorsement: “Kenya are unlikely to have the time to ponder too long over the historical potential of the papers being reviewed by them. It is better for too much, rather than too little, to be sent home – the wholesale destruction, as in Malaya, should not be repeated.” This endorsement gives a snapshot of the position in the 1960s compared to now. There would have been witness and documentary evidence available of what had been sent back and what happened to it subsequently; also of what was weeded and when, sometime 3 years after the seemingly large amount of written material arrived in the UK.

A number of documents considered properly to be essentially ephemeral material would have been weeded out of the UK files at the first review stage and again at the second review stage, although the files sent back from Kenya and ultimately deposited at Hanslope were not weeded in the UK.. Precisely what was weeded out is not known. They would not have been weeded by reference to relevance in litigation. The registry clerks would, had the claim been brought within the limitation period, or even later, have been able to assist in explaining and piecing together the documentary material, or, at least in explaining what had been destroyed.

Thirteen boxes of Top Secret files have been irretrievably lost. They have been searched for but it is not known what has happened to them. The probability is that they would have been available had the claim been brought in time, or perhaps thereafter.

Amongst the AH series, class AH/21 includes several dozen files described as “Detention Orders” or “DDOs” or some similar description. From my review of a select number, it appears most contain dozens or even a few hundred copies of Delegated Detention Orders. These appeared to show the name of the detainee, a reference number, and sometimes a short explanation for detention.

Many of the detention orders I reviewed were on a thin paper, not dissimilar to tracing paper, or carbon copy paper (although I cannot recall if this applied to every detention order I reviewed). It did not appear to me that the detention orders were necessarily original signed orders. I would speculate that it is more likely that they are contemporary copies.

I base this inference in part upon my experience with other files where I have seen multiple copies of documents. Sometimes one copy is on proper paper whilst other (identical) copies are on thin paper of a similar nature to the detention orders I describe above. Where there are handwritten markings or a signature on an original document, that writing or signature may not be on the thin paper copy.

I also refer to the annexed document disclosed by the Defendant in these proceedings dated 19 June 1954. The document appears to be an instruction issued by the Secretary for Defence to the Commissioner of Prisons and others in the Colonial Administration concerning the issuance of Detention and Restriction Orders under Emergency Regulations in respect of Mau Mau convicts due for release. Pages 3-4 of this document describes the process by which District Commissioners should follow when preparing Delegated Detention Orders in this context. The process described suggests that the practice was for multiple copies of such Delegated Detention Orders to be kept, several of which were unsigned. I also note that it is specified that the original copy of the Detention Order was to be given to the detained person. It is therefore possible that the detention orders retained by the Kenyan Ministry of Defence on thin paper referred to above were these copies.”

In respect of this:

Of course a court of law would, assuming that the claims were brought in time (or section 33 discretion exercised in TC34’s favour), have had to consider all the available material evidence. That is the court’s function.

The context of other proven, or alleged, abuses would also have been assessed. Such evidence as there now is will be assessed in relation to its materiality to the section 33 discretion, and its probative value in TC34’s case. What must not be lost sight of is the extent to which such other allegations are themselves compromised by the passage of time.

As to the general attitude of the administration, and its stated general aversion to any proper enquiry, this is a generic issue. I have not heard full submissions upon it. In any event, such alleged aversion would have been of little, if any, relevance had an action been commenced in the late 1950s or the 1960s.

The problem which faces the court now, all these years later is, to repeat a well-worn phrase in the litigation: The court “does not know what it does not know.” What would any witnesses have been able to say about TC34? Or about the core allegations? Or about their immediate or other relevant context?

The Prison Standing Orders may have applied to detention camps, since Regulation 18 of the Emergency (Detained Persons) Regulations 1954 applied the Prisons Ordinance and Prison Rules 1949 to detention camps, subject to modification. However, I have received no submission that this was assuredly the case (Footnote: ¹⁴⁵).

Appendix IV is introduced by Chapter 14 paragraph 42 as follows:

“42.

Prison Records will be examined annually by the Officer-in-Charge with a view to the disposal, by destruction, or otherwise, of those no longer required. The period for which such records should be preserved and the method of disposal are shown in Appendix IV”

There is therefore a requirement to examine the records annually, and what appears to be some element of judgment by the Officer-in-Charge in deciding whether to destroy after the minimum preservation period, albeit with the expectation that destruction will then occur.

Assuming that destruction was the norm in prisons after 1 year, there is no evidence, assuming that Appendix IV applied to camps, whether or not it was in fact the norm in those camps. Indeed, the Claimants elsewhere severely criticise records in the camps, saying, for example (Footnote: ¹⁴⁶): “Cs submit that the evidence shows that record keeping was not taken seriously, and the statutory provisions were simply ignored”. There may be some force in this submission. There are some strands of evidence to support it (Footnote: ¹⁴⁷). But if that is so, or may be so, how can the court know, one way or another, whether all or any of the Duty Registers at Manyani, MacKinnon Road or Hola were destroyed within 1 year, or at all, and, if so, when? Had the investigation started in the 1950s or 1960s, apart from the possibility that such records may have been found, there may also have been people who could have told the court whether those records were in fact destroyed, or not, in accordance with Appendix IV. Even if the Duty Register for one of the 3 camps had been located, it may have led to witnesses who put a very different complexion on TC34’s evidence generally.

Finally, two of TC34’s core allegations do not apply to camps. These are those at Ngong and Gikuni. Therefore, Appendix IV cannot be said to be relevant to any staff on duty relevant to those allegations. Even assuming that all Duty Registers in the camps were destroyed within a year, for the reasons given in the last bullet point, namely that evidence in relation to either or both of those may have undermined TC34’s credibility generally, that does not mean that the Defendant may only be prejudiced in relation to those two core allegations.

At [138]-[139] of the section 32 judgment, I referred to the evidence of Mr Philip Green who was Senior Desk Officer at Headquarters in Nairobi in 1961, and was transferred to Central Province where he was Provincial Head of Special Branch until 1963. I found that his evidence undermined any suggestion that Special Branch destroyed Mau Mau records. In the Supplementary Note to that judgment, at [187] I refer to a dispute between the parties as to whether or not findings (including the one at [139]) were final and binding. The Claimants seek to introduce two documents which have not previously been adduced and are said to be adduced to correct a false impression and in answer to the Defendant’s general submission that it is prejudiced by the absence of material.

I do not allow those documents to be adduced because:

In any event, the documents do not assist the Claimants because:

Governor/General who was Commander-in-Chief in the field. (Footnote: ¹⁵⁵)

Colonial Government Ministers.

War Council attendees.

Senior Civil Servants in Nairobi, Senior Army Officers, Commissioner of Police, Court of Appeal Judges, High Court Judges, the Commissioner of Prisons, persons serving on the Complaints Coordinating Committee and other Colony level committees.

Provincial Commissioners, Army Generals, Police Superintendents, resident full-time Magistrates, prison Superintendents.

District Commissioners, Army Majors, Police Inspectors, Officers in command of prisons or detention camps.

District Officers (including District Officers (Kikuyu Guard etc)), Army Captains or Lieutenants, police officers, senior staff in prisons and detention camps

D maintains its privilege in: 

Legal advice it has received or communications about legal advice. 

Names of individuals from whom it has not served or called evidence. 

The reasons why particular individuals may or may not have been proofed or called. 

Every such person in TC20 has been found to be deceased or untraceable. 

In Ms Lohia’s tenth Statement at [10] she said “I am able to confirm that to date the Defendant has not obtained evidence from any individual identified as having direct knowledge of the specific circumstances of detention and/or mistreatment alleged to have been sustained by any particular Test Claimant.”

The Claimants accepted that the Defendant does not have any witness evidence which is material in this sense. However, the Claimants said that the Defendant’s evidence does not go as far as to say that, in the early stages of the Defendant’s investigations, a potential material witness was not discarded because he did not help the Defendant’s case. They said this is not an imputation on Ms Lohia, and arises from the privilege claimed by the Defendant as to the selection criteria for witnesses. I responded in open court that I was intending to draw an inference on the material placed before me. The inference was that the Defendant would not have put the case in the way it had, if the selection criteria authorised the discarding of a witness who could give material evidence on a Test Claimant, on the basis that the evidence would be unhelpful to the Defendant’s case. I heard nothing further on this matter and therefore I draw that inference.

The Defendant says that officials of different levels would have had different knowledge of, and insights into, the events and circumstances alleged by the TCs, and of their accuracy and credibility. For example, had the claim been brought within the primary limitation period, middle ranking and senior people would have been able to provide assistance on:

The potential relevance of the lack of evidence from this type of witness needs to be examined in this Judgment, with reference to the core allegations, the material used to support them and the material which may have had the potential to undermine them.

Alleged perpetrators and other proximate witnesses – TC34

There are no witnesses in relation to TC34’s core allegations. The Defendant’s case is that it does not know who they are or how they could possibly be traced, if still alive at this stage (Footnote: ¹⁶¹). The Claimants have not called anybody. They have given no evidence as to the reasons for this.

It is useful to set out the information provided by TC34 in relation to the alleged perpetrators:

The net result is that it is impossible for the Defendant to identify anybody who might have been directly responsible for the alleged assaults. Nor is there any evidence as to attempts made by TC34, or on his behalf, to identify the alleged perpetrators.

The Claimants submit that the failure by TCs to identify alleged perpetrators is more likely to be evidence of deliberate policy, given that even what was lawful was brutal, and that the Defendant produced no evidence that anyone engaged in law and order wore a name badge or introduced themselves. There is no evidence, nor can it be inferred, that there was a deliberate policy that people could not be identified, or indeed, that people could not in fact be identified. (Footnote: ¹⁶³)

In relation to the Home Guard/Tribal Policeman who is alleged to have been responsible for the assault on TC34 at Gikuni, the suggestion from the Part 18 response is that TC34 cannot now remember his name but that he did know it at the time. That would also fit with the person being a Home Guard/Tribal Policeman in a small village, which was TC34’s home village. On that basis it can properly be said that the passage of time has probably deprived the court of the opportunity of the perpetrator being identified and being available to give evidence.

As to the other core allegations, the inference from the Part 18 responses is that TC34 perhaps never knew the names of the perpetrators. It may be that TC34 did never know the names of the perpetrators, though this cannot be said with any degree of confidence. In respect of those at the camps, he may have heard their names referred to and, had this claim been brought in time, have remembered those names. There is evidence that some guards in camps had nicknames. Whether the alleged perpetrators had nicknames, whether those nicknames were known to TC34 and whether, if so, those nicknames would have enabled the Defendant to trace those people 50 plus years ago, we will never know. Similarly, it is possible that TC34 might have heard, and remembered for a time, the name of those at the Ngong Forest. In addition, the passage of time can properly be said to have had these effects:

The Claimants submit that complaint and independent enquiry were discouraged during the Emergency. They then deal (Footnote: ¹⁶⁴) with a number of matters which are contentious, and whose importance would arise more in the context of generic issues on which I have not heard detailed submissions. Nevertheless, I can take them at this stage largely at face value. They include:

A number of points can be made:

Therefore, even taking these matters substantially at face value, they do not support the Claimants’ submission that it is hypocritical for the Defendant now to complain that a fair trial is no longer possible, because witnesses are not available, when the absence of “identifying witnesses” is entirely the Defendant’s fault, not a consequence of any tardiness by TC34. I reject that submission.

The Defendant’s witnesses

From the General submissions of both sides arises a dispute as to the reasons and consequences of the fact that the Defendant did not show documents to its witnesses when they made their witness statements (Footnote: ¹⁷³). In TC34’s case, the relevance of any lay evidence called for the Defendant as to the core allegations is tangential. Also, the relevance of this point is minimal in TC34’s case. Thus, further exposition of, and comment on, this dispute is not merited. It would not have any impact of any substance on my decision.

The Medical Evidence in TC34’s case

I had medical reports from Mr. Heyworth, a Consultant Emergency Medicine Physician, dated 7 August 2015 and from Professor Mezey, a Consultant Forensic Psychiatrist, dated 15 August 2015. There were also Part 35 responses by each Doctor. They both gave oral evidence before me (Footnote: ¹⁷⁴).

There are conflicting submissions as to the relevance of the medical evidence. I shall synthesise and comment on these in this way:

Another matter on which the Defendant relies to allege that there cannot be a fair trial after all these years is the dearth of medical records. I remind myself that while the ultimate burden is on a Claimant in section 33, “the evidential burden of showing that the evidence adduced by the Defendant is, or is likely to be, less cogent because of the delay is on the defendant” (Footnote: ¹⁸²). If the section 33 discretion is exercised in favour of TC34, the burden is then on him to prove his case. The Defendant relies on the absence of contemporaneous medical records in the periods pre and post the core allegations, against which TC34’s account cannot be compared (Footnote: ¹⁸³).

The first question is as to what medical records were ever available. The only reference TC34 made of any medical treatment arising from an alleged battery was when he told Mr. Heyworth that, following an incident at Mackinnon Road, he was taken to hospital for treatment to the injuries to his eyes. He reported that he was prescribed eye ointment which he applied for a period of days. This is not one of the pleaded allegations and no recovery is sought for it. (Footnote: ¹⁸⁴)

There is no proper evidence on which I could find that any medical records relevant to the alleged assaults the subject of TC34’s claims were probably made; nor that any other medical records relevant to put the claims in context were ever available. The only available evidence on this is that of TC34 to the effect that he was not medically treated for any of the injuries he says he suffered from the core allegations of assault. He may, of course, be wrong about this. His memory on such a matter cannot be regarded as reliable. It would have been more reliable 50 plus years ago.

There is evidence from Professor Khan, who was a doctor at Manyani, that he kept clinical notes on the medical records, as one would expect. It is therefore possible that TC34 did have clinical notes at one or more of the camps in which he says he was detained. It is also possible that those notes referred to one or more of the assaults he says he suffered – either confirming or casting doubt on his present account. It is also possible that there were other entries which would have been relevant to assessing the reliability of the core allegations. It cannot be put any higher than that. Nevertheless, it is now not possible properly to investigate whether there were any such contemporaneous records or what effect they may have had.

What I cannot assume is that what happened in the UK from the 1950s onwards vis-à-vis medical records would have been replicated in Kenya generally, i.e. outside the camps. In relation specifically to the lack of such medical records relevant to the period pre and post the core allegations, and in the circumstances of my review of those allegations later in this judgment, I cannot find that the delay in bringing the claim has resulted in the evidence adduced being less cogent.

What can be said is that the court does not have the assistance of any contemporaneous medical records, whether during the particular periods of TC34’s detention or later, a factor which has been relevant in the authorities in deciding whether there can be a fair trial.

Status/Age

TC34 says he is a Kenyan national and was, at the material time, a British subject by virtue of Section 1(1) of the British Nationality Act 1948. The Defendant admits that the citizens of the United Kingdom and Colonies were British subjects but, as with other individual Claimants, makes no admission as to TC34’s status.

TC34’s evidence is that he was born in 1927 or 1928, although his ID card states he was born in 1932. His explanation for the discrepancy, in common with some other TCs, is that his date of birth was changed during registration to avoid paying the tax that Kikuyu had to pay. The ID card in evidence was issued on 16 October 1996. The Defendant points out that this was well after the Emergency and could have been changed. The card gives the place of birth as Kiambu District, Kikuyu division, Kabete location, Nyathuna sub-location.

The Defendant makes the following points:

Some of these points may be significant in relation to other evidential issues. In that regard, they will be considered later. Specifically in relation to the matter of TC34’s identity card, I have to take into account that it is a legal requirement to have such in Kenya. It does record what TC34 says is a historic untruth. The effect of that (admitted) lie in the circumstances in which it was given, could be taken into account generally in terms of TC34’s credibility, though I must say that it does not really affect my assessment. There was little exploration in cross-examination of the detailed background to the identity card. Nor was it suggested that TC34 might not be who he said he was. The inference seems to be that he had had an identity card for a number of years and had lied about his birth date so as to avoid the Kikuyu tax at the time of the Emergency. This suggests that his name has remained constant since that date and his photographs have been renewed. If that is so then, save as to the birth date, the probabilities are that his identity on the card has been consistent since the 1950s (at least). It has also been consistent since 1996 when the present identity card was issued. Further corroboration of identity comes from the, albeit scanty, medical records, namely an “endoscopy service investigation report” dated April 2011 from North Kinangop Catholic Hospital and a “patient card” from the Karangatha Health Centre dated February 2012.

The Defendant’s submissions as summarised above will need to be considered in the context of TC34’s allegations and evidence generally. Nevertheless, in my judgment, TC34’s evidence as to identity is not undermined.

On the balance of probabilities I find that TC34 was a British subject during the Emergency and that he was born in 1928/1929. Apart from that, the other details on his ID card are likely to be accurate. I should perhaps clarify that, although this finding appears before a number of matters affecting TC34’s credibility, and the question of whether it is equitable to allow the action to proceed have been determined, I have taken into account, before reaching it, all factors that appear subsequently.

Timeline of TC34’s Case

In oral argument, Mr Myerson accepted that TC34 could not be right about the dates and, in particular, the amount of time he had spent in Manyani and MacKinnon Road. He also accepted that had the claim been brought within the primary limitation period, or presumably within a reasonable time thereafter, TC34’s recollection as to dates and periods spent in the camps would probably have been more accurate.

There is a substantial issue between the parties based on the dates in the AIPOC and TC34’s closing submissions. I shall set out the particulars in some detail by reference to those two documents and subsequent commentary by the Defendant and the Claimants.

TC34’s individual closing submissions - commentary and discussion

As to the initial arrest and detention, the closing submissions state that TC34 pleads that these were sometime in 1955 [14], but aver that he was probably arrested between September 1954 and March 1955. They also say that his arrest was sometime in the summer of 1954 [97], though, in oral submissions, Mr Myerson distanced himself from that statement. The closing submissions say that the documentary evidence enables more precision and put matters in this way: TC34 is likely to have been sent to Manyani after September 1954 [14a]. His arrival was perhaps sometime after October 1954 [14b]. TC34 thought he was there for about a year [14b]; in evidence, he said he was there for not quite a year [14d]. TC34 arrived at Langata before 31 March 1955, as no new detainees were accepted after that [14c].

The position is that the pleaded case is removal and arrest in Nairobi in 1955 (Footnote: ¹⁸⁹) followed by a few weeks’ detention, including two weeks at Langata, before transfer to Manyani. On the basis that Langata accepted no new detainees after the end of March 1955, the pleaded case and the evidence are capable of consistency by indicating initial arrest in the first few weeks of 1955.

TC34’s closing submissions state that it was likely that he was moved to Mackinnon Road in August/September 1955 [78], where he alleges he remained for 1½ years [95] (Footnote: ¹⁹⁰). As to this:

In TC34’s closing submissions he says he was at Mwea for about 6-8 months, and certainly less than a year [106]. During that time he was at Gathigiriri for two weeks [106]. TC34 was held at Waithaka Detention Camp for a few weeks [112] (Footnote: ¹⁹⁴). It is unclear from the submissions when exactly TC34 was taken to Waithaka. From there, he was taken to the District Officer’s office at Wangige [114] (according to TC34’s submissions, TC34 thought this may have been 1959 [115]).

The total period covered by the preceding paragraph is somewhat less than a year. On the pleaded case up to and including his removal from Mackinnon Road, the approximate date for his transfer to Mwea was the summer of 1957. Therefore, he would have been taken to the District Officer’s office at Wangige in Spring/Summer 1958. His pleaded case is that this was in 1959 and this is adopted in his submissions. However, in the closing submissions it is also said that he arrived in Mackinnon Road in August/September 1955, remained there for 1½ years, (i.e. until about February/March 1957). Adding a little less than a year to that would mean that he was taken to Wangige in early 1958, at the latest.

TC34 describes the stage at Wangige as his release. His submissions deal with this stage in the following way: He was held at the District Officer’s office for three days [115]. TC34 was then transferred to Gikuni, his home [116]. He says he was assaulted by a Home Guard there [117], after which he was taken to a court approximately ten miles away from Gikuni [121]. He was then taken to Embakasi Camp via Waithaka Camp and Langata Camp [121]. TC34 was taken back to Waithaka for two nights [123]. He was then taken to Langata for three days and then on to Embakasi [125]. In his witness statement he said that he stayed at Embakasi for two months [126], but in evidence he said he was not there for more than four days [126]. TC34 claimed he was threatened with assault at Embakasi [126] (Footnote: ¹⁹⁵); following the assault he was immediately taken to Fort Jesus Camp [126]. TC34 remained at Fort Jesus camp for approximately two weeks [131]. He was then moved to Mukoe Camp for 2-3 months and up to around 6 months [133].

In relation to Embakasi Camp, in TC34’s witness statement at [55], he says “Embakasi was a Detention Camp where people would be held for a few days before being transferred. The camp was mainly for questioning. We were held in a police cell for about two months. I did not do any forced labour while at Embakasi.” In oral evidence he said he was there for no more than four days (Footnote: ¹⁹⁶).

The Defendant submits that the last Progress Report mentioning Embakasi was in April 1958 (Footnote: ¹⁹⁷), and that this is inconsistent with the pleaded case of 1959. The Claimants’ response is that if the Camp was being mainly used for interrogation, this is consistent with the work having come to an end and the Camp being in use for other purposes e.g. interrogation. Apart from one document, which may possibly support this (Footnote: ¹⁹⁸), the Court has not been referred to any evidence which corroborates interrogation at Embakasi in 1959.

TC34 says he then went to Fort Jesus camp for some two weeks. The latest document relating to Fort Jesus is dated 11 April 1958 (Footnote: ¹⁹⁹). The Claimants rely on it to demonstrate that Fort Jesus was open and operational in 1958. The document details the intake of detainees (ex-Fort Jesus) at Embu District Works Camps. There is no document which corroborates Fort Jesus being open in 1959.

In his witness statement TC34 said that he stayed at Mukoe Camp for 2-3 months, after which he was taken to Hola. In evidence he said this was up to around 6 months (Footnote: ²⁰⁰).

TC34’s closing submissions say that he was then taken to Hola Camp, where he was detained for about 6 months before being freed from detention [137]. He stayed at Hola for approximately three years [137]. TC34 alleges that he was assaulted at Hola Camp [139].

Although TC34’s pleading and evidence therefore cover arrest in Nairobi, followed by detention in a number of places, the allegations of assault are restricted to the Ngong Forest (during first interrogation), Manyani camp, Mackinnon Road camp, Gikuni (his home village) and Hola. These are the core allegations upon which I have to decide whether it is equitable to allow the claim to proceed and, if so, whether (and if so to what extent) TC34 has proved his claims.

Pre-4 June 1954?

The Defendant accepts that on TC34’s pleaded case no allegation of assault occurred pre-4 June 1954 so as to attract the insuperable limitation bar. Yet the Defendant refers to a section of the evidence in cross-examination, where TC34 revealed for the first time that he had taken a second Mau Mau oath when he was living in Nairobi. He was asked when this was and his evidence was that it was after the Emergency had been declared. When then asked how long after, the transcript continues:

“A About one year

Q So in 1953?

A Yes”

In re-examination he said that he was arrested a very short time, about three or four months, after he had taken the second oath. This would put the initial arrest before the opening of Langata camp and Manyani. If he was in those camps, then his arrest must have post-dated these dates.

The Defendant submits that the court should not permit TC34 to succeed, whether on the substantive element of his claim or in the exercise of the discretion under section 33, when there is an unexplained difference between the pleaded case and evidence which deprives the Defendant of the benefit of the pre-June 1954 time bar. Alternatively, that it is wholly unclear when he was arrested and when he arrived in Manyani. It could have been before June 1954, and the alleged assault at Ngong could have pre-dated 4 June 1954. In support of this, the Defendant says the only way that TC34 could have spent about a year in Manyani and about 18 months in MacKinnon Road, prior to the latter’s final closure in May 1956 at the latest, is that it is possible that TC34 arrived in Manyani in the summer of 1954.

The Claimants refer to the fact that in cross-examination TC34 had said that his mother’s house had been burned down about a year after he had taken the second oath, when the question he was asked was whether it was a few weeks.

There is clearly some inconsistency here. There are many possible explanations for this such as, at one extreme, TC34 was not telling the truth, or that he became confused/tired.

I take into account all the circumstances of the case, both those to which I have already adverted, and those yet to come. Despite the problems, it seems to me unlikely that TC34 was arrested and detained prior to 4 June 1954. His description of Manyani, and where he was located in Manyani (Footnote: ²⁰¹), leads to a probability that his arrest was after that date.

I have determined this factual issue on the balance of probabilities since I have to do so. Despite the fact that, in determining the section 33 issue, the court should be careful not to make findings which ‘put the cart before the horse’, in terms of deciding whether it is equitable to proceed, it is first necessary to decide whether TC34 has proven that all his allegations post-date 4 June 1954. If any one of them does not, then it is time-barred and there is no discretion to allow it to continue.

Timeline- conclusions

The Defendant says that these inconsistencies lead to a very confused picture as to where TC34 was and when. It cannot be a coherent and consistent account and there are few extraneous objective facts by which properly to measure the reliability of TC34’s evidence. Therefore TC34’s evidence is (a) not cogent, (b) to the extent that TC34 relies on corroborative evidence (Footnote: ²⁰²), the dates are of importance to set the alleged corroboration in context and the extent, if any, to which it supports TC34’s case.

In terms of where he was on the occasions of the core allegations, TC34 has been consistent as to locus and as to sequence i.e. (1) Ngong Forest, (2) Manyani, (3) MacKinnon Road, (4) Gikuni and (5) Hola. This is of some importance. Nevertheless, I must bear in mind, as part of the decision-making process on the cogency of TC34’s evidence, and when evaluating any corroborative evidence/prejudice to the Defendant, the undoubted confusion as to dates. There is no doubt that TC34’s evidence has been rendered less cogent by the delay in issuing the claim. If it were not already evident, or evident as a matter of common sense, it would be amply demonstrated by two further facts

(i) In TC34’s closing submissions at [13] it is said:

“Understandably, given his age and the time gap, the Claimant is imprecise as to dates. He acknowledged this himself: he explained that it is very difficult for him to keep track of time because he did not have any knowledge of the date whilst in prison and that he does not have any records of the time he spent in each camp …”

(ii) The extract previously cited from the section 32 Judgment at [150].

Allegations of Assault in TC34’s case

Ngong Forest

Pleadings – AIPOC paragraphs 12-13

The allegations are that the Claimant was driven to Ngong Forest from the CID which was near the Supreme Court in Nairobi. He was placed in a Land Rover with a young Kikuyu girl aged 18 to 20 years. At the Ngong Forest the Claimant was handcuffed to a tree. There were three British Officers present with guns. The Claimant was questioned about the whereabouts of some guns. One of the British Officers fired a gun just missing the Claimant’s head. The Claimant was slapped on his face by a British Officer. The impact caused him to start to lose the sight in his right eye. His handcuffs were removed and he was forced to kneel down. His hands were tied in front of him and his trousers removed. A British soldier forced soil into TC34’s anus with a stick and he was then hit with the butt of a gun on his hip, ankle and knee.

Whilst the Claimant was being beaten it is said (paragraph 14 AIPOC) that the young Kikuyu girl was stripped naked with her legs held apart. She was questioned on the whereabouts of the Mau Mau. A bottle was pushed into her vagina every time she was asked a question. The Claimant witnessed this as he lay on the ground, causing him further distress. He feared for his life.

Initial observations

These are very serious allegations. If accurate, TC34 suffered a horrible and degrading assault.

The Defendant knows nothing about the Ngong Forest; nor can it call any evidence as to the core allegation, or as to its lead-in or aftermath. There are no witnesses, just TC34’s account and the evidence of the doctors. The Claimants say that male sexual assault was not uncommon and cite an allegation by TC27 at Manyani. I regard this allegation of an assault by different people, at a different place, and in wholly different circumstances, as of no significance in supporting TC34’s allegation. Further, the Claimants say, in relation to TC34’s account of the sexual assault alleged on the girl, that there is a reference to a similar assault at the Makadara Home Guard Post, some 15 miles from Ngong. This, too, is of not of any significance in circumstances where that latter allegation was not an allegation against the CID and was in another place. Further, it was investigated by the CID, (Mr Duncan MacPherson, the Assistant Commissioner of Police). On 11 January 1955, he wrote a report to the Commissioner of Police, copied to the Attorney-General. In it he concluded (Footnote: ²⁰³):

“..if one is to accept the story of the women, corroborated as it is by medical evidence and certain other circumstances, the Guard Post at Makadara is nothing more or less than a torture post, used by certain members of the Tribal Police and Kikuyu Guard, together with the Headmen and Chiefs of the Administration, to endeavour by completely unlawful means to obtain information regarding Mau Mau offences….Such information need not, in fact, be of a truthful nature as, under conditions of torture, it is only reasonable to suppose that the person being tortured will say anything whatsoever, true or otherwise, in order to compel his or her torturers to cease their operations;”

There is a further letter dated 27 January 1955. It is from Mr Small, the DC for Nairobi. He adds some more detail about the investigation and proceedings against the assailants etc. Inter alia he says that none of the alleged female assailants had any right of arrest at all; in effect they were nothing to do with the Security Forces; they were “prostitutes of the hardest type. Some of them decided to throw their lot in with the Government having seen the strength of the Security Forces in the Locations”. (Footnote: ²⁰⁴)

The Makadara incident illustrates an aspect of the general difficulty in having a fair trial many years later without potential key witnesses, even where that witness may not be the primary tortfeasor. Assume that the victims of the Makadara assault had been TCs and only Mr. Macpherson’s letter had been found. One can see how easily the discretion to allow the action to proceed might have been exercised in the Claimants’ favour, even absent any witness for the Defendant. Their evidence would have corroborated each other and also would have been seemingly well corroborated by Mr. MacPherson’s letter. With the knowledge of Mr. Small’s letter, the Court may well come to a different conclusion, namely that a fair trial on whether somebody for whom the Defendant was potentially vicariously liable had committed the assault would be not be possible without contextual witness evidence, e.g. from Mr Small himself, so as to explain the circumstances which would raise a potential defence, and to have his evidence tested. I merely cite this as an example of the sort of problem that can arise where full documentation may not be found and/or witnesses who might put allegations into context are no longer available. How to exercise the discretion in respect of each of the core allegations must be looked at on its own merits.

Mr. MacPherson was in charge of CID in Nairobi from June 1954. He was also Assistant Commissioner of police (Crime). In the Claimants’ written Opening he is relied upon as somebody who attempted, despite hostility, to bring abuses to light. Yet, on TC34’s account, the CID under Mr MacPherson’s command was using the same horrendous tactics on a young woman at about the same time he wrote condemning the Makadara incident. (Footnote: ²⁰⁵) This is possible, though, if anything, the Makadara documents make the incident alleged by TC34 less, rather than more, likely. In any case, the documents are no corroboration of TC34’s account of what he says happened to the girl or to him at the Ngong Forest.

Mr MacPherson died in 1989. Examples of matters which would have been important to explore with him are: (i) were these sorts of abuses that might have occurred in the department of which he was in charge at this time? (ii) did any information of that type of treatment by CID ever reach him? (iii) if so, what did he do about it? (iv) who were the junior officers responsible under him? (v) what supervision or checks were there on the junior officers or anybody under them? (vi) were British Army soldiers ever responsible for interrogation at, or upon taking a detainee from, CID offices?

There are now no records which can show whether, and if so by whom, TC34 was interrogated, or which might lead to the identity of the girl who was allegedly abused. Nor can the Defendant now investigate with others, such as Mr MacPherson, the Police Commissioner Sir Richard Catling (died 2005), Superintendent Henderson of Special Branch (died 2013) and other high-ranking officers who would be over 100 years old. Had the claims been brought in time or even in, say, the mid-1960s or somewhat later, they could have spoken about police practice, they would known their contacts within the force with the potential to lead to the alleged primary perpetrators. They could also have explained to the court the general context of CID investigations, thereby potentially shedding light on the reliability of TC34’s allegations (Footnote: ²⁰⁶).

As to documents, the more material ones which may well have existed and been useful for the testing of TC34’s evidence are (for example) paperwork relating to his arrest, detention in the places prior to the Ngong Forest allegation and documents, e.g. screening records (Footnote: ²⁰⁷), which may well have led to ascertaining witnesses/alleged perpetrators of the core allegation (Footnote: ²⁰⁸).

Further, Mr Green and Mr Thompson, witnesses for the Defendant, said (Footnote: ²⁰⁹) that there were card indices of Mau Mau intelligence. It is reasonable to assume that TC34, as active Mau Mau, may have appeared on those records and there may have been important background information on him. This point has particular relevance for the initial interrogation of TC34. It is also of relevance in relation to all the core allegations. Nothing is known of TC34 save that which he has himself said.

TC34’s individual submissions – commentary and discussion

The Claimants submit that, as TC34 did not cooperate or provide information under interrogation, it is unsurprising that the interrogation continued and became more violent [34]. The Defendant takes issue with this, pointing to documentary evidence of instructions that people being interrogated should not be ill-treated as it achieved nothing and was illegal (Footnote: ²¹⁰). This is a factor I take into account but, of itself, it does not greatly assist the Defendant. I am not prepared to accept the Claimants’ contention that it was unsurprising that the interrogation became more violent; nor am I prepared to accept the Defendant’s submission that the allegation was “particularly surprising.” If there could be a fair trial, this allegation would stand or fall on its own merits. Reliance by both sides on the generality of points such as these is perhaps an indicator of the problems in having a fair trial at this juncture.

The Defendant called a witness, Mr. Kearney. In 1952 he was transferred to Parklands Police Station in Nairobi as Station Commander (Chief Inspector). He was subsequently promoted to Assistant Superintendent and took command, by turns, of most of these divisions in the cities. His recollection was that he was in Nairobi in 1954 but had left by 1955. He said he never witnessed any brutality and nor would his staff or he have tolerated it. He commented on the allegations in a number of TCs’ cases. In relation to TC34 he said:

Mr. Kearney was however police and not CID/Special Branch. He was not cross-examined specifically about what he said in relation to TC34’s allegations. He also said that Special Branch were very secretive and kept very much to themselves. (Footnote: ²¹³) In relation to the precise allegations of what went on in the Ngong Forest, Mr. Kearney’s evidence cannot really assist me.

What Mr Kearney’s evidence does is to give the court an indication of how the Defendant is prejudiced, not only in relation to Ngong Forest, but also all other core allegations. Apart from the alleged primary tortfeasors, there would in the past have potentially been many witnesses who could have given real context to the reliability of TC34’s evidence in the way that Mr Kearney’s evidence begins to do. I cannot place too much weight on Mr Kearney’s recollection because (a) it is so long ago (b) he was not posted in Nairobi at the time TC34 says he was first interrogated (c) it is uncorroborated by other witnesses (d) it is uncorroborated by the type of record and investigation to which he refers. If a court had been able to find that Mr Kearney was probably correct in his description of TC34’s evidence as to the severed heads, then this may well of itself had a serious impact on the remainder of his allegations. If there had been other similar witnesses in relation to the core allegations or surrounding matters in TC34’s evidence, the assessment of TC34’s case may well have been radically affected.

The Claimants submit that TC34’s Part 18 response that it took about half an hour to drive from Nairobi CID to Ngong Forest is consistent with the geographical location on the maps of Nairobi and the outer areas. A map has been produced which shows Nairobi and what appears to be a township of Ngong, and to the south, Ngong hills. On the scale of the plan, from Nairobi to these areas is roughly 10 miles. The Defendant says that the Ngong Forest is not shown on the map, nor is its proximity to Ngong, the Ngong hills, or the river that runs through the Ngong hills from Ngong. There is also no evidence about the roads or terrain which had to be followed. The most that can be said in this regard, is that there is nothing on the map which is inconsistent with TC34’s time estimate.

In the individual submissions [36] it is said:

“D challenged neither this account nor TC34’s evidence that he was violently slapped on the face by a British Officer and hit in the right eye, resulting in him experiencing blurred vision and losing sight in his right eye….. Mr. Heyworth’s evidence is that causation was established, limited to two months loss or impairment…. TC34 consistently described “violence” and “severe” assaults….. he was probably slapped hard multiple times as he told Mr. Heyworth he “found the repeated violent slappings to be exceptionally painful and distressing”.

I have dealt previously in the judgment with the point on lack of challenge. It is understandable that this was not the subject of specific cross-examination.

I now turn to the alleged injuries. These are pleaded (Footnote: ²¹⁴) as follows:

“The Claimant suffered pain as a result of each assault as described by him and as detailed in the medical evidence and, specifically unbearable pain in his right eye, knees, shoulder, ankles, back and anus. He experienced permanent blurring of vision, particularly in his right eye. He is unable to walk without the use of a stick.

Impairment of vision from assault lasted about two months.

Assault to the anus caused extensive bleeding and pain relieving himself for about week, with full recovery within 6 months and no long term consequences;

Symptoms from beatings to various parts of his body as alleged probably resulted in pain for approximately three or four months (Footnote: ²¹⁵).”

I am not at this stage considering a comprehensive assessment of the medical evidence, much less possible quantum. I am examining the medical evidence in the context of the consistency/inconsistency in TC34’s account and its consequences. I will also adopt this approach in relation to the subsequent core allegations.

The following matters need to be highlighted. In TC34’s witness statement at [19] he said “I was slapped on my face and hit violently on my eye. This was so severe I started to suffer from eye problems from that time. I suffered an injury that led to me losing my good sight in my right eye. My vision is blurred.” As to this:

From the above there is certainly an inconsistency that, from TC34’s evidence which suggests unilateral long term loss of vision in the right eye, the claim is now bilateral eye injury lasting two months, on the basis that the only explanation for blurring is cataract. There is no suggestion in TC34’s evidence that his vision was affected for a period and then the blurring came on later in life. Further, there is no evidence from TC34, apart from what was reported to Mr. Heyworth, that there was significant blurring for a period of two months following the event. Whatever other decision there is to be made in this case, it would not be open to the Court, in my judgment, to find on the balance of probabilities any more than a very short term blurring to the right eye (Footnote: ²¹⁷).

With regards to the consequences of the sexual assault, TC34’s evidence was that he was in agony and screamed. It was very humiliating. It went on for 3-5 minutes. It was very painful for him to relieve himself for about a week and he had to use his fingers to scrape out the soil that had been inserted. This was over a period of days. As set out above, the amended pleading amplifies this evidence by referring to extensive bleeding. It also refers to full recovery within 6 months. In Mr. Heyworth’s medical report at paragraph 10 it states: “the pain continued for a period of six months. During this period (TC34) continued to experience significant pain whenever he opened his bowels.” Therefore there is an inconsistency in the period during which TC34 experienced pain when relieving himself. Such an injury, if inflicted, would be distressing and humiliating. It would also no doubt be very painful and probably cause bleeding. The inconsistency may well relate to the difficulties of recollection but, again, it would not be open to the court, on the balance of probabilities, to find that the period of time for which TC34 could recover for this injury would be more than about a week.

I now turn to the incident alleged by TC34 of being hit by the butt of a gun. His pleading and witness statement (Footnote: ²¹⁸) allege that a white solider used the butt of his gun to hit/smash his hip joint and to hit his ankle and knee. At the end of his witness statement [74] he says that he uses a walking stick whilst walking, this being the result of beatings on his back. TC34’s submission [153] alleges ongoing intrusive pain around the sacroiliac and hip joints which is not solely accounted for by degenerative change. It is said that this is “probably properly regarded as being at a nuisance level by now, given the contribution of degenerative change in any event”. There is no reflection of this assault in Mr. Heyworth’s report, though there is the record: “(TC34) also reports that he was beaten with sticks to his body. There was severe pain at the sites of the blows sustained and subsequently extensive bruising developed.”

On this matter the Claimant was put on notice, in the List of Inconsistencies served prior to TC34 giving evidence, of the discrepancy between the account pleaded/given in his witness statement and the account given to Mr. Heyworth. He did not clarify the matter in his supplemental witness statement or in examination in chief. Further, the closing submissions do not address the matter.

In cross-examination the evidence was:

A. No.

Q. But you do allege that it was elsewhere that you were assaulted?

A. Yes.

In the reply to the Defendant’s closing submissions, the Claimants refer to TC34’s evidence and then say:

“…it may be that he was confused in his account to Mr. Heyworth, as he mentions the right hip and back in relation to Mwea Camp. It is entirely possible he was confused as in his oral evidence to the court, he says he was not beaten at Mwea. (Footnote: ²¹⁹) On the balance of probabilities, he was beaten at Ngong Forest, as he said in his evidence, and it is entirely probable that it caused injury, including injury to his hip when the perpetrators smashed at it.”

The difficulties with this are as follows:

i.

The accounts are entirely inconsistent.

ii.

The reference to Mwea, in the history to Mr. Heyworth is “(TC34) then reports that he was repeatedly kicked sustaining blows to his lower back and right hip in particular” (Footnote: ²²⁰).

iii.

It is entirely this sort of substantial confusion, if that is what it is, which the Defendant relies upon as part of the problem in having a fair trial.

iv.

More detail is given about the allegation at Mwea in Mr. Heyworth’s report. This is that TC34 experienced pain at the sites of these blows to his lower back and right hip with extensive bruising and swelling and marked impairment of overall mobility. It is said that the symptoms were particularly troublesome for three months following the incident after which there was limited improvement. However there is no pleading, witness statement or submission which can support such a claim from Mwea.

I will deal with a number of other matters:

The Claimants say that in the points in the preceding paragraph the Defendant seizes upon a variety of slight differences of a traumatic event and that there is no significant inconsistency about the assault or the injury. As the above review of the totality of the evidence shows, there are a number of inconsistencies of some substance. The Claimants also criticise the Defendant for not cross-examining on the inconsistencies.

It may be helpful if I reproduce TC34’s cross-examination relating to the core allegation in the Ngong Forest. It was:

“Q. Were you then taken to the Ngong Forest?

A. Yes……

MR SKELTON: Was it the same soldier who took you there?

A. There were four.

Q. Did the four soldiers include the soldier who had asked

you questions earlier?

A. Yes, he was.

Q. Is he the soldier who you say fired a shot at you?

A. Yes.

Q. Is he the soldier that you say beat you?

A. Yes.

Q. Is he the soldier that you say forced soil into your anus?

A. There were two of them.

Q. Two soldiers who did that?

A. Yes. There were -- two of them were with me and the others, they were with the girl.

MR SKELTON: The others were ...?

THE INTERPRETER: With the woman.

MR SKELTON: Did the two who were with you include the soldier who had interrogated you and fired the gun at you?

A. The one who shot at me, I wouldn't -- I -- yes, I cannot tell if he was on my side or on the side of the woman because these are not -- I did not know these people and they looked fairly alike because of the uniforms that they wore.

Q. This is the camouflage you described earlier?

A. Yes.

Q. Who was in charge of this group?...

I bear in mind fully what I have previously set out in some detail on the question of inconsistencies in TC34’s evidence. The headlines are: First, the Defendant could not put a positive case. Secondly, the Defendant is entitled to point to inconsistencies on the face of the Claimants’ own documents and jointly instructed medical evidence. Thirdly, I have to take care in taking them into account where TC34 was not given an opportunity to comment on them. It would certainly be wrong for me to draw any conclusion on the balance of probabilities that TC34 was not being truthful. Indeed the Defendant does not suggest this. What can properly be said in respect of these inconsistencies is: (i) they may well illustrate confusion and difficulty of recollection at this remove of time (ii) if it were necessary to determine which of different versions (e,g on duration of symptoms) is to be accepted on the balance of probabilities, the Defendant would generally be given the benefit of the doubt.

Further the Claimants say that TC34 provided detail that adds to the overall cogency of his evidence. They give examples such as the discharge of a gun close to his head and his description of being accompanied by the girl and witnessing what happened to her. They submit that these details serve no purpose if not true. This is very much a “makeweight” point. It does not follow by any means that, because a witness gives such details, the evidence is reliable.

In respect of each of the core allegations, I will set out my preliminary views on whether the evidence is less cogent as a result of the delay in bringing the claim. I shall then deal, under the later heading “The Broader Picture”, with some other factors which may be of importance in affecting these preliminary views. I shall then reach my final conclusions as to whether it is equitable to allow the action to proceed, by carrying out the required balancing act having regard to all the circumstances, but particularly those in section 33(3), to the extent that they are material.

As regards the core allegations in the Ngong Forest, TC34’s own account is not wholly lacking in cogency, even though there are substantial concerns arising from the above inconsistencies and the problems with the Timeline.

In relation to the questions of cogency of the evidence apart from that of TC34, in summary:

Manyani

Preliminary

Apart from the core allegation and the timeline, there are other matters in relation to Manyani which call for some comment.

In his Witness Statement [27]-[28] TC34 describes arriving at Manyani Camp by train, being stripped and searched at the entrance, given shorts which were yellow in colour and then being detained in Camp No. 30. His statement says: “the camps were numbered from 1-30.” In his Supplemental Witness Statement he refers to the buildings at Manyani being A-shaped. Albeit there is a dispute about dates and the numbers of people dying, he refers to nobody being inoculated against typhoid whilst he was there but very many people dying of the disease.

There is some corroboration from other TCs, and witnesses for the Defendant, that detainees arrived at Manyani by train. Other TCs described being stripped and being given a pair of yellow shorts. Further, a report from Dr. Stott, dated 12 October 1954 (before TC34’s pleaded arrival date) refers to three camps with ten compounds in each camp, a total of 30 compounds. (Footnote: ²²²)

In TC34’s closing submissions he refers to a number of documents which he says corroborate his account of conditions at Manyani. The Defendant, relying in part on TC34’s pleaded case, says that most of these documents do not assist because they are not contemporaneous with the period when TC34 says he was detained at Manyani. The restricted nature of the core allegation does not now require consideration of these documents. What I can say is that TC34’s evidence, and such corroboration as there is, point to a finding that TC34 was detained for a considerable time at Manyani.

Manyani core allegation: Pleadings – AIPOC paragraph 20

The central allegation is that whilst at Manyani TC34 was ordered to carry dead bodies to a trench. He then had to bury them. He had to work in this manner for 8 days. As he was carrying a body, the intestines fell onto the Claimant’s face. The Claimant dropped the body in horror. A prison guard beat him, as a consequence. He was hit with a baton on his head and shoulders. His nose was caused to bleed.

TC34’s individual submissions – commentary and discussion

The submissions adopt the slightly amplified version in TC34’s witness statement [90]. This states that the dead body seemed to have a cut on the stomach like an operation cut that had not been stitched properly. When the intestines spilled out onto his face, he almost swallowed some of the intestines. His witness statement says: “I felt disgusted and threw the body down. The prison guard saw this and beat me very much and ordered me to pick the body up. The prison guard beat me with a baton on the head and shoulders my nose was also bleeding.”

It is correct to say that the account of the incident has a certain consistency and that the carrying of the dead body and the intestines spilling out would be an unusual incident for a person to fabricate (which was not alleged); also, that it is understandable that a detainee might be beaten for what TC34 says then happened. Further, in support of the fact that detainees had to bury dead bodies at Manyani, the Claimants rely [91] upon the evidence of other TCs. I will consider this shortly when I look at the alleged corroboration for Manyani.

In his supplemental witness statement at [18] TC34 said that very many people died of typhoid whilst he was there, and he would see about twenty people a day going to be buried as a result of dying from typhoid. He was cross-examined about this and said that was the rate of death. When asked whether it might have been a hundred people or fewer over the course of the year he said: “it must be much more than that.” The Defendant made these points:

Corroboration Manyani

The Claimants rely upon a number of matters as corroboration of TC34’s core allegation at Manyani. The Defendant submits that these matters are not corroboration but can only be put forward as similar fact evidence, without any distinguishing hallmark that assists TC34’s single allegation of assault at this camp. The Defendant describes them as an accumulation of makeweight matters of high prejudicial and little or no probative value. It is correct that they do not directly corroborate TC34’s allegation. At one stage Mr Myerson described some of the more general allegations as the ‘mood music’ of what happened at Manyani. There are also these specific matters which must be borne firmly in mind:

With those preliminary observations I turn to the detail:

I have dealt with these matters quite fully since there is much more support claimed for the Manyani core allegation than for the other core allegations. What conclusions may I draw from this alleged corroboration? Apart from the Jack report to which I will come in a moment, they are these:

As to the Jack report, this was set up to investigate allegations by Mr Shuter of abuse at Manyani and Fort Hall. The following can be said:

The Claimants made criticisms of the Jack report, one being that he interviewed a limited number of detainees. In Mr Myerson’s reply in oral submissions he introduced some further critical analysis of the report. He said that there are 88 witnesses in Jack, but a total of 183 people are named in the report. Of those named 50 were interviewed. These 50 were part of the total 88 interviewed. Therefore 133 were not interviewed. Of the 88 interviewed, there are 67 occasions when people say they cannot remember or do not know the name of somebody, though it is not clear how many of those relate to Manyani. Mr Myerson also said that the evidence is that Manyani had about 2,500 African staff and 60 European staff; of the latter only 31 are named in the report because Jack asked for names and received 31 names. 28 of these names were provided by Mr Thatcher and 11 by Mr Kenyari, there being overlap save as to 3 names. Therefore the submission was that this was suggestive of the fact that even then staff lists/rotas were not exactly readily available and that documents were not exactly easy to find, because when Jack went to Manyani it was still open.

Mr Myerson relied on a paragraph in a section headed ‘Preliminary’ in the Jack report. It says:

“Every effort has been made to collect information from as wide a source as possible, from prison officers, from those who have been detained, from visitors, from medical officers and from administrative officers. The object has been to obtain as general a picture of the detention camps as possible without emphasising any one particular point of view”

Therefore the Claimants submit that either it did not in fact matter very much to Mr Jack who was in the camps at material times, or it did matter to him but he could not obtain a reliable documentary source so he had to ask people.

It is not possible properly to evaluate these criticisms. Mr Jack is no longer available to explain his modus operandi in the light of what is said, or to comment on the conclusions I am asked to draw. What we do know is that, despite the comments in the Preliminary section, Jack was investigating specific allegations made by Shuter. There is also a substantial difference between this type of inquiry and full-blown adversarial litigation. Had the Defendant been investigating TC34’s claim as part of a massive claim by over 40,000 former detainees in, say, the 1960s, it probably would have left as few stones unturned as possible, as it has done in this case. Had it been investigating TC34’s case alone at that time, his memory would have been fresher, he would have been more accurate as to dates; staff lists and other relevant documents may well have been available. In fairness to Mr Myerson, he did not overstate the case. He said about the staff lists: “That is, we submit, rather suggestive of the fact that staff lists weren’t exactly readily available.” That is not, of course, to say that they may not have been found by the Defendant at the time, or even in the 1960s. Therefore, for both relevant witnesses and documents, what Jack and his assistant Superintendent Page refer to, is not convincing as to what may well have been available at the time to a fully resourced legal team facing an adversarial claim for damages such as this one.

I add also on the point made that of the 88 interviewed, there are 67 occasions when people say they cannot remember or do not know the name of somebody, that I received no analysis of the number of occasions when witnesses did know and provide names. I have not done that analysis myself, but there appear to be quite a number. This is in contrast to TC34 who now cannot provide any names; it is unknown whether 50 plus years ago he could have done so, or at least provided descriptions, or other information, leading to identification of potentially relevant witnesses. There must at least have been a real prospect of this.

We do not now know, nor can we now find out, why Jack did not interview more detainees. If one presumes that he could have easily found the names of many more current and former detainees at Manyani, then, on Mr Myerson’s analysis, this, too, could be because it did not in fact matter very much to Mr Jack who was in the camps at material times. That would be a wholly unfair conclusion to draw, when Mr Jack is not here to explain why, particularly in circumstances where his actual remit was to investigate the Shuter allegations.

Reminding myself of the preliminary observations I have previously set out, the alleged corroboration adds little to TC34’s case. It amounts to evidence given of examples of abuse at various times at Manyani, the reliability of which cannot be tested and/or no clear pattern emerges which assists TC34’s core allegation. It must not be forgotten when considering the criticisms of Jack’s interviewing of detainees, or in putting the extent of the allegations made into some context, that more than 44,000 detainees passed through Manyani (Footnote: ²⁵¹). If I consider, by way of some point of reference, the decision in Raggett, and the quality of the corroboration in that case, both by witnesses and in the letter from the (deceased) alleged primary tortfeasor, this evidence is not remotely comparable.

The Claimants also rely on Professor Mezey’s evidence about TC34’s vivid recollection of the intestines spilling on him. I have already referred to this, but I will set out her evidence in some detail:

I have given this evidence careful consideration. First, at most it is potential corroboration of the fact that TC34 experienced a horrible incident with intestines falling on his face. It is not direct corroboration of a beating, but of what TC34 says was the immediate precursor to a beating. Secondly, I am sceptical as to the faith that Professor Mezey puts in what she saw on examination. I am not saying that the incident described by TC34 did not occur, nor that Professor Mezey may not be correct. What I am saying is that I do not find it to be very convincing evidence of what TC34 says occurred (Footnote: ²⁵²). There are various other possible explanations for the presentation. Whilst I of course have due regard to Professor Mezey’s expertise, I also remind myself of what Leggatt J said Gestmin , namely:

“16.

Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate. 

17.

Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called 'flashbulb' memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. ……External information can intrude into a witness's memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory). …..

19.

The process of civil litigation itself subjects the memories of witnesses to powerful biases….”

Professor Khan

Professor Khan provided 3 witness statements and gave oral evidence. There is also a statement dated 26 January 1959 from him in the Jack Report. I shall limit reference to his evidence to that relating to alleged physical abuse at Manyani.

In his first witness statement Professor Khan said:

“39…I saw three or four instances where I thought that people were acting unreasonably when caning people…..There were three or four instances where I thought the prisoner was mentally disturbed or in a lot of pain because he was yelling a lot. I told the person with the cane to stop it and on each occasion he did…

42.

There was one sadistic prison officer that I remember. He came to my attention when he brought a detainee to me for treatment. I noticed that the detainee had broken, bleeding nails and I formed the view that someone had tried to pull them out. The prison officer told me that he had hurt his nails because he “fell down” and I was furious. I told him that treating detainees in this way was totally unacceptable and if anyone ever did it again, I would report them to the Brigadier. Amongst all the prison officers, there were only three or four instances which caused me concern among 20,000 detainees. I was never aware of any systematic punishment”.

For his second witness statement Professor Khan was shown what he had said in the Jack Report. He said he did not remember giving evidence as it was such a long time ago, but that he was satisfied that his evidence in the Report was more accurate than his present recollection. His witness statement in that Report says:

“…I remember one incident which is clear in my mind in which I had to deal with at least a dozen casualties of detainees which included fractures. One of the detainees, I particularly remember, had a fracture of the humerus. I heard that there had been trouble at the camp. I did not go into the matter deeply. These 12 detainees had been brought to the hospital. The injuries on the 12 amounted to minor bruises to the fracture described above (sic). They were brought to the hospital by a European prison officer and warders. In the long space of time I would not and cannot recall his name. I understood that all the detainees came from one compound….

….I have treated detainees for minor injuries such as small bruises and occasional contusions. The injured detainees always alleged that they had been beaten. There were always conflicting stories on these injuries, the other party, both European officers and warders, mainly European officers, who said the party had been injured by working in the quarry and working parties. Some of these injuries could have been caused by pieces of flying rock. I have no recollection of any particular incident. These cases which came to my notice were indeed very few, and few and far between. As Medical Officer in Charge there was nothing to show that a policy of systematic beatings and ill-treatment of detainees was being practised in the camp….

As Medical Officer I did frequent camp inspections. I could and did go anywhere within the camp. This included the detainee quarters and compounds. Never did I see or find injured detainees in any of the huts. I spoke to the detainees on my tours of the camp. I never had any allegations of ill-treatment raised to me by them…”

Professor Khan was cross-examined. Amongst many things, he said that part of his professional duty was to witness corporal punishment. At Manyani he kept clinical notes in the medical records, though he would not have recorded the name of the warder who brought the detainee for treatment. He went to all the compounds about once a week and did a full inspection. He would go into detainee huts about once a week depending on his workload.

Professor Khan’s evidence is clearly limited in its ambit. It does not indicate that there was abuse in Manyani on anything like the scale alleged. He may be mistaken, he may not have seen what was really going on and the majority of detainees may not have been brought to him for treatment. Nevertheless, his witness statement in the Jack report is perhaps the nearest that one gets to an independent overview of Manyani at the time he was there. That said: (i) even in 1959, there were some details he had forgotten, (ii) his evidence is background only, (iii) it is from one perception only. It would be wrong to place substantial weight on it. What it does do, however, is give an insight into the fact that, many years ago, there may well have been a number of other witnesses who would have had a very different narrative from the one I am being asked to find is fair and convincing as corroboration of TC34’s case.

Medical Evidence - Manyani

I now consider the medical evidence and allegations of injuries:

Manyani - Overview

(i) The identity of the alleged primary tortfeasor, or any other witness to the alleged assault, is unknown.

In relation to documents which could have been investigated at Manyani:

I now set out my preliminary views in relation to the Manyani allegation.

As regards the core allegation, TC34’s own account does not of itself lack cogency.

In relation to the questions of cogency of the evidence apart from that of TC34, in summary:

MacKinnon Road

Preliminary

I have previously detailed the problems with the timeline alleged and evidenced for TC34’s stay at Mackinnon Road.

In his witness statement TC34 describes his arrival and initial interrogation at MacKinnon Road. He says that the detainees alighted from the train and were paraded in a line. Prison guards stood on both sides guarding them. There was an army truck which followed from behind which went at speed and which made them run four miles to the camp. There they were questioned and put into groups. There were three groups namely black, white and grey and they were given a bracelet which was the colour they had been graded. If you were grouped black you were regarded as a criminal and were detained. TC34 was initially grouped as black. He was questioned about the Mau Mau oath, where the guns were and how they carried them. He did not confess. He was not assaulted while being questioned. This happened twice.

TC34 then describes the assault the subject of the core allegation and, in his statement, says that he was subsequently reclassified as grey and transported by army trucks to Mwea. He was not given water or food during the journey and was not assaulted.

The defendant says that one cannot safely conclude that TC34 was ever detained at MacKinnon Road, as he alleges. Taking all matters into account, although there is uncertainty about the dates, in my judgment it is probable that TC34 was detained for a period at Mackinnon Road. I appreciate that there are no documents supporting this. Nevertheless, I find no reason to doubt TC34’s reliability on the broad proposition that he was detained there for some time. Further, his description of being classified as black and therefore detained until he was released, and then reclassified as grey, fits in with the general picture. So, for example, in the Defendant’s Outline Response to the Claimants’ Written Opening:

“440.

Around this time (Spring 1955), it appears that Manyani and Mackinnon Road became the main camps for holding category “Z” detainees because such detainees were being transferred there from other camps where attempts to rehabilitate them had been unsuccessful, or where they had otherwise revealed themselves as representing the “hard-core” Mau Mau element. This became the settled approach as of April 1955.

441.

In the meantime, an intensive re-screening process, including use

of Special Branch input, meant that the populations of Manyani and

Mackinnon Road would reduce significantly by way of transfers of

detainees to work camps.”

I appreciate that on 9 December 1954 an amended system of classification of detainees was introduced such that rather than using, for example, “black”, such persons were classified as Z1 or Z2 (Footnote: ²⁵⁷). Yet it would not be surprising if the old terminology was still used in the camp on a day to day basis. Also, it may well be that TC34’s knowledge derived from the colour of his bracelet. Nevertheless, those who were unclassified were sent to Langata, Manyani or Mackinnon Road for classification (Footnote: ²⁵⁸). By around September 1955, the Defendant says that Manyani and MacKinnon Road housed only “Z” detainees. There were around 15,000 between these two camps. A plan was therefore drawn up to house all the “Z” detainees at Manyani and to close MacKinnon Road (Footnote: ²⁵⁹).

The core allegation: Pleadings – AIPOC

TC34 pleads that at MacKinnon Road he was required to work as a carpenter. Prison guards ordered him to make furniture for them. On one occasion a guard hit him with a baton and the Claimant hit him back with a mallet. The guard stated he would be beaten. The Claimant was taken to a room. He was slapped, causing him to fall to the floor. He was hit with a wooden frame baton on his hip, knee, right shoulder and ankle. It took him 3-4 months to recover.

TC34’s individual submissions – commentary and discussion

In TC34’s closing submissions [102]-[103] it is said that a prison guard asked TC34 to make a bed for him. Following signs of resistance he was assaulted and threatened with further assault, having fought back. During his detention at Mackinnon Road he was badly beaten. While packing his carpentry tools away, a prison guard hit TC34 with a baton. TC34 retaliated, striking the prison guard with a mallet, causing him to fall. He was told he would be beaten for this. He describes being “taken later”, but resisting, throwing a stone, causing an officer of the Kuria tribe to be hit by it. He was violently slapped. He was caused to fall to the floor. He was repeatedly beaten with sticks and batons sustaining blows to his right shoulder, hip, joints, knee and ankle, causing him pain, swelling and bruising for about 3-4 months. It is also said the Defendant did not challenge TC34 at all on these matters.

TC34’s Witness Statement states:

“37.

One day a Prison Guard came and ordered us to make a bed for him. We asked him to buy us a cigarette and mandaazi but he refused. He went and reported us to the officer in charge. Being the one in charge of the detainees in the workshop I was called since I was in charge. I told the officer in charge that he had refused to bring nails which we needed. He was ordered to bring the nails for us. When he came we told them to bring us mandaazi and cigarettes but he still refused. I went back and told the officer in charge that the Prison Guard had refused to bring the nails.

38.

As I was packing my tools the Prison Guard came and hit me with a baton. I then hit him on the head with a mallet and he fell down. I fled without closing the workshop. It was said I would be beaten. I was later taken but I resisted. I threw a stone and one officer (“Kuria tribe”) was hit. I was slapped. I fell to the floor. I was hit on the head, knee, joint, right shoulder and the ankle by the wooden frame baton in the same places I had previously been assaulted. I suffered from bruises and I was swollen. It took about 3-4 months for me to recover.”

Mr. Heyworth recalls TC34 describing an incident at Mackinnon Road, “in which he was violently slapped whilst carrying a load of sand. As a result of the blow, (TC34) reports that he fell to the floor and was then repeatedly beaten with sticks and batons, sustaining blows to his shoulders, hips, lower back and face.”

Professor Mezey says that at MacKinnon Road on one occasion TC34 refused to make a bed for a prison warder unless he was given some cigarettes. The prison warder refused and started to beat (TC34) repeatedly on his shoulders, hips and legs with his baton. (TC34) retaliated by hitting the warder with a mallet. He then picked up stones and started throwing them.” This resembles more closely TC34’s statement, though it differs to some extent. Nevertheless, two somewhat differing accounts appear to have been given by TC34 to the medical experts on the same day.

Corroboration - MacKinnon Road

The Claimants rely upon the following as corroboration of TC34’s core allegation at MacKinnon Road:

The comments on Manyani corroboration apply with equal, if not greater, force to the corroboration alleged in relation to MacKinnon Road. In short, it amounts to little, if any, support for TC34’s core allegation. As shown above, some of these statements contain inaccuracies on their face.

On TC34’s reliability as to Mackinnon Road generally, the Claimants submit that:

On these points: (i) and (iii) can properly be made but they are not of real significance in the scheme of things. They are the sort of matters which may indicate truthfulness, but that is not the only explanation. Nor do they particularly assist on reliability of evidence.

In relation to point (ii), it is correct that TC34 was not cross-examined about his time at MacKinnon Road. The Defendant seeks to rely, upon the inconsistencies in the accounts which I have set out earlier. It submits that they greatly undermine the credibility/reliability of the pleaded case and the fairness of awarding damages on the basis of the Claimant’s evidence alone. None of the inconsistencies was in the List of Inconsistencies. The inconsistency in the medical evidence was put in a Part 35 question to Mr Heyworth, and responded to by him as follows:

“7.

Do you agree that, in contrast with the account given by the Claimant to you, his Particulars of Claim and the Claimant’s witness statement:

……

(c)

do not describe the alleged incident “in the course of [the Claimant’s] detention at McKinnon Road Camp in which he was violently slapped whilst carrying a load of sand”, following which the Claimant allegedly was “repeatedly beaten with sticks and batons, sustaining blows to his shoulders, hips, lower back and face” as he is reported as having alleged at page 6 §2, and §§6-7 of your report?

(d)

describe an alleged incident during which the Claimant alleged he was beaten following his striking a prison guard with a mallet (see §25 of the Particulars of Claim and §38, c.f. page 6 of your report)?“

………….

“7.

I will preface my comments to these questions by noting that it is not uncommon for patients to provide additional information in the course of a personal consultation to that previously provided in witness statements……

(d)

I would agree with this statement.

(e)

I would agree with this statement”

Once more I keep in mind what I have previously said on the matters of inconsistencies which were not the subject of cross-examination, and which were further summarised in relation to the Ngong Forest core allegation. Here again, they may illustrate confusion and difficulty of recollection at this remove of time. I do not place substantial weight on them.

The Defendant again makes the point that there are no witnesses, nor any evidence that the Claimants have sought corroborative witnesses, either to the fact that TC34 was detained in Mackinnon Road or, more particularly, to the allegation that he was assaulted there – in respect of which TC34 says in his Witness statement at [36] that he was in charge of a group of 6 carpenters, and that his assault began in the workshop as he was packing his tools (Footnote: ²⁶²). Nor is there any documentary evidence.

In respect of witnesses, the Defendant would have wished to speak to, for example, the people in charge of MacKinnon Road at the time TC34 was there. I have already set out the problems with the Timeline in respect of dates of alleged detention at this camp. In addition, the Defendant would have wished to interview Mr. Thacker (died 2007), Mr. Crawley (presumed deceased as born in 1905) and Mr McCann (died 2005). All these were (Assistant) Superintendents of prisons. MacKinnon Road was under the supervision of prisons department officials. They would have been a starting point to evidence of what happened on the ground at MacKinnon Road. They could have dealt with whether a British soldier was in charge, as TC34 alleges. The witness and document trail potentially would have led to the person in charge at the time of the alleged assault, the British soldier who, according to TC34, came and told the guards not to beat him, and to the alleged perpetrator(s).

In relation to documents which could have been investigated at Mackinnon Road there would have been:

I now set out my preliminary views in relation to the MacKinnon Road allegation.

As regards the core allegation, TC34’s own account is not wholly lacking in cogency, though the inconsistency of account, albeit not put to TC34, must raise some concern.

In relation to the questions of cogency of the evidence apart from that of TC34, in summary:

Gikuni

Preliminary

Apart from the core allegation and the timeline, there are some matters raised in respect of Gikuni with which I must deal.

In the IPOC at [32] it is said that after Waithaka “the Claimant was transferred to Gikuni Camp.” The heading to his witness statement at [45] is “Gikuni Camp”. The Reply at [33] says “…. there is an error in the Claimant’s Individual Particulars of Claim. It should be that the Claimant returned to his home in Gikuna (sic) rather than to Gikuna Village Camp. This misunderstanding is not the fault of the Complaint and the account given to Professor Mezey is correct.” The Defendant says that no explanation for the error has been advanced and refers to TC34’s statement which confirmed he had had read to him the Kikuyu version prior to thumbprinting. He said in cross-examination: “Gikuni is not a camp, it is my home.”

There is some evidence of the existence of Gikuni village at that time in a CCC minute from March 1957 which refers to “Gikuni Village.” (Footnote: ²⁶⁴)

I do not regard this matter of any great significance. TC34’s statement at [45]-[46] suggests that he was in “the village” and, after the incident which is the core allegation, he went home.

Gikuni core allegation: Pleadings – AIPOC paragraph 32

The alleged assault is pleaded as follows (Footnote: ²⁶⁵):

“32 the Claimant was then transferred to went back to his home in Kikuyu in about 1959 camp. Whilst at Gikuni Camp there, a man whom the Claimant describes as a Home Guard, but who was probably a Tribal Policeman entered the house of a friend he was visiting. The man hit him with the butt of a gun asking him why he did not stand up. The Claimant hit the man back….”

TC34’s individual submissions – commentary and discussion

TC34’s closing submissions at [117]-[119] state:

“117.

TC 34 gave evidence about an incident that occurred when visiting a friend’s house in Gikuni. A man whom TC34 describes as a Home Guard (probably a Tribal Policeman because the Home Guard were absorbed into the Tribal Police in 1955 …..came in and hit TC34 twice on his shoulder with the butt of his gun, causing TC34 to fall to the ground….. Mr Heyworth supported causation for these injuries…..

118.

The man asked TC34 why he did not stand up and TC34 hit him. TC34 openly gave evidence about this, and was forthcoming with detail consistent with his previous evidence. He said he “assaulted or attacked the Home Guard”. He accepted losing his temper; he did not seek to minimise his actions. He accepted that “by good or bad luck I saw a knife on the table. I grabbed it and stabbed the Home Guard in his lower back”. This was in self-defence; he had been stuck (sic) and caused to fall to the floor…….

119.

Professor Mezey thought that it was interesting that TC34 did not portray himself as “completely innocent” and was impressed by his openness. “He was willing to talk to me about some of the things that he had done that had perhaps involved law breaking or violence”…. Cs submit that it is to TC34’s credit, and his credibility, that he was so open”

The Defendant points to the following inconsistencies:

The Defendant also says that although TC34 is specific about the village in which the assault by the Home Guard is alleged to have taken place, it is affected in a similar way to other allegations by inconsistency and lack of proper particularisation as to time, place and identity of individuals involved. He has not identified the friend he was visiting at the time or the name of the person who allegedly hit him. There is no evidence as to what, if any, steps the Claimants took to identify this potential witness.

There is a further issue about the person TC34 described as Home Guard. The Claimants now say he would have been a Tribal Policeman by the time this assault is alleged to have taken place. That may be the position, but TC34 would have to prove that the alleged assailant was still officially an agent of the Defendant. Might he just have been a former Home Guard? There is evidence that not all former Home Guards became Tribal Policemen. TC34 had recently arrived back at Gikuni, and so may have been mistaken. Further there is the translation problem on this point (Footnote: ²⁶⁷).

The Claimants say that the man described by TC34 had a gun and therefore was likely to have been a Tribal Policeman; I would add that the sequel to this incident, as described by TC34, namely his arrest and subsequent developments as set out later, may give some weight to the suggestion that he was a Tribal Policeman (Footnote: ²⁶⁸). That said, it is now impossible for the matter to be investigated. At the time there may have been payroll records since there is evidence indicating that the Tribal Police were paid (Footnote: ²⁶⁹). Even without such records, it would have been entirely possible nearer the time to investigate with those in charge, and others, possibly with reference to other documents, who was officially a Tribal Policeman in a small village like Gikuni.

Any claim for damages would have to be limited to the pleaded case, which is that the man hit TC34 with the butt of a gun. There is no specific injury pleading from this allegation. TC34’s witness statement goes no further than saying that he was hit with a gun butt on the shoulder. His supplemental statement says he was hit twice on the shoulder with the butt of the gun. In this incident, Mr. Heyworth says nothing more than “(TC34) reports that he was violently slapped by a member of the Home Guard”.

TC34’s case is that he was subsequently arrested by Home Guards and later that day was handcuffed and taken to a Land Rover, where he was left overnight and the next day he was taken to Court. He does not plead or give any evidence of being beaten in this subsequent incident. However Mr. Heyworth records “(TC34) was subsequently arrested by a number of Home Guards and British Officers. (TC34) reports that he was then subject to repeated beatings, including blows from sticks, being kicked and blows from the “butt of a gun”. Therefore, Mr. Heyworth’s description of blows all over his body relates to the subsequent arrest by a number of Home Guards and British Officers. This is not supported by the pleadings or by TC34’s witness statements.

Nevertheless, the injury claim in the closing submissions [179] states: “he sustained two blows to the right shoulder with a gun butt. He was violently slapped and subjected to repeated beatings, including blows from sticks, being kicked and blows from the butt of a gun.” As previously stated, based on the pleadings and evidence, only the two blows to the right shoulder could possibly be the subject of damages. There was no application made to amend the alleged additional assault/injuries. Unsurprisingly, the Defendant says that had it been made, it would have been opposed. Thus, any recovery for the core allegation at Gikuni would be limited; no adverse effects, other than the initial pain from being struck, have been evidenced either by TC34 or in Mr. Heyworth’s report.

There was some questioning of TC34 about Gikuni, and about the core allegation, but the inconsistencies were not specifically put to him in cross-examination. However, prior to TC34 giving evidence:

In the List of Inconsistencies the Defendant set out the differing accounts in the IPOC at [32], on the one hand, and, on the other hand, the reports of Mr Heyworth, Professor Mezey, the Supplemental Witness statement at [22] and the Reply at [33].

Subsequent to the assault, TC34’s Witness statement relates:

“46.

When I went home, other Home Guards came to my home with a British officer. They knocked at my door. I asked who it was and they said it was the District Officer. I told them to come back the next day “It was not convenient”. They said if I did not open they would break the door and kill me. They started counting 1, 2 and on the 2^nd count I removed the lock on the door. This made one of the Home Guards to fall in the house and also the District Officer fell also they became very agitated.

47.

The British Officer did not take me to the cell he took to his garage and handcuffed me on the Land rover so that I could not sleep. In the morning the rest of the detainees were taken to court at around 10 am they forgot about me. I was still standing District Officer removed the handcuffs and was taken to Kikuyu court. I was released but I was told the acts I did were considered as bad as Mau Mau I would be detained. I was taken to Embakasi camp”.

In paragraph 34 of the Reply it says: “the court that he was taken to was the Kikuyu court held nearby”. The Defendant suggests that this implies that TC34 was taken to a Tribal Court, though in evidence he explained that he was taken to the Law Courts in the town of Kikuyu, which he said was about 10 miles from Gikuni. There he appeared before a white Judge, pleaded not guilty to assaulting the Home Guard, and was acquitted by the Judge. He was then arrested outside the court building by the police and detained. The Claimants submit that it is consistent that, having been involved in a local incident after having been released from detention, notwithstanding his acquittal, TC34 was re-detained. This is because TC34 was Mau Mau and the authorities may have considered him not safe to be released back into the community.

I now set out my preliminary views in relation to the Gikuni allegation.

As regards the core allegation, TC34’s own account is not wholly lacking in cogency, though the inconsistencies in the account, albeit not put specifically to TC34 for comment, must raise some real concern.

In relation to the questions of cogency of the evidence apart from that of TC34, in summary:

Hola

Pleadings – AIPOC paragraph 37

The pleaded case is:

“37.

Whilst at the Hola detention camp the Claimant was allocated a 4-acre area of land being used as a cotton plantation. He was ordered to harvest the cotton. Whilst doing so he would be whipped on his back and buttocks by the guards. After 6 months he was able to lease the 4 acres and his family was allowed to join him. He remained at Hola for about three years in all, until shortly before Independence in 1963” (Footnote: ²⁷³).

TC34’s individual submissions – commentary and discussion

In his Witness Statement at [62]-[70], TC34 describes his time at Hola camp. He says “I think there were about 1,600 people at Hola.” He then describes the houses and says that during his stay at the camp he had to work on a cotton plantation. He adds: “..these were the lands that we were working on after being released, and after the Emergency some people were given 4 acres of land each. The four acres would be divided into 8 pieces and we had to harvest all the cotton.” He says that whilst harvesting the cotton on the large plantation, they were whipped on their backs and buttocks, because the guards would think that they had not done the work required. He went to speak with the District Commissioner for Tana River district, who was a white officer, and asked him to allow families to be brought to the plantation to assist to harvest. He also says he made some furniture for him. The families were brought and TC34 was allowed to bring his wife and two children. He had two wives, though he was only allowed to bring one. He says “I think I was at Hola camp as a detainee for 6 months before I lease (sic) the 4 acres and was freed to be able to work on 4 acres that had been allotted to me.” After release he stayed at Hola from 1960-1963. He says that all the dates and times he has given are to the best of his recollection.

The DC for Tana River at the time was Mr Thompson. He said in his witness statement at [86] that it may have been him to whom TC34 says he spoke. However, he did not believe that TC34 did any carpentry for him. Mr Thompson said he visited Hola only about 2-3 times a year. He was, however, at the closed Hola camp for a number of months after the Hola massacre in March 1959. There were two camps at Hola: the closed camp and the open camp. It is the latter that TC34 appears to be describing, as Mr Thompson said this at [25] in his 2^nd Witness statement:

“I have looked again at the Claimant's [TC34’s] witness statement, and note his account of being accommodated in 'houses', of detainees working on the cultivation of cotton on nearby land, which continued after release, and of handover of that land to the detainees after the Emergency. That does not fit with my recollection of Hola detention camp. I think he may be referring to Hola open camp, which was a completely separate area, for rehabilitation. The main camp had a barbed wire fence. The farmlands were completely separate.”

The closing submissions of TC34 at [137]-[138] and [141] conform quite closely to TC34’s statement with some additional commentary.

The Defendant refers to the fact that TC34’s account is not supported by documents, and says that the documents he positively relies upon relate to a different time from that which he alleges he was at the camp. The following further points need mentioning:

A further matter is that the Defendant submits that the alleged assault could equally have been after the Emergency finished - a period in which there are no allegations in this litigation. However, I believe that this is unlikely to be a good point, since the tenor of TC34’s evidence is that he was whipped whilst he had to undergo forced labour in the initial months of his time at Hola, when he was a detainee and not, as subsequently, a restrictee with his own land (Footnote: ²⁷⁹).

I now consider the alleged injuries. TC34 reported to Mr. Heyworth that he was repeatedly whipped sustaining blows to his back and buttocks. In response to a Part 35 question by the Defendant, Mr. Heyworth said that the absence of marks or scars does not exclude the possibility of somebody being subject to the assaults alleged, particularly after a significant interval prior to the examination. The Claimants seek general damages for likely multiple whippings over the same sites aggravating the pain. The Defendant says that there is no evidence as to the frequency of the whippings, or their duration, or the degree of pain caused or any injury resulting. (Footnote: ²⁸⁰) This lack of specifics is correct. However, it would not make a fair trial on quantum impossible. The Court would be able to make an assessment of a recoverable minimum amount based on the general evidence given. (Footnote: ²⁸¹)

I now set out my preliminary views in relation to the Hola allegations.

Mr Thompson attested to some of the details of the open camp given by TC34, for example the houses, families joining restrictees and the system of land partition. This is corroborative evidence of the fact that TC34 was in Hola open camp.

As regards the core allegations at Hola, TC34’s own account is not lacking in cogency. It amounts to allegations of whipping during a period which seems to have commenced in 1959 at some time after the Hola massacre. In relation to the questions of cogency of the evidence apart from that of TC34, in summary:

As time has gone on, so the prejudicial effect of the delay is likely to have increased, though, save as to the dates of death of certain potential witnesses, precise dates for this cannot be given.

The Broader Picture

At this section of the Judgment I will select what seem to me to be the most significant other factors put forward by the parties so as to assist me in deciding whether it is equitable to allow TC34’s claims to proceed, with particular reference to Section 33(3)(b), and whether there can be a fair trial.

Mau Mau Oaths

In his witness statement TC34 said he took an oath. His father had sold his goat. TC34 says he was angry and his father told him they would go to get the goat. In the evening when they went to get the goat, they entered the room and TC34 found people there. He learnt that his father was one of the people who were administering the oath. He then took the oath. This was before the State of Emergency was declared.

This is the only oath which was pleaded (and verified) in the original IPOC. In the AIPOC, after TC34’s cross examination, TC34 pleads that he took the oath “on a second occasion in about 1953.” The evidence as to the second oath only emerged once there was some questioning by the Defendant as to date, TC34 having said in evidence he took the oath in 1955. He was then asked how many oaths he had taken and he said two. He said he took the second oath because of the anger that was within him. He took it in his village with very many young men. He swore an oath and promised to do whatever he would be asked to do thereafter. There was a ceremony where the oath was taken whilst holding soil and raising hands.

The Claimants initially completed a Pro-Forma, to which I have already made reference. This asked a Yes/No question as to whether the person had taken the oath. Witness statements were taken subsequently, from the pool of 40 potential TCs, in the presence of qualified solicitors who act in this litigation. Mr Myerson accepted that it could be inferred that TC34 had the opportunity to say that he had taken the oath more than once. I add that it might be surprising, in a structured process of taking the statement, albeit through interpreters, if the question as to how many oaths had been taken was not directly asked. Other TCs stated they took the oath on more than one occasion (Footnote: ²⁸²).

The Defendant also refers to Professor Mezey’s report at [28] which records that prior to the state of Emergency TC34 had been “tricked” by his father into taking the oath when he was about 18 years old. She relates that TC34 said that he had not fully understood what was happening at the time, and he was frightened that he might be killed if he refused to comply. He was not happy about what his father had done (Footnote: ²⁸³).

The Claimants say that TC34 was not asked why he had not mentioned the second oath before. Nevertheless, and giving due regard to that, this sort of omission from the verified IPOC and the witness statement does raise some concern as to TC34’s general reliability.

Assisting the Mau Mau

Hitherto in this judgment there has been reference to the fact that TC34 was active Mau Mau. Indeed that is now prayed in aid by the Claimants to say that his categorisation as ‘black’, and his journey along the Pipeline, ending in Hola (which was for the hard-core Mau Mau) is a consistent account. However, it did not always appear that way. So:

In cross-examination, TC34 said that after he had taken the second oath he alternated between being in Nairobi and in his village. He said he was helping the Mau Mau at that stage finding ways of how to acquire guns and bullets. He went to the soldiers’ camp with a girl and would give them a girl and the girl would bring them what they wanted i.e. the girl would offer sexual favours in return for ammunition. The girls stole guns as well as bullets. He estimated that he managed to obtain about 30 guns during this period of time.

TC34 further said that his friends who were Mau Mau told him that the government wanted him. Thereafter an incident occurred when three white men came to his mother’s home asking for him, but he managed to avoid detection.

It is correct that this evidence, as with the matter of the second oath, came out voluntarily in cross-examination, albeit after what might be regarded as a ‘trigger’ of an inconsistency as to oath date; also it was not explored with him why this had not been stated before. It would have been more helpful if this had been so explored. For that reason I do not place great weight on it. However, such an omission from the witness statement and pleadings, in the context of the documents which suggested that he had nothing to do with Mau Mau, must be another cause for concern as to the reliability of the evidence-taking process and/or of TC34’s evidence. I do not know why there are these omissions. Mr Myerson urged on me that, at worst, TC34 was telling the whole truth in oral evidence. That may be so, in that regard. But misleading information in witness statements and other documents signed with a statement of truth cannot be totally airbrushed out in this way. It must have some effect on the court’s overall assessment of TC34’s evidence, though this is limited given that TC34 did not have the matter specifically put to him for his comments.

Arrest and Interrogation at CID in Nairobi

I do not propose to go through the details concerning TC34’s alleged arrest in Nairobi. The Defendant (Footnote: ²⁸⁴) points out certain inconsistencies; the Claimants suggest that a document is corroborative of the greater administrative control from June 1954. (Footnote: ²⁸⁵) Although I have taken some note of these matters, they do not influence my decision.

The next matter relates to what TC34 said was an interrogation at CID Nairobi before he was then driven to the Ngong Forest. It has generated a good deal of submissions. It is also part of the backdrop to the Ngong Forest core allegation. However, as it does not amount to a core allegation in itself, I shall deal with it as briefly as possible. The Defendant submitted that TC34 has given inconsistent accounts. It puts the matter in this way:

Apart from the above inconsistencies, the Defendant said that there is no support for this account beyond TC34’s own evidence. There are no documents which might support it. If true, it seems to amount to an allegation that the Colonial government’s central police administration in the capital, under the leadership of Mr MacPherson, was arranging for, or accepting, the beheading of corpses, and collecting their heads in a drawer in an office or an interrogation room so as to produce them to intimidate suspects. Where the corpses came from, what happened to them, how long the heads would, or could, be kept in the drawer, who would have had to be complicit in such an arrangement and to what level of officer – the answers to all these questions, and no doubt others, are unknown.

Given the evidence forthcoming for the first time in cross-examination that TC34 helped the Mau Mau acquiring guns and bullets, it is understandable that he would be interrogated. Inconsistencies of recollection are not particularly troubling at this remove of time. Yet this is an extraordinary allegation, as the Defendant submits. Mr Myerson conceded that on its face it was indeed “absolutely extraordinary”.

The Claimants point to some documents that they say are evidence of screening teams deploying psychological methods. Even on the face of the Claimants’ submissions, these go nowhere near providing any sort of real corroboration for what TC34 alleges happened at CID Headquarters in Nairobi (in or about 1955). They are in different places and at different times and, on the Claimants’ allegation, refer to enforced solitary confinement, sleep deprivation and spreading fear by rumours and beating people. (Footnote: ²⁸⁸)

The Claimants also rely on Professor Mezey’s evidence, not just as to the reliability of TC34’s account on the severed heads incident, but also as ‘compelling’ evidence in support of his credibility and reliability generally. Her evidence was:

“He described extreme feelings of fear and distress, and he said that he has never forgotten the sight of those heads; even today he feels unable to think about it or talk about it as it makes him feel so bad. And the way that he described it was again very characteristic of an experience that he was trying to avoid and to put into the background because, again, physically and in the room, it was possible to see him becoming increasingly distraught, simply by having to describe events…..

I considered that what he was describing in terms of the thoughts about the severed heads and the way that he was presenting in the interview was consistent with him actually experiencing a flashback in the room, because there was a sense in which he was not in control, fully, of his emotions, and actually becoming rather overwhelmed by the experience of that memory. So we had to quickly move on to another subject because he was becoming so distressed. I would describe that as a flashback”. (Footnote: ²⁸⁹)

Were the severed heads incident a core allegation, it would be subject to all the problems well rehearsed earlier in this judgment whereby, after the great lapse of time, it is impossible for the Defendant to begin to investigate. Even without such evidence, I am troubled as to the reliability of TC34’s account. It is not the inconsistency in detail that particularly concerns me, but rather the sheer unlikelihood, in the absence of any proper corroboration from any source whatsoever, that this sort of incident ever occurred.

Although I have considered carefully the evidence of Professor Mezey, I am again sceptical as to the faith she puts in what she saw on examination. That is not to say that it could not possibly have happened; nor to say that Professor Mezey may not be correct. My views on this evidence are similar to those I have stated above where Professor Mezey was impressed by TC34’s account of the spilling of the intestines at Manyani.

I accept that there is some force in the Claimants’ response that the Defendant could have tested TC34’s evidence or sought an explanation. As such he did not have the opportunity to explain or respond to a suggestion that the incident is so bizarre that it is unlikely it ever happened. It is tempting at first blush to weigh this incident in the balance as a fact tending to undermine TC34’s reliability in the round, rather than the contrary, as the Claimants contend. I do not do this. I do not take it into account against TC34. It would, however, be wrong to take it into account against the Defendant (a) because of its inherent unlikelihood and (b) because the Defendant has been deprived by the passage of time of any prospect of investigating it.

In short, I disregard this incident for the purpose of my consideration of the core allegations.

I do not deal with this. There is some issue between the parties as to evidence/credibility. However, nothing in relation to what is alleged about Langata assists me, one way or another, on the core allegations.

Mwea works camp

When dealing with the allegation at Ngong Forest, I referred to the inconsistency in the evidence as to whether TC34 was beaten at Mwea. He told Mr Heyworth that he had been and, at one point in his cross-examination he repeated this in forceful terms. However, there is no claim for assault occurring at Mwea.

Apart from that matter, nothing in relation to what is said about Mwea assists me on the core allegations (Footnote: ²⁹⁰). The fact of being moved to a works camp such as Mwea, after reclassification as grey (then X or Y), is supported generally (Footnote: ²⁹¹).

Waithaka

No subsisting claim arises from the alleged detention at Waithaka. TC34’s case is that he was held there for a few weeks before being released to Gikuni and (by amendment in the AIPOC, following TC34’s cross examination) briefly on his way to Embakasi Camp. This was via Waithaka and Langata.

I have not dealt with the Waithaka timeline in any detail. There are documents which suggest that Waithaka was closed by January 1958, that it closed in November 1958 and that as late as May 1959 it was used to hold the small number of detainees destined for Hola (Footnote: ²⁹²). Again, none of the points made in respect of Waithaka assist me on the core allegations. The same goes for Wangige and the second brief mention of Langata (Footnote: ²⁹³) .

Embakasi

After being at Gikuni and, according to his AIOPC and oral evidence, going via Waithaka and Langata (Footnote: ²⁹⁴), TC34 said he was taken to Embakasi Camp. There is no subsisting claim for anything that happened there. I have dealt previously with timeline matters in relation to Embakasi.

Apart from the above there is substantial discussion in the closing submissions as to allegations of brutality relating to Embakasi. This appears to be in the context of the TC34’s evidence that he was threatened with castration with a burdizo tool used for castrating bulls and that, fearing for his life, he pushed a female officer back onto a tent pole whereupon the tent collapsed, another officer arrived and TC34 was removed, reported what had happened and was then immediately taken to Fort Jesus Camp. Given that there is no allegation of an assault giving rise to a claim for damages, I do not propose to review this evidence. It does not assist me in determining the issues on the core allegations.

Fort Jesus

There is some discussion in the parties’ submissions about documents evidencing the existence and purpose of Fort Jesus. I do not deal with these since they do not assist me in relation to determining the core allegations.

Mukoe

Although there is no core allegation arising out of TC34’s alleged time at Mukoe, there are some matters which warrant brief discussion.

The first is that there are documents from 1955-1958 which evidence the existence of Mukoe (or Mkowe). TC 34 said Mukoe camp was in Lamu. Further, a document dated 4 November 1958 (Footnote: ²⁹⁵), refers to recent intakes at Hola from Mukoe. TC34 said he was taken from Mukoe to Hola. The Defendant said that these documents do not assist, other than in the most general sense of indicating the existence of a camp at Mukoe, given that the documents are not from the period when TC34 says he was detained there, i.e. in 1959. However, the documents are of some significance in indicating the existence of the camp at Mukoe, and the November 1958 document is some corroboration of TC34’s account that he was transferred from Mukoe to Hola.

Next, Mr. Aspinall was a witness for the Defendant. He was asked to take over the running of the Mukoe Camp for a couple of months at the end of 1957. Clearly this was before TC34 says he arrived. He confirmed that the description of Mukoe Camp given in TC34’s witness statement at [59] is, as far as he could remember, accurate. However, he said that TC34’s description of the clothes given to inmates as being yellow shorts and no upper clothing is not consistent with his clear recollection that inmates were provided with khaki shorts and shirts. He added: “of course, I cannot speak as to what the uniforms were before, or after, my time working in the camp.” In his statement at [10] Mr. Aspinall says Mukoe was a camp for reformed Mau Mau who had confessed. The Defendant says that TC34 does not suggest he confessed. Finally, Mr Aspinall said that it would have been very unusual for someone to be sent to Mukoe and then to Hola, though this evidence seems at odds with the later November 1958 document referred to above.

Notwithstanding the Defendant’s points, I regard Mr. Aspinall’s evidence as being of some corroboration that TC34 was indeed detained for a period at Mukoe.

Finally, there is the matter of assault at Mukoe. There is no claim for an assault there. In his witness statement TC34 says he was not assaulted at Mukoe. He stated this also to Professor Mezey. TC34 saw Professor Mezey on the same day as he saw Mr Heyworth. Mr. Heyworth said that TC34 reported that during the course of his detention at Mukoe he was subject to repeated beatings, which included assaults with sticks, batons and being kicked. He sustained blows all over his body and reported significant pain associated with these blows at the sites of the injuries sustained. The Claimants submit that confusion is the most likely explanation for this. However, confusion or not, it cannot be wholly ignored and is something which is be taken into account in evaluating TC34’s reliability as a witness. It cannot weigh heavily against TC34 since he was not given the opportunity to comment on it.

Conclusions

General

It is impossible fully to appreciate the situation during a State of Emergency in a former colony subject to what at first was, on the one hand, a serious revolt with many active and passive supporters and, on the other hand, the Administration and a substantial number of loyalists. Presumably, there were also those who wanted nothing more than to get on with their lives, but who were caught up in it all. As time went on, so the colonial government took control, but for a long time problems remained. These included who could be trusted for release, and how they could be safely re-settled in the Kikuyu, Embu and Meru communities.

It is common ground that abuses occurred. The statement of the Rt. Hon. William Hague M.P., the former Foreign Secretary, accepted this.

It was also accepted by Mr Mansfield QC that it is probable that the cohort of Claimants in this GLO include a number of abuse allegations which are true.

The potential for unreliable allegations in a very large group of Claimants may be unavoidable in a GLO. Nevertheless, a GLO is the most effective means of achieving justice in such a case. In order to proceed in a proportionate way, Test Claimants are selected with a view to being as representative as possible of the cohort as a whole.

The evidential scope of many GLOs is much narrower. This is the case for example in a factory explosion which spreads noxious chemicals over a local community, or a medicine which is alleged to have gravely deleterious side-effects.

This GLO is different. Such evidence as is available, both witness and documentary, has covered a large number of detention camps, villages (Footnote: ²⁹⁶) and other venues where abuses are alleged to have taken place. The central time span for what was happening in Kenya is from 1952 to 1963. In addition, there has been detailed evidence, particularly regarding difficulties with witnesses and documentation, from then until the present day. Further, the geographical area of the alleged abuses includes the capital, Nairobi, and vast areas of Kenya which are home to the Kikuyu, Embu and Meru tribes.

Against that backdrop, the GLO must, apart from the generic issues, have its first and main focus on the Test Claimants. The Claimants said (Footnote: ²⁹⁷):

“……these are Test Cases. If D’s assertion is simply that these TCs cannot fairly have their cases adjudicated then it must be said of all TCs. Otherwise the GLO has failed to achieve its object…. The logical outcome is that many people were abused, but none of the 40,000 people in this action can show they were abused…….”

This is correct. The corollary is that if it is equitable to allow all the TCs’ claims to proceed and they prove their cases, then, subject to the Claimants also succeeding as necessary on the generic issues, those decisions should provide a template for the resolution of the remaining 40,000 plus claims.

TC34 is the first of the TCs to have his case considered. There have been extensive written and oral submissions as particularised in paragraph 26 of this judgment. The first question I have to ask myself is whether to exercise my section 33 discretion. The statutory test is easily stated. I must decide whether: “……it would be equitable to allow (the) action to proceed having regard to the degree to which – (a) the provisions of section 11…prejudice the (claimant)…and (b) any decision of the court….would prejudice the defendant…”. In so deciding I must have regard to all the circumstances of the case and in particular to those in subsections 33(3)(a)-(f). I must make a decision on each core allegation separately, as it is open to a court to allow one or more claims to proceed, while refusing to exercise the discretion in favour of a Claimant on other claim(s).

It is important to recognise in this situation as in numerous others that: “No man is an island entire of itself” (Footnote: ²⁹⁸). TC34’s claim must be seen in context. It is for that reason, and the potential importance of the findings in this first Test Case, that both parties have been so wide-ranging in their submissions. This is against the backdrop of a trial which has so far lasted over two years.

I have given as careful scrutiny as possible to all points made. I have sifted them, evaluated them and attributed to them the weight I believe they deserve. This has required delving into matters individually in minute detail. It has then required standing back and looking at the overall picture.

As I said in open court, and have repeated in this judgment, I accept that TC34 was detained for some periods of time during the Emergency in Manyani, MacKinnon Road and Hola open camp.

Each core allegation calls for individual attention. As to the core allegations:

“Equitable to allow an action to proceed”

In these conclusions I will draw on the detail of what I have set out earlier in this judgment. I take into account everything I have previously said, but, nevertheless some important matters are worthy of repetition.

The essence of the proper exercise of the judicial discretion under section 33 is that the test is a balance of prejudice, and the burden is on the claimant to show that his or her prejudice would outweigh the prejudice to the defendant. Refusing to exercise the discretion in favour of a Claimant who brings the claim outside the primary limitation period will necessarily prejudice the Claimant, who thereby loses the chance of establishing the claim. This is a very important matter. I have attributed to it all the weight which it is proper for me to do.

Whether it is "equitable" to allow an action to proceed is no different a question from asking whether it is fair in all the circumstances for the trial to take place. That question can only be answered by reference to "all the circumstances", including the particular factors picked out in the Act.

I have to conduct the balancing exercise at the end of my analysis of all the relevant circumstances and with regard to all the issues, taking them all into account. The factors identified in section 33(3) are all relevant, but the decision on whether it is equitable to proceed will be based upon a broad consideration of all the circumstances. The importance of each of those statutory factors, and the importance of other factors (specific to the case) outside the ones spelled out in section 33(3), will vary in intensity from case to case.

The length of and reasons for the delay

The length of the delay under section 33(3)(a) is delay since the expiry of the limitation period. The dates are somewhat fluid in TC34’s claims. The expiry of the Ngong Forest claim limitation period was probably not later than sometime in early 1958, and the expiry of the Hola open camp claim limitation period probably not later than sometime in 1963. The expiry in the other claims will have been between these dates. TC34 became a party to the proceedings in May 2014. Therefore, the length of the delay covering all claims is probably somewhere between 51 and 56 years.

The authorities also establish that the Court may have regard to disappearance of evidence and the loss of cogency of evidence from the time at which section 14(2) was satisfied until the claim was first notified. They are not strictly relevant under section 33(3)(a), but rather under section 33(1).

The length of the delay is important, not so much for itself as to the effect it has had.

Turning to the reasons for the delay, these are clearly relevant and may affect the balancing exercise. If it has arisen for an excusable reason, it may be fair and just that the action should proceed despite some unfairness to the defendant due to the delay. If, on the other hand, the reasons for the delay or its length are not good ones, that may tip the balance in the other direction. The latter may be better expressed by saying that, if there are no good reasons for the delay or its length, there is nothing to qualify or temper the prejudice which has been caused to the defendant by the effect of the delay on the defendant's ability to defend the claim.

Reasons for delay are not self-proving. No express evidence was given by TC34 about the reason(s) for the delay in his case. It is unsatisfactory to be asked to draw inferences when TC34 gave written and oral evidence and did not address the matter. Any such reasons were not therefore tested in cross-examination.

I am prepared, however, to infer that while TC34 was in detention, which would be until about 1963, he had little or no access to legal advice about the possibility of making a claim. If I am not entitled to take this into account under section 33(3)(a), I do so as part of all the circumstances of the case. I also take into account as part of all the circumstances of the case the fact that TC34 has little education and is relatively unsophisticated. These factors I put into the balance when considering whether it is equitable to allow the action to proceed. However, there is no evidence of a good reason for delay after 1963.

Conduct of the Defendant

The relevant conduct to be considered under section 33(3)(c) is conduct post-dating the intimation of the claim in 2012. There is no ground for criticising the Defendant’s conduct on that basis.

Disability of TC34

Disability under section 33(3)(d) means lack of capacity within the meaning of the Mental Capacity Act. This is irrelevant in TC34’s case.

The extent to which TC34 acted promptly and reasonably

On the evidence TC34 cannot be said to have acted promptly and reasonably once he knew whether the act or omission of the defendant to which the injury was attributable might be capable at that time of giving rise to an action for damages.

The steps taken by TC34 to obtain medical, legal or other expert advice

There is no evidence of TC34 having taken any such steps prior to the involvement of the present solicitors.

Section 33(3)(b) - Preliminary

Under this subsection I have to consider the effect of the delay in issuing the claims on the cogency of TC34’s evidence and of the evidence of the Defendant.

The authorities make it clear that it is a well-known fact that memories become less and less reliable the staler an action becomes. This is most relevant to TC34’s evidence. The witnesses whom the Defendant was able to call – Mr Kearney, Mr Burt, Professor Khan, Mr Thompson – all suffered from the same problem, but their evidence was of very little significance on the core allegations.

The prejudice to the Defendant of losing a limitation defence is not the relevant prejudice to be addressed. The prejudice to be addressed is that which affects the Defendant's ability to defend. That involves considering what evidence might have been available to the Defendant if a trial had taken place earlier or it had learned of the claim earlier. It is not sufficient for the court simply to hear the evidence of the Claimant, and indeed any other evidence now available, and to decide the issue of limitation on the basis of it, without considering what evidence would or might have been available at an earlier stage. That would be to overlook the possibility that, had the Defendant been in a position to deploy evidence now lost to it, the outcome might have been different.

The prospects of a fair trial are important. The Limitation Acts are designed to protect defendants from the injustice of having to fight stale claims, especially when any witnesses the Defendant might have been able to rely on are not available, or have no recollection, and there are no documents to assist the Court in deciding what was done or not done and why. It is, therefore, particularly relevant whether, and to what extent, the Defendant's ability to defend the claim has been prejudiced by the lapse of time because of the absence of relevant witnesses and documents.

However, the Defendant only deserves to have the obligation to pay due damages removed if the passage of time has significantly diminished the opportunity to defend the claim.

Further, while the ultimate burden is on a Claimant to show that it would be inequitable to disapply the statute, the evidential burden of showing that the evidence adduced, or likely to be adduced, by the Defendant is, or is likely to be, less cogent because of the delay is on the Defendant.

In their General closing submissions the Claimants said:

“4.

The approach in Gestmin SGPS Skeleton Argument v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) is, in Cs’ submission, the appropriate approach to take. In essence (§§15-22) the Court relied first on the documentation and then on oral recollection, the latter largely to gauge the witness’s approach.

…………

At the time when those submissions were filed, the issues were very much wider than is now the case. The documentary record may have been of assistance in determining some of those issues. Later in that document the Claimants wrote:

“144.

As to cogency and reliability, it must be the case that Gestmin and the cases that follow it have a clear effect on the approach to S33. A legal system which relies mainly on oral evidence, either because very little is reduced to writing, or because oral evidence is regarded as being something that a Judge can reliably assess for truth, reliability and accuracy, or both, is bound to look at the effect of the passage of time on memory, and be concerned about delay. Once that legal system recognises both that documentation increasingly became the medium of communication as the 20^th century went on, and that memory can be unreliable for many other reasons than the mere passage of time, the approach obviously alters. Memory can be tested, and documentation is likely to be more reliable – both as against memory and as a reliable record of what happened.”

I have summarised the effect of Gestmin and other authorities previously in this judgment under the heading: “The approach to the evidence”.

Albeit that I am cautious in applying, to the disadvantage of the Claimants’ case, the full rigour of Gestmin and the other authorities, nevertheless, the problems of relying on the uncorroborated, or largely uncorroborated, evidence of TC34 at this remove of time are clear. TC34’s memory would have been much fresher and therefore more reliable. He may also have been able to give some critical information, e.g. a much better timeframe or names, or at least a description, of the alleged primary tortfeasors. These all affect the cogency of his allegations.

Mr Myerson accepted that TC34 could not be right about the dates and, in particular, the amount of time he had spent in Manyani and MacKinnon Road. The problems with the timeline go further than that, as detailed earlier in this judgment. It is highly likely that 50 plus years ago TC34’s recollection as to dates and periods spent in the camps would have been more accurate. So would his recollection as to the dates of the Ngong Forest and Gikuni allegations. In relation to the core allegations, TC34 has been consistent as to locus and as to sequence. Nevertheless, I must bear in mind the undoubted confusion as to dates and length of periods and the consequences of this when evaluating the cogency of TC34’s evidence. There are few extraneous objective facts by which properly to measure the reliability of his evidence. The greater accuracy and precision which there would have been if the claim had been brought, say 50 plus years ago, would have assisted the Defendant’s investigations in locating relevant documents and witnesses against which TC34’s evidence could have been tested. Finally, to the extent that TC34 relies on corroborative evidence (Footnote: ²⁹⁹), the dates are of some importance to set the alleged corroboration in context and the extent, if any, to which it supports TC34’s case. However, for the reasons given the corroborative evidence is weak, in part because it is itself incapable of now being tested and properly evaluated.

In addition, there are examples of lack of cogency as set out in relation to the core allegations and the section sub-titled “The Broader Picture”. These include a number of inconsistencies. I have been very careful in the weight I have attributed to the latter where they have not been put to TC34 for comment, but (a) some were, e.g. whether TC34 was assaulted at Mwea (Footnote: ³⁰⁰) (b) they cannot in any event be wholly disregarded when deciding whether TC34’s evidence is cogent at this remove of time.

In summary, there is no doubt that TC34’s evidence has been rendered significantly less cogent by the delay in issuing the claim.

Having examined the core allegations in detail, I very briefly summarise the loss of cogency on other evidence. Important contextual witnesses, e.g Mr MacPherson for Ngong and Mrs. Henley-Colgate for Hola (among several others) can be identified as having died many years ago, but also many years after the limitation period expired. On the core allegations and other important or potentially important contextual matters, the Defendant does not know the names of any witness, or have any means of beginning a process of identifying, much less tracing, them. The passage of so many years in this case entail that the Defendant cannot even begin any proper investigation of the core allegations. It does not know who allegedly carried out the assaults or when. It knows nothing about TC34 apart from what he himself has said. To put the matter at its lowest, fifty plus years ago, the Defendant potentially could have found documents which could potentially have led to information about TC34 and to alleged tortfeasors or witnesses. At the very least it probably would have known which documents had been kept and which had been lost/destroyed. All these are, at a minimum, realistic possibilities; some are probabilities. Here, after all these years, the position is that, apart from the clear prejudice that the Defendant can prove, there is further prejudice in that it has been deprived in certain aspects from proving specific prejudice arising from lack of documentary or witness evidence. For example, documents which may have given, or led to potentially material evidence, no longer exist/cannot be found despite serious endeavour to find them; as a result of the passage of time, the Defendant can show that it does not know what happened to them. In the 1950s/1960s, the investigation could have been at least been properly embarked upon, and with a realistic prospect of a positive result. That in itself is prejudice proven by the Defendant.

In short, the strong probability is that the Defendant would have been in a very substantially better position to defend the core allegations well into the mid-1960s. As time has passed, so the ability to defend has diminished, such that it is now essentially impossible for the Defendant to have any proper opportunity to find documentary or witness evidence with real relevance to the core allegations.

Mr Kearney’s evidence as to the severed heads allegation at the CID in Nairobi indicates how the Defendant is prejudiced in relation to all core allegations. There would in the past have been many witnesses who could have given real context to the reliability of TC34’s evidence in the way that Mr Kearney’s evidence begins to do. Similarly, Professor Khan’s evidence on alleged abuse at Manyani gives an insight into the fact that, had the Defendant had the opportunity to investigate TC34’s case when the allegations were reasonably fresh, there may well have been a number of other witnesses who would have given a very different narrative from the one I am now being asked to find is fair and convincing as corroboration. Such witnesses may well have radically affected the assessment of TC34’s reliability and the core allegations.

Witnesses - Authority

In relation to witnesses, it is helpful to remind myself of some authority. I have already cited some of this in the general section on the law, but I wish to repeat and amplify some citations.

First, it is, according to the House of Lords, a ‘false point’ to say that, because the law permits a Claimant to disadvantage a Defendant by dilatoriness within the limitation period, the Defendant cannot then complain of prejudice once that period has expired. So, even if the position were that the Defendant would have had difficulty tracing witnesses if the claim had been issued some time after the core allegation(s) but within 3 years of them, the point as to prejudice could still be made. In Donovan (Footnote: ³⁰¹) Lord Oliver said:

“A defendant is always likely to be prejudiced by the dilatoriness of a plaintiff in pursuing his claim. Witnesses’ memories may fade, records may be lost or destroyed, opportunities for inspection and report may be lost. The fact that the law permits a plaintiff within prescribed limits to disadvantage a defendant in this way does not mean that the defendant is not prejudiced. It merely means that he is not in a position to complain of whatever prejudice he suffers. Once a plaintiff allows the permitted time to elapse, the defendant is no longer subject to that disability, and in a situation in which the Court is directed to consider all the circumstances of the case and to balance the prejudice to the parties, the fact that the claim has, as a result of the plaintiff's failure to use the time allowed to him, become a thoroughly stale claim, cannot, in my judgment, be irrelevant.”

In Dale, an accident case, Stuart-Smith LJ, cited Lord Griffiths in Donovan, and said:

“In my judgment where the existence of a claim and sufficient particulars of it are given so late that it is virtually impossible for the defendants to investigate it, either because witnesses cannot be traced, memories will inevitably have faded or vital documents are lost, a defendant is gravely prejudiced if section 11 of the Act is disapplied, because he is almost powerless to defend the case on its merits. In such a case it will require exceptional circumstances to outweigh the prejudice and to bring the scales down in favour of the plaintiff. As Lord Griffiths made clear in the passage I have quoted, the whole purpose of the Limitation Act is to protect defendants from the injustice of having to meet stale claims.”

Of course, the individual circumstances of the case must be taken into account. There is more background information in the claims in the present litigation. Yet the core allegations are single incidents which, apart from Hola, allegedly took place involving a few individuals. I therefore must take some note of this citation.

The passage by Burnett LJ (as he then was) in Bowen is of importance in this context. He also referred to what Lord Brown said in A v Hoare (Footnote: ³⁰²). That passage bears repetition. Lord Brown said in relation to what Burnett LJ described as “the problems of investigating antique events”:

“Whether or not it will be possible for defendants to investigate these sufficiently for there to be a reasonable prospect of a fair trial will depend upon a number of factors, not least when the complaint was first made and with what effect. If a complaint has been made and recorded, and more obviously still if the accused has been convicted of the abuse complained of, that would be one thing; if, however, a complaint comes out of the blue with no apparent support for it… that would be quite another thing. By no means everyone who brings a late claim for damages for sexual abuse, however genuine his complaint may in fact be, can reasonably expect the court to exercise the section 33 discretion in his favour. On the contrary, a fair trial (which must surely include a fair opportunity for the defendant to investigate the allegations – see section 33(3)(b)) is in many cases likely to be found quite simply impossible after a long delay.”

Lord Hoffman at [52] said he agreed with all of Lord Brown’s speech and added: “..but I respectfully think that his observations on the exercise of the discretion are particularly valuable..” Lord Walker and Lord Carswell fully endorsed Lord Brown’s (and Lord Hoffman’s) speech.

In TC34’s case there was no complaint at all at or until over 50 years after the core allegations are said to have taken place. It may be said that the complaints did not come ‘totally out of the blue’ nor that they had “no apparent support” – in that there were a number of complaints of abuse during the Emergency arising from, in particular, Manyani, MacKinnon Road and Hola. But those other complaints of abuse, by other people and at other times, some of which were investigated by non-judicial inquiries in the 1950s (Footnote: ³⁰³), some of which were the subject of court cases in Kenya, detract little, if at all, from the prejudice suffered by the Defendant. The Defendant had no notice whatsoever of TC34’s core allegations until more than 50 years had passed, and when its ability to investigate and defend has undoubtedly been severely prejudiced.

Further, in A v Hoare the underlying assumption was that the individual tortfeasor was named and could give evidence. If a named tortfeasor is dead and has had no opportunity to comment upon the allegations made against him, then it would take very persuasive evidence to exercise the discretion against that person and then to find against him. The unfairness of making a serious finding of abuse against someone who has had no opportunity to defend himself is patent. If that is so with a named tortfeasor now dead, how can a Claimant be in a better position when he cannot even name the tortfeasor but seeks recovery?

I have had full regard to the fact that the section 33 discretion can be exercised in favour of a Claimant, notwithstanding the unavailability of the primary tortfeasor and other evidence. In Raggett v The Society of Jesus (Footnote: ³⁰⁴), Swift J did so in a historic sex abuse case where the alleged tortfeasor, a schoolmaster priest, had died prior to proceedings. The circumstances were:

There was, therefore, a host of very significant factors in Raggett which are not present in TC34’s case.

Further, although again I must take into account that all cases differ on the facts, the essence of what the Court of Appeal said in KR v Bryn Alyn at [82] has relevance:

“It should be remembered that the reason for limitation provisions is to protect defendants from the injustice of having to meet stale claims. And a judge, when considering whether to disapply under section 33, particularly where, as here, there is difficulty in testing old and unsupported complaints, should not form a concluded view on their validity for the purpose of determining the existence and extent of potential prejudice to claimants of being deprived of a remedy. Such allegations are so easy to make and so difficult to refute that the danger of injustice is acute. Here, the Judge had to bear in mind the possibility of them being fabricated or exaggerated for financial gain in the wake of publicity about Bryn Alyn and about other care homes where similar conduct had been alleged. Yet his findings, both on the substantive issues and the effect of delay on cogency were based mostly on the strength of the claimants' evidence alone and without rigorous testing by way of cross-examination derived from instructions or contemporaneous records, or of possible contradictory evidence that might have been available if the claims and the trial had been earlier. It was, as he acknowledged in his opening remarks on the section 33 issue, an inherently difficult task, involving inevitable prejudice to the defendants in attempting to meet uncorroborated claims of this sort so long after the event…..”

Exercise of Discretion

TC34 has not proved in respect of any of his core allegations that his prejudice would outweigh that of the Defendant.

The prejudice to TC34 in losing the chance of establishing his claims is of substantial importance. Those claims, though diminished in cogency for the reasons I have given, cannot be demonstrated to be lacking in merit.

The length of the delay is very substantial. In Mold v Hayton, Newson (Footnote: ³⁰⁷) at [21] Schiemann LJ, in the context of a clinical negligence claim where the delay had been some 18 years, said:

“If a judge is minded to give such a huge extension of time under section 33, then he is under a duty to explain his reasons with meticulous care.”

On the evidence I have in TC34’s case, it is not possible to explain the reasons to extend time for a period of over 50 years.

The effect of the delay in issuing the claims on the cogency of TC34’s evidence and, in particular, on the evidence of the Defendant is very significant. The Defendant has had no fair opportunity to investigate the core allegations. There was probably some additional effect before the expiry of the limitation period. This can be taken into account. My decision would, however, be the same without this additional effect.

The Defendant’s ability to defend has been severely compromised by the delay. Had the claim been brought in time, or even at some stage during the mid-1960s, the evidence available to the Defendant, both documentary and witness, would have been much greater.

It is difficult, given the loss of witnesses and documents over time, to determine up to when there could have been a fair trial of some or all of TC34’s claims. Had the claim been brought in, say, the 1970s or even later, the evidential position then obtaining would have had to be examined in the sort of detail in which it has now been done. What is clear is that there cannot now be a fair trial of any of the core allegations. That is because of the delay.

In coming to my decision I have had regard to all the circumstances of the case, but specifically those under section 33(3).

I should add that my decision would have been the same even if I had been able to put into the balance all the reasons for delay which had been pleaded in the Reply, and the others which were the subject of the Claimants’ submissions. These reasons, and others if evidenced, may well also have had an effect in TC34’s favour under section 33(3)(e) and (f). Nevertheless, the unfairness to the Defendant in defending TC34’s core allegations would have still outweighed the prejudice to TC34. Even with those reasons to qualify or temper the prejudice to the Defendant, it would not have been fair and just in all the circumstances to expect the Defendant to meet the claims on the merits.

In short, I must refuse to exercise my section 33 discretion in TC34’s favour on all his claims for personal injury arising from the core allegations. The position is encapsulated in the words of Lord Brown in A v Hoare already cited: “By no means everyone who brings a late claim for damages….. however genuine his complaint may in fact be, can reasonably expect the court to exercise the section 33 discretion in his favour”. In Davies (Footnote: ³⁰⁸) Tomlinson LJ said at [55] that section 33: “…is a corrective for injustice where the circumstances allow.” The circumstances do not so allow in TC34’s claims.

GLOSSARY PART A

‘AGD’ Re-Re-Re -Amended Generic Defence

‘AGR’ Re-Re-Re-Amended Reply to Defence

‘AICS’ Amended Individual Counter-Schedule

‘AIPOC’ Amended Individual Particulars of Claim

‘ASOL’ TC34’s Amended Individual Schedule of Loss

‘CCC’ Complaints Coordinating Committee

‘CID’ Criminal Investigation Department

‘DC’ District Commissioner

‘DDO’ Delegated Detention Order

‘FCO’ Foreign and Commonwealth Office

‘GDO’ Governor’s Detention Order

‘GLO’ Group Litigation Order

‘GRej’ Rejoinder

‘IPOC’ Individual Particulars of Claim

‘KAR’ Kenya Africa Rifles

‘KNA’ Kenyan National Archive

‘KPR’ Kenya Police Reserve

‘KPRO’ Kenya Police Reserve Officer

‘MIO’ Military Intelligence Officer

‘PC’ Provincial Commissioner

‘RAID’ Re- Amended Individual Defence

‘RRRGPOC’ Re-Re-Re-Amended Particulars of Claim

‘QOLS’ Qualified One-Way Costs Shifting

‘SOL’ TC34’s Individual Preliminary Schedule of Loss

‘TC’ Test Claimant

‘TNA’ National Archive

‘W’ Watch material

GLOSSARY PART B

This part explains the short descriptions used for the various judgments given in this litigation

The historians’ evidence and corroborative witnesses Judgment:

Judgment dated 26 November 2015 refusing to permit the Claimant to rely   on historians’ witness statements prepared for the Mutua litigation; also ruling in relation to “corroborative” witnesses sought to be called for the Claimants.

The evidence by video link Judgment:

Judgment dated 16 December 2015 setting out which Claimants are to give evidence via video link.

The preliminary issues Judgment

Judgment dated 18 March 2016 deciding that issues relating to the pre-1954 time bar, and ss. 11, 14 and 32 of the Limitation Act 1980 would be tried preliminarily; the application for the s 33 of the Act preliminary issue to be tried as a preliminary issue was refused.

The translators’ Judgment

Judgment dated 24 November 2016 dismissing the Defendant’s application to cross-examine 11 translators, who had translated witness statements of the Claimants.

The burden of proof Judgment

Judgment dated 2 February 2017 deciding where the burden of proof lay on certain issues in the pleadings.

The refusal of false imprisonment Judgment

Judgment dated 27 April 2017 refusing the Claimants’ application to amend the pleadings to include false imprisonment, allowing certain amendments in relation to the ‘dilution technique’, and allowing amendments to the Individual Particulars of Claim of TC1, TC27, TC30 and TC31.

The liability amendments Judgment

Judgment dated 18 August 2017 allowing some proposed amendments to 21 of the Claimants’ IPOCS and refusing others. The judgment also dispensed with a statement of truth as to the amendments which were allowed.

The particulars of injury Judgment

Judgment dated 31 October 2017 allowing the Claimants’ proposed amendments to the IPOCS where previously pleaded psychological injury had been downgraded to psychological symptoms consequent upon physical injury, and refusing permission to amend where the Claimants sought to rely upon a specific named psychiatric injury/condition; the full rulings on amendment were set out in a Scott schedule.

The first Hansard Judgment

Judgment dated 20 December 2017 ruling on the admissibility of Parliamentary material as evidence and further concluding that Parliamentary privilege cannot be waived.

The relief from sanctions Judgment

Judgment dated 20 March 2018 ruling that the Claimants need relief from sanctions in order to rely on documents not previously listed for use in the individual final submissions of the Test Claimants.

The 1954 Judgment

Judgment dated 28 March 2018 refusing the Claimants’ application seeking to vary an order dated 27 October 2016 in relation to the long-stop limitation date from 4 June 1954 to 4 June 1953.

The TC 20 and TC34 documents Judgment

Judgment dated 18 April ruling on the Claimants’ application for relief from sanctions, dealing only with TC 20 and TC34. In relation to the majority of documents, relief from sanctions was refused.

The second Hansard Judgment

Judgment dated 9 May 2018 ruling on the dispute about particular documents arising from the first Hansard judgment; a Scott schedule sets out the alternative documents that can be relied on, as well as the relevant amendments allowed.

The section 32 Judgment

Judgment dated 24 May 2018 ruling that there had been no deliberate concealment pursuant to s.32 Limitation Act 1980.

The Fear Judgment

Judgment dated 24 May 2018 ruling that Fear does not amount to personal injury for the purposes of s.33 Limitation Act 1980.

APPENDIX

Extract from Ms Lohia’s First Witness Statement dated 18 November 2015.

“BRITISH ARMY RECORDS

Searching the British Army Records

As set out at paragraph 10.b above, a further source of potential witnesses was identified as being those individuals who served with the British Army in Kenya during the Emergency, particularly given that allegations have been made against the British Army in some of the test cases. The legal team has therefore taken steps to identify and contact individuals who served with the British Army.

However, the factors described at paragraphs 17 and 45 above apply as much to the identification of individuals from British Army records as from Colonial Office records.

Further, save for occasional references to the appearance of uniforms, the test case Claimants have largely failed to identify the basis upon which they recognised certain persons to be member of the British Army: indeed, at times the test case Claimants seem to assert that a given individual was a member of the British Army by reason of the mere fact of that individual's race alone. As such, the Defendant has been confronted with the need to identify which regiments were active in relevant parts of Kenya during the relevant periods. Where the locations named in the test case Particulars of Claim are inconsistently spelled, poorly described, or imprecise, this task has been made very difficult. Of course, that difficulty is compounded where the pleaded date is also uncertain or not stated at all.

To address the challenges referred to immediately above, the Defendant therefore compiled a list of regiments active in Kenya during the Emergency. This list is exhibited at ASL8. The Defendant’s searches for potential witnesses were focussed on this list.

The Defendant requested the Ministry of Defence (“MOD") to search for records of British Army personnel of those that served with the listed regiments. Between May to July 2015, the MOD conducted a number of internal enquiries to seek to locate personnel records of those individuals. Reasonable and proportionate enquiries were made at:

the Army Personnel Centre, which holds current personnel records of all serving personnel;

the Defence Business Services Management Information Centre of Excellence, which is an arm of the Defence Business Services section of the MOD and holds information about former servicemen; and the Defence Business Service Pensions, which is an arm of the Defence Business Services of the MOD holding pension records.

The results returned by the enquiries were as follows:

The Army Personnel Centre was not able to provide any personnel names for individuals relevant to the alleged events during the Emergency as they do not hold any data for personnel who served during the 1950s and 1960s. These enquiries accordingly produced nil results.

The search for personnel records at the Defence Business Services Management Information Centre of Excellence returned 17 results of individuals who served in Kenya and were thought to be still serving personnel when records started to be stored in this manner during the 1970s.

The search for records at the Defence Business Service Pensions produced nil results. However, the names obtained from the Defence Business Services Management Information Centre of Excellence were cross referenced and their contact details obtained. As to the contacting of these 17 individuals, see further below.

Searching Regimental Museums

As the MOD was unable to locate details of serving personnel, save for the 17 individuals described above, the Defendant contacted the regimental museums for a number of regiments in August and September 2015. The purpose of contacting the regimental museums was to obtain a list of those who served with the relevant regiments during the relevant period.

Regimental museums were contacted for the 49th Brigade, King’s Shropshire Light Infantry, Gloucestershire Regiment and the Royal Air Force and the 70th Brigade. Not all of the regiments listed have regimental museums. The National Army Museum was also contacted.

However, none of the museums contacted were able to provide a list of personnel.

Searching the National Archives, Imperial War Museum and Hampshire Records Office

During the course of conducting research on regiments, the legal team identified that the National Archives, Imperial War Museum and Hampshire Records Office might hold some incomplete lists of regiments.

In September 2015, the legal team therefore visited the National Archives and identified the "Army Lists" at the National Archives. The "Army Lists” were incomplete lists of those serving in the relevant regiments. The "Army Lists” did not contain service numbers of individuals.

In September 2015, the legal team also visited the Imperial War Museum and identified a number of photos with the names and positions of those serving with the British Army. Those photographs were not a complete record of those serving with the British Army. Again, as with the “Army Lists”, those photographs lacked the service numbers of the individuals depicted.

In October 2015, the Hampshire Records Office provided the legal team with an incomplete list of army personnel serving in Kenya in a number of different regiments including the Kenya Regiment, Rifle Brigade, Black Watch and Royal Irish amongst others. Again, as with the lists referred to immediately above, the lists from the Hampshire Records Office did not contain service numbers of individuals.

Contacting individuals identified by means of the British Army records

Having obtained the names, but not the service numbers of a number of British Army personnel from the relevant period from the National Archives, Imperial War Museum and Hampshire Records Office as described above, in October 2015, the Defendant's legal team asked the MOD to obtain contact details for the individuals from their pension details. If the service number of a particular soldier is known then it is a considerably less onerous task for the MOD to try to ascertain whether that soldier is known to be alive or dead, and if alive where living. With only the names of individuals this task quickly becomes impracticable. For example it appears that there have been 8000 soldiers bearing the name Wilson contained in the MOD’S pensions database. It is not possible to filter this information by location, date of birth or a range of dates of birth. Of course, as explained above, the Defendant had been unable to access the service numbers of the individuals in the lists from the National Archives, Imperial War Museum and Hampshire Records Office, so that there was no proportionately practicable way to process that information to ascertain whether those individuals were alive, and, if so, their current addresses.

As the Defendant does not yet hold any contact details for British Army personnel in the lists from the National Archives, Imperial War Museum and Hampshire Records Office, despite its extensive research, it would not be possible for statements from any such individuals to be served by 18 December 2015.

Accordingly, the only individuals who served in the British Army during the Emergency with whom the Defendant was in a position to make contact were the 17 individuals identified by the Defence Business Services Management Information Centre of Excellence. Contact details were obtained for these individuals from the Defence Business Services Management Information Centre of Excellence. Letters requesting their assistance were sent out on 3 September 2015. The letters requested a response within two weeks about whether the recipient would assist in this Kenyan Emergency Group Litigation. The letter attached an FAQ sheet and reply slip. A standard form copy of the letter, FAQs and reply slip (without individual details) is enclosed at Exhibit ASL9. Chaser letters were sent out on 24 September 2015, enclosed at ASL10.

Of the 17 individuals to whom letters were sent, 7 responses were received. None of the individuals was willing to assist in this litigation as a witness. The responses were as follows:

None were willing to assist;

1 was unwilling to assist;

4 were unable to assist due to not having relevant experiences;

2 were unable to assist due to health; and

5 letters were returned marked: undelivered/individual had moved.

The responses were such that the searches for individuals identified by means of the British Army records are markedly less advanced than equivalent searches undertaken by means of the Colonial Office lists.

In addition, should it be possible to obtain contact details for any of the individuals in the lists from the National Archives, Imperial War Museum and Hampshire Records Office, the extensive difficulties set out in paragraphs 38 to 48 above in relation to Category 1A and 1B witnesses with respect to interviewing witnesses, cross referencing them against test case allegations and finalising their statements would also apply to any of the witnesses in the above categories. These difficulties are not repeated here, save to say that the nature of these tasks puts the Defendant in a position where it is unable to serve witness statements of witnesses in these categories prior to 5 February 2015, if not later still.”

Extract from Ms Lohia’s Sixth Witness Statement dated 9 December 2016

The process of seeking the names of British Army personnel who served in Kenya during the Emergency and subsequent process of obtaining contact details for these individuals was extremely lengthy and difficult (see paragraphs 54 to 72 of my first statement).

For example, even once names of individuals had been identified, it was not possible to obtain contact details for these individuals from the Ministry of Defence (“MOD”). As set out in paragraph 67 of my first statement, there were 8,000 soldiers bearing the name ‘Wilson’ contained in the MOD’s pension database. It was not possible to filter these individuals in any sensible or proportionate way, such as by location served, dates of birth or range of dates of birth.

Of the names identified, and as explained in my earlier evidence, the Defendant traced a proportionate sample of 240 of these individuals who served in a cross-section of regiments, parts of which regiments had been deployed in Kenya at the relevant times. It was not however possible, prior to tracing and attempting to contact these individuals, to establish whether or not any particular individual had themselves served in Kenya with their regiment.

No statements have been served from this sample. Of the 240 individuals traced, 54 were identified as alive and contactable and contact was established with 41 of these. Of the 41 with whom the Defendant’s legal team were able to establish contact, the majority had never been to Kenya at all or had not been posted to Kenya as part of their military service. Of those whom had served in Kenya, none had direct knowledge of the test claimants with whom the Defendant’s legal team had identified a potential association (see the process described at paragraph 23d. above). All these potential witnesses have fallen away.

This category is therefore complete.”