Kimathi & Ors v Foreign & Commonwealth Office

Factual and Procedural Background

This opinion concerns an urgent application for permission to appeal arising from ongoing group litigation before Stewart J. The group litigation involves claimants who are nationals of Kenya alleging that they were subjected to torture and rape by British soldiers and members of the Colonial Administration in Kenya during the State Emergency from 1952 to 1960. The defendant is the Foreign and Commonwealth Office (FCO), responsible for those personnel. Some claimants have been designated as Test Claimants (TCs), with the first being TC 34. The claim is for trespass to the person, subject to a three-year limitation period under section 11 of the Limitation Act 1980, which expired by 1966 at the latest. TC 34 did not join the litigation until 2014. The judge held there was no concealment under section 32 of the Act and declined to disapply the limitation period under section 33, finding that prejudice to the defendant outweighed prejudice to TC 34, thereby preventing a fair trial. TC 34 seeks permission to appeal this decision.

The judge refused the defendant’s application to hear the disapplication issue as a preliminary matter and has since been hearing submissions and evidence, including from TC 34. After refusing to disapply the Act, the judge made no further findings on the merits of TC 34’s claims.

Legal Issues Presented

1. Whether the judge erred in failing to adequately consider or give sufficient weight to the reasons for the delay in bringing the action.
2. Whether the judge failed to determine the date by which TC 34 should have brought his action, affecting findings on prejudice and cogency of evidence.
3. Whether the judge’s approach to the cogency of evidence was flawed, including requiring corroboration unduly and failing to consider the defendant’s alleged deliberate avoidance of scrutiny or investigation of abuse.
4. Whether the judge was not even-handed in his approach to evidence and submissions, allowing speculation in the defendant’s case but not in the claimant’s case.

Arguments of the Parties

Appellant's Arguments

• The judge failed to adequately consider the reasons for delay, including evidence from other claimants and the historical context of proscription against Mau Mau activists.
• The judge did not determine the appropriate date by which the action should have been brought, undermining findings on prejudice and cogency of evidence.
• The judge wrongly required corroboration of TC 34’s evidence or unduly limited acceptable corroboration.
• The judge failed to make findings on the defendant’s alleged deliberate avoidance of scrutiny or investigation into abuse.
• The judge was biased, permitting speculation in the defendant’s case but not in the claimant’s.

Respondent's Arguments

• The judge properly considered the reasons for delay and found the 50-year delay unexplained by TC 34’s evidence, distinguishing this case from prior related cases.
• The judge correctly assessed prejudice based on the evidential position as it stands now, rather than attempting to fix a specific date for when the action should have been brought.
• The judge did not require corroboration unduly but noted that absence of corroboration lessened the cogency of the claimant’s evidence, which was common sense.
• The judge was aware of investigations such as the Jack investigation and treated issues of avoidance of scrutiny as generic, not determinative of prejudice from delay.
• The judge’s approach was even-handed; evidence about document loss and witness availability was properly admitted and assessed, not speculative.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the application for permission to appeal by reviewing the judge’s detailed consideration of the statutory framework under sections 11, 32 and 33 of the Limitation Act 1980. The judge was required to balance prejudice to the claimant caused by the limitation period against prejudice to the defendant caused by the delay.

Regarding delay, the judge noted that TC 34 was detained until 1963, but no satisfactory explanation was given for the subsequent 50-year delay before bringing the claim. Unlike in the Mutua case, no evidence was provided to justify this delay or to corroborate TC 34’s pleadings. The judge assumed, for the sake of argument, that the delay was excusable but found that even then the prejudice to the defendant would prevent a fair trial.

On the question of the date by which the action should have been brought, the judge found it difficult to fix a precise date, concluding it was ultimately academic because the evidential position at any earlier date would also need examination. The critical focus was on the present inability to have a fair trial due to loss of evidence and witnesses over time.

The judge assessed the cogency of evidence and found that the loss of documents and inability to identify or locate witnesses significantly diminished the defendant’s ability to defend the claim. The judge rejected the assertion that the defendant deliberately destroyed documents, finding no evidence to support this. The judge also found that the claimant’s evidence was less cogent due to inconsistencies and the passage of time.

Regarding allegations of the defendant’s avoidance of scrutiny or investigation, the judge acknowledged the existence of investigations but held these issues were not relevant to the prejudice caused by the delay in bringing the claim.

Finally, the court rejected the appellant’s claim of lack of even-handedness, finding that the judge properly admitted and assessed evidence from both sides, including expert evidence about document loss and witness availability.

The appellate court emphasized the wide discretion afforded to the trial judge in such complex matters and found no error in law, misdirection, or unreasonable exercise of discretion warranting interference.

Holding and Implications

The court DISMISSED the application for permission to appeal.

The direct effect of this decision is that the refusal to disapply the limitation period under section 33 of the Limitation Act 1980 stands, thereby preventing TC 34’s claim from proceeding to trial. The court acknowledged the disappointment this may cause to TC 34 and other claimants but emphasized that allowing a trial where a fair trial is impossible would be unjust. No new legal precedent was established by this decision; rather, it affirmed the trial judge’s reasoned exercise of discretion in a complex and sensitive case.