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2012 | UNITED KINGDOM High Court of Justice, Queens Bench Division Ndiki Mutua v (UK) Foreign and Commonwealth Office, Case No: HQ09X02666, 5 October 2012

The five Kenyan claimants in this case allege that they were the victims of serious mistreatement in detention camps in Kenya, under British colonial rule, during the Mau Mau uprising in the 1950s. The claims are for damages for torture and for negligence as to the duty of care owed by the colonial power to the population. The claim is brought against the Foreign and Commonwealth Office, now represented by the UK government.

This decision deals with the preliminary question whether such a case can be fairly tried more than 50 years after the events forming the basis of the claim. Very detailed consideration is given to the UK’s Limitation Act of 1980 and to the discretion that the Court has under its Article 33 to extend the limitation period under certain circumstances. (The same question of the Statute of Limitations under Dutch Law arose in the Rawageda case above).

It is noteworthy that the Judge resists the contention that either the European Convention on Human Rights or Public International Law is relevant for his considerations: ‘So far as international law’s “deprecation” of limitation periods in respect of torture is concerned, I can find no customary rule of international law that prohibits the imposition in domestic law of just rule of limitation in civil actions.’ He asserts that Article 33 of the UK’s Limitation Act - on its own - provides the Court with sufficient discretion to take all the circumstances of the case into account. He acknowledges the jus cogens status of the prohibition of torture but asserts that this ‘adds nothing to the seriousness of the allegations which the court naturally takes into account in considering “all the circumstances of the case” under section 33 of the Act. Furthermore The UK’s domestic law provides a remedy for breach of civil wrongs including torture.

 Taking all considerations into account the judge concludes: ‘that it will be quite possible to determine sufficiently clearly where and when they suffered their injuries and the official status of those responsible for inflicting them. It will also be possible, on the documents arranged and collated chronologically, together with the other evidence, to determine whether or not the injuries occurred because of a breach of duty on the part of the United Kingdom government.' Although this case is yet to reach its conclusion this decision has understandably been hailed as a victory for the victims.