Like those in Ndiki Mutua vs UK (2012, 2013, 2015 – see in this section), the claims in this case related to abuses allegedly committed by British personal against Kenyans during the ‘Kenyan Emergency’ of 1952. This judgement is of particular interest for the purposes of the Nuhanovic Foundation for two reasons. Firstly, it compares the Mutua case to the present one (para. 16), and explains why the former was a valid claim despite the passage of so many decades since the events in question, while this claim by Kimathi and Ors is not. (In Mutua, the UK government eventually settled out of court and awrded substantial reparations). Secondly, it wrestles with the question whether it would be equitable for the Court to exercise its discretion to extend the Limitation period (s.33 Limitation Act), given that the claim would otherwise be invalid, for being lodged beyond the period allowed by the Act (para.19). This involves balancing the detriment to the Defendant of allowing the claim - since the passage of so much time can greatly hinder the Defendant in preparing an adequate defence - with the detriment to the applicant of dismissing it.
If the claim were admissible, the court would need to establish whether the facts of the claim had been satisfactorily proved and, if so, the extent of general damages to be awarded. However, the Court concluded that it would not be equitable to the Defendant to extend the time limitation normally imposed, and dismissed the claim (see para.s 475-484 for the reasons why). In concluding, the Judge recalled that ‘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 section 33 discretion in his favour’, and that ‘section 33 is a corrective for injustice where the circumstances allow.’
The question of 'time-barring' or the 'statute of limitations' is one that arises in many claims regarding harm done by past colonial administrations or in wars that are not very recent.