Background of the Case

The case of Ndiku Mutua & Others – v – The Foreign and Commonwealth Office: The settlement is based on the case of Ndiku Mutua & Others – v – The Foreign and Commonwealth Office Case No: HQ09X02666 of 2012, a test case on torture that was filed in the UK by the law firm, Leigh Day, on 23rd June 2009. There were five claimants in this case: Ndiku Mutua, Jane Muthoni Mara, Wambugu Nyingi, Paulo Nzili and Susan Ciong’ombe Ngondi.  Susan Ngondi passed away whilst Ndiku Mutua withdrew for personal reasons.

The British Government challenged the case on two grounds: state succession and limitation.  Under the State Succession contention, the British Government argued that it was not liable for atrocities committed by the British colonial regime and, if such liability survives, it was transferred to the Kenyan Republic (via s.26 of The Constitution of Kenya (Amendment) Act, (Act No 28 of 1964)). On the issue of limitation the British Government argued that the claims were time barred by virtue of the Limitation Act (1980) in that they should have been brought much sooner.

The British Government lost on both these grounds i.e. the court found that the case was properly before the British Courts and that it was not barred by virtue of the fact that the events had occurred several decades ago.  Both these decisions are precedent setting.   The first ruling was delivered on July 2011 and the second in October 2012.  Due to the unprecedented nature of both these rulings they have received immense coverage in both the local and international press. It is important to state that these were decisions on preliminary matters and the case never proceeded to a full hearing on the facts since it has now been settled.

The Settlement Announced on 6th June 2013 

The settlement has three components: (a) A statement of regret made to victims of colonial era torture, by the Foreign Secretary of the UK in the House of Commons on 6th June, 2013; (b) Damages awards made to 5,228 individuals who fit the criteria of torture as set out in the test-case claims of Jane Muthoni Mara, Wambugu Nyingi and Paulo Nzili  and who personally authorized Leigh Day & Co to act on their behalf; and (c) a contribution that will be made by the British Government towards the construction of a monument in memory of Kenyan victims of colonial era torture.

 

Key Questions

What was the case about?

The case, Ndiku Mutua & Others – v – The Foreign and Commonwealth Office Case No: HQ09X02666 of 2012, was never about the broader ills of colonialism such as: the land confiscation of those who were Mau Mau or those who were associated with Mau Mau; the lack of education opportunities for those who were held in detention centres or villages; or the property lost during the emergency period. While the foregoing concerns are legitimate, we have elected to pursue these within the framework of the governance institutions existing in post-colonial Kenya. We have immense hope that the Constitution of Kenya(2010) as well as other mechanisms like the recently released TJRC Report and the National Land Commission will provide the framework for us to address these issues as a nation, especially in the renewed vigour of Pan-Africanism lately espoused by our leaders under the apt banner of “Finding African Solutions to African Problems”.

 

How were the victims selected?

The KHRC and Leigh Day worked for 9 months with the MMWVA and reviewed 50,000 cases.  Only those Kenyans who were the victim of torture or abuse whilst detained by the British colonial government had viable legal claims.  Legally, it is not enough simply to have been a member of the Mau Mau or to have participated in the fight for independence.  Of the 50,000 cases, 15,000 people were selected for one-to-one interviews and of those Leigh Day put forward 5,228 cases which were credible cases of torture and abuse.  The cases were then reviewed in detail by the lawyers for the Foreign & Commonwealth Office.

Who agreed to the settlement?

Each individual claimant was interviewed in person after the British Government’s settlement offer was made.  Each claimant personally agreed to the settlement.

How much is each victim receiving?

Each victim will be paid KHS 330,000 each.  The money will be paid directly to the victims in Kenya from London.

What about the lawyer’s costs?

No monies whatsoever have been taken from the claimants’ damages or monument to pay for legal fees.  The fees were substantial because of the lengths the British Government went to in resisting these legal claims for 4 years and the vast amount of legal work involved in these claims.  But the costs have been paid by the British Government separately from the claimants’ damages.   Not one shilling of claimant damages has gone to pay legal fees.

What about victims who were not seen by Leigh Day and the KHRC?

The Kenya Human Rights Commission is fully aware of the fact that the 5,228 claimants are in no way inclusive of all the Mau Mau veterans whom we have documented over the years as well as those who belong to the various Mau Mau groups. However, this case was very specific to those who were tortured because of either having been Mau Mau or simply being associated with the Mau Mau. The claimants in this case were from diverse ethno-cultural backgrounds and were not necessarily members of the Mau Mau but were all victims of colonial era torture and consented to be part of the court process.  The KHRC and Leigh Day do not claim to have a monopoly on the case.  If there are other credible cases of serious abuse and torture by British colonial officials of Kenyans who are still alive, they are free to take their case to the British Government.

Why take the case to the British courts?

as well as the Hansard of the British Parliament’s House of Commons which can be found at http://www.publications.parliament.uk/pa/cm201314/cmhansrd/chan13.pdf, at pages 1692 - 1700.

In a nutshell, the KHRC, the MMWVA and Leigh Day have so far done what we could within the scope of the case we set out to litigate and within the means we had to support it.   We have worked tirelessly for years to bring justice to a forgotten generation of Kenyans.  However, as the British High Commissioner has said, nothing is preventing others from bringing their claims to the British courts if they also have credible claims.

Atsango Chesoni,

Executive Director, the Kenya Human Rights Commission