Kenyans win court ruling over claims of colonial-era torture

Mr Justice McCombe, at London’s High Court, said that they had “arguable cases in law” and cleared the way for a month-long hearing before Easter when they will tell their stories.

The Foreign and Commonwealth Office (FCO) had asked the judge to block the litigation on the basis any claim could only have been brought against the direct perpetrators of the alleged assaults or their employer at the time – the colonial government in Kenya – and not the British Government.

But, the judge rejected the strike out application because the FCO had not established the claims were bound to fail.

He said: “The rival factual contentions are hotly disputed. I have found that it is impossible at this stage of the proceedings to decide that the FCO must be correct in its factual assessments and arguments.”

Mr Justice McCombe added: “It has been necessary, therefore, to consider the case on the basis that the claimants’ version of the facts may prove at trial to be correct and to ask whether, on that basis, they have an arguable claim in law against the UK Government.”

He added: “I emphasise that I have not found that there was systematic torture in the Kenyan camps nor that, if there was, the UK Government is liable to detainees, such as the claimants, for what happened.”

The claimants, Ndiku Mutwiwa Mutua, Paulo Muoka Nzili, Wambugu Wa Nyingi and Jane Muthoni Mara – all but one of whom are in their 80s – flew 4,000 miles from their rural homes for the trial this spring which concentrated on events in detention camps between 1954 and 1959.

At that hearing the judge was told Mr Mutua and Mr Nzili had been castrated, Mr Nyingi was beaten unconscious in an incident in which 11 men were clubbed to death, and Mrs Mara had been subjected to appalling sexual abuse.

Hailing the “historic” judgment, solicitor Martyn Day, senior partner at Leigh Day & Co, said his clients did not seek to become rich through bringing the action.

“What they seek is justice by way of an apology and a Mau Mau welfare fund to ensure that in their final days they and their fellow freedom fighters can live with an element of dignity.

“That does not seem to me a great deal to ask after all they have been through.”