Description
The Claimants were all deliberately injured while in detention in Kenya between 1954 and 1959, before Kenyan independence in 1963. The claimants suffered physical injuries of the most serious kind. The injuries were inflicted by officers of the Kenyan police and armed forces. The Claimants claimed that the Defendant was vicariously liable for the injuries.
The Defendant argued that the Claimants' claims were time-barred by
section 11(4) of the Limitation Act 1980 ('the Act'), having been brought well outside the three year period provided for in that Act. The Claimants argued that they did not have actual knowledge of some of the causes of action within the three years; that a fair trial remained possible; and that there were compelling reasons why the Court should exercise its discretion under
section 33 of the Act to permit the claims to proceed.
The key issue was whether a fair trial was still possible after the delay. The claims involved a number of heads of claim including: (a) that the liability from the Colonial Administration of Kenya transferred to the UK government as the moment of independence; (b) that the UK government was directly liable as joint tortfeasor with the former Kenyan Colonial Administration since the acts complained of were perpetrated by forces under the control of the British commander-in-chief; (c) that the UK government was jointly liable with the Kenyan Colonial administration because of its role in establishing the system under which the Claimants were injured; (d) that the UK government approved or authorised the treatment complained of on 16 July 1957 and accrued liability accordingly; or (e) that the UK government knew of the systematic use of torture, failed to put a stop to it and consequently accrued liability.
The Court summarised the relevant authorities and concluded that it was possible in all of the circumstances for there to be a fair trial on each of the heads of claim. Given the development in the law of vicarious liability that aspect of the claim was not weak, although difficult. It would be possible to establish whether or not the Claimants had suffered their injuries as a consequence of a breach of duty by the UK government. The Claimants' application for the Court to exercise its discretion under s.33 of the Act was successful.
