Kimathi & Ors v The Foreign and Commonwealth Office, Court of Appeal - Queen's Bench Division, November 21, 2018, [2018] EWHC 3144 (QB)

Resolution Date:November 21, 2018
Issuing Organization:Queen's Bench Division
Actores:Kimathi & Ors v The Foreign and Commonwealth Office
 
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Case No: HQ13X02162

Neutral Citation Number: [2018] EWHC 3144 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 21 November 2018

Before:

THE HON MR JUSTICE STEWART

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Between:

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Mr Simon Myerson QC, Ms Mary Ruck (instructed by Tandem Law) for the Claimants

Mr Guy Mansfield QC, Mr Neil Block QC, Mr Niazi Fetto, Mr Mathew Gullick, Mr Jack Holborn and Mr Stephen Kosmin (instructed by Government Legal Department) for the Defendant

Hearing dates: 29-30 October 2018; 21 November 2018.

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JudgmentMr Justice Stewart:

  1. This Test Claimant is the second Claimant to be the subject of final submissions. She provided two witness statements, the first dated 22 October 2014 and the second 31 March 2016. She gave oral evidence by videolink on 22 June 2016. As with Test Claimant 34, I will refer to her and subsequent Test Claimants as `TC' followed by their number. No discourtesy is implied. I handed down judgment in the case of TC 34 on 2 August 2018 2018 EWHC 2066 (QB). (``the TC 34 judgment''). Many of the findings and conclusions in the TC 34 judgment apply to the case of TC 20, and will therefore not be repeated in full here. To avoid undue repetition, I cite paragraphs in the TC 34 judgment where appropriate.

    Introduction

  2. Paragraphs 3 - 4 of the TC 34 judgment apply to TC 20's case. The Glossary has not been reattached to this judgment.

    Background

  3. Paragraphs 5 - 7 of the TC 34 judgment apply to TC 20's case.

    Villagisation

  4. The purpose of this section is to give a very brief overview of villagisation so as to give some context to TC 20's case. It is intended to be as uncontroversial as possible. There have been many disputes about villagisation but little of importance remains of these, now that the sole remaining allegations are ones of physical assault.

  5. By 1953 villagisation had commenced in various locations throughout the Kikuyu reserve See for example the Press Office Handout No 28 in Central Province dated 19 March 1953. Caselines 32-4271. See also the Governor's Directive No. 1 of 1954 dated 1 February 1954, Caselines 32-13284, which suggested some regional variations in the creation of villages, depending on the discretion of District Officers.. In 1954 it became a much more widespread policy. In a Report from General Erskine to the Secretary of State for War, it is said Caselines 32-33317 paragraph 75 that by the end of July 1954: ``...well over half of the Kikuyu, Embu and Meru in SOUTH NYERI, FORT HALL, EMBU and MERU had been made to live in villages''.

  6. There were, broadly speaking, two aims of villagisation: the first was to protect people from Mau Mau incursions; this could be of particular relevance to those perceived as loyal to the Colonial Government. The second was to stop passive assistance to the Mau Mau, predominantly by providing them with food.

  7. Villages were administered by a chief and, under him, a headman. These were not hereditary but administrative titles. Under the headman were the Kikuyu Guard. The Kikuyu Guard were replaced by Tribal Police from early 1955 onwards. The chief and headman were paid. The Kikuyu Guard were not paid. Those Kikuyu Guard who became Tribal Police should have been paid. There should have been documents evidencing who were the chief and headman and when they were in charge. The Tribal Police should also have been on staff lists. The Kikuyu Guard may not have been.

  8. In oral submissions Mr Myerson referred to the fact that much had been said in the written submissions on whether or not a village was ``punitive'', but that this did not really much matter for the purposes of the issues in the present judgment, save that it would be more likely that there would have been a harsher regime in a punitive village. He added that, as time went on and the Mau Mau had been overcome militarily from, say, about mid-1955, there were two main reasons for continuing to keep people in villages, namely: (i) the concern that Mau Mau `supply lines' might otherwise be reinstated, and (ii) the British using the opportunity to make Kenyan society more urban, to create a land consolidation scheme to stop the fragmentation caused by Kenyan inheritance practice Mr. Thompson gave details of this in his memoir., and to bring into agricultural use land that had been made available during forest clearance which had been effected to reduce cover for the Mau Mau.

    The Mutua Case

  9. Paragraphs 15 - 17 of the TC 34 judgment apply to TC 20's case.

    Outline Chronology of these proceedings

  10. Paragraphs 18 - 19 of the TC 34 judgment apply to TC 20's case, but:

    · In addition, the TC 34 judgment was handed down on 2 August 2018.

    · TC 20 is the second individual claimant case to be subject to a judgment.

    Trial not Inquiry

  11. Paragraphs 20 - 22 of the TC 34 judgment apply to TC 20's case.

    The approach to the Test Case Submissions

  12. Paragraphs 23 - 28 of the TC 34 judgment apply to TC 20's case, save that all the causes of action accrued in the 1950s in respect of her claims and the written submissions provided in her case were:

    · TC 20 Closing Submissions: 58 pages

    · Test Cases - General Closing Submissions (Claimants): 78 pages

    · Defendant's General Closing Submissions to accompany the Test Case Closing Submissions: 108 pages with 94 footnotes and 16 Appendices - a total of 10 lever-arch files

    · Defendant's Written Closing Submissions Test Case 20: 289 pages with 114 footnotes and 6 Appendices

    · Response to the Defendant's General Submissions and submissions regarding TC 20: 109 pages with 36 footnotes

    Outline of TC 20's allegations

  13. At this stage, and so as to give some context, I will reproduce the summary of the allegations made by TC 20 from paragraph 3 of her written closing submissions as follows:

    ``She was villagised and seeks to prove that:

    a. She was removed from Majengo and forced to go Gikonda where she lived for about one year...

    b. She was assaulted when removed from Gikonda to Thuita... and her family's hut burned behind her.

    c. She was detained at Thuita village for two years, assaulted while being interrogated and also beaten while working...

    d. She was transported to Githanga where she was detained for two years and was beaten while working...

    e. She left Githanga village when she had opportunity and travelled to a different district to visit her brother and find work; she was arrested, interrogated and detained for an alleged pass violation and held in Kamiti prison and then remanded to Thika...

    f. She worked on a settler's farm for a year before being allowed to go back to her village where she was reunited with her husband...after approximately five years of being detained.''

  14. The alleged assaults for which damages are sought will be referred to in this judgment as ``the core allegations''. They are those mentioned in the above sub-paragraphs: (b) where TC 20 says she was assaulted on removal from Gikonda to Thuita, (c) where she says she was beaten during interrogation and while working at Thuita, and (d) where she says she was beaten while working at Githanga.

  15. The written submissions, apart from TC 20's response, were all drafted prior to the handing down of the Fear Judgment and the Section 32 Judgment. Therefore, a major part of them relates to claims based on TC 20's villagisation, as distinct from personal injury claims arising from the core allegations. Many of the documents and arguments are not central to the core allegations which remain to be decided. Their relevance, if any, goes mainly to credit only. Only a few were referred to in oral submissions. I have dealt in the judgment only with those that I have found necessary to consider. It would not have been proportionate for me to have gone through all of them where they do not assist me in the resolution of the core allegations.

    Pleadings

  16. Paragraphs 31 and 32 of the TC 34 judgment apply to TC 20's case with the substitution of `TC 20' for `TC 34'.

    Pleadings and evidence: proof

  17. Paragraphs 33 - 35 of the TC 34 judgment apply to TC 20.

    Pleadings - additional matters

  18. Paragraphs 36 - 38 of the TC 34 judgment apply, with the following amendment to paragraph 38:

    `I do not give any effect to the ``international standards'' referred to in paragraphs 38 (6), (8), (9) of TC 20's AIPOC.'

    Pleadings and evidence: relationship

  19. The contents of paragraphs 39 - 44 apply to TC 20's case with the substitution of `TC 20' for `TC 34' and other obvious alterations. For example, in paragraph 43, the reference to TC 34's detention in various camps, becomes a reference to TC 20's being in various villages.

    Translators

  20. Paragraphs 45 - 63 of the TC 34 judgment apply to TC 20's case.

    TC 20 translation

  21. As far as translation of the key TC 20 documents is concerned:

    · TC 20's first and main witness statement is dated 22 October 2014. It is in English. It is thumb printed by TC 20 and contains two declarations by the caseworker. The first declaration is `in the presence of Peter Maina Muthoni (caseworker) having first confirmed that I had familiarised myself with its contents by having the translation read to me and confirmed this statement is a true account of the matters stated herewith.' The second declaration is ``I, Peter Maina Muthoni (Caseworker) confirm I have read this statement to the claimant, the claimant has indicated they understood and agreed the contents and has signed or made his/her mark in my presence.'' There is a further endorsement ``signed in the presence of Lawrence Goldstone, solicitor who was present throughout'' - followed by Mr Goldstone's signature 22/10/2014. This accords with how Mr Myerson QC told the court on 10 December 2014 that the first witness statement for each of the Test Claimants had been taken. There was no Kikuyu translation: ``because what...

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