In a historic decision on Friday, the British High Court has determined that half a century and 4,000 miles were not enough to keep torture victims from fighting for their recompense.
The court ruled that three elderly Kenyans, who suffered brutal abuse at the hands of the colonialist powers during the Mau Mau rebellion of the 1950s, will be allowed to sue the British government for reparations.
Specifically, Friday’s decision threw out a claim from the British Foreign Office that too much time had elapsed between the torture and the legal action since “the normal time limit for bringing a civil action is three to six years.”
High Court Judge Richard McCombe disagreed, ruling that “a fair trial on this part of the case does remain possible and that the evidence on both sides remains significantly cogent for the court to complete its task satisfactorily.”
The decision follows another technical victory for the claimants in 2011, when the court struck down a British argument that the Kenyan government should be liable.
The three Kenyan claimants are being represented by the British law firm Leigh Day & Co. On Friday, the firm’s senior partner and head lawyer on this case, Martyn Day, celebrated McCombe’s decision.
“The British government has admitted that these three Kenyans were brutally tortured by the British colony, and yet they have been hiding behind technical legal defenses for three years in order to avoid any legal responsibility,” he said.
“This was always morally repugnant, and today the judge has also rejected these arguments.”
The Mau Mau legal action began in June 2009, when five Kenyans traveled to London to seek compensation for atrocities they had endured during the 1950s.
Since then, one of the claimants has passed away, and another has withdrawn his claim. That leaves three former victims: Paulo Muoka Nzili, 85, Wambugu Wa Nyingi, 84, and Jane Muthoni Mara, 73.
Nyingi recalls, among other things, being beaten unconscious, starved and tortured. Nzili was castrated with a pair of pliers. Mara endured sexual torture and forced labor.
Daniel Leader, a partner at Leigh Day & Co., who is working on the case, says there are thousands more who suffered comparable experiences under colonialist rule. Most of them now live in poor rural areas of Kenya.
A successful suit on behalf of these three victims could have major benefits for everyone who suffered abuse during the Mau Mau rebellion.
“Since 2009, we’ve said to the government that we want a very reasonable way forward to resolve this: an apology and a welfare fund that would meet the medical and welfare needs of the claimants going forward. And it would be targeted at the specific individuals who were clearly affected by the torture,” said Leader.
The specific value of said fund has yet to be determined. It would depend on the number of people who were eligible for compensation, which Leader estimates to be between 5,000 and 10,000 Kenyans.
That could cost the British government a lot of money. But if the London government continues to deny liability, the price could be even higher.
“If they fight this all the way and the court awards damages, they could be awarding something in the region of £50,000 [$80,000] or £60,000 per claimant,” said Leader.
The Mau Mau rebellion against British rule began in 1952 and was essentially quelled by 1956, with Kenya remaining a British colony. Both sides committed atrocities against each other. But by the end of the struggle, tens of thousands were dead or unaccounted for, and almost all of them were Kenyans.
Kenya would not gain independence until a relatively peaceful transfer of power from the British administration to the Kenyan government in 1963. Whether the Mau Mau uprising hastened that process is still a matter of heated debate.
The Mau Mau movement was not a pan-Kenyan initiative. It was largely confined to the Kikuyu tribe, which is Kenya’s most populous ethnic group, today comprising 22 percent of the population. During the 1950s, even Kikuyus themselves were divided over the Mau Mau rebellion.
British propaganda capitalized on this division, painting the rebels as “savages.”
But the British response to the uprising was brutal, as the three claimants in London can attest. According to some estimates, 150,000 Kenyans were detained -- almost entirely without trial -- in an extensive network of confinement camps. Survivors remember forced labor, torture, rape, brutal physical abuse and summary executions.
Even outside the detention camp walls, British retribution was harsh. Nyingi, 84, explained in his written testimony that the memory of those events are still with him today.
"If I could speak to the Queen, I would say that Britain did many good things in Kenya but that they also did many bad things. The settlers took our land, they killed our people, and they burnt down our houses," he said.
"In the years before independence, people were beaten, their land was stolen, women were raped, men were castrated, and their children were killed. I do not hold her personally responsible, but I would like the wrongs which were done to me and other Kenyans to be recognized by the British government so that I can die in peace."
A Long, Long Wait
In fact, many of those who suffered in detention camps during the 1950s have already passed away. Most of the rest are between 70 and 90 years old. That leaves many wondering: Why did these victims of abuse wait so long to wage their campaign for redress?
The answer has to do with Kenyan politics, as well as the propaganda campaign waged by the United Kingdom during the 1950s. Many people -- British and Kenyan alike -- saw the Mau Mau movement as a barbarous, reactionary revolt that had delayed independence.
So when Kenya finally did break free of colonialism in 1963, the Mau Mau movement was unrecognized and the creation of groups was deemed illegal.
That changed in 2002, when current President Mwai Kibaki came into office and a new parliament was elected. The new politicians had more historical ties to the Mau Mau rebellion and were more inclined to ease restrictions on the aging rebels.
The Kenyan government formally recognized the Mau Mau movement in November 2003, and this enabled the former rebels to begin mobilizing for a legal effort. They tried to file claims against the Kenyan government, but to no avail. So they turned to the United Kingdom and made their formal request to Leigh Day & Co. in November of 2003.
After years of research and false starts, the legal battle began in earnest in June 2009. And now, after Friday’s High Court judgment, the long-suffering Mau Mau groups are closer than ever to a resolution.
The British Foreign Office is determined to mount an appeal, according to Friday statement that warned of “far-reaching legal implications” if the case progresses.
But Day expressed his approval of the ruling.
“This is an historic judgment, which will reverberate around the world and will have repercussions for years to come,” he said in a statement.
He added that the decision has real implications for all of those who have suffered a long litany of historical wrongs -- and not just Kenyans.
"There will undoubtedly be victims of colonial torture, from Malaya to the Yemen, from Cyprus to Palestine, who will be reading this judgment with great care," he said.