Kimathi & Ors v The Foreign And Commonwealth Office

Where a claimant proves facts sufficient to establish a trespass to the person, the defendant bears the burden of pleading and proving that the conduct was justified by emergency legislation. The claimant need not prove the absence of every possible statutory justification. The position differs where the claimant relies on emergency legislation as part of the case establishing the defendant’s knowledge, joint liability or vicarious liability. In that event, the claimant must identify and prove the relevant legislation and show how the conduct fell within or outside it. The precise evidence required to establish statutory justification depends on the facts and may involve legitimate inferences.

The defendant sought determination of preliminary questions concerning the burden of identifying and proving emergency legislation in historic claims arising from alleged assaults, batteries, forced removals, detention and forced labour in Kenya. The claims included trespass to the person, negligence, joint liability and vicarious liability. The central issue was whether the burden rested on the claimants or the defendant when the defendant relied on emergency legislation as statutory authorisation or justification.

1. Primary trespass to the person. Where a claimant adduces evidence sufficient to prove an assault or battery by a particular perpetrator, the claimant has established the relevant trespass unless the conduct is justified. If the defendant relies on emergency legislation to show that the otherwise tortious conduct was lawful, the defendant must plead and prove that the legislation justified it. The court applied the burden-of-proof reasoning in Abrath v North Eastern Railway Company (1883) 11 QBD 440.
2. The claimant is not required, as part of proving the tort, to plead and prove that no regulation justified the conduct. Describing the conduct as criminal does not alter the burden concerning the elements of trespass, although a claimant seeking aggravated or exemplary damages on the basis of criminality must prove that criminality.
3. Joint and vicarious liability. Where the claimants rely on emergency legislation to establish the defendant’s knowledge, conduct, participation or the alleged system supporting joint or vicarious liability, the burden rests on the claimants. They must plead and prove the relevant legislation, and must prove the alleged actual or constructive knowledge of violence and its unlawfulness.
4. Negligence. For an allegation that punishment was unlawful, the defendant bears the burden of showing that the punishment was lawful. The claimants bear the burden where they assert that the punishment was not rendered lawful by a regulation. The court declined to give a broader answer concerning systemic unlawful violence because that allegation might be proved through individual assaults or through evidence of the defendant’s knowledge.
5. The court emphasised that the preliminary ruling did not require identification of every regulation applicable to each individual event. Whether statutory justification is established, including by inference from the evidence, depends on the facts of the particular case.