Kimathi & Ors v The Foreign And Commonwealth Office

Under section 33 of the Limitation Act 1980, the court must make a broad balance of prejudice. A fair trial is an important, necessary condition for disapplying limitation, but is not sufficient. The claimant must show that it is equitable to require the defendant to meet the stale claim.

Where a very long delay has materially reduced the cogency of the claimant’s memory and deprived the defendant of a realistic opportunity to identify documents, alleged tortfeasors, or contextual witnesses, the discretion should be refused. Reasons for delay require evidence; they are not self-proving. The court must assess that prejudice before deciding the merits.

This was the first individual final determination within group litigation concerning alleged abuse during the Kenyan Emergency. TC34 alleged batteries at Ngong Forest, Manyani, MacKinnon Road, Gikuni and Hola open camp.

Earlier rulings in the same litigation had left only personal-injury claims for battery. The judge had already held that section 32 of the Limitation Act 1980 did not assist the claimants: [2018] EWHC 1169 (QB). The remaining issue was whether the court should disapply the primary limitation period under section 33, despite a delay of approximately 51 to 56 years.

The central question was whether it was equitable to allow any of TC34’s claims to proceed when the available evidence could no longer permit a fair trial.

1. Section 33 discretion refused. The court refused to disapply section 11 of the Limitation Act 1980 for each of TC34’s alleged batteries. His personal-injury claims were therefore time-barred.

2. The section 33 inquiry required a broad balance of prejudice. The claimant bore the ultimate burden of showing that it was equitable to proceed. The availability of a fair trial was a necessary, but not sufficient, condition. The court had to assess the effect of delay on the cogency of the evidence before deciding the substantive merits.

3. TC34 had supplied no evidence explaining the delay after his release from detention. The court allowed that detention until about 1963, his limited education and his relative lack of sophistication could weigh in his favour. They did not overcome the absence of any evidenced explanation for the later delay, or the other prejudice caused to the defendant.

4. The delay had significantly impaired both sides’ evidence. TC34’s account was consistent as to the sequence and locations of the alleged assaults, but the chronology, duration of detention and aspects of the medical histories contained material uncertainties. His memories would have been clearer at an earlier date.

5. More importantly, the defendant could not now identify the alleged perpetrators, locate detention, screening, staffing or court records, or obtain evidence from relevant officers and other contextual witnesses. The court found that records of detention probably existed. The delay deprived the defendant both of potentially material evidence and, in some respects, of the ability to prove exactly what evidence had been lost.

6. The claimed corroboration concerning conditions at camps was weak and could not cure that prejudice. The court could not decide the generic liability issues, but held that there could no longer be a fair trial of any core allegation. The unfairness to the defendant outweighed TC34’s substantial prejudice in losing the opportunity to establish his claims.

High Court (Queen’s Bench Division): First-instance determination of TC34’s individual claim within the group litigation. The judgment records earlier interlocutory and preliminary rulings in the same litigation, including the section 32 ruling, but no appellate decision concerning this individual claim.