Kimathi & Ors v The Foreign and Commonwealth Office

Under Limitation Act 1980, each allegation must be assessed separately when deciding whether it is equitable to disapply limitation. The claimant bears the ultimate burden, while the defendant bears the evidential burden of showing that delay has reduced evidential cogency. The court must consider lost witnesses, documents and investigative opportunities, and whether a fair trial remains possible. Very long delay, an uncorroborated account, uncertainty about dates and perpetrators, and substantial forensic prejudice may justify refusing permission to proceed, even where the allegations are not wholly lacking in merit.

The claimant brought personal-injury claims arising from alleged assaults during villagisation in Kenya during the State of Emergency. The claims concerned alleged assaults during removal from Gikonda, interrogation and forced labour at Thuita village, and forced labour at Githanga village. The causes of action accrued in the 1950s, but the claimant joined the group litigation in 2014.

The court had to decide whether some allegations were absolutely time-barred and whether, for the remainder, it was equitable under section 33 of the Limitation Act 1980 to allow the claims to proceed.

1. The claims were dismissed. The alleged assault during removal from Gikonda, the alleged beating during interrogation at Thuita, and any Thuita beatings occurring before 4 June 1954 were absolutely time-barred.

2. The court applied section 33 of the Limitation Act 1980 by balancing the claimant’s prejudice against the prejudice to the defendant’s ability to defend. Each core allegation required separate assessment, having regard to all the circumstances and the statutory factors in section 33(3)(a)–(f).

3. The claimant’s evidence was not wholly lacking in cogency, and she had probably lived in two villages for substantial periods. Nevertheless, the timeline was unclear, the alleged perpetrators were unidentified or unavailable, there was no direct corroboration, and relevant Movement Orders, registers and contextual documents were unavailable.

4. The defendant had lost a realistic opportunity to investigate when witnesses’ memories were fresher and documents might have identified movements, village personnel, perpetrators and witnesses. The court concluded that a fair trial of the core allegations was no longer possible.

5. The claimant’s illiteracy, lack of education and limited access to legal advice were taken into account. Even if all pleaded reasons for delay had been established, they would not have outweighed the defendant’s severe forensic prejudice. The section 33 discretion was refused for all the personal-injury claims.