Mutua v FCO and the 2013 Mau Mau Settlement
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Britain paid out to 5,228 Kenyans and denied liability in the same sentence.
Who they are
Mutua and others against the Foreign and Commonwealth Office, and the settlement announced in June 2013.
What they do
The government had argued the claims were too old to be heard. In October 2012 the judge disagreed.
How it works
Mr Justice McCombe ruled a fair trial was still possible, saying 'The Hanslope material has filled gaps in the parties' knowledge and understanding'. He also found 'good evidence of attempts by both governments, throughout the emergency, to limit enquiries and investigations into abuses committed in the camps'. In June 2013 William Hague told the Commons the settlement covered 5,228 claimants 'as well as a gross costs sum, to the total value of £19.9 million'.
Why it matters
Two details usually get lost. He did not apologise — the words apology and apologise are not in the statement. He said the government 'sincerely regret that these abuses took place', and in the same breath, 'We continue to deny liability.' And because the £19.9m includes the lawyers' costs, the per-person figures people quote from dividing it are simply wrong.
The engine's record — word for word
[Report #193] Mutua & Ors v The Foreign and Commonwealth Office, High Court, Queen's Bench Division, HQ09X02666, Mr Justice McCombe. Claimants Ndiki Mutua, Paulo Nzili, Wambugu Wa Nyingi, Jane Muthoni Mara, Susan Ngondi.
THE TIME-BAR RULING, 5 October 2012, [2012] EWHC 2678 (QB). McCombe J disapplied the limitation bar, para 95: 'I have reached the conclusion, however, that a fair trial of 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 Hanslope material has filled gaps in the parties' knowledge and understanding and that process is still continuing.' Para 140: 'there is good evidence of attempts by both governments, throughout the emergency, to limit enquiries and investigations into abuses committed in the camps.' Para 158: 'No system of justice can contemplate the trial of civil wrongs, even when a fair trial of them is not possible. That applies as much in respect of torture as it does in respect of a traffic accident.' In the earlier 2011 ruling the claim that liability transferred by state succession was struck out; the claims survived on other grounds.
THE SETTLEMENT, 6 June 2013. William Hague to the Commons: 'The agreement includes payment of a settlement sum in respect of 5,228 claimants, as well as a gross costs sum, to the total value of £19.9 million.' NOTE FOR ARITHMETIC: the £19.9m figure INCLUDES legal costs, so the per-claimant divisions in wide circulation (£2,600, £3,811) are unsound; no per-claimant figure appears in any primary source.
WHAT WAS AND WAS NOT SAID. The words 'apology' and 'apologise' do not appear in the statement. Hague said: 'The British Government recognise that Kenyans were subject to torture and other forms of ill treatment at the hands of the colonial administration. The British Government sincerely regret that these abuses took place.' And, in the same statement: 'We continue to deny liability on behalf of the Government and British taxpayers today for the actions of the colonial administration in respect of the claims, and indeed the courts have made no finding of liability against the Government in this case.' And: 'we do not believe that this settlement establishes a precedent in relation to any other former British colonial administration.' A memorial in Nairobi was supported; its cost is not stated.
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