LONDON (Reuters) - Lawyers for the Foreign Office tried on Thursday to get a test case brought by four elderly Kenyans against colonial atrocities during the 1950s Mau Mau uprising thrown out on the first day of hearings.
Robert Jay, counsel for the government, argued at London’s High Court that legal responsibility for what happened in detention camps between 1952 and 1961 had been transferred to the Kenyan republic upon independence in 1963.
He also said the alleged incidents were so long ago that all potential witnesses were now old and their memories necessarily patchy.
The court will consider whether the claim was brought outside the legal time limit.
The test case claimants, Ndiku Mutua, Paulo Nzili, Wambugu Wa Nyingi and Jane Muthoni Mara, who are in their 70s and 80s, have flown 4,000 miles from their rural homes for the trial.
The judge Mr Justice McCombe heard that Mutua and Nzili had been castrated, Nyingi was beaten unconscious in an incident in which 11 men were clubbed to death, and Mara had been subjected to appalling sexual abuse.
Jay said the litigation was mainly concerned with what happened in detention camps, the responsibility for which lay with commissioners and superintendents who were in the employment of the Colonial Administration in Kenya — the entity constitutionally responsible for the government of the colony until independence.
The role of the regular forces of the British Army was to fight the battle against the Mau Mau in the forests but they played no part in “screening” activities — a system of interrogation to identify suspects — within the camps.
He rebutted the claim that the liabilities of the Colonial Administration were transferred to Britain upon independence, and said the claim that the British Army was jointly liable had no real prospect of success.
It would not be possible to conduct a fair trial by reviewing the documentary materials alone, and evidence was not available from anyone responsible for policy at a high level in the British Army, the Colonial Administration or the Colonial Office.
The case was built on inference and ended in a “cul-de-sac,” Jay was quoted by the Press Association as saying.
“It cannot reasonably take place so long after the material events..,” he added.
The case continues.
Writing by Avril Ormsby; Editing by Steve Addison