Kimathi and Others v The Foreign and Commonwealth Office

JurisdictionEngland & Wales
JudgeMr Justice Stewart
Judgment Date24 May 2018
Neutral Citation[2018] EWHC 1305 (QB)
Date24 May 2018
CourtQueen's Bench Division
Docket NumberCase No: HQ13X02162

[2018] EWHC 1305 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

KENYAN EMERGENCY GROUP LITIGATION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Stewart

Case No: HQ13X02162

Between:
Kimathi & ors
Claimants
and
The Foreign and Commonwealth Office
Defendant

Simon Myerson QC & Mary Ruck (instructed by Tandem Law (Lead Solicitors)) for the Claimants

Neil Block QC, Clare Brown and Simon Murray (instructed by the Government Legal Department) for the Defendant

Hearing date: 9 May 2018

Mr Justice Stewart

Introduction

1

In this case the Claimants claim damages against the Defendant for alleged abuses arising during the course of the Kenyan Emergency during the 1950s. The Claimants have served final submissions in respect of all Test Claimants (TCs) and the Court is due to start hearing those final submissions in June 2018. It was decided that, prior to that stage, it would be sensible if the Court ruled on two matters, namely:

(1) Whether the Defendant was guilty of deliberate concealment so that section 26 Limitation Act 1939/section 32(1)(b) Limitation Act 1980 operated so as to stop time running against the Claimants. I have decided this matter in favour of the Defendant. See the judgment at [2018] EWHC 1169 (QB).

(2) Whether fear, caused either by the tort of negligence or trespass, amounts to personal injury so that the Court has the discretionary power to exclude the 3-year limitation period which arises under section 11 of the 1980 Act.

2

In the light of my ruling against the Claimants on deliberate concealment, the class of allegation covered by this judgment will be irredeemably time barred unless the Court has discretion under section 33 Limitation Act 1980.

The Statutory Provisions

3

By section 2 of the Limitation Act 1980, an action founded on tort shall not be brought after the expiration of 6 years from the date on which the cause of action accrued.

4

In respect of personal injury actions, section 11(2) disapplies the 6-year period provided for by section 2. In its place, section 11(4) substitutes a period of 3 years from (a) the date on which the cause of action accrued or (b) the date of knowledge (if later) of the person injured. Date of knowledge is defined by section 14. The position now is that all the TCs' claims are statute-barred unless the Court has a discretion under section 33 Limitation Act 1980. Where a Claimant alleges a straightforward personal injury, the Court will have to address in due course whether or not to exercise its discretion. The dispute between the parties which this judgment will resolve is whether fear alone amounts to a personal injury and, therefore, whether the Court has the discretionary power under section 33 in those claims.

5

Relevant sections of the Limitation Act 1980 are:

“11. Special time limit for actions in respect of personal injuries.

(1) This section applies to any action for damages for negligence, nuisance or breach of duty…where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person….

33 Discretionary exclusion of time limit for actions in respect of personal injuries or death.

(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which —

(a) the provisions of section 11…of this Act prejudice the plaintiff or any person whom he represents; and

(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents;

the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.

38. Interpretation.

(1) In this Act, unless the context otherwise requires —

“personal injuries” includes any disease and any impairment of a person's physical or mental condition, and “injury” and cognate expressions shall be construed accordingly;”

Causes of Action

6

The claims with which I am concerned in this judgment are based on negligence and trespass to the person. It is trite law that negligence is not actionable per se. Proof of damage is an essential element in the tort of negligence. Therefore, in the circumstances relevant to this judgment, if fear does not amount to personal injury, then the tort of negligence cannot succeed in any event. However, trespass to the person is actionable per se; i.e. proof of damage is not essential to complete the action. I have not been fully addressed on to what extent, trespass i.e. the intentional causation of fear, would sound in damages.

7

If the claims had been in time, then, for the reasons I have just given, it would have been important to decide as a matter of substantive law whether fear amounted to personal injury. If it did then the claims would have been capable of succeeding in both negligence and trespass. If it did not then the claims would have potentially succeeded in trespass alone (assuming in both cases that all the other ingredients essential to liability were proven against the Defendant). This demonstrates that the definition of personal injury is a matter of substantive law and that section 38(1) Limitation Act 1980 does not restrict that definition. The subsection does not purport to be comprehensive, since it defines personal injuries as including “any disease and any impairment of a person's physical or mental condition.”

Summary Factual Matrix

8

In very broad terms the TCs relevant to this issue claim that they were detained in villages or detention camps. Further, that the threat of force compelled them to remain in the villages/detention camps and also to carry out labour. There is no claim for false imprisonment on the pleadings. The Claimants applied to amend so as to plead this cause of action but I refused this for reasons given in the judgment reported at [2017] EWHC 938 (QB). In any event, a claim for false imprisonment would have been statute-barred once I had ruled that section 26 Limitation Act 1939/section 32(1)(b) Limitation Act 1980 did not assist the plaintiffs.

9

I have not heard argument as to whether all the allegations made by the TCs do, on the facts, amount to trespass to the person/negligence. For the purposes of this judgment I am to assume they do.

10

The Claimants seek to exemplify the allegations of trespass and negligence causing fear only, by reference to the final submissions in the cases of TC20 and TC24. I shall briefly summarise those allegations.

TC20

11

TC20's allegations are:

(1) She was living in Majengo and there was a 4am raid in her neighbourhood, when her husband was arrested and she opted to go to Gikonda. She was frightened and submits that this fear was an injury which should sound in damages.

(2) She lived in Gikonda for about a year and then she was assaulted when removed from Gikonda to Thuita. She was badly beaten. Her home was burned. She was made to walk to Thuita which was a journey of about 3 hours.

(3) She was detained at Thuita village for about 2 years. She had no freedom of movement, was required to live where she was told and to engage in work. At Thuita she was assaulted whilst being interrogated about taking the Mau Mau oath and she sustained repeated assaults while working.

(4) She was made to work between 8 am and 4 pm without food or rest during her 2 years at Thuita village and was guarded by the Home Guard while working. The conditions there were harsh.

(5) Being required to stay in the village was a substantial disruption and change. Prior to the Emergency she stayed on her own piece of land. This was not so in the village. Prior to the Emergency she had her own house and grew food crops. She earned money from farming and could buy things she required. When she was in the village she had to sneak out to get food and share it, and would have been severely punished if caught.

(6) After approximately 2 years at Thuita, TC20 was transferred to Githanga, another village. She was made to work hard at Githanga. There were no pit latrines and people had to relieve themselves in the compound and in nearby bushes. Conditions were such, and the beatings so harsh, that when she had the opportunity she ran away. She could only do this when pass restrictions were lifted. Prior to this point she had no choice but to comply with directions to remain in the village and work. She was in fear of further violence.

12

In those circumstances the following claims are made for damages based on fear alone:

(1) The removal from Majengo – it is said that she had no option and was in fear from the presence of security forces. Events are said to have been likely to have taken longer than an hour and a claim of £500 is made.

(2) 3 hour walk to Thuita – the allegation is that TC20 was forced to leave Gikonda and walk 3 hours to Thuita in Fort Hall. She had no choice. She had already been beaten and her family hut was burned behind her. She feared immediate unlawful violence and her fear was well founded. A claim for damages for these 3 hours is made.

(3) Living in fear at Thuita for 2 years – the claim is for apprehension of unlawful violence for 2 years 1.

(4) Removal to Githanga – it is said that TC20 had no choice but to transfer to Githanga. She does not describe a particular atmosphere of hostility and fear but it is likely that there was such an atmosphere. Therefore, a claim is made.

(5) Living in fear in Githanga for 2 to 3 years – the claim is made on the basis that living conditions at Githanga were the same as at Thuita. TC20 is said to have been under apprehension of violence for 2 to 3 years and a claim is made for this 2. The case on fear is summarised in the following way:

“13. What happened to TC20 engaged her basic human rights and the court is invited to so find…

14. Villagised...

To continue reading

Request your trial
2 cases
  • Amanda Lees v Ivan Kaye
    • United Kingdom
    • Queen's Bench Division
    • 13 May 2022
    ...similar human emotions do not constitute personal injury: see most recently Stewart J in Kimathi v Foreign and Commonwealth Office [2018] EWHC 1305 (QB).” The other two members of the Court of Appeal agreed with the judgment given by Coulson 57 It is apparent that Coulson LJ's decision was......
  • Kimathi and Others v The Foreign and Commonwealth Office
    • United Kingdom
    • Queen's Bench Division
    • 2 August 2018
    ...May 2018 I gave Judgment ruling that fear alone did not amount to personal injury for the purpose of Section 33 Limitation Act 1980: [2018] EWHC 1305 (QB) (“The Fear Judgment”). 19 The plan now is that I deal with individual Test Claimant submissions, beginning with TC34. In the TC submiss......
1 books & journal articles
  • Dryden v Johnson Matthey: The Boundaries of Actionable Damage
    • United Kingdom
    • The Modern Law Review No. 82-4, July 2019
    • 1 July 2019
    ...See A. Benson, ‘Economic Loss in Tort Law’ in D.G. Owen (ed), Philosophical Foundations of TortLaw (Oxford: Clarendon, 1995) 436.50 [2018] EWHC 1305 QB.51 ibid at [24] (emphasis added).52 Rothwell n 5 above at [47].53 See n 31 above.54 D. Pugh, ‘Platinum Salts and the Symptomless Injury’ (K......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT