Case Report

Kimathi & Ors v Foreign & Commonwealth Office [2017] EWHC 203 (QB)

Date: 09/02/2017

Burden of proof on Claimants throughout where Defendant is alleged to have had knowledge of trespasses to the person

Stewart J ruled on various preliminary issues relating to allocation of the burden of proof in the Kenyan Emergency Group Litigation.

The proceedings relate to the alleged unlawful detention and abuse of 41,000 ‘Mau Mau’ members and their relatives in Kenya under Colonial rule during the 1950s.

Niazi Fetto appeared as a member of the FCO’s counsel team.

The Generic Particulars of Claim advance claims in trespass to the person (assault and battery), negligence and breach of human rights. The Claimants’ case, especially their allegation of joint liability between the UK and Colonial governments, incorporates allegations that the UK Government had knowledge of unlawful physical violence perpetrated by Colonial servants or agents.

Stewart J ruled that in that context it was for the Claimants to prove not only that there had been batteries as alleged, but also, unlike the position in a simple claim for battery, that the defence of justification did not apply to any of them.

A copy of the judgment can be viewed here.

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