The future of litigation being brought on behalf of more than 40,000 claimants in the so-called Mau Mau case is in doubt after the Court of Appeal refused permission to hear an appeal against a decision to dismiss the first test case.
The group litigation is being brought against the Foreign Office by Kenyan nationals who claim they were subjected to torture and rape by British soldiers and members of the Colonial Administration in Kenya.
In August, Mr Justice Stewart declined to disapply the Limitation Act  in the first test case – brought by ‘TC34’ – on the basis that the prejudice to the Foreign Office was such that there could not be a fair trial and that this prejudice outweighed the prejudice to the claimant.
Yesterday, Lord Justice Longmore, sitting in the Court of Appeal with the recently retired Sir Rupert Jackson, refused permission to appeal following a hearing last week.
He said : “The applicant cannot get away from the fact that the judge had a discretion to exercise and that this court will not interfere with that exercise of discretion unless the judge has misdirected himself in law, taken into account irrelevant matters, failed to take account of relevant matters or has made a decision which has exceeded the generous ambit within which reasonable disagreement is possible.
“That cannot be said of the exercise of discretion in this case by Stewart J who has been trying the issues in this case since 23 May 2016.
“His judgment is a masterly synthesis of the complex web of facts, and absence of fact, and is a judgment with which this court would not interfere. In the event, the application for permission to appeal must be dismissed.
“The court is aware that this will be a great disappointment to TC 34 and, no doubt, other claimants also. But if a judge, after a thorough and careful examination of the position, decides in his discretion that a fair trial cannot take place and if that decision cannot realistically be the subject of a full appeal, that decision must be accepted by all concerned.
“An unfair trial would be the worst of all possible worlds.”
Tandem Law – part of Manchester firm Antony Hodari – is acting for the group and in a statement today said it was “extremely disappointed” by the decision.
“The legal team involved has worked tirelessly to bring some degree of justice for our client, but this is secondary. Our chief concern is for our client who will not receive compensation for his experiences as a British subject which has had a major impact on the remainder of his life, having been detained without trial for several years and subjected to unjustifiable violence and abuse.
“The British government has admitted torture and ill-treatment at the hands of the Colonial Administration. It is sad our sophisticated justice system has been unable to reconcile this admission with compensation paid to the victims of our colonial past.”
The statement said the ruling would have “a clear impact” on the remaining test claimants, and the near 41,000 on the group litigation order.
“We are considering the prospects of the litigation in light of the Court of Appeal’s refusal to allow permission to appeal.
“While his case has failed, we would like to commend TC34 for his fortitude and courage shown within the legal process, to relive his highly disturbing experiences of the past and reflect on the injustice this decision brings.”
This is the second piece of Mau Mau group litigation. The government settled over 5,000 claims for £19.9m in 2013. Leigh Day acted in that case, which followed a decision rejecting the government’s argument that the claims were time-barred.