“20.The Claimants shall identify the documents on which they rely in respect of their Generic case by the close of their case, and in any event by 4pm on28 April 2017 . 21. The Claimants do file and serve a list of documents upon which they rely in respect of the individual cases by 4pm on2 June 2017 . 22. Subject to paragraph 23, the Claimants shall not be permitted to rely upon further documents without the permission of the Court save in response to documents adduced by the Defendants. 23. The criteria and timetable for the parties adducing documents in response to documents adduced, and for the Defendant adducing documents, be considered further by the Court in the week commencing24 April 2017 .”
“83. Since the end of April 2017, members of the Defendant’s legal team have spent, literally, days considering issues relating to documents adduced in the Schedules of Hansard and Colonial Communications, the cross-examination bundles and theCPR Part 35.5 notices, and also substantial amounts of time corresponding with and meeting the Claimants’ legal team to try to resolve these issues. This has affected in particular Mr Mansfield QC and Mr Holborn, both of whom would otherwise have been preparing the Defendant’s presentation of the documents (and in Mr Holborn’s case on researching the response to the ‘dilution’ amendment), and Mr Fetto and Mr Gullick, both of whom would otherwise have been heavily engaged in preparing the Defendant’s case. The Defendant has considered these matters sufficiently serious to have raised them in Court on three occasions (17 May, 15 June and 29 June…)”
“17. Particulars of claim are intended to define the claim being made. They are a formal document prepared for the purposes of legal proceedings and can be expected to identify with care and precision the case the claimant is putting forward. They must set out the essential allegations of fact on which the claimant relies and which he will seek to prove at trial, but they should also state the nature of the case that is to be made in order to inform the defendant and the court of the basis on which it is said that the facts give rise to a right to the remedy being claimed…”
“3. I know from my own knowledge and from enquiries made that the amendments therein are based on the documentary record and not based on instructions from the Test Claimant.” 25. In Binks v Securicor Omega Express Limited[2003] EWCA Civ. 993 the Court of Appeal considered this point. In the particular circumstances the Claimant did not seek to amend because of the provisions ofCPR 22.1 which require a statement of case to be verified by a statement of truth (including amendments) and the statement that the facts stated in the documents are true. The Claimant’s own evidence was wholly inconsistent with the evidence and therefore no amendment was sought. The Court said that an unduly narrow view should not be taken of Part 22. In this regard it relied upon what Sedley LJ said at paragraph 21 in Kelly v Chief Constable of SouthYorkshire Police[2001] EWCA Civ. 1632 , namely: “It is not uncommon for a version of the facts to emerge as a possible deduction from the evidence which has so far been neither side's pleaded case but which one side wants now to plead as an alternative basis, either of liability or of defence. In my experience it is normal and proper practice in the County Courts, and in the High Court too, to allow an amendment to such effect at the conclusion of the evidence if, on any terms which are appropriate as to costs or recall of the witnesses, this can be done without injustice to the other party or parties.” 26. In Binks, attention was drawn to the fact that rule 22.1(2) enables the Court to dispense with verification by a statement of truth when a statement of case is amended, and (on the facts of that case) Mr Justice Maurice Kay said: “It does not specify circumstances in which the power of dispensation might arise but I take the view that amendment to plead in the alternative a case derived from an opponent's documents, pleadings or evidence is capable of being such a case.”
“Mr Myerson:…this is not disavowing a case and this is not changing the evidence. The Claimant will give the evidence he gives. It is perfectly possible to give the evidence and be right about part of it and therefore a conclusion to be that the dates must be wrong, which is what happened in the incident I gave. Mr Justice Stewart: Yes I think they want to know if you are saying that so they know what the case is in relation to that Claimant. The Claimant may say it was 1953 but your case may be “well we think he is wrong about that. We think it is 1954 because of this document”
“Mr Justice Stewart:…The way I see it is this, to the extent that you know that you are going to be saying that a Claimant has got it wrong, they should have advance notice of that. Mr Myerson: I agree. Mr Justice Stewart: So you agree on that? Mr Myerson: Absolutely. We will certainly do that. Mr Justice Stewart:…In (a) piece of litigation like this, it is bound to be the case that people make mistakes. I do not mean Claimants, I mean lawyers and judges. Therefore, of course either they do not put something because buried somewhere there was something which may have made a difference, and they want to put it as a submission later, I would have to hear that and make of it what I will. Similarly, if on a rare occasion you say “we have now found this document about the case but we had not appreciated its significance”, neither side can be taken as giving an undertaking that every possible document for every possible Test Claimant has been examined. So I do not actually see what the problem is. To the extent that you have done as careful an exercise as you can, you will tell the Defendants – Mr Myerson: Yes we will. Mr Justice Stewart: - rapidly to what extent you say there are documents which you may rely on as saying the Claimants have got it wrong, and whether you seek to amend your pleadings that is up to you, on the basis that “whatever he says that is not right”, or he or she says. But we will never achieve perfection, I appreciate that. Mr Myerson:…I am certainly prepared to adopt everything Your Lordship has just said. There will not be any difficulty…”
“Where a party has had many months to consider how he wants to put his case and where it is not by virtue of some new factor appearing from some disclosure only recently made, why, one asks rhetorically, should he be entitled to cause the trial to be delayed so far as his opponent is concerned and why should he be entitled to cause inconvenience to other litigants?...We accept that at the end of the day a balance has to be struck. The court is concerned with doing justice, but justice to all litigants, and thus where a last minute amendment is sought with the consequence indicated, the onus will be a heavy one on the amending party to show the strength of the new case and why justice both to him, his opponent and other litigants, requires him to be able to pursue it.”
“Mr Myerson: In respect of that particular Claimant, they must know about it because I actually put that in the opening. Mr Justice Stewart: Yes, but if there are more like that.”
‘Do not ask me about the dates because I cannot remember’ [29-74]. 3) In a case where a TC has Her 3rd oath was taken after Kenyatta’s arrest [33-1573]. The 4th oath was taken in Ichagachiru [33-1575]. D is now saying that it took a chance, and regrets it. 1) TC39 is clarifying a date that is wholly in keeping with the IPOC. D concedes it always knew this. Further, D pleaded that there was Mau Mau activity in Ichagachiru in 1954 and 1955 Defence §11]. It pleaded that villages in Nyeri were completed at end August 1955 [Defence §14a]. It was put to TC39 that she helped bring food to them [33-1579]. She agreed and said it was because they gave the Mau Mau food that she was told to build a new house at Wagitune [33-1582]. The evidence suggests that D has no need to ask further questions, because its own case was the same as Cs’ case. 2) D elides the TCs inability to give dates (repeated in evidence) and a lack of documentary evidence – some of which D itself pleaded. D was not entitled to assume that the TC would not advance a case that she was within limitation because she could not remember whether she was or was not. The proposition is fanciful. 3) As above. In this case D see amendment 11b in relation to TC22. (ii)The amendments as to dates are allowed: a. The dates are consistent with the dates pleaded so far. b. It is documentation which the Claimants rely upon to narrow down the start date in 1954. c. This amendment is similar to those permitted as a result of the April 2017 judgment. d. The Court is un-persuaded, given the evidence of TC39 herself, that the Defendant would have asked for any further questions as to dates had the amendment been made before she gave evidence and/or that in any event she could have given any further assistance whatsoever in her oral evidence. e. Nor, given the commencement period of 1954 from the schedule of loss, does the Court accept that the Defendant would have made any further documentary research and/or that any documentary research it makes as a result of the amendments would be substantial and/or would risk serious disruption of the trial. f. As to whether the Court, given the circumstances, not specified a date as to when an incident occurred, it may be possible within the scope of the pleading for a Court to find that a matter occurred on a specific date. However, D would submit that in the circumstances a Court could not fairly reach a conclusion (and therefore time should not equitably be extended unders.33 Limitation Act 1980 ) where a TC is unable to specify such a date. D may therefore fairly take the view that it need not XX in any great detail upon the date of alleged events – the uncertainty is a matter that goes to show that the Court cannot fairly reach a conclusion. If, on the other hand, a TC specifies a date within a pleading, D may well take a very different view as to what questions need to be asked. 4)That is the case here. D did not ask detailed questions of TC 39 upon the dates of relevant events, because of the uncertainty. Had TC 39 advanced dates within a pleading and Cs look forward to hearing why this was done if the proposition advanced here is accurate. 4) as above. The evidence does not support a conclusion that D searched by date. 5) TC39 also gave reference dates. It was merely that they were further away from the event. The difference is minimal and irrelevant because dates were not D’s primary search tool. 6) As above. 7) TC39 describes the village in her witness statement (§§13-18 p108). It was always open to D to cross-examine her about that. 8) as above 9) as above 10) as above 11) as above “could not fairly reach a conclusion (and therefore time should not equitably be extended undersection 33 Limitation Act 1980 ) where a TC is unable to specify such date” - that is a matter for the final submissions. specified these dates, further research would have been undertaken and questions could have been asked as to various factual matters that might assist D in showing that the alleged matters are more likely to have occurred at an earlier date rather than relying upon the existing pleading and the lack of evidence as to relevant dates. D notes for example that the proposed amendments as to dates rely upon reports from ‘North Tetu Division’ and ‘Tetu Location’, but TC 39’s Pt18 responses and oral evidence refer simply to ‘Tetu’
“Q. What did you do while you were there? A. Well, we used to work under the area chief digging trenches, making roads, (inaudible) boundaries, circle boundaries, and digging those trenches where the land was hilly, and if the sub chief requested - - or it was requested by somebody, they would take us there to work there. … remained undersuch conditionsuntil the end ofthe Emergency. Gachuku village he did communal work ‘for about 6 months’ [13-147] (although D accepts that TC17 referred to working for a 2-year period during re-examination [331938]). 4) If the amendment were allowed, D would need the opportunity for further XX of TC17 informed by further documentary research. Although he was asked about the period for which he carried out communal work at ‘Gacuko’ (the name given by T17 in oral evidence), he was not asked about the associated details now pleaded, nor about the period for which he was at ‘Gacuko’. 5) Additional searches within the documents would anyway be necessary if the amendment were allowed. These would need to cover each individual fresh factual allegation made by way of this proposed amendment. 6) Those matters would greatly delay the already elongated trial timetable. 7) To refuse the amendment would not be unfairly prejudicial to TC17. He had more than ample opportunity to clarify the matters in this amendment, including the period 7) as before. Mr Fetto Q. So was this work for the benefit of the community? A. Yes, but it was part of the punishment because I was not being paid. If you didn’t work, the sub-chief would take you back for detention. It was not voluntary…” (ii) This evidence supports paragraph 66 IPOC as at present pleaded. Paragraph 64 and 65 plead that the village was guarded by the Home Guards at the entrance to the village and that entry and exit to the village was restricted. (iii) The proposed amendment is said to be based on documents. Insofar as those documents support the present pleaded spent at Gachuko, in his Part 18 responses, witness statements, and before the conclusion of his oral evidence, given on21 June 2016 . The delay in seeking to amend has not been explained. TC17 can pursue the case previously advanced on the existing pleading / evidence, insofar as it is proper for him to do so. case, the Claimants can rely upon them. However the proposed further amendments alleging that conditions of curfew and detention continued and “unsavoury elements” were required to attend roll calls and be subjected to visits by the Kikuyu Guard and police patrols has not been pleaded and has not been the subject of investigation by the Defendant and/or crossexamination. These allegations are therefore new. (iv) As to the allegation that “It is probable that the Claimant remained under such conditions until the end of the Emergency”, there is nothing in paragraphs 64-66 of the IPOC which is inconsistent with this. However in the Part 18 response to paragraph 66 it is said “The Claimant states he believes he carried out this kind of work for around 6 months”
‘The Claimant confirms it was a Saturday, but he is unable to give further details of the day, month or season’
“I was only beaten when I was being interrogated”
“Q. Could it have been earlier than that? A. I cannot tell that because I cannot remember those dates very clearly.”
‘Each morning detainees were taken to work elsewhere… The Claimant was beaten at various times whilst working. He was beaten by various Home Guards with sticks and pangas…’ relating to assault and battery when working off site during detention at Kamaguta, it is otiose. 2) If – as appears to be the case – it seeks Pursued. 1) It goes further 2) It is in accordance with evidence [332849 – 33-2853], which founds a submission; a. It arises out of the same facts. TC explains that the Chief’s camp (referred Amendment refused. (i) IPOC paragraph 37 alleges that the Claimant was beaten at various times whilst working. He was beaten by various Home Guards with sticks and to go further, it is a fresh claim of assault and battery. a. It does not arise out of the same facts or substantially the same facts as a claim in respect of which TC19 has already claimed a remedy in the proceedings. He has made no prior allegation amounting or approximating to assault and battery at Kamaguta other than when taken off site for work. b. Further, and in any event: i. D did not have the opportunity to XX TC19 regarding allegations of assault at Kamaguta, allegations of assault being restricted to other locations. ii. Without prejudice to D’s general submission that the amendments should be refused because made without instructions, and that statements of truth should not be to in his claim) is a post. This founds a submission regarding translation, which is not the TC’s fault. He clarified in his evidence that there were two camps, the chief’s camp and a detention camp. In the Kikuyu, what has been translated by one translator as chief’s camp can also be translated as “office”. The words “Kamaguta Chief’s camp” could equally be “Chiefs office”. §39 is amended in accordance with his evidence that he was also beaten during detention and not just while working. b. i. D could have asked whatever questions it wished once the issue became clear, as it did in evidence. ii. It arises from C’s evidence. iii. As before iv. as before v. as before pangas. Paragraph 38 says that while clearing bushes he was beaten by Home Guards resulting in his hand being cut. At present there is no further allegation of violence against this TC at Kamaguta. (ii) In his oral evidence TC19 explained (33-2949) that “Kamaguta was a detention camp and there was a different camp, a chief’s camp.” It appears, as the Claimants say, that there was a translation issue. However, it is not clear the basis of saying that paragraph 39 “Is amended in accordance with his evidence that he was also beaten during detention and not just while working.” (iii) Absent clear sworn evidence from TC19 on this point, the amendment must be refused. As the Defendant says, this is particularly the case where there is no statement of truth as to the amendment from the Claimant iii. iv. dispensed with, this is manifestly not a proper pleading to make in the absence of direct instructions (if that is the case here). There are no allegations of assault at Kamaguta in the witness statements, Part 18 responses or in oral evidence. As such, the Court should not allow the Claimant to make this new allegation without the benefit of a properly signed statement of truth, affirming that TC19 (not just his lawyers) believes the new allegation to be true. If the amendment were allowed, D would need the opportunity for further XX of TC19 informed by further documentary research. Additional searches within the documents would anyway be necessary if the amendment were allowed, addressing the himself. specific features and plausibility of the case now sought to be made. v. To refuse the amendment would not be unfairly prejudicial to TC19. He had more than ample opportunity to set out his allegations in his original pleadings, Part 18 responses, witness evidence, and before the conclusion of his oral evidence, given on14 July 2016 . The delay in seeking to amend has not been explained. TC19 can pursue the case previously advanced on the existing pleading / evidence, insofar as it is proper for him to do so. Test Claimant Paragraph amended Amendment Agreed? Cs’
“While in this camp (i.e. Githanga), it was a camp just like Thuita…we used to sneak out and once you are caught they would come and punish you because you are supposed to work…” (33-1975/6). See also at 33-1984 where she said “I was running away from the chaos that were happening at Githanga, the beatings.”
“Although Ihad been given the sentence of3 years initially in 1953. The reality was that I was kept in detention until the State of Emergency was over in 1959.” [21-177] (emphasis added) TC25 was not crossexamined about the date of his alleged arrest and detention. D has not had the opportunity to XX TC25 on the revised alleged date and is deprived of such an opportunity because TC25 died in August 2016. D was entitled to assume that TC25 was either advancing no positive case as to date, and that if the Court was to be invited to accept any date by TC25 then it would be that given by him in his own evidence, namely that he was given his three year prison sentence in 1953. but not the camp [21-27 §18a]. 2) This is a submission. The date is not pleaded. It is subject to consideration – see for example 32-21824 which concerns the arrest of 33 people in an oathing ceremony in August 1954. 3) submission. 4) submission. D was asked in the Part 18 request when this took place and said he cannot remember. D relies on the oral evidence. Cs rely on the documents. The Court can determine the issue in its Judgment. 5) TC 25 could not remember dates in his Pt 18 answers. He was trying to work out his age [33-2263]; he could not remember when he administered the oath [33-2288]. 6) Why? It would be obvious that a date had to be part of the submission because the limitation time bar is an issue. Why does D assume that C is obliged to state of Emergency was over. b. He told the psychiatrist that he was detained “between 1953 and 1959”. c. In evidence in chief he confirmed the contents of his witness statement without modification. (iii) The Defendant was therefore entitled to assume that the case it was meeting was one where the Test Claimant was taken to Gathugura Camp prior to the year 1954. (iv) See the comments in the exchange with Mr Myerson QC on23 May 2016 set out in paragraph 25 of the main judgment. (v) In addition I accept the points made by the Defendant at (5)- (7). (vi) In this Test Claimant’s case I also accept the Defendant’s points as to prejudice under (9)-(11) and (13) & (14). (vii) See also the points in relation to TC14 7) 8) 9) No notice was given to D that TC25 would seek to alter his position until this amendment was served on21 July 2017 (11 months after TC25 had died). No explanation for the delay has been given, or for how the amendment has come to be made after TC25 has died. There is no evidence or explanation in support of the amendment or its timing at all. The amendment in any event embarrassing as the case sought to be advanced is entirely uncertain. TC25 now seeks to aver that his arrest and initial detention took place “no earlier than June 1954”, but beyond that no date is given. Time cannot equitably be extended unders.33 Limitation Act 1980 in circumstances where TC25 effectively asserts, a year following his oral evidence, 11 months after he died and months following the close of Cs’ case, that, with the help of a professional legal team throughout, he could not present an important aspect of his case in his take the oral evidence of a man who cannot remember dates over the documentary evidence in the light of both the guidance in Gestmin and the fact that D does not adopt that approach itself? 7) as before 8) as before 9) as before which I made above at (iv)-(vi) and (viii)(xi) – save that in this case TC25 cannot be recalled and it is the witness statement and TC25’s evidence (and not the pleading itself) which indicated to the Defendant what it could properly consider as at June 2016 to be the best evidence as to the dates available. original pleadings, Part 18 responses, witness statements or oral evidence. He now invites the court to accept a different case, and D must respond. As to prejudice: 9) If the amendment were allowed, D is irremediably prejudiced by being unable to XX TC25 informed by further documentary research. If D had known that the TC25 was going positively to assert, contrary to his own evidence, that his initial arrest and detention had taken place “no earlier than June 1954”, then TC25 would have been crossexamined differently as to date. D could for example have cross-examined TC25 by reference to temporal yardsticks and the level of Mau Mau activity (in particular, oathing ceremonies) in Embu District. 10) D was may fairly take the view that it does not need to XX upon the date of alleged events. TC25’s own evidence was that he had been sentenced to imprisonment, following his arrest and detention, in 1953. Had TC25 specified previously 9) as above. There is no prejudice unless C would have been recalled. He would not have been. that his case was that his arrest and detention had occurred not earlier than 11) 12) June 1954, further research would have been undertaken and questions could have been asked as to various factual matters that might assist D in showing that the alleged matters are more likely to have occurred at an earlier date (and in particular, the date given by TC25 himself) rather than relying upon the existing pleading and the lack of evidence as to relevant dates. Allowing the amendment would mean that D had for good reason not asked what are now necessary questions of TC25 as to the dates of relevant events. D has relied upon TC25’s own evidence as to when he was arrested and detained. D would also need the opportunity to re-approach and if appropriate recall any of its witnesses potentially able to assist with the credibility of TC25’s new account, in particular witnesses with experience of Embu district and/or witnesses who might be able 10) as before. The Defence pleads dates from at least 1955 to 1959. D always had the information necessary to decide how to conduct its cross-examination. 11) as above to speak to the evidential basis given for the amendment. 13) 14) 15) Additional searches within the archives and/or the disclosed documents would anyway be necessary if the amendment were allowed, addressing the specific features and plausibility of the case now sought to be made. The original searches are of limited usefulness. Original searches have limited usefulness because related to a single account rather than the relative merits of two rival accounts. D would need to undertake substantial further research into the likelihood of such an averment being accurate, including in particular with regards to Mau Mau activity and oathing in Embu District during the period after June 1954. Those matters would greatly delay the already elongated trial timetable. To refuse the amendment would not be unfairly prejudicial to TC25. Specific requests for further particulars as to dates were 12) as above. 13) as above made by Part 18 request. He had more than ample opportunity to set out dates with the specificity now provided in his original pleadings, Part 18 responses, witness statement, supplemental statement, and before the conclusion of his oral evidence, given on28 June 2016 . The delay in seeking to amend has not been explained. TC25 can pursue the case previously advanced on the existing pleading/evidence, insofar as it is proper for him to do so. 14) as above 15) as above 26 The Claimant was probablytransferred to Mara River campno earlier than about October1954. At Mara River Camp the Claimant was placed in a tent which the detainees called ‘a club’. The tent was large. Each tent held approximately one to two hundred men. Long mats were provided tosleep on, which ran from one end of the tent to another. No. This amendment appears to be consequential on the amendment to paragraph 14 above, rather than having any independent origin, and is resisted for the same reasons. The reason / evidential basis for the pleaded date of “no earlier than October 1954” is not given. TC25 was asked in the Part 18 request to date his move to Mara River camp and responded by giving no particulars and stating he could not remember (Q.243.b at [21116]). No date was given by the Claimant in his written or oral evidence. Pursued. The amendment follows the previous one and thereby elucidates Cs case. The Defence pleads that Mara River was open in 1955 (§41a) and closed in late 1957/early 1958 (§38e). Refused for the same reasons as above. 43 The Claimant was detained at Embakasi for approximately one year from no earlier thanOctober 1955. No. This amendment appears to be consequential on the amendment to paragraph 14 above, rather than having any independent origin, and is resisted for the same reasons. The reason / evidential basis for the pleaded date of “no earlier than October 1955” is not given. TC25 was asked in the Part 18 request to date his move to Embakasi camp and responded by giving no particulars and stating he could not remember (Q.246.a at [21119]). No date was given in his written or oral evidence. Pursued. As above. Refused for the same reasons as above. 45 The Claimant was then transferred to Manyani by lorryno earlier than October 1956. No. This amendment appears to be consequential on the amendment to paragraph 14 above, rather than having any independent origin, and is resisted for the same reasons. The reason / evidential Pursued. As above. Refused for the same reasons as above. basis for the pleaded date of “no earlier than October 1956” is not given. The amendment is also inconsistent with the amendment to paragraph 47, below, which pleads that TC25 arrived at Manyani “in about November 1956” rather than using the formulation of this amendment. TC25 was asked in the Part 18 request to date his move to Manyani and responded by giving no particulars and stating he could not remember (Q.248.b at [21-127]). No date was given in his written or oral evidence. 47 There were no pit latrines in the camp and buckets were again used in a similar way as in the other detention centres.TheClaimant remained in ManyaniCamp for about six monthsfrom about November 1956 toabout May 1957. Agreed except for the words “from about November 1956 to about May 1957”
“… he was on occasions asked to dig trenches and if he refused he would have been detained…”
“Caused, permitted, allowed or suffered the seizure of the Claimant’s home. The Claimant was deprived of her peaceful enjoyment of and legal entitlement to her home through intense fear of further physical assault.” (ii) Therefore, the Claimant’s case is that she was deprived of her peaceful enjoyment of and legal entitlement to her home. (iii) The evidence from the Claimant was that her home became the base of a relocation camp and people from other households came to stay on her shamba with a trench surrounding it. (iv) The claim does come withinCPR rule 17.4 (2). (v) The Court is not prepared to say at this stage that the amended allegation is hopeless. The problem the court is faced with is that the only realistically possible argument that this allegation is not time barred is based on s32 Limitation Act. The court cannot at present say this s32 argument made by the Claimants is hopeless. On the other hand the court cannot say that the s32 argument has a real prospect of success. In those circumstances, and with some hesitation, the amendment is allowed. Test Claimant Paragraph amended Amendment Agreed? Cs’ Response Judge 33 – David Thurugu Guchu 9 On a date following the visits referred to at paragraph 6 above, but still in 1953so far as the Claimant can recall, Home Guards arrived at the Claimant’s homestead. Not agreed for the reasons given in relation to paragraph 11 below. It is agreed that the proposed amendment is one as to date per the draft judgment. It is pursued only on the basis that C was a small child at the relevant time. If that makes a difference – see below. If it does not, the below is only for the purposes of any cross – appeal. Refused. (i) The Claimants accept that this is a change of date. (ii) The fact that the Claimant was a child at the relevant time does not make any difference. See below. 11 The Claimant, his mother and siblings and other villagers were forced to walk to Gitura Village, accompanied by the police. They did not try to run or escape because they believed they could have been shot, as the police and soldiers had weapons. The Claimant was put in fear. It is probably that theseevents took place later thanrecalled by the Claimant. It isprobable that they took place noearlier than June 1954. TheClaimant will rely ondocumentation in support of hisclaim and for its full terms andeffects at trial, includingdocumentation that identifiesthe nature and progress of villigisation in Fort Hall: forexample, the EmergencyAdministrative Policy from No. This is a change of date. TC 33 gave evidence and was XX on the basis that the alleged incident occurred in 1953. The proposed amendment renders TC 29’s case hopeless: 1)The Claimant gave evidence in accordance with the existing pleading and his witness statement that he was removed in 1953. This is clearly stated at §7, 9 and 13 of the existing IPOC and §§7 and 12 of his Witness Statement, i.e. that he spent seven years in the village from 1953-1960. In cross-examination, TC33 said that his mother had been arrested in 1953 and then that he had been at the village “maybe about six years” by As above. The reason for the amendment is clear from the pleading. 1) Refusing the amendment deprives C of part of his case and privileges C’s evidence at a stage prior to the evidence being considered as a whole. That is unfair. C was 7 or 8 when these events took place. It is doubly unfair to deprive him of the opportunity to correct a childhood memory from the documents, particularly when C told Prof Fahy that Refused. (i)It may be that refusing the amendment deprives the Claimant of part of his case. This is not unfair. The point is not the age of the Claimant at the time of the event. It is the fact that the claim that he has pleaded, and that pleaded on his behalf, cannot be amended at this stage in accordance with the overriding objective of dealing with the case justly and at proportionate cost. The points set out in the draft judgment and in March 1954 [32-14928], notes forthe Governor regarding priorities for Fort Hall from July1954 [32-20470], Governor’sdirective from January 1955 [3228517] and concerning disciplineand punishment in Fort Hall inJanuary 1955 [32-29332]. that point [33-3188, lines 5-7]. 2)TC33 was not cross-examined about the date of his alleged removal. The Defendant has not had the opportunity to XX TC33 on the revised alleged date. D was entitled to assume that TC33’s case was that he was removed in 1953, which was TC33’s own case and evidence until this amendment was served on21 July 2017 . As to prejudice: 1) If the Defendant had known that the Claimant was going positively to assert that his removal had taken place “no earlier than June 1954”, then the Claimant would have been cross-examined differently as to date. Had TC33 specified these dates, further research would have been undertaken and questions could have been asked as to various factual matters that might assist D in showing that the alleged matters are more likely to have occurred at an earlier date rather than relying upon the existing pleading and evidence. 2) To refuse the amendment would not be unfairly prejudicial to TC33. Specific requests for further particulars the removal happened in 1954. 2) As C was a child it is unlikely he could add more. 1) The cross-examination is unlikely in the extreme to have yielded anything. The research has already been undertaken. D has expressly pleaded that it has no record of Gitura village that assists. As C was there until 1960 it is extraordinary that D implicitly suggests that it has not looked for dates throughout the emergency. (ii) relation to similar refusals for those who were adults at the time apply. It does not follow that because the Claimant was a child at the relevant time, that it is unlikely he could now add more. 3) 4) as to dates were made by Part 18 request. He had more than ample opportunity to set out dates with the specificity now provided in his original pleadings, Part 18 responses, witness statement, opportunity to file a supplemental statement (not taken up), statements, and before the conclusion of his oral evidence, given on21 July 2016 . The delay in seeking to amend has not been explained. TC33 can pursue the case previously advanced on the existing pleading/evidence, insofar as it is proper for him to do so. Allowing the amendment would mean that D had for good reason not asked what are now necessary questions of TC33 as to the dates of relevant events. D has relied upon the pleaded case and TC33’s own evidence to the effect that his removal took place in 1953. The amendment in any event is wholly uncertain as to the actual date of TC33’s alleged removal. The amendment seeks to aver that TC33 was removed “no earlier than June 1954”, and no positive date is advanced in place of 1953. Nor is a new period for the time TC33 spent in the village, 2) as above. 3) as above. 4) this is a submission. in place of the pleaded period of seven years, advanced. Nor is it proposed to amend the period of seven years given in the Particulars of Injury at §42 of the IPOC (“At the dates of the events complained of he was aged between 7 and 14.”) 5) As a result, it is entirely unclear if TC33 is (now) asserting that he was removed in the second half of 1954, or (given the reference to documents from January 1955) in 1955, or at some even later date during the Emergency. To meet such an uncertain case, D would have to undertake substantial further research both in the disclosed material and potentially in the archives. 6) The documents do not, in fact, show that TC33 could not have been sent to Gitura village in 1953. [32-14928] states that as at March 1954 some villages had already been constructed in the reserves. In any event, if the amendment is allowed, TC33 would be advancing a new and different positive case as to the dates of certain events that D has not been able properly to test. The potential practical impact of that upon the Court’s view of the evidence 5) what other research could D do? D cannot go back to the archives to seek details of an event that has always been pleaded to last until 1960. That is mere opportunism. 6) This is a submission. In reality, villagisation in Fort Hall did not really proceed until 1954. would be unknown but potentially profound. 13 The Claimant was detained at Gitura Village from 1953 no earlier than June 1954 to 1960. No. Not agreed for the reasons given in relation to paragraph 11, above. As above As above. Schedule 3 …the Claimant claims remuneration for the periodic work he was forced to undertake between around 19531954 No – see objection to paragraph 11 above. As above As above. Test Claimant Paragraph amended Amendment Agreed? Cs’ Response Judge 34 – Anonymised. 18 On arrival at Manyani Detention Camp, the Claimant was forced to strip. He was searched. The Claimant will rely on documentation in support of his claim and for its full terms and effects at trial which indicate he arrived after October 1954, for example: a. He was probably detained in Compound 30 (rather than Camp 30) which was in Camp 3 [32-23428] and was not heavily populated even by October 1954; b. By May 1954, Camp 3 had not yet been built [32-16482] c. Camp 3 was occupied after September 1954 [32-23428] No. This is a change to TC34’s case upon which the Defendant has not had the opportunity to crossexamine and which will if allowed necessitate further research into Manyani and the recall of TC34. TC34’s case is now said to be that he was in “Camp 3, Compound 30”, rather than “Camp 30” which is what he told the Court in evidence (Witness Statement, paragraph 28) [28-182]. 1) No explanation has been given for the delay in advancing this new case. No evidence or explanation is advanced for the failure to make this change at any time before or during TC34’s evidence, given over a year ago, or even subsequently until now. 2) If the amendment were allowed, D would need the opportunity for further XX of TC34 informed by further documentary research, including in particular as to the strength of his recollection of Manyani, given the differing formulations used by him, and the reasons for the amendment being made. D Pursued in accordance with draft judgment. This is not a new case. There is plentiful evidence about Manyani and it entirely supports the amendment, which is merely an indication to D as to the way the case will be put. 1) The proposition that this is a new case is wrong. D pleaded the case currently advanced by TC34 at §20 c ii of its Defence to TC19, specifically stating that on final completion of Manyani there were 3 camps, each with 10 compounds. Cs do not know why the pleading was not replicated in this case, but the fault is not Cs. 2) This cannot be right. D’s documentary research actually confirms the accuracy of the amendment. It is surprising that D does not know this. If D does know it, then this is an improper objection and ought to be withdrawn forthwith. On what basis is D to cross- Amendment allowed. (i) The amendment essentially changes camp 30 to compound 30 in camp 3. (ii) This is a change of case based on the Claimants’ lawyers belief from the documents that TC34 meant compound 30 which was in camp 3. (iii) The Claimants’ amendment seems also to be reflected in paragraph 20(c)(ii) of the Individual Defence to the claim by TC19 which states “On final completion of Manyani Camp, there were three distinct camps, each with its own camp commandant… each of the three camps was divided 3) would also need to return to and possibly to recall its witnesses with experience of Manyani. Additional documentary searches would also (and anyway) be necessary if this amendment were permitted, not only to support further XX of TC34 if recalled, but also to give D a fair opportunity to respond to the specific case now being put. D was entitled to rely on the Claimant’s case and evidence that he was detained in “Camp 30” at Manyani. D will now need to undertake further research into “Compound 30” and into “Camp 3” in order to respond to this change in the Claimant’s pleaded case, including (but not exclusively) into whether there was any place named “Compound 30” prior to the building of “Camp 3”. examine without disowning its own pleading for TC 19 and the statement of truth that verifies it? 3) This cannot be right. It is unhappy that D has committed itself to this proposition when its own case confirms the amendment. Cs and the Court are entitled to an explanation of why D says that further research is required.
“leaving aside for a moment, we’ll come back to it …’] and at [33-8151 line 7 – 17: “there’s the residual scarring at the site of the wound sustained to the Claimant’s left hand”]. Direct XX on the topic then arises at 33-8152 line 23 – 25 ”
“The Claimantremained in Manyani forabout one to one and a halfyears”
“On one occasion a guard hit the Claimant This appears to be an attempt to insert into TC 34’s pleaded case an injury which he gave no evidence about. This injury could have been pleaded before, or referred to in his witness statements, but was not. No explanation for the failure to do any of those things is given. D is deprived of the opportunity to XX TC34 about this injury, and about the failure to plead it previously. examination [28-218], and is in keeping with the medical evidence about how histories emerge. D XXd on the issue: [338146: “save for the lower back and pelvic area which I am saving for possibly this afternoon”], at length, despite the current assertion of insurmountable prejudice: [33-8156: “The remaining issue for us to discuss is the lower back and hip symptoms”]; and further at 8157 lines 4 – 25 - 8166 where causation was addressed. D can make a submission on the reliability of the account, given that C told Mr Heyworth this beating happened at Mwea [28-214 §3] rather than Mackinnon Road [as per his claim, §and his oral evidence that he was not assaulted at Mwea – 33-3215al]. But there is no prejudice. with a baton. The Claimant hit back with a mallet. The guard stated he would be beaten. The Claimant was taken to a room. He was slapped, causing him to fall to the floor. He was hit with a wooden frame baton on his hip, knee, right shoulder and ankle. It took him 3-4 months to recover.” (ii) This reflects paragraph 38 of the Test Claimant’s witness statement. (iii) At page 213 of his report Mr Heyworth deals with an incident of violence at Mackinnon Road. He says that the Test Claimant was also kicked in the course of this assault and sustained painful blows to various parts of his body, in particular his lower back and hips and that pain persisted at the sites of the blows sustained in this assault for a period of 4 months. He confirmed in crossexamination (338144) that the pain was self-limiting to 4 months. (iv) At page 214 Mr Heyworth deals with interrogation at Mwea and says that Mr Muhura was slapped violently and fell to the ground during interrogation and was repeatedly kicked sustaining blows to his lower back and right hip. He was crossexamined about the back and hip symptoms resulting from this. (v) It is accepted that the Claimants’ case is that he was not assaulted at Mwea. (TC34 in his evidence said he was assaulted at Mwea. He retracted this when shown his witness statement.) The amendment attributes the alleged long term lower back symptoms to the (as yet) unpleaded allegation of an assault to the back at Mackinnon Road. (vi) TC34 gave no evidence at all about an assault to his back. This is neither in his witness statement, nor in his oral evidence. (vii) Firstly, it is impermissible for the Claimant’s representatives to try to piece together his claim in this way and the amendment is not allowed for this reason. See further paragraph 6(i) and paragraph 7 of the judgment. (viii) Secondly, and in any event, the Defendant was deprived of any opportunity of cross-examining TC34. There is real prejudice here to the Defendant. The Defendant was entitled to rely on the pleaded claim. (ix)No explanation has been given for the delay in proposing this amendment. (x) In any event the state of the evidence is such that there is no real prospect of success in relation to this amendment. Nor is there any statement of truth from TC34 to support this amendment. 28 The Claimant was held at the Mwea Works Camp for 6 months, during which heworked in other places,including Gathigiriri and Yattabefore being transferred to Waithaka Detention Camp. No. This is a significant change to TC34’s case, which will require significant further research into each of Mwea Works Camp, Gathigigiri and Yatta. It also differs significantly from TC34’s oral evidence. The basis on which the new case is advanced is unclear. No explanation is given for the delay to21 July 2017 in Pursued. This is not a significant change. C’s case has always been that he was detained in a multiplicity of camps, consistent with the documentary evidence of the “Pipeline” system put in place by D. The claimed need for (i) (ii) The amendment as proposed is unclear and will not be allowed. As to Gathigigiri, an amendment will be allowed to plead that the Claimant, whilst at Mwea advancing this new and significantly different case, based upon different locations to those originally pleaded. TC34’s existing pleaded case is that he was held at Mwea Works Camp before being transferred to Waithaka Detention Camp (IPOC §28). TC34’s IPOC was signed with a statement of truth by his solicitor on28 November 2014 . In his prior witness statement dated27 October 2014 , however, TC34 stated that he was detained in “Mwea Camp” and also the nearby “Gathigiriri Camp” (§41). Despite the reference to “Gathigiriri Camp” in the witness statement which pre-dated the IPOC, TC34 did not plead any period of detention in Gathigiriri in his IPOC. This was noted in the Individual Defence. In his Individual Reply at §31, the Claimant averred that whilst at Mwea Works Camp “he spent about two weeks at Gathigiriri and then went back to the main works camp at Mwea”
“whom the Claimant describes as a Home Guard, but who was probably a Tribal Policeman”, “Tribal Policeman” and “He was not given access to legal advice”