Mutua and Others v. Foreign and Commonwealth Office

Abstract

State succession — Colonies — Independence — Kenya — Kenya becoming independent in December 1963 — Creation of new independent State — Responsibility of United Kingdom Government — Rules of constitutional theory — Succession in respect of tortious liabilities of Colonial Government — Whether United Kingdom Government or independent Kenya succeeding to liability — Claims for torture of detainees during the colonial period

Relationship of international law and municipal law — Customary international law — Principles on State succession — State practice — Customary international law source of English common law — Doctrine of incorporation — International law rules incorporated automatically if not conflicting with United Kingdom statute — Kenya Independence Act 1963 — Liabilities of Colonial Government — Whether transferring to United Kingdom Government by common law upon Kenya’s independence — Domestic English law of limitation — Limitation Act 1980 — Section 33 considerations — European Convention on Human Rights obligations — Public international law principles — Relevance — Justice of case against accepted international legal norms

Human rights — Prohibition of torture — English law regarding torture with revulsion — Refusal to admit evidence obtained by torture — United Kingdom Government having means to prevent torture — Claimants alleging negligence in failing to prevent torture — Whether issue triable — Limitation Act 1980 — Considerations under Section 33 — Duty of State under Article 3 of the European Convention on Human Rights, 1950 to investigate allegations of torture — Public international law with regard to torture — Relevance under Limitation Act 1980

Human rights — Fair trial — Whether possible after delay — Section 33 of Limitation Act 1980 — Discretionary exclusion of time limit for actions in respect of personal injuries or death — Whether claimants persuading Court to exercise its discretion — Considerations under Section 33 — Retrospective application of Convention obligations — Duty of State under Article 3 of European Convention to investigate allegations of torture — Public international law with regard to torture — Relevance — The law of England