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Kimathi lawyer pays price for poor conduct

A lawyer has been criticised heavily by the Court of Appeal for “unreasonable and improper” conduct of an appeal involving a controversial American speaker who was added to the “stop list” after an appearance on the island.

Barrister Eugene Johnston landed in legal hot water after he launched a civil appeal on behalf of Ayo Kimathi, whose 2015 presentation was described as “an unfiltered message of hate” at an earlier hearing in Supreme Court, where Chief Justice Ian Kawaley upheld the decision to put him on the stop list.

Mr Johnston was also acting for David Tucker, who organised the visit of the American public speaker.

But in its judgment, the Court of Appeal said Mr Johnston failed to comply with a string of court orders that resulted in the Government and the Human Rights Commission incurring considerable expenses preparing for the appeal.

Appeal judges also said that Mr Johnston failed to appear in court leading up the appeal last November after his firm, J2 Chambers, lost its indemnity cover.

The appeal was consequently struck out and on Friday the Court of Appeal made a “wasted costs order” against Mr Johnston, which means he is personally liable for the payment of all legal costs incurred by the two respondent parties from October 1.

Last night, Mr Johnston accused the Court of Appeal of doing “our country a disservice”.

He said: “Many lawyers in this country have practised for far longer than me. But in the short ten years that I've been in and out of courtrooms in this country and in the UK, I've represented clients with cases of significant public importance.

“After reading what the Court of Appeal said in its ruling, I now have first-hand understanding of the disappointment some of those clients felt, and the reasons why some of them said our courts are not dedicated to justice.

“The Court of Appeal has done our country a disservice here, not just in how they've handled this important constitutional appeal, but in how they've dealt with me.”

The Court of Appeal described the history of Mr Johnston's appeal as “alarming” and Appeal Judge Maurice Kay said there were “copious examples of non-compliance with directions and procedural requirements”.

Mr Justice Kay added: “His attention to his responsibilities in this case had begun to fall short of what was required before October 1, 2017, but the application for a wasted costs order emphasise that date. Its significance is that his firm's professional indemnity insurance cover lapsed on that date.

“Since then, he has been without cover and therefore ineligible to practise, which was formally communicated to him by a letter from the Bar Council dated October 11, 2017, following voicemail messages left on October 3, 2017.

“The plain fact is that both appellants commenced appellate proceedings which came to nothing for reasons of procedural non-compliance but only after the respondents had been put to considerable expense.

“They had the option of abandoning the appeal and thereby saving the respondents from incurring further costs, but they chose not to do that. Instead, they allowed it to suffer a slow and expensive death.”

Mr Justice Kay added: “The fact that the respondents were having to deal with an appeal which was being misconducted or conducted so lamentably was totally unacceptable.

“It is obvious to me that Mr Johnston's behaviour was both improper and unreasonable.”

Mr Kimathi was brought to the island to deliver a presentation advertised as focusing on African culture in 2015.

But his controversial speech drew fire after he described homosexuality as a cancer that originated from white Europeans along with other forms of “sexual deviance”.

Mr Johnston launched a civil suit on behalf of Mr Kimathi and Mr Tucker saying the speaker's placement on the stop list was an attack on his freedom of expression.

In April, Mr Justice Kawaley found the presentation by Mr Kimathi to be an “unfiltered message of hate” and ruled that then minister of home affairs, Michael Fahy, had acted within his powers in the interests of good government and that the Human Rights Commission was right to investigate.

The Supreme Court a month later decided against issuing a costs order against Mr Kimathi despite the failed legal action.

Mr Johnston then started appeal proceedings on behalf of Mr Kimathi and Mr Tucker against the Chief Justice's ruling.

Mr Justice Kay said: “When one stands back, a clear picture emerges. Mr Johnston, who had been pursuing this appeal without diligence even before his professional difficulties arose, caused a situation to materialise in which his own clients ceased to have legal representation and the respondents and their legal representatives, denied the usual point of contact for the preparation of the upcoming appeal, had no choice but to continue with their preparation, including tasks which would otherwise have fallen to the appellants' legal representatives.

“Mr Johnston's egregious approach to this appellate litigation, which was becoming apparent even before October 1, but which intensified after that date, was undoubtedly unreasonable and improper in the Ridehalgh sense.

“There is no doubt that it caused both respondents to incur unnecessary costs. They had to prepare for an appeal which, even as late as 5 November, they did not know would be struck out. It is just that a wasted costs order be made against Mr Johnston's firm.”

The judgment has now been sent to the Registrar for assessment.

It is The Royal Gazette's policy not to allow comments on stories regarding court cases. As we are legally liable for any slanderous or defamatory comments made on our website, this move is for our protection as well as that of our readers.

Ayo Kimathi

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Published November 22, 2017 at 8:00 am (Updated November 22, 2017 at 12:28 am)

Kimathi lawyer pays price for poor conduct

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