Retired Government Lawyer Asks Court Of Appeal To Disqualify Itself, Then Asks Court To Quash An Order Related To Stalking

By Alric Lindsay

Bilika Simamba, a retired Cayman Islands government legal draftsman spent today, August 31, 2026, asking the Court of Appeal first to disqualify itself from hearing his case, and then to quash a protection order made against him for stalking.

Argument for recusal

Simamba’s case for asking the members of the Court of Appeal to disqualify themselves was that judicial independence had broken down in his own litigation. He told the court he was unpopular with the Cayman judiciary because he had complained about Justice Ian Kawaley and had gone public with the complaint, and that in the course of trying to hold the judge accountable he had criticised the Chief Justice, the Judicial Commission and the Governor.

Simamba said he wanted to demonstrate a pattern of what he repeatedly called intellectual dishonesty by a succession of judges, and he took the court through a list of what he said were failures in an earlier judicial review, decided against him this year by an ad hoc Court of Appeal of three English judges.

The presiding judge of the Court of Appeal interrupted Simamba several times to say that this line of argument could not assist him. “That decision was made by the three judges who are not Cayman judges,” he said. “We can’t possibly sit here today and decide whether they were or were not correct in the decision that they made. That would be for the Privy Council.” Later: “At the moment, I’m struggling to see how, even if they were, how that helps you in your application.”

Simamba then asked the three judges whether they were long-term contracted or ad hoc. Told that all three were permanent members of the Court of Appeal, he said that was the point. Long-term contracted judges, the ad hoc judges appointed in his earlier case, and the Privy Council were, he said, all drawn from the same pool. He had previously suggested judges be sought from outside the Caribbean and outside the United Kingdom, and he repeated that. “I’m not suggesting that you have acted improperly at all,” Simamba told the court.

Simamba also told the court that Freedom of Information disclosures showed the Cayman Islands Government had spent money hosting overseas judges and their spouses, at a time when at least two cases including his own were heading to that court. One of the judges who accepted the hospitality, he said, was among those who dismissed his case six months later. He read to the court the provision of the United Kingdom Guide to Judicial Conduct on gifts and hospitality.

The members of the Court of Appeal retired to consider whether they should recuse themselves.  When they returned, they said: “Our decision is that we’re not going to recuse ourselves,” adding that reasons would follow in writing.

The grounds for Simamba’s appeal

It is understood that Simamba’s substantive appeal is against a protection order made in the Grand Court, restricting Simamba from approaching within a set distance of the respondent and from communicating with her.

The court heard that the underlying dispute concerns strata fees. Simamba indicated that the respondent sent him monthly demands over eighteen months. He added that these demands included legal costs that had never been assessed or taxed by any court.  Reportedly, he repeatedly asked her to stop, and that she did not. He accepted he had eventually replied in terms he described as intemperate.

Simamba outlined seventeen grounds for his appeal.

The relevant Act itself, Simamba said, is unconstitutional. It gives the court a discretion to call witnesses but does not guarantee a respondent the right to cross-examine or to call his own. A restraining order restricting freedom of movement and speech is, he said, “as good as a conviction” and achieves through a civil route what the harassment provision of the Penal Code achieves through a criminal one, without the criminal safeguards. “If you can’t get something through the front door, you shouldn’t get it through the back door.”

One of the judges put to him that there is a body of case law holding that civil procedure is different, and that there is no entrenched right to cross-examine where civil rights are engaged. Simamba said he had not read those authorities.

The “missing” record

Simamba’s second ground, and the one that occupied the court longest, is that there is no record of the Grand Court hearing at all.

Explaining his position, Simamba indicated that the Constitution and the Grand Court Act both provide that the Grand Court is a court of record.  Reportedly, the only contemporaneous record was the judge’s notes.
Simamba expressed doubts about the judge’s notes. “You are asking me now in this case to trust the judge,” he told the court in reply. “You don’t have a right to do that as an appeal court. Why? Because sometimes judges lie.” He added that he was not saying judges are generally crooked, but that what they do has to be examined in the same way as anybody else’s conduct.

Simamba said the consequence of there being no record is that the proceedings are null and void. Asked whether there was any authority for that proposition, he did not produce any.

Asked whether he was really saying a court of record requires a tape recording, he said there must be a neutral record.

The practical consequence, Simamba said, is that he cannot prove what happened. He says he asked the judge orally for permission to cross-examine the respondent, and told the judge that one of his tenants was available to give evidence. Neither appears in the judgment. To make the point at all he has had to file an affidavit from a member of the public who was listening to the hearing.

Counsel for the respondent did not defend the position. Asked whether it was wrong that there was no transcript, he said it is “unsatisfactory.”

His answer was that the record is the whole court file taken together: the affidavits, the papers filed, the judge’s notes, the written judgment and the order.  

Simamba’s answer to that was that the papers are not the point. “What I am complaining about is that there was a lot of exchange between me and the judge. There’s no record of that.”

Proportionality

The third ground is that the judge below never carried out a proportionality assessment. Simamba relies on the Court of Appeal’s own decision in a case involving Sandra Hill, in which a harassment conviction was quashed on free expression grounds last year, for the proposition that establishing the elements of the offence is not the end of the exercise.  According to Simamba, the judge in the Grand Court did not real the Hill case.

This was where the court pressed the respondent hardest. “What do you have to say about the fact that the judge does not appear to have undertaken any proportionality exercise?” one judge asked. “Even in his written judgment, he doesn’t really descend into a proper discussion of proportionality.” His primary answer was that none was required on the individual facts, because the proportionality balance is built into the statute.

The respondent’s case

Counsel for the respondent told the court the emails that provoked Simamba’s replies were generic statements of account issued by the respondent in her capacity as strata accountant. Nothing in them, he said, warranted the responses they received.

On Simamba’s argument that he was himself being stalked, Counsel for the respondent said the objective element was never made out: nothing in the respondent’s conduct would cause a reasonable person to fear for Simamba’s safety, or that of his tenants. That, he said, is also why the counterclaim failed. The court heard that there were two gateways — a person who has been stalked, and a person subject to frivolous allegations of stalking — and, on the judge’s findings, Simamba was through neither.

On why the respondent remained in fear, Counsel for the respondent took the court to her evidence that she had blocked his number and his email address, which did not mean messages had not been sent.

The court also asked about a “stop notice” in force against  Simamba. Counsel for the respondent said he understood it to be a warrant for his arrest, arising from the respondent’s complaint that the communications amounted to a criminal offence.

Simamba’s reply

Given half an hour to reply, Simamba asked the court first for an assurance that it would rule on every one of his grounds, saying he asked because of his previous experience. The presiding judge shared that the court would address those arguments it thought it proper to address and that a number of the grounds overlapped.

Simamba said the suggestion that no Zoom recording was made at all is untrue, because in his understanding such recordings are made automatically and kept for thirty days, and he invited the court to infer that the record was suppressed because the judge was embarrassed at having ruled without reading Hill.

Ultimately, Simamba asked the court either to remit the matter to the Grand Court for a properly conducted hearing, or to quash the order and the costs orders and let both parties get on with their lives.

Earlier in his submissions he had told the court that he believed the order was made against him because of “the stereotypical view of the black man”, noting that the judge, the lawyer, the legal assistant and the applicant were all British. He said he wanted it on the record and left it there.

Ruling

The members of the Court of Appeal reserved its judgment, which is to be issued on another day.

Note to readers

Simamba appeared in person by video link from Canada.

Members of the Court of Appeal were The Hon Sir Michale Birt, Justice of Appeal The Rt Hon Sir Michael Beatson, Justice of Appeal The Hon Clare Montgomery KC, Justice of Appeal