Asano Tatsunori v Joel Kimutai Bosek

iii. That this honourable court be pleased to grant leave to the applicant to enforce the said orders of the Advocates Disciplinary Tribunal as a decree of this honourable court in accordance with section 60(11) of the Advocates Act, cap 16. iv. That the costs of this Application be provided for sic. 2. The application is based on the grounds that sometime on or about 7/11/2019 he lodged a complaint with the Advocates Disciplinary Tribunal (the Tribunal) against Joel Kimutai Bosek (the respondent) vide Disciplinary Cause No. 199 of 2019 (the Cause). That upon hearing the complaint, the Tribunal vide a judgment delivered on 20/01/2025, found the respondent guilty of professional misconduct and ordered him to refund a sum of USD 675,100 earlier paid to him by the applicant, within 30 days from the date of judgment. That the judgment has not been appealed against or otherwise challenged. 3. It is the applicant’s averment that to date, the respondent has refused and/or neglected to settle the judgment sum, hence this application and that unless the prayers sought are granted, he stands to suffer irreparable loss. Grounds of Opposition 4. 5. The Respondent has filed the following grounds of opposition dated 24/10/2025: 1. There is a stay of judgment dated 20th January, 2025 pending hearing and determination of a Review Application dated 24th January 2025 that is before Advocates Disciplinary Tribunal. 2. The matter herein has same cause of action with Nairobi Civil Appeal No. E085 of 2021 being an appeal against the High Court ruling by Hon. Mr. Justice Sergon. 3. The decisions by Hon Mr Justice Sergon invokes the principle of res judicata and stands, unless otherwise vacated by the Court of Appeal. 4. The applicant herein is engaging in forum shopping and has lodged multiple actions being: i. Nairobi Civil Appeal No. E085 of 2021 Asano Tatsunori & another v Joel Kimutai Bosek t/a JK Bosek & Company Advocates. ii. Advocates Disciplinary Trbibunal DT Cause No. 199 of 2019. iii. Nairobi Milimani HCCC No. 248 of 2019. 5. The matters revolve on the same issues and arising from the same alleged cause of action. 6. The application herein fiies in the face of the ruling delivered by Hon. Mr. Justice Sergon in which he ordered that the matter be subjected to the processes of Arbitration. 7. The application herein seeks to contradict and/or override the orders issued by a court of similar jurisdiction. 8. The application herein seeks to render the proceedings in a court of higher jurisdiction being Nairobi Court of Appeal Number E085 of 2021 nugatory. 9. The application is otherwise an abuse of the court process, highly malicious, frivolous and vexatious and ought to be dismissed with costs. The respondent has also sworn a replying affidavit on like date echoing the grounds of opposition, that the instant summons has not been brought in good faith and is prematurely before this court, for the reason that the impugned judgment is now the subject of a review application currently pending https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7452/eng@2026-04-21 2

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before the Tribunal, a fact of which the applicant is well aware. That the review application is slated to come up for ruling on 18/05/2026. 6. The respondent has further stated that the impugned judgment contravened an order previously made by Sergon, J directing that all proceedings in the matter before him, be stayed and the matter be referred for arbitration. That in addition, there is currently pending before the Court of Appeal an appeal lodged by the applicant against the aforesaid order by Sergon, J and that in the circumstances, if this application is allowed as prayed, both the proceedings pending before the Court of Appeal and the Tribunal will be rendered nugatory. 7. The respondent has averred, further, that the applicant has filed multiple claims over the same subject matter in an attempt at forum shopping, thereby making the summons frivolous, untenable and an abuse of the court process. He has urged that the summons be dismissed with costs. 8. In a rejoinder, Mr. Benson Nzakyo, by way of his affidavit sworn on 13/01/2026, has deposed that no appeal has been filed to challenge the impugned judgment and that no order for a stay of execution has been issued against the said judgment and therefore there is nothing precluding this court from adopting the Tribunal’s judgment. It was further deposed that the respondent herein was not a party to the contractual agreement which formed the subject matter of the suit before Sergon, J and therefore the said respondent cannot purport to address himself on the issues arising therefrom and that the proceedings which were before the Tribunal were purely on the subject of professional misconduct and did not contravene the order issued by Sergon, J. 9. On the subject of the review application, it was argued that the same was served upon them late thereby denying them ample time to offer a response. That even so, the existence of an application for review would in no way impede the adoption of the judgment in the absence of any appeal or an order of stay in respect of the said judgment. That the matter currently pending before the court of Appeal does not relate in any way to the proceedings before the Tribunal and which form the crux of the instant application. He has stated that the application is properly before this court and that the same ought to be allowed. Parties’ Submissions 10. Parties were directed by the court on 28/10/2025 to file submissions in respect of the application. The Applicant filed submissions dated 13/1/2026. However, as at the time of writing this ruling, there was no indication from the record that the respondent had filed written submissions. 11. The Applicant has anchored his submissions on Section 60(11) of the Advocates Act and the case of Stephen Ngari Kahome v Ongeta Hesbon Momanyi [2021] KEHC 8727 (KLR) to the effect that where no memorandum of appeal has been filed, a party may seek leave of the court to enforce an order made by the Tribunal. The applicant has echoed his earlier averments that in the present instance, no appeal was ever filed and no stay order has been issued, thereby making the Tribunal judgment binding and enforceable and that the instant Application is properly before this court. 12. The Applicant has proceeded to submit that the application for review pending before the Tribunal does not bar this court from granting the prayers sought in the Application. Reliance was made to the case of Phillip Ogeto v Nelson Hezron Oundu [2022] KEHC 26933 (KLR) where the court reasoned thus: “ There can be no justification therefore for this court to disallow the motion merely because as the respondent asserts, his appeal will be rendered nugatory. The applicant’s successful litigation before the Tribunal and the High Court would be reduced to a pyrrhic victory https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7452/eng@2026-04-21 3

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if this court were to accept such bare assertions in the circumstances of this case where the respondent did not even bother to serve his application for stay of proceedings, and which therefore is not before this court for determination. The applicant is entitled to the fruits of his judgment and the right cannot be curtailed or delayed except on solid and lawful grounds.” 13. The applicant has contended that the proceedings before the Tribunal touched on professional misconduct and do not relate to the suit proceedings which were before Sergon, J and that the order made therein did not oust the jurisdiction of the Tribunal. 14. It is equally the applicant’s contention that the Tribunal proceedings did not contravene the res judicata doctrine, as purported by the respondent, since no other court previously made a determination on the subject of professional conduct, prior to the Tribunal proceedings. That the said doctrine would only apply in instances where the issues previously considered and determined in a matter are similar to those directly in issue in a separate pending matter, as pronounced by the Supreme Court in the case of John Florence Maritime Services Ltd & Another v Cabinet Secretary for Transport & Infrastructure & 3 Others [2021] eKLR. The Applicant urged that the Application be allowed as prayed. Analysis and Determination 15. I have considered the instant application, the grounds of opposition, and the submissions. 16. The application is brought under section 60 (11) of the Advocates Act, cap 16 Laws of Kenya, which expresses that: “ If no memorandum of appeal is filed in accordance with subsection (1) of section 62 the party in favour of whom the order is made may apply ex parte by summons for leave to enforce such order as a decree, and the order may be executed in the same manner as an order of the court to the like effect and, if it is an order for the recovery of money, may be enforced on the immovable and movable property of the advocate in accordance with the Civil Procedure Rules (cap 21, Sub Leg).” 17. To my understanding, the above section generally caters for complaints lodged against advocates for professional misconduct and provides for the manner of enforcing and executing an order of the Tribunal, whereas section 62, referred to under section 60, provides for the manner and timelines for filing an appeal against an order of the Tribunal. This court is empowered under section 60 (11) to give effect to an order emanating from the Tribunal. 18. Upon my careful consideration of the rival positions taken in respect of the instant application, I have noted that the applicant has on the one hand averred and submitted that the Tribunal judgment having not been challenged on appeal or otherwise varied and/or set aside, he is entitled to the prayers sought in the summons, while the respondent has argued in his grounds of opposition that there is a pending application seeking a review of the said judgment and that an order for stay has been issued in respect of the judgment of the Tribunal, thereby making the summons premature before this court. That in addition, the said judgment is a contradiction of an order earlier made by Sergon, J directing that the proceedings between the parties be stayed and the matter be referred for arbitration, which order was subsequently challenged by way of an appeal to the Court of Appeal, which is still pending determination. 19. From the material on record, it is evident to me that the proceedings before the Tribunal were in respect of professional misconduct. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7452/eng@2026-04-21 4

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20. I have noted that the order referred to above emanated from a ruling delivered by Sergon, J on 11/12/2020 in High Court Civil Suit No. 248 of 2019 between the applicant and another party not before this court, against the respondent. The ruling was in respect of a chamber summons dated 5/12/2019 taken out by the respondent, where he sought to have the dispute referred for arbitration and further sought a stay of all proceedings in the said matter pending the arbitration proceedings. 21. The Applicant lodged an appeal before the Court of Appeal to challenge the aforesaid ruling and order, vide Civil Appeal No. E085 of 2021, which appeal is still pending from the averments by the parties. 22. I have observed from my reading of the ruling delivered in High Court Civil Suit No. 248 of 2019, while the same may have arisen from the same circumstances, there is nothing to indicate that the outcome of the suit and the consequent appeal will necessarily impact the proceedings before the Tribunal or would be rendered nugatory if the instant application is allowed, as argued by the respondent. To my understanding, the causes of action in the suit and Tribunal proceedings are distinct in nature. I have not found anything on record to indicate that the ruling and order by Sergon, J either extended or was intended to extend to the Tribunal proceedings. 23. Further, from my consideration of the material on record, there is no indication that an appeal was ever filed following delivery of the judgment by the Tribunal on 20/01/2025. Nevertheless, it is evident from the record that the respondent soon thereafter filed an application dated 24/01/2025 seeking to review and/or vary and set aside the Tribunal’s judgment, followed by a prayer seeking to strike out the applicant’s complaint. Going by the material placed before this court, the application is still pending before the Tribunal. 24. However, no material has been brought forth to support the respondent’s grounds of opposition that an order for stay was issued in respect of the judgment of the Tribunal judgment, pending hearing and determination of the review application. 25. In the circumstances, I agree with the arguments by the applicant that in the absence of evidence of an existing appeal or an order for stay relating to the Judgment by the Tribunal, there is nothing barring the application. I find that, notwithstanding the fact that the respondent has indicated that he has filed an application seeking a review of the said judgment, he has not demonstrated that an order for stay was ever issued or that the same is subsisting, in order to render the summons incompetent before this court. 26. Consequently, in view of all the foregoing circumstances, and in the absence of any cogent material to persuade this court otherwise, I hold the view that the applicant is entitled to enjoy the fruits of his judgment under section 60 (11) (supra). I agree with the court in Phillip Ogeto v Nelson Hezron Oundu [2022] KEHC 26933 (KLR) cited in the applicant’s submissions, where the court reasoned as follows: “ There can be no justification therefore for this court to disallow the motion merely because as the respondent asserts, his appeal will be rendered nugatory. The applicant’s successful litigation before the Tribunal and the High Court would be reduced to a pyrrhic victory if this court were to accept such bare assertions in the circumstances of this case where the respondent did not even bother to serve his application for stay of proceedings, and which therefore is not before this court for determination. The applicant is entitled to the fruits of his judgment and the right cannot be curtailed or delayed except on solid and lawful grounds. ... https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7452/eng@2026-04-21 5

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This court is empowered under section 60 (11) of the Advocates Act to give effect to the decisions and orders of the Tribunal. The relevant part of the section provides that “the party in favour of whom the order is made may apply ex parte by summons for leave to enforce such order as a decree, and the order may be executed in the same manner as an order of the court to the like effect and, if it is an order for the recovery of money, may be enforced on the immovable and movable property of the advocate in accordance with the Civil Procedure Rules.” 27. I find merit in the chamber summons dated 9/09/2025, which I hereby allow as prayed. It is so ordered. DATED, SIGNED AND DELIVERED THIS 21ST DAY OF APRIL, 2026. S. N. MUTUKU JUDGE In the presence of: 1.……………………………………for the Applicant 2.……………………………………for the Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7452/eng@2026-04-21 6

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