Choi v Exotic Gates Limited; Owuor (Objector) (Enviromental and Land Originating Summons 155 of 2019) [2025] KEELC 4536 (KLR)
The bottom line
#A Kenyan court confirmed a company director's personal car could be seized under a consent order whose default clause pierced the corporate veil after payment default.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the law firm of M/S Onyango Ndolo & Company Advocates requires leave to come on record for the Objector?
- 2.Whether the Application is competent and if so,
- 3.Whether the court should revoke and set aside the consent order dated the 7th March, 2024 and the proclamation notice dated 21st November, 2024?
Key legal issues
#Whether leave is required for an advocate to come on record for an Objector in objection proceedings
No leave is required; Order 9 Rule 9 applies only to a change of advocates or a party previously represented acting in person, not to a new party such as an objector.
Objection proceedings under Order 22 Rule 51 are a special category of post-judgment proceedings in which the objector is a new and distinct party asserting an independent claim. Since the Civil Procedure Rules only require a court order for advocates coming on record under Order 9 Rule 9, and the Objector was appearing for the first time, that provision was inapplicable, and the objector has the right to representation of his choice.
Whether the absence of a notice of objection under Order 22 Rule 51 renders the Motion fatally defective
It does not. The purpose of the notice is to alert the decree holder of a third-party claim; since the Motion itself informed the Decree Holder of the Objector's claim, no prejudice arose.
The court considered the purpose of the notice of objection: to place the decree holder on notice that ownership of attached property is disputed so it may proceed or abandon execution. Here, although no notice was issued, the Decree Holder learned of the Objector's claim through the Motion itself, so the objective was achieved and the omission caused no prejudice. The court proceeded to determine the Motion on its merits.
Whether the consent order of 7th March 2024 was entered without instructions and should be set aside
The consent is valid and binding. Rachier & Amollo LLP was properly on record (memorandum of appearance filed 3rd June 2019), had implied authority to compromise, and the Objector proved no fraud, collusion or negative instruction communicated to the other side.
The court found a memorandum of appearance on record filed by the firm, unrevoke; correspondence relied on referred to the Objector individually, not the company, which remains a distinct legal entity. No disciplinary action was initiated against the firm, and partial payment of Kshs. 2,000,000 undermined the claim of lack of authority. Following Guzzini and Benjoh Amalgamated, the consent stands in the absence of fraud, mistake or misrepresentation.
Whether the proclaimed motor vehicle KBP 006M, the Objector's personal property, is exempt from execution
It is liable to attachment. The consent's default clause lifted the corporate veil upon default, making the directors personally liable, and the Judgment Debtor was undisputedly in default.
The consent order expressly provided that on default the application of 25th June 2022 would stand allowed, lifting the veil of incorporation and permitting execution against the named directors. Default was not disputed, the Objector conceded being a director and owning the vehicle, so his personal assets, including the proclaimed vehicle, became legally liable to attachment in satisfaction of the outstanding decretal amount.
Legal principles established
#- An advocate properly on record has implied general authority to compromise a suit on behalf of a client, and a consent so entered binds the client unless fraud, mistake or misrepresentation is shown.
- A consent judgment/order can only be varied or set aside on grounds that would vitiate a contract, such as fraud, collusion or an agreement contrary to the policy of the court.
- An objector in execution proceedings bears the burden of proving a legal or equitable interest in the attached property sufficient to warrant its release.
- Failure to issue a notice of objection under Order 22 Rule 51 is not fatal to an objection motion where the decree holder is otherwise put on notice of the third-party claim and no prejudice arises.
- An advocate appearing for an objector for the first time does not require leave under Order 9 Rule 9 to come on record.
Court orders
#- 1.M/S Onyango Ndolo & Company Advocates does not require leave to come on record for the Objector (prayer (i) allowed as unnecessary)
- 2.The Notice of Motion dated 26th November, 2024 is dismissed save for prayer number (i)
- 3.Costs of the application awarded to the Decree Holder, to be borne by the Objector
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 3 and 3A of the Civil Procedure Act, Order 22 Rules 51, 52 and 53, and Orders 40 and 51 of the Civil Procedure Rules
Relief refused
#Stay of proclamation and/or sale of Motor Vehicle KBP 006M and setting aside/recall of the proclamation notice by Mamalo Auctioneers dated 21st November, 2024
The proclamation flowed from a valid consent order containing a default clause lifting the corporate veil and allowing execution against the directors; the Objector failed to show the attached property was exempt from execution.
Varying, setting aside and revoking the consent order dated 7th March, 2024 and/or ordering partners of Rachier & Amollo LLP to personally indemnify the Plaintiff
Counsel was properly on record with a memorandum of appearance, presumed to have general authority to compromise, and the Objector proved no fraud, collusion or lack of instructions.
Costs
The application is dismissed with costs to the Decree Holder to be borne by the Objector.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
the court finds that M/S Onyango Ndolo & Company Advocates does not require leave to come on record for the Objector.
the court finds that the failure to issue a notice of objection prior to and/together with the present Motion is not fatal. The court will therefore proceed to determine the Motion on its merits.
a consent entered into by counsel who is properly on record is binding upon the client, unless it can be shown that the Counsel acted in bad faith, exceeded the scope of authority, or was expressly prohibited from entering into such a compromise.
In the end, the court finds the Notice of Motion dated 26th November, 2024 to be unmerited, save for prayer number (i).
The application is dismissed with costs to the Decree Holder to be borne by the Objector.
Issues in the judgment
#The Decree Holder's identity/name is not stated in the judgment; she is referred to only as 'Decree Holder' and 'Ms Choi', and the underlying suit number is not given.
The consent order's date of adoption (11th April 2024) post-dates its date (7th March 2024) while the Objector alleges he was unaware; the Objector's letter of 8th March 2023 predates the consent by a year - timeline inconsistencies are not reconciled in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Choi v Exotic Gates Limited; Owuor (Objector) (Enviromental and Land Originating Summons 155 of 2019) [2025] KEELC 4536 (KLR)", Case Analysis (2025). Notice of Motion dated 26th November, 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4536/eng@2025-06-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.