REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY AND PROBATE DIVISION
MISC PETITION No. EO12 OF 2021
JOSEPHINE WANGUI NGURI .................................................. APPLICANT
VERSUS
MICHAEL RONALD GITHINJI ...............................................RESPONDENT
RULING
1. By Chamber Summons dated 28th September 2022, brought under article 40 of the Constitution of Kenya, Section 17(2)(c) of the Matrimonial Property Act No. 49 of 2013, Rule 5(3) of the Matrimonial Property Rules 2022, the Applicant seeks the following orders:
a. Spent
b. This Honourable court be pleased to grant leave and extend time for filing the intended matrimonial property for such period as this court may deem fit to grant.
c. Spent
d. Spent
e. Costs of this application be provided for
2. The Application is supported by the Affidavit of the Applicant sworn on even date.
3. The Respondent filed a Replying affidavit dated 13th January 2023 opposing the Application.
4. The Application was canvassed by Counsel for the parties on 16th February 2023 on the virtual Teams platform.
Applicants Submissions
5. The Applicant relied on her Supporting Affidavit. The reasons given for delay are that;
a. The Applicant was hopeful that it would be possible to resolve the matter amicably with the respondent and she has attached to her affidavit email communication between her and the Respondent as evidence of this.
b. That Matrimonial property Rules, 2022 that introduced time limits for filing matrimonial property claims came into effect on 29th July 2022. Prior to this there was no time limitation
c. That acting on the premise that there was no time limitation the Applicant pegged the filing of the Petition on her securing the proceedings in the divorce cause which were delayed.
d. The delay was occasioned by her counsel previously on record.
6. The Petitioner argues that the delay is not inordinate. The Decree absolute was issued on 3rd August 2021 and this application was presented on 28th September 2022. It is further submitted that the Respondent will not suffer any prejudice and that it is in the interests of justice that the Applicant be heard.
7. The Applicant relies on the decision of Odek JA in Edith Gichugu Kione Vs Stephen Njagi Thothi and urges that the Court has unfettered discretion in an application of this nature. Further that the balance of convenience favours the Applicant and that the Respondent shall not suffer prejudice if the prayers sought are granted as the Respondent will have an opportunity to defend the suit.
Respondent’s Submissions
8. The Respondent opposes the Application and relies on the Replying Affidavit. The Respondent submits that the Applicant has not met the conditions for granting extension under the rules, specifically that the Applicant has not shown good cause. The Respondent submits that the Applicant had access to the decree as early as March 2022 when they filed a matter in the Children’s Court.
9. It is the Respondent’s position that if the Applicant had exercised due diligence, she would have filed the cause without delay. The Respondent submits that the Applicant is not being truthful in attempting to place blame on her previous Counsel. In the absence of a convincing cause for the delay, it is argued that the Application is on quicksand.
ANALYSIS AND DETERMINATION
10. This Application was filed on the 28th of September 2022, under t Rule 5(2) of the Matrimonial Property Rules, the Decree absolute in the Divorce Cause having been issued on 3rd August 2021, time lapsed on 3rd August 2022. This amounts to a 56-day delay in filing.
11. Having considered the pleadings and submissions of the parties the issue for determination is whether this is a case suitable for extension of time within which to file a claim under Rule 5(1) of the Matrimonial Property Rules.
12. The principles that guide courts in allowing or declining a motion seeking leave to file extend time were settled by the Supreme Court of Kenya in the case Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR where the court set out the principles as follows: -
“we derive the following as the under-lying principles that a Court should consider in exercise of such discretion:
1. Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;
2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
3. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;
4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;
5. Whether there will be any prejudice suffered by the respondents if the extension is granted;
6. Whether the application has been brought without undue delay; and
7. Whether in certain cases, like election petitions, public interest should be a consideration for extending time”.
13. I am guided that in exercising its discretion, the court should take the following into considerations:
a. Whether there is good cause
b. Ensure the just, expeditious, proportionate, and affordable resolution of disputes relating to matrimonial property -(Rule 3(1) of the Rules) and
c. Give effect to the spirit and principles of the constitution -(Rule 3(2) of the Rules)
14. As observed above the delay herein is 56 days, the Applicant has given a plausible reason, that originally, she was under the impression that there was no time limitation as the rules came into effect in July of 2022 and that her previous counsel was unable to secure the proceedings on time for filing of the application prior to the lapse in time.
15. I note the Respondent’s objection is on the sufficiency of the explanation given.
16. All factors considered I am of the view that it is in the interests of justice to allow the Applicant to have her day in court and I am guided by Article 50 (1) of the Constitution of Kenya 2010 which provides:
Every Person has the right to have any dispute
that can be resolved by the application of law
decided in a fair and public hearing before a
court, or if appropriate, another independent
and impartial tribunal or body.
17. I find that denying this application would in effect deny the Applicant her rights as stipulated under Article 50. It has not been demonstrated that she has been so indolent as to disqualify her from being afforded an opportunity to canvass her case. Having regard to the period of delay, the nature of the intended claim, the scales will tilt in favour of the Applicant.
18. I am fortified in this decision as the Respondent has not suggested that he would suffer any prejudice if the prayers sought are granted.
19. Accordingly, the Application dated 28th September 2022 is allowed.
ORDERS
20. Application dated 28th September 2022 is allowed.
21. Time for filing is extended for 21 days from the date of this ruling.
22. No order as to costs
It is so ordered.
SIGNED, DATED and DELIVERED VIRTUALLY at NAIROBI this…3rd……………day of…………March……………..2023
P M NYAUNDI
JUDGE
In the presence of :
…Waweru …………………………………..Advocates for the Applicants
……Wachira……………………………………..Advocates for the Respondent
Karani Court Assistant