1. The background of the matter is that the Applicant and the Respondent were married and the marriage was dissolved on 7 th June, 2024 in the Chief Magistrate’s Court Milimani Divorce Cause No. E1381 of 2023. The decree absolute was issued on 12 th July, 2024. Subsequently, the Applicant filed Originating Summons dated 19th November, 2025, which are now the subject of this application, to wit, that they were lodged out of time without leave of the Court, and the Applicant is now seeking leave to file out of time. The Applicant has moved the Court by Notice of Motion Application dated 19th November 2025.
2. The Matrimonial Property Rules, 2022, govern all matters of practice and procedure under the Matrimonial Property Act (Cap. 152). These Rules outline the procedures to be adhered to, the forms to be used, and the timeframe for filing and serving documents in matrimonial property cases.
3. Rule 5 provides that:
1. A spouse or former spouse may apply to a court for the determination or declaration of any right or claim over matrimonial property in accordance with Rule 7—
a. at any time after the dissolution of the marriage by a decree of a court given in final determination of proceedings under the Marriage Act (Cap. 150);
b. as part of the relief sought in a matrimonial cause under Section 17 of the Marriage Act (Cap. 150), where the applicant is seeking a declaration of rights to any property that is contested between the applicant and the applicant's spouse or former spouse; or
c. with respect to the persons specified in rule 4(b) and (c), during the subsistence of a marriage.
2. An application under paragraph (1)(a) shall be filed within twelve months from the date on which the decree absolute is given.
3. Without prejudice to the generality of paragraph (ii), a court may, for good cause, extend the time for making an application under paragraph (i)(a) after hearing —(a)the applicant; and(b)any other person interested in the property who is likely to be affected by the order sought and who the Court considers as having a right to be heard.
4. The decree absolute was issued on 12 th July, 2024 and the application was filed on 19 th November, 2025. The application is unopposed; the respondent was served but did not file any response.
5. Rule 18 states that;
1. No party may file any pleading or other process out of time except with leave of the court on application for extension of time for that purpose, and on such terms as the court may think just.
2. An application for leave to file pleadings or other process out of time may be made by way of notice of motion supported by affidavit, or orally at any stage in the proceedings.
6. The wording in Rule 5 (2) is mandatory. Rule 18 (1) also expressly states in mandatory terms that no party may file any pleading or other process out of time, except with the leave of the Court upon application for an extension of time for that purpose, and on such terms as the court may deem just. This Rule implies that leave must be sought before the pleadings are filed, not vice versa.
7. Leave ought to have been sought before filing the matrimonial property cause. The Originating Summons Application dated 19 th November, 2025 is therefore improperly before the Court, and I proceed to strike it out.
8. What orders can the Court make, given that the Applicant, by approaching the Court, has shown an interest in having the matrimonial property dispute determined? The applicant has averred that she was not able to file within time because she was engaged in discussions with the respondent towards an amicable settlement, and that she was also focused on the welfare of the minors, who are their children.
9. Rule 3 (2) of the Matrimonial Property Rules provides as follows;
“(2) The Court shall, in the exercise of its powers under the Act or the interpretation of any of its provisions, seek to give effect to the spirit and principles of the Constitution and the objective of these Rules”.
10. In exercising this Court’s discretion and in the interest of justice, I grant the leave sought.
Disposition
11. The orders made with regard to the Notice of Motion Application dated 19 th November, 2025 are as follows;
i. The Originating Summons dated 19 th November, 2025 is struck out.
ii. The Applicant is granted leave to file a new claim within 30 days, failure of which the leave so granted shall lapse.
iii. No order as to costs.
It is so ordered.
2. The Matrimonial Property Rules, 2022, govern all matters of practice and procedure under the Matrimonial Property Act (Cap. 152). These Rules outline the procedures to be adhered to, the forms to be used, and the timeframe for filing and serving documents in matrimonial property cases.
3. Rule 5 provides that:
1. A spouse or former spouse may apply to a court for the determination or declaration of any right or claim over matrimonial property in accordance with Rule 7—
a. at any time after the dissolution of the marriage by a decree of a court given in final determination of proceedings under the Marriage Act (Cap. 150);
b. as part of the relief sought in a matrimonial cause under Section 17 of the Marriage Act (Cap. 150), where the applicant is seeking a declaration of rights to any property that is contested between the applicant and the applicant's spouse or former spouse; or
c. with respect to the persons specified in rule 4(b) and (c), during the subsistence of a marriage.
2. An application under paragraph (1)(a) shall be filed within twelve months from the date on which the decree absolute is given.
3. Without prejudice to the generality of paragraph (ii), a court may, for good cause, extend the time for making an application under paragraph (i)(a) after hearing —(a)the applicant; and(b)any other person interested in the property who is likely to be affected by the order sought and who the Court considers as having a right to be heard.
4. The decree absolute was issued on 12 th July, 2024 and the application was filed on 19 th November, 2025. The application is unopposed; the respondent was served but did not file any response.
5. Rule 18 states that;
1. No party may file any pleading or other process out of time except with leave of the court on application for extension of time for that purpose, and on such terms as the court may think just.
2. An application for leave to file pleadings or other process out of time may be made by way of notice of motion supported by affidavit, or orally at any stage in the proceedings.
6. The wording in Rule 5 (2) is mandatory. Rule 18 (1) also expressly states in mandatory terms that no party may file any pleading or other process out of time, except with the leave of the Court upon application for an extension of time for that purpose, and on such terms as the court may deem just. This Rule implies that leave must be sought before the pleadings are filed, not vice versa.
7. Leave ought to have been sought before filing the matrimonial property cause. The Originating Summons Application dated 19 th November, 2025 is therefore improperly before the Court, and I proceed to strike it out.
8. What orders can the Court make, given that the Applicant, by approaching the Court, has shown an interest in having the matrimonial property dispute determined? The applicant has averred that she was not able to file within time because she was engaged in discussions with the respondent towards an amicable settlement, and that she was also focused on the welfare of the minors, who are their children.
9. Rule 3 (2) of the Matrimonial Property Rules provides as follows;
“(2) The Court shall, in the exercise of its powers under the Act or the interpretation of any of its provisions, seek to give effect to the spirit and principles of the Constitution and the objective of these Rules”.
10. In exercising this Court’s discretion and in the interest of justice, I grant the leave sought.
Disposition
11. The orders made with regard to the Notice of Motion Application dated 19 th November, 2025 are as follows;
i. The Originating Summons dated 19 th November, 2025 is struck out.
ii. The Applicant is granted leave to file a new claim within 30 days, failure of which the leave so granted shall lapse.
iii. No order as to costs.
It is so ordered.