https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6219

NO alias OI alias NIO v LMK (Matrimonial Cause E004 of 2025) [2026] KEHC 6219 (KLR) (7 May 2026) (Ruling) Neutral citation: [2026] KEHC 6219 (KLR) Republic of Kenya In the High Court at Thika Matrimonial Cause E004 of 2025 FN Muchemi, J May 7, 2026 Between NO alias NOI alias NIO Petitioner and LMK Respondent Ruling Brief facts 1.The application dated 27th January 2026 seeks for orders of review and setting aside of the ex parte proceedings and allow the applicant to participate in the suit. Further, the applicant seeks for leave to file his defence on merit. 2.The respondent opposed the application and filed a Replying Affidavit dated 10th February 2026. Applicant’s Case 3.The applicant states that he is a Kenya Defence Forces warrant officer who at the time of filing the instant suit was deployed at Wajir County and could not secure the services of an advocate to file a defence due to the nature of his work. The applicant avers that he has a good, valid and triable defence which ought to be ventilated in a full hearing as he has proprietary interest in all the listed properties. 4.The applicant states that the mistakes, omissions or oversights that led to the ex parte hearing are excusable and should not be visited upon him as he stands to suffer irreparable prejudice if condemned unheard whereas the petitioner stands to be compensated by costs should his defence fail. The Respondent’s Case 5.The respondent states that the applicant concedes to the fact that he was served with the pleadings as required by the law. However, he chose not to defend his case which is a clear show of his lack of commitment to his rights. It is further deposed that the applicant did not demonstrate or annex any work document from his work place evidencing that indeed he was given marching orders to Wajir. The respondent further argues that Wajir County is within the Republic of Kenya and is therefore not a good reason for the applicant to fail to attend court or retain an advocate. He ought to have made the necessary arrangements to attend to his case within the time given. 6.The respondent states that the applicant did not annex a draft copy of the defence thereby denying the court the benefit of determining whether the defence has merit or raises triable issues. The respondent further states that injustice shall be occasioned to her if the court were to exercise its discretion and allow the applicant file a non-existent defence. 7.Parties elected not to put in written submissions. The Law Whether the applicant should be granted leave to file his reply to summons out of time. 8.Rule 18 of the Matrimonial Property Rules provides:-No party may file any pleading or other process out of time except with the leave of the court on application for extension of time for that purpose, and on such terms as the court may think just. 9.In the instant matter, the applicant has attributed his delay in filing his reply to the summons on the fact that he is a Kenya Defence Forces warrant officer and at the time of filing the suit, he was deployed at Wajir County and could not secure the services of an advocate to file his defence. Upon perusal of the applicant’s affidavit, I have noted that the applicant has not provided any documentary proof that he was given marching orders to Wajir by his employer after he was served with the Originating Summons. The applicant has not annexed a draft reply to the summons for the court to examine whether his defence raises triable issues. However, I do note that the matter came up for hearing and the court arrested the judgment because the petitioner had not annexed any supporting documentation to her originating summons which was a grave error in her pleadings. The petitioner also seeks to include some properties that she left out in her original claim. 10.This court considers the right of every party to be heard under Article 50(2) of the Constitution and the fact that the petitioner has been taking the court back and forth due to errors in her pleadings. This case was formally heard on 03/12/2025 whereby the petitioner was the only witness. She mostly relied on her list of documents. During the hearing, the suit was not opposed. 11.It is not in dispute that the respondent was served with the Originating Summons and the Amended Originating Summons. He does not deny service but states that he was posted on duty to Wajir County from where he was unable to contact a lawyer to defend the case on his behalf. I take judicial notice that the County of Wajir is hundreds of kilometers from Thika and Nairobi and the means of travelling from there is not readily available. 12.It is my considered view that this case, being one of division of matrimonial property is very important to both parties to be heard in order to ventilate and defend their matrimonial property rights. 13.For the foregoing reasons, I allow the application dated 7th January 2026 in its entirety. 14.It is hereby so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 7TH DAY OF MAY 2026.F. MUCHEMIJUDGE