https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7562

In re Estate of Lalji Ladharam Thanki (Deceased) (Succession Cause 119 of 1978) [2026] KEHC 7562 (KLR) (Family) (4 June 2026) (Ruling) Neutral citation: [2026] KEHC 7562 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Succession Cause 119 of 1978 HK Chemitei, J June 4, 2026 IN THE MATTER OF THE ESTATE OF LALJI LADHARAM THANKI (DECEASED) Between Mukesh Laljibhai Thanki Applicant and Jitendrakumar Lalji Ladharam Thanki Respondent Ruling 1.This ruling relates to the application dated 19th December, 2025 filed by the Applicant, Mukesh Laljibhai Thanky, seeking for orders that:1.The Applicant be granted leave to institute contempt of Court proceedings against Jitendrakumar Lalji Ladharam Thanki.2.The Administrator - Jitendrakumar Lalji Ladharam Thanki is in contempt of the Order/Directions made vide the Court Ruling dated on 25th July, 2024 and he is accordingly convicted and committed to civil jail for a period of six months or any other period, and/or pay a fine as the Court may deem fit and just.3.Jitendrakumar Lalji Ladharam Thanki, do forthwith deposit into Court the sum of Kshs. 45,666,668/- plus interest thereon at Court rates calculated from the date of the receipt of sale the proceeds to-date, that being the undistributed amount from the sale of L.R. No’s. 1870/IV/89 and 3734/352. Jitendrakumar Lalji Ladharam Thanki do give an account of, and deposit into Court all the jewelry belonging to the estate which were held in Bank of India, Nairobi for distribution as per the Mediator’s Report dated 17th June 2019 that was partially adopted by the Court vide its Ruling dated 25th July, 2024.4.Jitendrakumar Lalji Ladharam Thanki’s properties be attached to satisfy and facilitate implementation of the Orders of the Court made on 12th July, 2017 and 25th July, 2024.5.The Administrator - Jitendrakumar Lalji Ladharam Thanki and/or his advocate(s) on record be and are hereby denied audience before it unless and until the Administrator purges the contempt.6.Costs of this Application be provided for. 2.The application is based on the grounds thereof and supported by affidavit sworn by Mukesh Laljibhai Thanky on 19th December, 2025 who avers inter alia that that the respondent has persistently disobeyed Court orders issued on 12th July, 2017 and reaffirmed in the ruling delivered on 25th July, 2024. 3.He recounts that the Court directed the Administrator to render a full and accurate account of the estate and to provide documents necessary for a fair distribution of the estate, but despite these clear directives, the Administrator failed to comply. 4.He further explains that a mediation process commenced in 2019 and culminated in a Mediator’s Report dated 17th June, 2019, after which various applications were filed and eventually determined in the ruling of 25th July, 2024, which adopted portions of the mediation agreement and directed compliance with specific disclosure obligations. 5.According to him, the ruling of 25th July, 2024 specifically required the Administrator to produce all leases, tenancy agreements, receipts, bank statements, records of rental income, repairs, management fees, commissions, sale proceeds and expense accounts relating to estate properties, including L.R. No. 1870/IV/89, L.R. No. 3734/352, and L.R. No. 209/1220/3 (Batu Batu Road). 6.The Court also adopted the partial settlement reached during mediation and directed the parties to implement the agreed terms. He contends that these orders were clear, unambiguous and binding, yet the Administrator deliberately ignored them. Instead of furnishing the documents ordered by the Court , the Administrator allegedly filed an affidavit of compliance accompanied by voluminous annexures that did not contain the documents specifically required. 7.He asserts that critical tenancy agreements were missing, records relating to rent collection and property management were incomplete and no proper evidence was produced to account for commissions, management fees or the transfer of sale proceeds. 8.He extensively challenges the adequacy of the Administrator’s purported compliance. He asserts that the leases produced relate only to selected periods and properties, while agreements covering many years are absent. He notes that there is no single agreement authorizing management fees or commissions charged against the estate, despite substantial deductions having allegedly been made. 9.He further contends that receipts supporting repairs, maintenance and other expenditures are either absent or insufficient. Particular criticism is directed at deductions made by Colburn Holdings Limited, which managed the estate properties, on the basis that no supporting documentation was produced to justify the expenditure. He maintains that, despite receiving rent on behalf of the estate over many years, the Administrator failed to establish an estate account into which such income was deposited, and no evidence has been presented to demonstrate that rental proceeds were distributed to beneficiaries. 10.The only bank statement supplied, it is alleged, relates to a personal account and not an estate account. 11.He further complains that the Administrator failed to provide invoices, quotations, receipts and payment vouchers in support of expenditures claimed to have been incurred on behalf of the estate. He disputes expenses attributed to telephone services and argues that such personal expenses could not properly be charged to the estate. 12.He also accuses the Administrator of continuing to retain and utilise estate funds exclusively for his own benefit following the sale of estate properties in 2014. He maintains that although the Court directed disclosure of records concerning remittances and transfers arising from the sale of estate assets, no such documentation has been produced. 13.A significant portion of the affidavit concerns the mediation process. He explains that the mediation was intended to facilitate resolution of longstanding disputes concerning rental income, sale proceeds and distribution of the estate. 14.During mediation, auditors appointed by the beneficiaries reviewed available records and concluded that they were insufficient to conduct a proper audit. Correspondence from auditors Avinash Shah Bhatti & Associates is exhibited to demonstrate that crucial banking records, audited accounts, financial statements and supporting documents had not been availed. The auditors reported that they could not verify the actual rental income received, ascertain whether rent collections were accurately reflected, or determine whether estate income had been properly distributed among beneficiaries. 15.Their review revealed substantial discrepancies between amounts reflected in rent schedules and actual payments made to landlords and they recommended the preparation of proper financial statements and audited accounts before any meaningful reconciliation could be undertaken. 16.He further relies on the mediator’s findings and recommendations. The mediator recorded that although a considerable number of documents were exchanged and some issues were partially settled, a substantial amount of information necessary for verification of the estate accounts remained unavailable. The mediator observed that the absence of bank statements, audited accounts and financial records prevented a conclusive resolution of the dispute concerning distribution of the estate. 17.Nonetheless, the parties reached agreement on several issues, including acknowledgment of the proceeds from the sale of L.R. No. 1870/IV/89 and L.R. No. 3734/352, the Administrator’s entitlement to a one-third share thereof and the delivery of jewelry belonging to the estate to the beneficiaries entitled to receive it. 18.The mediator ultimately recommended adoption of the issues agreed upon by the parties and referral of unresolved matters to the Court for further directions. 19.The Court subsequently adopted these recommendations in part through its ruling of 25th July, 2024. He recounts that the estate properties generated substantial income over the years and that two of the principal properties were sold in 2014. He states that the combined sale proceeds amounted to approximately Kshs. 258 million, with the Administrator entitled to only one-third thereof. 20.According to him, after accounting for the Administrator’s entitlement and agreed expenses, a balance of approximately Kshs. 86 million remained available for distribution to the twelve beneficiaries. However, the beneficiaries were allegedly offered only about Kshs. 40 million, which they declined because it fell significantly below the amount, they considered due. He, therefore, contends that a substantial sum, estimated at over Kshs. 45 million, remains undistributed and should be deposited in Court together with accrued interest pending proper distribution. 21.He also addresses the issue of estate jewelry. It is stated that during mediation the parties agreed that jewelry belonging to the deceased’s wife, which had been held in a bank in India, would be distributed to the beneficiaries designated by her. One of those beneficiaries, Ms. Kanta L. Monda, is said to have confirmed receipt of the jewelry in accordance with the mediator’s directions. He nevertheless maintains that the Administrator has failed to provide a complete account regarding the jewelry and should be compelled to account for all such assets. 22.Throughout the affidavit, he accuses the Administrator of acting in bad faith and deliberately frustrating the administration of the estate. He asserts that the Administrator has concealed crucial information, failed to maintain proper records, ignored Court directives and prolonged the dispute for many years to the detriment of the beneficiaries. 23.He emphasizes that the orders of 25th July, 2024 have neither been stayed nor set aside on appeal and therefore remain binding. Despite service of the ruling and repeated demands for compliance, the Administrator is said to have refused to obey the Court ’s directives. He, therefore, urges the Court to find that the Administrator’s conduct constitutes deliberate and willful contempt of Court, to compel him to render a complete account of the estate, deposit the undistributed estate funds and jewelry into Court and impose sanctions necessary to uphold the authority and dignity of the Court. 24.The application is opposed vide replying affidavit sworn by Jitendrakumar Laljibhai Thanki on 15th January, 2026. He avers inter alia that he is not in contempt of the Court orders issued on 12th July, 2017 and 25th July, 2024. 25.He states that there is neither a factual nor legal basis for the contempt proceedings sought against him and maintains that he has complied with all the orders made by the Court. He deposes that the issues concerning the estate accounts were conclusively resolved through the Mediator’s Report dated 17th June, 2019, which was subsequently adopted as an order of the Court on 25th July, 2024. 26.According to him, the only matters left outstanding concern the amount payable to Mukesh Laljibhai Thanky and the question of when Mukesh should vacate L.R. No. 209/1220/3, a property which he asserts is registered in his own name. He therefore contends that the dispute over accounts has already been settled and cannot be re-opened through the present application. 27.He further states that he fully complied with the Court ’s directive requiring production of documents by supplying both the mediator and Mukesh Thanky with 12 box files containing all documents in his possession that fell within the categories specified in the ruling of 25th July, 2024. He notes that he subsequently filed an Affidavit of Compliance on 4th March, 2025, exhibiting the documents that had been availed. He insists that any documents not supplied were not withheld deliberately but simply do not exist within his possession, custody or control and have never been in his possession. 28.He argues that the law cannot compel him to produce records that he does not have, particularly documents allegedly dating back many years. He also points out that the matter came before the Court on 14th October, 2025, when directions were given that any outstanding issues arising from the ruling of 25th July, 2024 would be addressed during an oral hearing scheduled for 21st January, 2026 based on the documents already filed. He complains that Mukesh Thanky has not challenged or responded to the Affidavit of Compliance filed in March 2025 but has instead filed a fresh application raising substantially the same complaints that had been advanced in an earlier summons dated 30th March, 2023. 29.In his view, the present application is therefore repetitive and amounts to an attempt to re-litigate matters that have already been addressed by the Court. The Administrator further contends that the true motivation behind the application is Mukesh Thanky’s continued occupation of L.R. No. 209/1220/3, which he claims is registered solely in his name. He asserts that Mukesh has remained on the property without lawful justification and has refused to explain why he should continue occupying it while at the same time rejecting the sums that have been offered to the other beneficiaries of the estate. 30.According to the respondent, the contempt proceedings are being used as a strategy to delay resolution of the dispute and to avoid vacating the property. 31.In conclusion, he maintains that he has complied with the Court ’s orders, that the accounting issues were substantially resolved through mediation and the Court ’s ruling, and that no evidence has been presented to justify the punitive orders sought against him. He therefore urges the Court to dismiss the summons dated 19th December, 2025 with costs. 32.The parties have not filed written submissions. OVERVIEW OF THE AFFIDAVIT FO COMPLIANCE DATED 4TH MARCH, 2025: 33.Paragraph 35 (c) of the ruling delivered on 25th July, 2024 ordered as follows:“… That Jitendrakumar Laljibhai Thanki is hereby directed to produce the following documents as demanded by the Applicant’s (Mukesh) auditors and the mediator, namely: -i.All signed leased, contracts, agreements and receipts issued for the rents received;(ii)Bank statements where the rent and other incomes were received;(iii)All receipts for alleged repairs for letting fees referred to;iv.All receipts and agreements for letting the fees referred to;iv.All receipts for commissions on property management;v.Evidence of bank money transfer, and or remittances for the sold properties;iv.Expense details for plot no 209/ 1120/ 3 Batu Batu road from the year 2001 to date.” 34.The Affidavit of Compliance sworn on 4th March, 2025 was filed by Jitendrakumar Laljibhai Thanki in response to the Court ’s ruling of 25th July, 2024, which directed him to avail documents relating to the administration of the estate of the late Lalji Ladharam Thanki. In the affidavit, he asserts that he had complied with the Court ’s directives by supplying the mediator and the beneficiaries with a substantial collection of documents within his possession, custody and control. 35.He explains that the documents were organized into 12 volumes of annexures and were intended to address the categories of records identified by the Court. 36.The annexures comprise a comprehensive collection of historical estate records accumulated over several decades. A significant portion of the documents consists of tenancy agreements, lease renewals, extensions of leases and correspondence with tenants relating to estate properties, particularly L.R. No. 1870/IV/89 (Terrace Close) and other rental properties managed on behalf of the estate. 37.The agreements demonstrate the occupation of various residential units by different tenants, the rental terms agreed upon, periodic rent reviews, security deposit arrangements, tenant obligations and renewals negotiated through Colburns Holdings Limited, the estate’s managing agents. These records appear to have been produced to demonstrate the history of tenancy management and rental income generation from the estate properties over an extended period. 38.The annexures further contain extensive documentation relating to property management, repairs and maintenance. These include invoices, bills, receipts, contractor quotations, repair accounts, service invoices and correspondence concerning repairs to buildings, plumbing systems, water tanks, roofing works, drainage systems and other maintenance issues affecting the estate properties. 39.The records show expenditure incurred in preserving and maintaining the rental properties and provide evidence of payments made to contractors and service providers over many years. The documentation appears intended to support the Administrator’s position that management expenses and maintenance costs charged against rental income were genuine and properly incurred in the upkeep of the estate assets. 40.The documents also include numerous utility bills and payment records, such as water bills, electricity bills, refuse collection charges and other municipal levies. These records cover different periods and properties and reflect payments made in relation to the occupation and management of the estate properties. Together with the maintenance records, they provide an account of the operational expenses allegedly incurred in the course of administering the estate and maintaining its income-generating assets. 41.In addition, the annexures contain management statements, fee notes, commission records, rental schedules and property account statements prepared by Colburns Holdings Limited. These records reflect rent collected from tenants, deductions made for repairs and management expenses, commissions charged by the managing agents and balances payable to the estate. 42.The statements provide a chronological account of rental income received and the manner in which such income was applied toward property expenses and management costs. The documents appear to have been produced in support of the Administrator’s assertion that rental income was properly managed and accounted for through the estate’s property managers. 43.The annexures further contain tax-related records, receipts, withholding tax certificates, payment acknowledgements and other financial documents intended to demonstrate compliance with statutory obligations arising from the management of the estate properties. 44.There are also letters exchanged with tenants, advocates and third parties concerning lease negotiations, tenancy terminations, rent reviews, occupation of the properties and other matters relating to administration of the estate assets. These documents appear to have been included to demonstrate the continuity of estate management and the existence of supporting records for transactions undertaken over the years. 45.Overall, through the Affidavit of Compliance, the Administrator seeks to demonstrate that he complied with the Court’s directions by producing a substantial documentary record concerning the estate’s properties, rental income, management expenses, repairs, leases, commissions, utilities and related financial transactions. 46.His position is that all documents within his possession and relevant to the administration of the estate were supplied through the 12 annexure volumes and that any records not produced were not available to him or were not within his custody or control. 47.The affidavit therefore serves as evidence of his claimed compliance with the disclosure obligations imposed by the Court and forms the foundation of his defence to the subsequent allegations of contempt. ANALYSIS AND DETERMINATION 48.I have read the application and the response thereto. 49.The sole issue for determination is whether the Applicant has established a case for contempt of Court against the Respondent arising from the orders contained in the ruling delivered on 25th July, 2024. 50.The applicable principles are well settled. An applicant alleging contempt must demonstrate that the order complained of was clear and unambiguous, that the respondent had knowledge of the order, that the respondent failed to comply with it and that the non-compliance was deliberate. The burden of proof is higher than on a balance of probabilities, though not as high as beyond reasonable doubt. 51.At paragraph 27 of Henry Musemate Murwa v Francis Owino, Principal Secretary, Ministry of Public Service, Youth and Gender Affairs & another [2021] eKLR, Judge Maureen Onyango cited with authority the case of Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR where Mativo J. restated the test for establishing contempt in his decision and stated –“40.It is an established principle of law that in order to succeed in civil contempt proceedings, the applicant has to prove(i)the terms of the order(ii)Knowledge of these terms by the Respondent,(iii)Failure by the Respondent to comply with the terms of the order.Upon proof of these requirements the presence of willfulness and bad faith on the part of the Respondent would normally be inferred, but the Respondent could rebut this inference by contrary proof on a balance of probabilities. Perhaps the most comprehensive of the elements of civil contempt was stated by the learned authors of the book Contempt in Modern New Zealand who succinctly stated: -"There are essentially four elements that must be proved to make the case for civil contempt. The applicant must prove to the required standard (in civil contempt cases which is higher than civil cases) that: -a.the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant;b.the defendant had knowledge of or proper notice of the terms of the order;c.the defendant has acted in breach of the terms of the order; andd.the defendant's conduct was deliberate…” 52.There is no dispute that the orders contained in paragraph 35 (c) of the ruling dated 25th July, 2024 were clear, specific and binding upon the Respondent. Equally, there is no dispute that the Respondent had knowledge of those orders, having participated in the proceedings and subsequently filed an Affidavit of Compliance on 4th March, 2025. 53.The real question is whether the Respondent failed to comply with the orders. The Applicant contends that the documents supplied were incomplete and did not adequately address the concerns raised by the auditors and mediator, particularly regarding bank statements, remittances of sale proceeds, commissions, management fees and estate accounts. 54.However, the Respondent's position is that he produced all documents within his possession, custody and control and furnished them in 12 volumes of annexures. A review of the Affidavit of Compliance and the annexures reveals that the Respondent indeed supplied a substantial body of documentary material comprising leases, tenancy agreements, rent schedules, management statements, repair invoices, utility bills, fee notes, receipts, commission records and other property-management records accumulated over several decades. The evidence therefore demonstrates substantial, rather than total non-compliance, with the disclosure order. 55.The Applicant's complaint is essentially that the documents produced are inadequate, incomplete or insufficient to resolve the accounting disputes surrounding the estate. That grievance may well be legitimate and may warrant further directions, an audit, cross-examination, production of additional documents or the taking of accounts. 56.However, contempt jurisdiction is not intended to determine the adequacy, accuracy or evidential value of documents produced pursuant to a Court order. It is directed at punishing deliberate and willful disobedience of Court orders. Once the Respondent demonstrated that he had supplied voluminous records and explained that any omitted documents were not within his possession or control, the burden shifted to the Applicant to establish that the omission was deliberate and intended to defeat the Court order. No cogent evidence has been presented to show that specific existing documents were knowingly withheld or concealed by the Respondent. The Court cannot infer willful disobedience merely because the Applicant considers the production inadequate. 57.Accordingly, I find that while the orders of 25th July 2024 were clear and known to the Respondent, the Applicant has failed to establish, to the requisite standard, that the Respondent deliberately and willfully disobeyed those orders. 58.The material before the Court demonstrates substantial compliance through the filing of the Affidavit of Compliance dated 4th March, 2025 and the accompanying 12 volumes of documents. Any unresolved concerns regarding the completeness, accuracy or sufficiency of the accounts and records should be addressed through appropriate proceedings for accounts, audit, further discovery, cross-examination or other directions of the Court, rather than through contempt proceedings. 59.In light of the foregoing, I allow the application dated 19th December, 2025 in terms of prayer 3 only. 60.Each party to bear its costs. DATED SIGNED AND DELIVERED AT NAIROBI VIA VIDEO LINK THIS 4TH DAY OF JUNE 2026.H K CHEMITEIJUDGE, FCIArb.