https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8717

In re Estate of Khetia (Deceased) (Succession Cause 62 of 1997) [2026] KEHC 8717 (KLR) (23 June 2026) (Ruling) Neutral citation: [2026] KEHC 8717 (KLR) Republic of Kenya In the High Court at Kitale Succession Cause 62 of 1997 RK Limo, J June 23, 2026 IN THE MATTER OF THE ESTATE OF VISHNU DURLABHRAM KHETIA Between Vija Yantimala Vishnu Khetia Applicant and Mahendra Durlabhram Khetia 1st Respondent Mohan Durlabhram Khetia 2nd Respondent Ruling 1.Vija Yantimala Vishnu Khetia, the applicant herein has moved this court vide a Notice of Motion dated 18/5/2026 for the following reliefs namely;i.Spentii.That this court do find the respondents Mahendra Durlabhram Khetia and Mohan Durlabhram Khetia to be in contempt of court for disobeying the order of this court issued on 23/4/2026.iii.That the respondents do pay forthwith Kshs.17,600,000/- to the applicant within two days.iv.That the property belonging to the respondents be attached to the extent of such value as this court may direct.v.That the respondents be committed to prison for 6 months without option of fine.vi.That there be liberty to apply.vii.Costs. 2.The applicant has listed the following grounds in her application which I will summarize as follows:-a.That she is a surviving widow to the deceased herein but did not receive anything from the estate in the Certificate of Confirmation of Grant dated 26/11/1998.b.That the respondents concede in their response that she is entitled to monthly allowance of Kshs.1,100,000/-.c.That on 23/4/2026 she notified this court that she has not received any such payment since January 2025.d.That on 23/4/2026 this court ordered the respondents to honour undertakings and pay arrears and continue paying the monthly stipends.e.That the order was extracted and served on the respondents and asked to pay arrears dating back to January 2025.f.That her counsel then wrote to the respondents’ counsel to compute the amount outstanding in arrears and pay up or risk contempt of court proceedings.g.That the respondents’ counsel wrote back that though they were aware of the order they were not going to pay since to them they had complied with the court order.h.That the respondents are not keen to comply with the orders of this court.i.That the 2nd respondent has ordered the managers of the supermarket not to allow her to pick anything in the supermarket thereby demeaning and ridiculing her.j.That he has threatened her.k.That the wilful disobedience of court orders has brought this court into ridicule, odium and disrepute painting it as powerless and weak.l.That this court should uphold its dignity and assert its authority by punishing wilful disobedience of its orders. 3.The applicant has supported her application or prayers sought with an affidavit sworn on 18/5/2026. 4.She depones that the respondents vide replying affidavit to her summons for revocation of grant affirmed that the applicant was entitled to monthly allowance of Kshs.1,100,000/-. 5.That she informed the court on 23/4/2026 that she had not received any payment and asked this court for an order of compliance by the respondents to help her offset debts and to sustain herself. 6.That despite the express order which was extracted and served on the respondents, they failed to obey the order despite knowing the consequences because they are represented by two senior counsels on record. 7.The applicant has exhibited her bank account statements to demonstrate that the respondents have disobeyed the orders of this court. 8.She depones that the 2nd respondent has frustrated, demeaned and threatened her on several occasions when she went to demand for her rights. 9.She further avers that the necessities she has picked from the supermarket have not exceeded Kshs.100,000/- in a month but the respondents are trying to justify blatant disobedience with the allegations because she picked some items worth more than Kshs.100,000/- a month. 10.That the actions by the respondents have brought ridicule and disrepute to this court and avers that she has established all the elements of contempt as enumerated in the decision of Samuel M.N. Mweru & Others –vs- National Land Commission & 2 Others (2020) KEHC 9233 (KLR) which found that for an applicant to succeed in contempt application he/she must establish and prove the following;a.Terms of the order.b.Knowledge of the terms by the respondent.c.Failure to comply with the terms.d.That the respondents’ conduct is deliberate. 11.In her Witten submission dated 11/5/2026 done though learned counsel Mak & Partners Advocates, the applicant invokes Section 5(1) of Judicature Act and submits that she is seeking to restore the dignity and authority of this court. 12.She submits that the respondents have deliberately and willfully disobeyed the court order and points out that the response filed by the respondents indicates that from January 2026 only Kshs.2,133,362/- has been paid leaving a balance of Kshs.13,200,000/-./ 13.She contends that the respondents’ claim of compliance is unsubstantiated and that the affidavit of Celestine Adhiambo Kiabi shows that the entire amount claimed to have been sent via Mpesa only amounts to Kshs.900,000 for the entire year. 14.She submits that the order issued on 23/4/2026 was clear and unambiguous and that it required the respondent to clear all the outstanding arrears within 14 days. She relies on the authority of Samuel M.N. Mweru & Others –vs- National Land Commission & 2 others (2020) KEHC 9233 (KLR) which set out principles of finding out whether a respondent has committed acts of contempt. The applicant submits that her application has satisfied the threshold to find the respondents guilty of contempt. 15.The respondents have opposed this application through voluminous responses compiled and dated 29/5/2026 and written submissions dated 12/6/2026 by both Kiarie & Nyairo Advocates. This court for the interest of judicial time will summarize the responses as hereunder. 16.MOHAN DURLABHRAM KHETIA (2nd respondent) has sworn a 41 paragraph replying affidavit disputing the applicants claim. 17.The 2nd respondent disputes existence of a court order directing payment of a specific sum. He argues that issue of contempt cannot therefore arise in his view. 18.That the monthly allowance paid to the applicant was made in his capacity as administrator and not pursuant to any court order or decree. 19.He denies knowledge of any order directing him to pay monthly allowance of Kshs.1,100,000/- and that the order made on 23/4/2026 by this court only indicated that respondents were to pay all outstanding monthly stipends within 14 days. 20.He avers that the subsequent demand by the applicant to be paid arrears was made from the bar and was misleading. 21.That the order made on 23/4/2026 was premised on information from the bar which if one was to act on required formal application to accord all parties a chance to be heard. 22.That the application is made in bad faith, opportunistic and intended to paint him in bad light. 23.He avers that he cannot be held to be in contempt of unspecified and undefined court order whose terms are unclear. 24.He submits that the application herein does not meet the threshold required in contempt proceedings. 25.That the issue of monthly stipends in his view is a substantive issue and one of the issues in controversy to be determined by this court and that the application motion is therefore premature. 26.He avers that contempt proceedings should be used to enforce clear, unequivocal and existing court orders and not to arm-twist the parties before determination. 27.He avers that the applicant has always received monthly allowance of Kshs.1,100,000/- from Khetia family as per his replying affidavit sworn on 25/9/2025 adding that the allowance is paid through cash deposit to her bank account, Mpesa transfers and goods and household supplies from Khetia Drapers Limited stores. He relies on his affidavits sworn on 25/9/2025, 11/3/2026 and 18/5/2026. 28.He faults the applicant for misleading the court insisting that she collected some goods from Khetia Drapers Limited stores but she has failed to acknowledge. 29.He insists that the value of goods collected when added to the money sent totals upto Kshs.1,100,000/- which is what he maintains has been paid todate. 30.According to the 2nd respondent, the applicant is extravagant and has brought this application as an afterthought aimed at misleading the court. 31.He avers that the issue raised by the applicant is an accounting issue and not breach of court orders. 32.He maintains that the applicant collected household goods on credit from Khetia Drapers Limited and that the receipts bear her name. 33.He further depones that no one in the family has ever set a ceiling of household goods to be picked at Khetia Drapers Limited at 100,000/- for the applicant. 34.In their written submissions dated 12/6/2026 done through M/s Kiarie & Co Advocates together with M/s Nyairo & Co Advocates, the respondents submit that the power to punish for contempt is a potent weapon by courts which requires to be exercised with caution and only where there is clear proof of contempt. They rely on Samuel M.N. Mweru & Others –vs- National Land Commission & 2 Others (2020) KEHC 9233 (KLR). 35.They contend that the orders sought by the applicant are ill-advised and premised on misconception of law in their view. 36.They contend that the subject order did not specify the amount to be paid and that the order allegedly reached presupposes existence of unpaid monthly allowance/stipends which in their view is not the case. Their position is that the issue of monthly stipends/allowance is alive and a substantive question that is yet to be determined. 37.They submit that the applicant has not established that there has been wilful or deliberate disobedience of a court order. 38.They submit that the applicant seeks to curtail their liberty in bad faith without proving that they have committed contempt. 39.This court has set out the applicant’s grievances in this application and the basis upon which she seeks the orders sought herein. I have also laid out in summary the respondents’ opposition. 40.The applicant is majorly seeking to have the respondents punished for contempt of court. She also seeks to have them pay the outstanding sum in arrears. 41.Contempt of court is a deliberate and wilful or intentional disrespect of a court order(s). It attracts sanctions and the purpose is to protect the integrity of judicial process, authority of the court, ensure fairness and guarantee that the administration of justice or the rule of law is not hindered. 42.To allow anyone get away with wilful disobedience of court order, erodes the dignity and authority of courts. This has serious ramifications on the rule of law and social order in the society. It is for that reason that allegations of contempt of courts are usually taken seriously. 43.This court is given powers to punish or sanction any acts of contempt under Section 5 of the Judicata Act. The above provision is the applicable law in contempt proceedings in Kenya as found in Shimmers Plaza Ltd –vs- National Bank of Kenya Limited (2015) KECA 945 (KLR). 44.It is important to note that the current jurisprudence on contempt proceedings is that before one can be punished for contempt the following conditions must be established;i.Service or knowledge of the order. An applicant must demonstrate that the order allegedly breached was extracted and served or that the contemnor was fully aware or had knowledge of the order he was violating. In the above decision (Shimmers) the Court of Appeal was emphatic “knowledge of a court order suffices to prove service and dispense with personal service for the purpose of contempt proceedings”. In Basil Criticos –vs- Attorney General & 18 Others (2012)eKLR Lenaola J ( as he then was) made similar findings by stating “………..the law has changed and as it stands today knowledge supersedes personal service…..where a party clearly acts and shows that he had knowledge of a court order, the strict requirement that personal service must be proved is rendered unnecessary.”.ii.Prove of wilful or intentional disobedience of court order(s).A court needs to satisfy itself beyond any shadow of doubt that the person alleged to be in contempt committed acts complained of with full knowledge or notice of the existence of the order of the court either forbidding the act or commanding action(s). The high standard required here is informed of the possible sanction which may include deprivation of liberty. That position is also well illustrated in the cited case by counsels from both sides here in the case of Samuel M.N. Mweru (supra) where Mativo J (as he then was) weighed in and expressed similar sentiments while considering the Constitutionality of depriving one’s liberty visa vis enforcement of court orders and punishing for contempt. 45.Now to turn to the issues at hand in this application this court finds they are as follows;i.Existence of court order.ii.Whether the respondents have breached it. 46.(i)Existence of court order.The applicant maintains that this court on 23rd April 2026 issued an order directing the respondents to pay all the outstanding stipends to her. However on the other hand the respondents’ contend that the order was non-specific and that the same was issued on the basis of complaints made from the bar. 47.This court has perused through the record of proceedings and in particular the proceedings of 23/4/2026. This court finds that on that date the matter was slated for hearing but the respondents asked for adjournment on the basis that there was a confusion as to whether the matter was slated for mention or hearing. After some push and pull, this court adjourned the matter and the applicant complained that she was facing financial difficulties and lack of upkeep because the respondents had failed to pay her the agreed monthly allowance/stipends. The respondents on the other hand through counsel denied knowledge of failure to pay. He insisted that payment of monthly allowance to the applicant was upto date. 48.This court on the basis of oral submissions on the issue directed that the respondents do pay all the outstanding monthly stipends and continue doing so to enable applicant meet her basic needs pending hearing and determination of the cause. The order issued was unspecific on the actual amount because the parties appear to be in agreement on the actual amounts. 49.The applicant thereafter on 18/5/2026 moved this court vide the instant application complaining that the respondents had failed to pay monthly stipends of Kshs.1,100,000/- as directed and the arrears as well. 50.This court tried in vain to make the parties agree so that they can concentrate on the main issue pending for trial. It is instructive to note that this court had given priority to this cause in terms of hearing and disposal owing to its age. It is a 1996 case and because of the serious contestations/disagreements in the family this court had found it just and in the interest of justice to have it heard and determined expeditiously. 51.While this court saw the instant application is likely to derail the trial and a distraction to the impeding hearing of summons for revocation of grant, it found that claims of contempt of court were serious enough to warrant court’s intervention. 52.This court finds that the respondents appear to be blowing both cold and hot at the same time because while they deny the existence of the court order, they also cast reservations about its regularity. 53.This is because the respondents cannot claim that they are unaware of the order and go ahead to complain that once the order was issued on the basis of complaints raised from the bar and two that they have complied and/or paid the monthly stipends of Kshs.1,100,000/- and are upto date. 54.This court finds that an order made in court is valid and remains in force until or unless the same is set aside. The question of whether the order was issued regularly or not cannot arise. In any event, this court in this matter seats as a probate court. 55.In probate matters this court has powers under Section 47 of Law of Succession Act to ‘entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as maybe expedient.”. Besides the above the inherent powers of this court are well captured in Rule 73 Probate and Administration Rules is to make ‘such orders as maybe necessary for the ends of justice.”. 56.The respondents’ position therefore that this court can only issue orders on the basis of a formal application is incorrect. This court can be informally moved by any party and infact it can on its own motion make any orders that serve the ends of justice. It should not be lost that in probate matters courts are dealing with family issues. There is need to be sensitive and be alive to the dictates of Article 159(d) of the Constitution. 57.This court finds that with regard to the first issue in the application about the existence of a court order, there is a valid court order issued on 23/4/2026 requiring the respondents to pay monthly stipends or allowance and to clear all the outstanding arrears. 58.On the question of whether there has been a deliberate breach by the respondents, this court finds that the respondents have in their own admission, stated that the monthly stipend is Kshs.1,100,000/-. I find that for them to come up again to say the order was non-specific with regard to the actual amount is pretentious and an excuse rather than a plausible reason for non-compliance. 59.This court however finds that it is true that the order of 23/4/2026 was unspecific on the actual amount for reasons already aforesaid. When this court made the order the actual amount was not contested. 60.This court finds that in light of the high standards required the allegations of contempt by the applicant have not been proved. This court is unable to find the respondents guilty because the orders issued on 23/4/2026 did not specify the actual amount to be paid as monthly stipends and the arrears as well. The respondents have used that small window to escape sanction from this court. For avoidance of further doubt or uncertainties and in order to meet the ends of justice while I disallow this application hereby make the following orders;i.That pending the hearing and determination of the summons for revocation of grant herein, the respondents shall continue paying monthly stipend/allowance to the applicant of Kshs.1,100,000/-.ii.The amount of Kshs.1,100,000/- be deposited directly in the account provided or to be provided by the applicant.iii.The applicant is at liberty to use the said stipend/allowance to meet her basic needs pending the hearing and determination of the summons for revocation of grant.iv.The respondents are directed to clear all outstanding arrears from January 2025. That is to say, ensure that payment of Kshs.1,100,000/- from January 2025 todate is paid. Such arrears if any be paid within 30 days from today and in default the applicant will be at liberty to apply.This court further directs parties to be civil towards one another and respect court process because ultimately justice will be served to all the parties. Any side shows going forward will be discouraged so that the parties and the court can concentrate on the pertinent issues at hand. I will make no order as to costs. DELIVERED, DATED AND SIGNED AT KITALE THIS 23RD DAY OF JUNE, 2026.HON JUSTICE R.K. LIMOKITALE HIGH COURTRuling delivered in open courtIn the presence ofKiarie and Nyairo advocates for the respondentsKuloba for the applicantDuke- court assistant