What is a grant?
A grant is defined in the Law of Succession Act as a grant of representation which could either be probate or under letters of administration with or without a will, attached to the estate of a deceased person.
A grant of representation is an order issued by a court to confirm a particular person is to act as a personal representative of the deceased person. The personal representative will therefore be the executor or administrator of the deceased’s estate depending on whether the deceased died with or without a will.
A grant made by a Kenyan court only enables the personal representative to deal with properties based within the Kenyan jurisdiction.
Under Section 4 of the Law of Succession Act, the succession process to a deceased person’s immovable property (e.g. buildings, land, etc.) shall be regulated by the Kenyan laws regardless of the person’s domicile at the time of death.
The succession of the deceased’s movable property would however be regulated by the laws of the country to which the person was domiciled as at the time of death.
If domiciled abroad, a grant would be issued by a foreign court or authority for this purpose.
A foreign grant has not been explicitly defined in the Kenyan laws but it is implied under Section 77 of the Succession Act to mean a grant issued by a court with jurisdiction, of a commonwealth country or another foreign country designated by the Attorney General through a gazette notice.
What is resealing?
A reseal process commences where a foreign grant has been obtained in relation to someone’s estate. The grant would be issued by a foreign court under the following circumstances:-
- A foreigner dies abroad but has property in Kenya.
- A Kenyan who is domiciled and dies abroad but has property in Kenya.
A foreign grant is not recognized and cannot be used to administer the deceased’s assets based in Kenya. It must therefore be resealed by the High Court, to be deemed valid and enforceable.
Resealing a foreign grant enables the personal representative of the deceased to administer the estate, giving the foreign grant force and effect similar to what it would benefit from had it originally been issued in Kenya.
Who has authority to apply for resealing?
This application shall be made by a person to whom the grant was made or by his lawyer instructed in writing to apply on his behalf. All the applications shall be through a Petition supported by an affidavit before a judge of the family division in the High Court.
In addition to the Petition, the applicant or the lawyer must produce the following documents:
- The original grant; or
- A duplicate thereof sealed with the seal of the issuing court; or
- A copy certified as correct by or under the authority of the issuing court; or
- The original power of attorney in exercise of which the application is made.
The jurisdiction of the court
The court shall satisfy itself that any estate duty payable has been paid in accordance with Section 72(c) of the Law of Succession Act.
On application by any creditor to the estate, order adequate security for costs to be deposited in respect to debts due to the creditors residing within the jurisdiction.
The court may direct the party making the application to give any evidence as to the domicile of the deceased.
The procedure for objection
The registrar of the court shall cause a notice of the application for sealing, to be gazetted and thereafter exhibited conspicuously within the court. This would be for the purposes of inviting any objections to be made, known to the registry within a period of not less than thirty (30) days from the date of such publication.
If prior to the expiration of the notice, a written objection is filed at the registry, through which the application was made, the registrar shall submit the objection to the court for directions.
The court shall require the objector within a limited time frame to file evidence in support of the objection, subsequent to which it shall hear the objection. The objection shall be deemed withdrawn where the objector fails to file the evidence within the stipulated period.
A court order for resealing of the grant
If the notice expires without any objection, and all the necessary requirements have been complied with, the court will make an order for sealing of the grant.
Every grant lodged for sealing shall be accompanied by any will related to the grant and certified as correct by or under the authority of the issuing court, subsequent to which it will be filed at the registry.
The registrar on sealing the grant, shall endorse on the grant under the seal of the court, a certificate confirming that the grant has been sealed for use within Kenya by an order of the High Court.
If you are looking for assistance with probate, succession, estate planning, or international succession matters in Kenya, there are experienced lawyers and law firms available to help you. These professionals specialize in handling various legal issues related to estates, wills, and international matters. Some of the relevant keywords to consider are:
- Probate lawyers in Kenya: These lawyers are well-versed in the Kenyan laws and procedures related to probate, which involves the legal process of administering the estate of a deceased person.
- Succession lawyers in Kenya: Succession lawyers deal with matters concerning the transfer of assets and rights from a deceased person to their beneficiaries or heirs. In Kenya, succession laws are governed by the Law of Succession Act.
- Estate Planning lawyers in Kenya: Estate planning lawyers assist individuals in developing comprehensive plans to manage and distribute their assets upon death or incapacitation. They can help you create wills, establish trusts, and provide guidance on minimizing taxes and protecting your assets.
- International Succession in Kenya: International succession involves cases where a person dies with assets in multiple countries, including Kenya. Lawyers specializing in international succession can provide advice on navigating complex cross-border legal issues and ensure compliance with both Kenyan and foreign laws.
- International lawyers in Kenya: International lawyers handle a wide range of legal matters involving international transactions, contracts, dispute resolution, and cross-border issues. They have expertise in navigating legal complexities arising from different legal systems and can provide guidance tailored to your specific needs.
- International law firms in Kenya: International law firms with a presence in Kenya offer comprehensive legal services to clients involved in international business, trade, and legal matters. These firms often have a network of attorneys with expertise in various jurisdictions, making them well-equipped to handle international legal challenges.
If you require assistance with any of these matters, it is recommended to reach out to a reputable law firm or lawyer specializing in the respective field. For further information or to schedule an appointment, you can contact them at legal@ombogo.co.ke.
