[2021] KEHC 1031 (KLR)
The court found that the application for confirmation of the resealed grant could not be allowed because the mandatory requirements of gazettement and attachment of a certified copy of the original grant were not met. Despite evidence of payment for gazettement, there was no proof that gazettement was actually done...
Source-derived case information.
- Citation
- [2021] KEHC 1031 (KLR)
- Parties
- Applicant: Saleem Ghalia (Lawful Attorney of Mario Cravetto)
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 7 of 2020
- Procedural Posture
- Succession Cause / Ruling on Application for Confirmation of Resealed Grant
- Outcome
- application disallowed; resealed grant suspended
- Legal Topics
- Probate and Administration, Resealing of Grant, Gazettement Requirements, Foreign Estates
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Saleem Ghalia (Lawful Attorney of Mario Cravetto)
Applicant
Procedural Posture
Succession Cause / Ruling on Application for Confirmation of Resealed Grant
Legal Issues
- 1 Whether the resealed grant issued on 10th October 2020 complied with the requirements of gazettement under rule 42 of the Probate and Administration Rules.
- 2 Whether the application for confirmation of the resealed grant can be allowed in the absence of a certified copy of the original grant as required by Section 77 of the Law of Succession Act and rule 42.
Ratio Decidendi
The court found that the application for confirmation of the resealed grant could not be allowed because the mandatory requirements of gazettement and attachment of a certified copy of the original grant were not met. Despite evidence of payment for gazettement, there was no proof that gazettement was actually done or that a certificate was issued by the principal registrar. The absence of these procedural steps rendered the resealed grant irregular, necessitating its suspension until compliance. Consequently, the application for confirmation was disallowed.
Court Disposition
application disallowed; resealed grant suspended
Orders
- The grant issued on 10th October 2020 is hereby suspended until the requirements of gazettement and attachment of a certified copy of the original grant are met.
- The application for confirmation of the resealed grant is disallowed.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
FAMILY DIVISION
AT MOMBASA DISTRICT REGISRY
SUCCESSION CAUSE NO 7 OF 2020
IN THE MATTER OF THE ESTATE OF GIAN MARIO CRAVETTO (DECEASED)
SALEEM GHALIA LAWFUL ATTORNEY OF MARIO CRAVETTO......................APPLICANT
RULING
1. Vide a summons dated 28th September 2021, the applicant herein through her duly appointed Attorney has moved this court for confirmation of a resealed grant issued on 10th November 2020. The application is anchored on the ground that, the applicant is the sole beneficiary of the estate of her late father an Italian National who owned part of his property in Kenya. Among the properties listed are seven landed properties situate in Diani/kwale and shares in various companies.
The application is supported by an affidavit sworn on 28th September 2021 by Salee Ghalia holder of the power of Attorney.
2. From the record, I note that I did issue a resealed grant on 10th October 2020. However, further perusal of the attached documentation shows that the estate and the grant sought to be resealed was not gazetted as required under rule 42 of the probate and administration rules. I have also noted that an original copy, duplicate and or copy of the grant duly certified by the issuing court was not attached as required by Section 77 of the law of succession Act and the said rule 42.
3. Although there is evidence that a banker’s cheque for gazettement was issued, there is no proof that such gazettement was done nor did the principal registrar issue a certificate. In view of the said omission, the grant issued on 10th October 2020 is hereby suspended until the aforesaid conditions are met. For those reasons, the application for confirmation herein is disallowed.
DATED SIGNED DELIVERED VIRTUALLY AT MOMBASA THIS 17TH DAY DECEMBER 2021
J.N.ONYIEGO
JUDGE