[2021] KEHC 908 (KLR)
The court found that the petitioner failed to comply with the mandatory requirements for resealing a foreign grant under Kenyan law. Specifically, the petitioner submitted only a photocopy of the grant, which was not certified by the issuing court, and the grant had not been gazetted as required. The law demands...
Source-derived case information.
- Citation
- [2021] KEHC 908 (KLR)
- Parties
- Applicant: Abeid Mohamed Abeid
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration E084 of 2021
- Procedural Posture
- Resealing Cause / Ruling
- Outcome
- application disallowed
- Legal Topics
- Resealing of Foreign Grant, Probate and Administration, Estate of Deceased Person, Cross Border Succession
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abeid Mohamed Abeid
Applicant
Procedural Posture
Resealing Cause / Ruling
Legal Issues
- 1 Whether the petitioner has met the legal requirements for resealing a foreign grant of letters of administration in Kenya.
- 2 Whether submission of a photocopy of the grant, not certified by the issuing court, satisfies the statutory requirements for resealing.
Ratio Decidendi
The court found that the petitioner failed to comply with the mandatory requirements for resealing a foreign grant under Kenyan law. Specifically, the petitioner submitted only a photocopy of the grant, which was not certified by the issuing court, and the grant had not been gazetted as required. The law demands that only an original, duplicate, or certified copy of the grant, properly sealed by the issuing court, is acceptable for resealing. Additionally, the gazettement process is a prerequisite before the court can seal the grant. The absence of these procedural steps rendered the application fatally defective. Consequently, the court disallowed the application, directing the...
Court Disposition
application disallowed
Orders
- The application for resealing the foreign grant is disallowed.
- The petitioner is directed to follow the laid down procedure before the court can seal the grant.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
REASEALING CAUSE NO.E084 OF 2021
IN THE MATTER OF THE ESTATE OF MOHAMED ABEID AL –BAGI (DECEASED)
ABEID MOHAMED ABEID........................................................PETITIONER
RULING
1. The deceased herein died intestate on the 27th August 1978 while domiciled at Kariokoo Daressalam in the United Republic of Tanzania. He was survived by two daughters and three sons among them the petitioner. Among the assets comprising the estate are a house standing on plot No.7R house 151 Section XV (plot Mombasa XV/621 Majengo Mombasa). On 2nd November, 2012, a grant of letters of administration intestate was issued to the petitioner by a court in Tanzania.
2. Subsequently, the petitioner moved to this court seeking resealing of the grant for purposes of securing authority to administer part of the estate which is situated in Kenya. The power for this court to seal a grant issued before any commonwealth country or any other country duly gazetted by the A.G is anchored under Section 77 of the Law of Succession Act and rule 42 of the probate and administration rules.
3. Before a grant is sealed, rule 42 of the probate and administration rules requires that the applicant must produce an Original of the grant or a duplicate or copy thereof duly sealed by the issuing court, a certificate from the commissioner of estate duty to confirm that there is no outstanding estate duty payable and any other evidence as the registrar may require relating to the death of the deceased.
4. Upon submission of the aforesaid information, the registrar is supposed to cause the estate gazetted in the official Kenya gazette for the general knowledge of the public. It is after the expiry of 30 days that the grant can be sealed. In the instant case, the grant for sealing has not been gazetted. Further, the grant should be an original or duplicate or certified copy. What is before court is a photocopy of the grant which is not certified by the issuing court. A copy should bear the original certificate stamp of the issuing court or any recognized authority on its behalf. In this case, that condition has not been fulfilled.
5. In view of the above finding, I am satisfied that the applicant has not met the requisite conditions set out in the law before the grant can be sealed. Accordingly, the application is disallowed. The petitioner to follow the laid down procedure before the court can seal the grant.
DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 17TH DAY OF DECEMBER, 2021
........................
J.N.ONYIEGO
JUDGE