Introduction
Section 3 of The Law of Succession Act does not
define what a foreign grant is. It may however be construed to mean grants
issued in any commonwealth country or in any other foreign country designated
by the minister by notice in the Gazette, pursuant to section 77 of the Law of Succession Act. Under section 4
(1)(b) of the Law of Succession Act,
the succession of the movable property of
a deceased person shall be regulated by the law of the domicile of that person
at the time of his death. This means that if a person dies while domiciled in a
different country, succession to his movable property will be applied only in
the court of his domicile. Any grant issued thereby is called a foreign grant.
Such foreign grant is not recognized in Kenya
a)
Which court has
jurisdiction?
Under section 77 of the
Law of Succession Act, the High Court of Kenya is given powers to reseal such
foreign grants. The High Court may, before sealing such grant, satisfy itself
that any estate duty payable has been paid or may on application of any
creditor, order adequate security for costs to be deposited in respect to debts
due to creditors. Under Rule 42 of the probate and administration rules, an
application for resealing may be made only to the Principal registry or the
Mombassa registry.
b)
Who has the locus standi to apply?
Such an application may
only be made by the person to who the grant was made or by his attorney
empowered in writing to apply on his behalf. Every such application shall be
brought by petition in Form 81 or 82 supported by affidavit in Form 7 and shall
be dealt with by a judge of the High Court.
c)
What orders can the court
make?
Further Evidence: The court may direct that the party
making the application give such evidence (if any) as the court may require as
to the domicile of the deceased or any such proof (if any) as the registrar may
require of or in relation to the death of the deceased.
Security for Costs: The court may on the application of
a creditor require the applicant to give, within a time to be limited and in
accordance with section 77 of the Act, adequate security in Form 58
specifically for the payment of debts due from the estate to creditors residing
within the jurisdiction.
Invitation for Objections: The registrar shall cause to be
inserted in the Gazette and to be exhibited conspicuously in the courthouse
attached to the registry a notice in Form 71 of the application for the
sealing, inviting objections thereto to be made known to that registry within a
period to be specified in the notice of not less than thirty days from the date
of such respective publications.
An Order Resealing the Grant: At the expiry of the notice, if
there is no objection and all the necessary requirements have been complied
with, the court may make an order for sealing the grant.
Directions :If prior to the expiration of the notice referred to in
sub-rule (5) an objection in writing has been filed in the registry through,
which the application for sealing is made, the registrar shall forthwith submit
the objection to the court for directions whereupon the court shall require the
objector within a time to be limited to file evidence by affidavit in support
of the objection, in default of which the objection shall be deemed to have
been withdrawn, provided that the judge may for reasons to be recorded extend
such time prior to its expiration. Where an objector has filed his objection
and affidavit the court shall give directions for the hearing of the objection.
Conclusion
On sealing a grant the
registrar shall endorse on the grant under the seal of the High Court a
certificate confirming that the grant has been sealed for use within Kenya
