Resealing a Foreign Grant of Probate in Kenya: Which Countries Qualify and How It Works

When someone dies abroad leaving property in Kenya, the foreign grant of probate or letters of administration does not automatically operate here. Resealing a foreign grant in Kenya is the process by which the High Court gives certain foreign grants the same force as a Kenyan grant. Whether a grant can be resealed turns on the country that issued it, and the wrong assumption can mean starting again with a fresh Kenyan petition.

What section 77 of the Law of Succession Act provides

Section 77(1) of the Law of Succession Act allows the High Court to seal a grant made by a court or authority with probate jurisdiction in any Commonwealth country, or in any other foreign country designated by the Attorney-General by notice in the Gazette. Once sealed, the grant has the same force and effect in Kenya as if it had been granted and confirmed by the High Court. Section 78 gives the same effect as the original to a duplicate of a foreign grant sealed by the issuing court, or to a copy that court certifies as correct. The grant can be probate or letters of administration, or the foreign equivalent, and it can have been issued before or after the Act began.

Which countries qualify

There are two routes. The first is the Commonwealth limb. The Act does not list Commonwealth countries, so a grant from the United Kingdom, India, Australia, Canada, South Africa, Uganda or Tanzania qualifies through that limb rather than by name.

The second route is designation by the Attorney-General. Legal Notice 190 of 1985, “The Resealing of Foreign Grants”, designates France, Germany, Italy, the Republic of Ireland, Sweden, the United States of America and the Kingdom of Jordan, which was added by Legal Notice 81 of 2021. That is the position in the version of the notice consolidated by Kenya Law to 31 December 2022, so check the Gazette for any later designation before relying on it.

A grant from a country that is neither Commonwealth nor designated cannot be resealed under section 77. The practical answer in that case is a fresh Kenyan grant, because nobody may deal with a deceased person’s free property in Kenya without one (see below). Our article on succession disputes involving diaspora beneficiaries covers what can go wrong when the family is spread across countries.

What the court considers before sealing

Under section 77(2), before sealing a grant the High Court must satisfy itself on the payment of estate duty as provided by section 72, may require evidence about the deceased’s domicile, and may, on a creditor’s application, require adequate security for debts owed to creditors resident in Kenya. The section still refers to estate duty, and the Obonyo ruling shows the registry still expects the commissioner’s certificate under rule 42, so raise that point with the registry early.

The application and why certified documents matter

Rule 42 of the Probate and Administration Rules governs the petition. In In re Estate of Millicent Phoebe Obonyo [2024] KEHC 16472 (KLR), the High Court at Kisumu described what rule 42 requires: the original grant, or a duplicate or copy sealed by the issuing court; a certificate from the commissioner of estate duty confirming that no estate duty is outstanding; and any other evidence the registrar asks for about the death. The court added that the registrar then has the estate gazetted, and that the grant can be sealed only after 30 days have passed.

The petitioner in that case was the sole executor under an English grant of probate. His advocates had filed a photocopy extract of the grant that the issuing court had not certified. The court held that a copy must bear the issuing court’s certification stamp, even though filing is now done through the e-Portal. It disallowed the application and gave him 60 days to produce the original or a certified true copy. If he did not, the proceedings would lapse and he would have to file fresh proceedings complying with section 77 and rule 42.

The practical lesson is to obtain a certified copy of the grant, and of the will where there is one, from the issuing court before anything is filed in Kenya. Allow also for the gazettement period when planning a sale or a bank transfer, because the grant has no force in Kenya until it is sealed.

Why you cannot simply act on the foreign grant

Section 45 of the Law of Succession Act prohibits anyone from taking possession of, disposing of or otherwise intermeddling with the free property of a deceased person, except as authorised by the Act, another written law or a grant of representation under the Act. Contravention is an offence punishable by a fine of up to KES 10,000, imprisonment of up to one year, or both, and the person is also answerable to the rightful executor or administrator for the assets they dealt with. An executor named in a foreign will who sells Kenyan land or closes a Kenyan bank account before resealing is exposed on both counts.