The process of registration of an incorporated trust involves the trustees entering into a trust deed which is presented to the Cabinet Secretary together with the prescribed forms for registration and can take between twelve to thirty-six months.
Registration may involve either under the Registration of Documents Act which does not make a trust into a body corporate.
However, the trust can commence implementing the objects of the trust as a simple trust. Or Incorporation under the Trustees (Perpetual Succession) Act where the Trust may be incorporated under the TPSA, making it a body corporate.
Requirements for Registration of a Trust in Kenya
- The Trust Deed- Including the Name of Trust, Objectives of the Trust.
- Names of the Trustees in Full.
- Postal addresses of the Trustees.
- Proposed Physical address of the Trust.
- Copy of ID / Passport of the Trustees.
- The Petition to the Minister.
- Minutes appointing the Trustees.
- Seal of the Trust
- The Financial statement of the trust.
- CV of the Trustees / employees.
- Passport photos of the Trustee.
- Statement of donor funding
- Copy of title documents showing ownership of immovable property owned by the trust
- Copy of PIN certificate of the Trustees.
- Beneficiaries: this could be a class of persons in the society e.g. bright needy children; orphans between 0-10 years or an orphanage, cancer patients, women etc. There is also need to specify the area of benefit e.g. Nairobi, Kenya or Africa.
- Details of the Trust Fund
- a list of assets held by the trust/ in the absence a deed of donation indicating the properties to be donated to the trust
- a letter/statement from the donor stating commitment. If it is a company, provide certificate of incorporation and details/ description of company.
- the transfer of properties/ funds may be progressive but indicate the initial amount/properties to be transferred
- Trustees: the trustees should show competence in running the trust. For example if it an Education Trust, then some should have a background of teaching etc. The following information from the trustees is required;
- Administration of the Trust: Consider whether standard procedures are appropriate or are there any special administrative procedures required. This includes the following;
- Appointment of trustees
- Operation of Trust accounts
- Powers of the trustees
- Procedure of conducting meetings
- Amendment of the Trust deed
- Payment of Stamp Duty for the Trust Deed
The petition must state, inter alia, that the trustees are desirous of being incorporated into a Trust under the Act and give a representation of the common seal of the trust, which must be rounded in shape and with the name of the trust inscribed thereto.
Process Time: The process takes an average of 3 to 6 months to the issuance of a certificate of Incorporation.
The Cabinet Secretary can order an incorporated trust to be dissolved if it has ceased to exist or if its objectives have become incapable of fulfilment. Upon dissolution and where land was vested in it, the trust’s land shall be transferred to the county council in the jurisdiction where the land is situated; if the land is not the trust’s land, it shall be transferred to the government.
The law does not provide for distribution of other assets (Trustees (Perpetual Succession) Act Cap. 164 Section 16(2)).
Trusts not incorporated under the Trustees (Perpetual Succession) Act Cap. 164 are dissolved in accordance with the law of equity.