Trustees Perpetual Succession Act Cap 164 - as Plain Text by MWakili

LAWS OF KENYA The TrusTees (PerPeTual succession) acT Chapter 164 Note.This Act was formerly published as Cap.

286.

Revised Edition 2010 (1981) Published by the National Council for Law Reporting with the Authority of the Attorney General www.kenyalaw.org 2 CAP.

164 Trustees (Perpetual Succession) [Rev.

2010 CHAPTER 164 THE TRUSTEES (PERPETUAL SUCCESSION) ACT ARRANGEMENT OF SECTIONS Section 1Short title.

2Interpretation.

3Incorporation of trustees.

4Estate to vest in body corporate.

5Application for incorporation.

6Appointment of trustees.

7Certicate to be evidence of compliance with requirements.

8Variation of conditions in certicates.

9Recording of documents and provision of copies.

10Enforcement of conditions of certicate.

11Fees.

12Gifts to vest in corporate body.

13Common seal.

14Petition to decide question whether person is a member of a corporate body.

15Searches.

16Change of name and dissolution.

17Regulations.

Schedules Schedule.

Trustees (Perpetual Succession) CAP.

164 3 Rev.

2010 CHAPTER 164 Cap.

163 (1948), 25 of 1959, THE TRUSTEES (PERPETUAL SUCCESSION) ACT G.N.

1603/1955, G.N.

1605/1955, L.N.

172/1960, st Commencement: 31 May, 1923 L.N.

173/1960, 19 of 1964, An Act of Parliament to provide for the incorporation of certain trustees 2 of 1980, for the purpose of perpetual succession to property and for purposes 19 of 1985, connected therewith 22 of 1987.

1.

This Act may be cited as the Trustees (Perpetual Succession) Short title.

Act.

2.

In this Act, unless the context otherwise requires Interpretation.

2 of 1980, s.

4, constitution means the rules, regulations, terms and documents 19 of 1985, Sch., relating to the objects of a trust and regulating the affairs thereof and 22 of 1987, Sch.

the appointment of trustees and other ofcers thereof; pension fund means a fund established under trusts subject to the law of Kenya, in connection with an undertaking or combination of undertakings carried on wholly or partly in Kenya, being a fund of which the main purpose is (a) the provision of superannuation allowances on retirement to persons employed in the undertaking or combination of undertakings in connection with which the fund is established; or (b) the provision of pensions during widowhood to the widows of persons who are or have been so employed and of periodical allowances to or in respect of children of those persons; or (c) the assurance of capital sums on the death of persons who have been so employed, whether or not the fund has been approved and registered pursuant to and for the purposes of the Income Tax Act; Cap.

470.

provident fund means a fund, whether or not approved and registered pursuant to and for the purposes of the Income Tax Act, which Cap.

470.

is established under an irrevocable trust and which is established by or on behalf of an employer with the principal object of providing for the payment of lump sums to his employees in respect of their service with him upon their leaving that service after a specied period thereof, or 4 CAP.

164 Trustees (Perpetual Succession) [Rev.

2010 to any of the dependants, or to the estate, of any of those employees on their death while in that service; trustees includes a sole trustee.

Incorporation of 3.

(1) Trustees who have been appointed by any body or trustees.

association of persons established for any religious, educational, literary, G.N.

1605/1955, L.N.

173/I960, scientic, social, athletic or charitable purpose, or who have constituted 2 of 1980, s.

5, themselves for any such purpose, or the trustees of a pension fund may 19 of 1985, Sch., apply to the Minister in the manner provided in this Act for a certicate 22 of 1987, Sch.

of incorporation of the trustees as a corporate body.

(2) If the Minister, having regard to the extent, nature and objects and other circumstances of the trust concerned, considers incorporation expedient, he may grant a certicate accordingly, subject to such conditions or directions generally as he thinks t to insert in the certicate, and particularly relating to the qualications and number of the trustees, their tenure and avoidance of ofce, the mode of appointing new trustees, the custody and use of the common seal, the amount of movable or immovable property which the trustees may hold, and the purposes for which that property may be applied.

(3) The trustees shall thereupon become a body corporate by the name described in the certicate, and shall have perpetual succession and a common seal, and power to sue and be sued in their corporate name and, subject to the conditions and directions contained in the certicate, to hold and acquire, and by instruments under the common seal to convey, transfer, assign, charge and demise any movable or immovable property or any interest therein now or hereafter belonging to, or held for the benet of, the trust concerned in the same manner and subject to such restrictions and provisions as trustees might so do without incorporation.

Property to vest in 4.

The certicate of incorporation shall vest in the body body corporate.

corporate all movable and immovable property and any interest therein 2 of 1980, s.

6.

belonging to or held by any person or persons for the benet of the trust concerned.

Application for 5.

(1) An application to the Minister for a certicate under this incorporation.

Act shall be in writing, signed by the person or persons making it, and G.N.

1605/1955, L.N.

173/1960.

shall contain the several particulars specied in the Schedule, or such of them as shall be applicable to the case.

(2) The Minister may require such declaration or other evidence in verication of the statements and particulars in the application, and such other particulars, information and evidence, if any, as he may think necessary or proper.

Trustees (Perpetual Succession) CAP.

164 5 Rev.

2010 6.

(1) Before a certicate of incorporation is granted the trustees Appointment of shall have been effectually appointed or constituted to the satisfaction of trustees.

G.N.

1603/1955, the Minister, and where a certicate of incorporation has been granted G.N.

1605/1955, vacancies in the number of trustees shall from time to time be lled so L.N.

172/1960, far as is required by the constitution of the trust concerned, or by any L.N.

173/1960, conditions or directions inserted by the Minister under subsection (2) 2 of 1980, s.

7.

of section 3, by such legal means as would have been available for the appointment of new trustees if no such certicate had been granted, or otherwise as shall be required by those conditions or directions.

(2) The appointment of every new trustee shall be certied by, or by the direction of, the trustees to the Minister upon the completion of the appointment.

(3) Within one month after the expiration of each period of one year after the grant of a certicate of incorporation a return shall be made to the Minister by the trustees of the names and addresses of the trustees at the end of each such period.

7.

A certicate of incorporation so granted shall be conclusive Certicate to be evidence of evidence that all the preliminary requirements of this Act in respect of the incorporation have been complied with, and the date of incorporation compliance with requirements.

mentioned in the certicate shall be deemed to be the date at which incorporation has taken place.

8.

(1) The trustees in respect of whom a certicate of incorporation Variation of has been granted under this Act may apply to the Minister to vary any conditions in certicates.

of the conditions or directions contained in the certicate, and the 25 of 1959, s.

2, Minister, after calling for such evidence and information as he may 2 of 1980, s.

8.

require, may, if he is satised that it is proper so to do, by order vary the conditions or directions to such extent as he shall think t, or may refuse to vary them.

(2) Where any conditions or directions are varied by order made under subsection (1), the variation shall take effect as from the date of the order.

9.

(1) The Principal Registrar of Documents appointed under the Recording of Registration of Documents Act shall keep and record in a register kept documents, and for that purpose the applications, orders and other documents lodged provision of copies.

or given under the provisions of this Act, together with a duplicate of 25 of 1959, s.

3.

Cap.

285.

every certicate of incorporation issued under this Act.

(2) Any person, on completion of the prescribed form and on payment of the prescribed fee, may require to be given a copy of any such document, certied under the hand of a registrar appointed under the Registration of Documents Act.

6 CAP.

164 Trustees (Perpetual Succession) [Rev.

2010 Enforcement of 10.

All conditions and directions inserted in any certicate of conditions of incorporation shall be binding upon and performed or observed by the certicate.

trustees as terms of the trust concerned.

2 of 1980, s.

9.

Fees.

11.

Every application for a certicate of incorporation under this 25 of 1959, s.

4.

Act and every such certicate shall be charged with the prescribed fee.

Gifts to vest in 12.

After the incorporation of any trustees pursuant to this Act, corporate body.

every donation, gift and disposition of movable or immovable property, 2 of 1980, s.

10.

or any interest therein, theretofore lawfully made (but not having actually taken effect) or hereafter lawfully made by deed, will or otherwise to or in favour of the trust concerned, or the trustees thereof, or otherwise for the purposes thereof, shall take effect as if it had been made to, or in favour of, the corporate body or otherwise for the same purposes.

Common seal.

13.

(1) The common seal of the corporate body shall have such G.N.

1603/1955, device as may be approved by the Minister, and until a common seal L.N.

172/1960.

is provided the seal of some person may be authorized by the Minister for use as the common seal of the corporate body.

(2) Any instrument to which the common seal of the corporate body has been afxed, in apparent compliance with the regulations for the use of the common seal referred to in section 3, shall be binding on the corporate body, notwithstanding any defect or circumstance affecting the execution of the instrument.

Petition to decide 14.

(1) When any question arises as to whether a person is a question whether member of a body incorporated under this Act, any person interested person is a member in that question may apply by petition to the High Court for its opinion of a corporate body.

thereon.

(2) Notice of the hearing shall be given to such persons and in such manner as the court shall think t, and any opinion given by the court on an application under this section shall be deemed to have the force of a declaratory decree.

Searches.

15.

Any person desiring information may apply in person at the 25 of 1959, s.

5.

Principal Registry of Documents and, on completion of the prescribed form and on payment of the prescribed fee, may inspect the register relating to the document mentioned in the form.

Change of name and 16.

(1) The Minister may, if he is satised that the circumstances dissolution.

of the case so justify, order that the name of a corporate body be 19 of 1964, s.

2, changed.

2 of 1980, s.

11.

Trustees (Perpetual Succession) CAP.

164 7 Rev.

2010 (2) The Minister may, if he is satised that a corporate body in respect of which a certicate of incorporation has been granted under this Act has ceased to exist or that the objects for which it was established have become incapable of fullment, order that it be dissolved, whereupon any land vested in it shall escheat (a) if the land is Trust land, to the county council in whose area of jurisdiction the land is situated; (b) if the land is not Trust land, to the Government: Provided that this subsection shall not apply where the corporate body is wound up under the provisions of section 33 of the Societies Cap.

108.

Act.

17.

The Minister may make regulations for the purpose of Regulations.

regulating any matter or thing to be done under this Act, including the 25 of 1959, s.

5.

specifying of fees and the prescribing of forms, and generally for the better carrying out of the provisions of this Act.

SCHEDULE (s.

4) The objects and constitution of the trust concerned, together with the date of, and parties to, every deed, will or other instrument, if any, creating, constituting or regulating it.

A statement and short description of the property or interest therein which at the date of application is held or intended to be held by the trustees.

A statement as to whether the trust concerned is a society registered or exempted from registration under the Societies Act, or Cap.

108.

is incorporated under the Companies Act, together with the relevant Cap.

486.

certicate of registration, exemption or incorporation.

The names and addresses of the Trustees.

The proposed title of the corporate body, of which title the words trustees and registered shall form part.

The proposed device of the common seal.

The regulations for the custody and use of the common seal.

8 CAP.

164 Trustees (Perpetual Succession) [Rev.

2010 [Subsidiary] SUBSIDIARY LEGISLATION Regulations under section 17 L.N.

167/1976, THE TRUSTEES (PERPETUAL SUCCESSION) REGULATIONS L.N.

209/1988, L.N.

299/1994, 1.

These Regulations may be cited as the Trustees (Perpetual Succession) L.N.

53/2008, Regulations.

L.N.

7/2010.

2.

An application for a certicate of incorporation shall be accompanied by an application for the registration thereof in Form A in the Schedule.

3.

An application for the recording of a certicate of appointment of new trustees shall be in Form B in the Schedule.

4.

Applications for copies of documents or abstract folios shall be in Form C in the Schedule.

5.

Applications to inspect the register shall be in Form D in the Schedule.

6.

The fees payable under the Act shall be as follows Fees (KSh.) (a) For every certicate of incorporation.

2,500 (b) For every application for registration of a certicate of 500 incorporation.

(Note: The fee for (a) and (b) shall be paid on Form A at the time of application.) (c) For every copy of a document or abstract folio or extract 1,000 therefrom.

(d) For every personal search or inspection.

1,000 (e) For every other act, matter or thing not otherwise provided 500 for.

6A.

The fees prescribed by these Rules include the provision of photostatic copy under the Act.

6B.

Government miscellaneous receipts shall be issued upon payment of the fees prescribed in these Regulations.

7.

The Registrars of Documents at Nairobi and Mombasa shall keep a supply of forms for the use of the public.

8.

The Registrars of Documents shall cause to be impressed on all applications on which fees are paid, and on all copies thereof, a stamp recording the date and time of presentation in such manner (in the case of the original) as to cancel the stamps afxed in payment of fees; and that impression shall, in the absence of fraud, be conclusive evidence of the date and time of presentation and that the fees stated in the application to have been paid have been paid.

Rev.

2010] 9 Trustees (Perpetual Succession) CAP.

164 [Subsidiary] SCHEDULE Form A (r.

2) ApplicAtion for the regiStrAtion of A certificAte of incorporAtion pArt i (To be submitted in triplicate) To: The Registrar of Documents, Nairobi.

My/ Our* reference: I/ We*, hereby apply for the registration of a certicate of incorporation of.

.

dated the.

day of ., 19.

On completion of registration, please forward the certicate to: Name.

P.O.

Box.

Stamps to the value of Sh.

in payment of fees are afxed hereto.

(Signed).

Date pArt ii To: The above-mentioned presentor.

The above-mentioned certicate of incorporation is enclosed herewith duly registered.

.

Registrar Date.

* Delete whichever is not applicable.

To be completed in the Registry.

10 CAP.

164 Trustees (Perpetual Succession) [Rev.

2010 [Subsidiary] SCHEDULE(Contd.) Form B (r.3) ApplicAtion for the recording of A certificAte of Appointment of new truSteeS (To be submitted in triplicate) To: The Principal Registrar of Documents, Nairobi.

My/ Our* reference: I/We* (Trustee(s)* or Secretary),.

.

of (name of incorporated body).

.

of P.O Box.

HEREBY REQUEST you to record the appointment of.

.(new trustee(s))* in place of.

.

(old trustee(s))* and in support thereof enclose (a) the certicate of incorporation; (b) a certied copy of the resolution appointing the new trustee(s).

Stamps to the value of Sh.

in payment of fees are afxed hereto.

(Signed).

Date pArt ii To: The above-named applicant.

The appointment has been recorded, and the certicate of incorporation is enclosed herewith.

* Delete whichever is not applicable.

Rev.

2010] 11 Trustees (Perpetual Succession) CAP.

164 [Subsidiary] SCHEDULE(Contd.) Form C (r.

4) ApplicAtion for copy (To be submitted in duplicate) To: The Registrar, Land Registry, Nairobi/ Mombasa.* My/Our* reference: I/ We* request you to supply certied/ uncertied* copy/ copies* of the following Adhesive revenue stamps at the rate of Sh.

per certied copy are pinned to this application to meet the stamp duty payable thereon.

Adhesive revenue stamps to the value of Sh.

in payment of fees are afxed hereto.

Signature.

Date.

Insert below in BLOCK CAPITALS the name and address in Kenya to which the copy/copies* is/are* to be sent: Name.

Postal address.

for completion in the regiStry The above-mentioned copy/copies* is/are* forwarded herewith.

The above request cannot be met because.

.

.

Registrar Date * Delete whichever is not applicable.

12 CAP.

164 Trustees (Perpetual Succession) [Rev.

2010 [Subsidiary] SCHEDULE(Contd.) Form D (r.

5) ApplicAtion for perSonAl SeArch of Land Reference No.

Title or Deed File No.

Adhesive revenue stamps to the value of Sh.

in payment of the fee are afxed hereto.

Signature.

Postal Address.

.

Date Deed le checked on completion of search by.

Counter Clerks Initials conditionS 1.

This form must be submitted in duplicate with revenue stamps to the value of Shillings afxed to the original, which will be retained in the Land Registry.

2.

Persons making searches may take brief notes in pencil but no documents shall be copied.

3.

In no circumstances may any note or mark be made on any document, le or register produced for inspection.

4.

Persons making searches shall check the contents of any deed le produced to them and have it checked by the counter clerk both before and on completion of the search, and obtain his initials on the duplicate search form, otherwise the person searching will be held liable for any document lost or damaged.

5.

The counter clerks duty does not extend to answering questions on matters of title and no responsibility is accepted for any opinion which may be expressed by him.

.