However, putting Kenyan land into the trust is a different story due to the strict rules Kenya has about foreigners owning land, a careful planning is required about the kinds of property to be put into the Trust.

The Law that governs the process.

Kenyan law allows both citizens and foreigners to set up a trust to protect and pass on their property smoothly. This process is handled through the Trustees (Perpetual Succession) Act (Cap. 164) and is officially registered with the Registrar of Companies.

Can a foreigner be the settlor?

Foreigners are fully allowed to act as settlors for a Kenyan family trust. The law states that any person can register a trust, meaning citizenship isn’t a requirement. While a non-citizen can definitely set this up, they just need to make sure they follow the usual registration process and any local laws regarding the assets going into the trust.

Does a foreign settlor have to reside in Kenya?

Where the settlor, trustees, and beneficiaries live is important for handling the trust. That’s why anyone setting one up from overseas should think about the laws in both Kenya and their home country.

Does a Kenyan trust allow foreign ownership of land?

Not automatically. Putting land into a trust doesn’t wipe out constitutional limits for foreigners. Every beneficiary in the trust must be a Kenyan citizen for the land to be considered locally owned. If there is even one non-citizen involved, the entire setup is legally viewed as foreign. Also, using a local friend or relative as a dummy owner to hide a foreigner’s actual stake is a crime and courts will void it. The Kenyan Constitution states that non-citizens can only hold land on leases of 99 years or less, and a trust only counts as citizen owned if every single person who benefits from it is a citizen.

Can a foreigner be a trustee?

The legislation doesn’t say family trustees have to hold Kenyan citizenship. A trustee can be appointed before the trust is registered, as long as the Registrar gets the information. Still, it is crucial to consider their home base and how management will actually work in practice.

Why should a foreigner set up a family trust in Kenya?

• Better estate planning: Instead of waiting until after someone passes away, a trust clearly outlines how family property should be handled and shared.
• Protecting wealth for the future: Kenyan law specifically allows families to use trusts to build and preserve wealth across multiple generations.
• Caring for family members: It provides a reliable way to manage assets and financial support for children and relatives.
• Managing global families: If family members live in different countries, a trust makes it much easier to set clear rules for managing shared property.

Can a family trust be used for an illegal purpose?

Setting up a family trust does not excuse anyone from following the law. The Trustees (Perpetual Succession) Act voids any trust established for illegal motives. Courts also have the right to cancel trusts created to commit fraud or keep assets away from creditors. For these reasons, a family trust must always be used for honest estate or wealth management, not for hiding assets or escaping Kenyan legal duties.

Understanding trust taxes

Kenyan registration does not guarantee tax exemption for a trust’s assets or earnings. Taxes are decided by specific factors like asset categories, income streams, global residencies, physical locations, and transfer history. If parties reside outside Kenya, foreign tax liabilities may also arise. Consequently, non-resident founders should secure independent tax guidance in Kenya and their country of residence.

Ready to protect your cross-border wealth? Don’t navigate Kenyan trust laws alone. Schedule a consultation with Kenbiz Registrars today to ensure your family trust is set up correctly from overseas. Email us at: info@kenbizregistrars.com

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While a properly set up and managed trust offers strong asset protection, it is not immune to legal challenges. Parties with a legitimate interest, such as beneficiaries or excluded heirs, can petition the court to challenge the validity of the trust or the conduct of the trustee.

Instances where a trust can be contested in court

The common grounds for contesting a trust often revolve around issues with its formation or the actions of the trustee. These instances include:

1. Validity of the trust deed/settlor’s capacity

The foundational document (the trust deed) or the settlor’s state of mind when creating it can be challenged, similar to contesting a will:

• Lack of mental capacity: alleging that the settlor was not of sound mind or was mentally incapacitated at the time the trust was established or amended.
• Undue influence or fraud: Claiming that the settlor was pressured or tricked into creating the trust or including specific terms that do not reflect their true intentions.
• Improper Execution: contesting the validity of the document based on technical errors, such as a forgery of signatures or failure to meet legal requirements for registration or execution.

2. Breach of fiduciary duty by the trustee

The Trustee (the person or entity managing the assets) owes a fiduciary duty to the beneficiaries. A court challenge can arise from:

• Mismanagement or misappropriation of assets: Allegations that the trustee is being negligent, wasting, or illegally using the trust assets for their own personal benefit instead of the beneficiaries’.
• Conflict of interest: Where the trustee acts in their own interest, or the interest of one beneficiary, to the detriment of others.
• Lack of transparency/accountability: A trustee’s failure to provide accurate financial records, keep proper accounts, or communicate necessary information to the beneficiaries. In such cases, the beneficiaries can seek legal remedies, including the removal of the trustee.
• Failure to act: A trustee neglecting to carry out their mandatory duties as stipulated in the Trust Deed.

3. Issues with the trust’s structure or intent

Challenges can also stem from the perceived purpose or effect of the trust:

• Sham trust: Arguing that the trust is not a genuine trust but a “sham” set up primarily to evade creditors, tax obligations, or other legal liabilities, especially if the settlor retained excessive control over the assets.
• Inadequate provision for dependents (testamentary trusts): If the trust was created through a will and it fails to make reasonable provision for a legally recognized dependent (e.g., a minor child or dependent spouse) under the Law of Succession Act (Cap 160).

In any dispute, the court will place significant emphasis on the terms of the Trust Deed, as it is the foundation that outlines the settlor’s intentions and the rules of the trust.

Talk to us at info@kenbizregistrars.com to draft a clear trust deed that stops future family court fights.

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1. The registration requirements

   Before applying to recruit workers, it is a must to legally register business as a limited company and the following requirements must be fulfilled;

   1. Company Structure: A Limited Liability Company must be registered.
   2. Share Capital: The company must have a minimum paid-up share capital of KShs 5,000,000 (5 million shillings).
   3. Company secretary: The company must have secretary who is in good standing with the institute of certified secretaries.
   4. KRA Registration: The company must procure a KRA PIN and a Tax Compliance Certificate.
2. National Employment Authority (NEA) License Requirements

   To recruit both locally and internationally, the directors must apply to the National Employment Authority and fulfil the following regulations:

   1. Physical office: the company must rent a fully furnished physical office space that is at least 225 square feet. The lease agreement must be stamped by a Commissioner for Oaths.
   2. County business permit: A valid single business permit must be obtained from the local county government for the office location.
   3. Company manager: A manager who holds a university degree in a business-related field and has at least 3 years of work experience.
   4. Director(s) qualifications: All directors must have at least an O-level certificate (KCSE or equivalent) certified by the Ministry of Education, valid Police Clearance Certificates (Certificates of Good Conduct), and copies of their IDs or passports.
   5. A performance security bond: of KShs 1,500,000 from a reputable bank or insurance company.
   6. Association membership: An agency must join an approved local association of private employment agencies.
3. License Fees

   Local and International Recruitment License Fee: the licensing fee ranges from KShs 250,000 for local recruitment and Kshs 500,000 for international recruitment per year.

Want to start your recruitment agency today? Contact Kenbiz Registrars at info@kenbizregistrars.com to handle your company registration and NEA licensing smoothly.

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Using silent structures or nominee setups to bypass citizen rules or to mask a foreign or non-qualifying individual’s ownership and leadership goes against procurement laws and will result in a rejected application during CR12 and beneficial ownership reviews.

Providing false details on official government documents to gain access to local tenders is against public procurement laws and can lead to penalties or blacklisting.

To be eligible for an AGPO certificate, a limited company must follow these rules for owners and leaders:

• Shareholders: At least 70% of the company’s shares must be owned by qualifying Kenyans under the Youth, Women, or PWD category. If a foreigner owns even 1% the company is disqualified.
• Directors: 100% of the directors must be qualifying Kenyan citizens. Having even one foreign director means the company fails the test.

What a company needs to register:

The following documents are mandatory to apply on the AGPO website:

1. Certificate of Incorporation: To prove your company is legally registered in Kenya.
2. Official CR12 Form: Issued by the Registrar of Companies, it confirms the current directors and shareholders.
3. Beneficial ownership form (BOF): it lists the ultimate owner of the company
4. KRA Documents:

• A valid KRA PIN – Proof that the company pays its taxes.
• Tax Compliance Certificate (TCC) – proof that the company is in good standing with KRA

5. Kenyan IDs or Passports: Clear copies for all listed directors and shareholders.
6. Special Licenses:

• This depends with the sector of operations eg: construction or energy, licensing body is NCA & EPRA).
• People living with disabilities applicants must also attach their NCPWD certificate.

Here is why trying to hide foreign involvement fails:

1. Strict Ownership Thresholds: Under Kenyan Public Procurement regulations, to qualify for AGPO as a youth-, women-, or PWD-owned enterprise, at least 70% of the company’s membership/shareholders must explicitly belong to the targeted demographic (e.g., Kenyan youth aged 35 and below, women, or persons with disabilities). A foreigner does not fit these statutory definitions.
2. Leadership and Control Mandates: Using silent structures or nominee setups to bypass citizen rules goes against procurement laws and will result in a rejected application during CR12 and beneficial ownership reviews.
3. Beneficial Ownership Disclosures (CR12): During the AGPO application process, regulatory bodies scrutinize the official company registration documents, including the CR12 and KRA tax profiles. Discrepancies between nominal leadership and actual beneficial ownership can lead to rejection or legal penalties for misrepresentation.

Talk to Kenbiz Registrars at info@kenbizregistrars.com today to check if your company qualifies for AGPO before you apply.

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When a property is transferred to a trust, it effectively changes the legal ownership of the asset from an individual name to the trust itself, managed by a trustee for the benefit of the chosen beneficiaries.

The good thing about Trusts, it offers powerful legal benefits that a standard will simply cannot match.

1. Avoiding probate: When one pass away, assets owned in their individual name must go through a court-supervised process called probate before they can be distributed to heirs. This can be slow, expensive, and public. Property held in a trust bypasses probate entirely, allowing for a seamless and private transfer to the family.
2. Asset protection: Depending on the type of trust you choose, putting property into a trust can shield it from future creditors, lawsuits, or even divorces within the family.
3. Control from beyond the grave: A trust allows one to set specific rules. Instead of an 18-year-old inheriting a multi-million-dollar property or cash outright, one can stipulate that they only receive distributions for college tuition, or that they receive their inheritance in stages (e.g., at ages 25, 30, and 35).
4. Tax efficiency: For high-net-worth families, certain irrevocable trusts can be used to drastically reduce or eliminate estate and gift taxes.

How the Process Works

1. Choose the Right Type of Trust

• Revocable Living Trust: The most common choice. In this case the grantor retains complete control over the property while alive. The grantor can sell it, change the rules, or dissolve the trust entirely. It avoids probate but offers limited asset protection from creditors.
• Irrevocable Trust: Once the grantor transfers the property, he gives up the control. The Grantor cannot easily change or dissolve the trust. However, because the property is no longer legally the grantors, it provides massive asset protection and tax benefits.

2. Draft the trust agreement

An estate planning advocate drafts a legal document outlining who the Grantor is (the trust owner), who the Trustee is (the manager of the property), and who the Beneficiaries are (your family).

3. Fund the trust

A trust is like an empty safe, it does nothing until something is put inside it. To transfer real estate, one must execute a new deed (warranty deed) that officially transfers ownership from the grantor’s name to the name of the trust. This deed must be recorded with land registry office.

Your hard earned property deserves more than a standard will. Secure your family’s legacy today. Contact Kenbiz Registrars at info@kenbizregistrars.com to set up your trust before it’s too late.

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Here is a breakdown of the typical legal process:

1. APPOINTMENT OF A TRUSTEEThe appointment of a new trustee can occur through several ways:
   1. Provisions in the Trust Deed: The Trust Deed (the document creating the trust) usually specifies the persons or entities with the power to appoint new or replace trustees (e.g., the Settlor, the continuing trustees, a Protector, or the beneficiaries). This is the primary and preferred method, as it aligns with the Settlor’s original intentions.
   2. Statutory Power (Trustee Act, Cap 167): Section 36 of the Trustee Act grants a statutory power to appoint a new trustee in specific circumstances, such as:
      1. where a trustee is dead,
      2. remains out of Kenya for more than twelve months,
      3. desires to be discharged,
      4. refuses to act; or
      5. is unfit to act or incapable of acting.

      This power is typically exercised by the surviving or continuing trustees, or by the personal representatives of the last surviving or continuing trustee.

   3. Appointment by the Court: The High Court has the power to appoint a new trustee if it is found to be inexpedient, difficult or impracticable to do so without the court’s assistance e.g., if there are no continuing trustees, or the process is deadlocked.An application is made to the High Court for an order appointing a new trustee.

   For trusts incorporated under the Trustees (Perpetual Succession) Act (Cap 164), the new appointment must be formally registered.

   The appointment documents are lodged with the BRS. This officially updates the public record of the trust’s office bearers.

2. REMOVAL OF A TRUSTEEThe removal of a trustee can happen through:
   1. Provisions in the Trust Deed: The Trust Deed can contain express powers for the removal of a trustee and often specifies the grounds for removal.
   2. Statutory Power (Trustee Act, Cap 167): Similar to appointment, the statutory power to appoint a new trustee under Section 36 implies a power to remove an existing trustee in circumstances like being unfit to act or incapable of acting.
   3. Removal by the High Court: The High Court has an inherent jurisdiction to remove a trustee, which is often done when there are disputes, allegations of misconduct, or a conflict of interest.The paramount consideration for the court is the welfare of the beneficiaries and the proper administration of the trust.

      Grounds for court removal often include:

      • Breach of trust or fiduciary duty.
      • Serious conflict of interest.
      • Irretrievable breakdown of the relationship between the trustee and the beneficiaries, which jeopardizes the proper execution of the trust.

Let Kenbiz Registrars handle the legal heavy lifting for you. We draft deeds of appointment or removal and handle High Court applications if needed.

Need to change a trustee? Email us at info@kenbizregistrars.com

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To address this limitation, the law permits shares to be held on behalf of a child by an adult, typically a parent or legal guardian. In such cases, the adult’s name appears in the company’s register of members, while the shares are held for the benefit of the child. The adult assumes the legal responsibilities associated with the shares, while the child remains entitled to the economic benefits, including dividends, and future proceeds from the shares.

While this arrangement is widely used, it presents certain risks. Where shares are held directly by a parent or guardian on behalf of a child, they may become entangled in the adult’s personal affairs, including debt claims, or legal disputes matters.

A more secure and effective structure is the use of a Family Trust. Under this arrangement, shares are registered in the name of the trust rather than in the name of an individual parent or guardian. This separates the shares from personal assets and provides an additional layer of protection for the child’s future interests.

A Family Trust also enables parents to establish clear rules governing the management and distribution of the shares. Trustees may, for example, apply dividends towards a child’s education, healthcare, maintenance, or welfare while retaining control of the shares until the child reaches a specified age or level of maturity. This ensures that valuable assets are managed prudently and, in the child’s, best interests.

From a corporate governance perspective, trusts provide greater certainty and operational efficiency. Trustees are legally empowered to make decisions, execute documents, and exercise shareholder rights on behalf of the trust. This enhances business continuity.

Family Trusts further serve as an effective succession-planning tool. Because a trust continues to exist independently of its founders, the shares remain protected even upon the death of a parent or guardian. This allows wealth and business interests to pass seamlessly to future generations without unnecessary delays, disputes, or disruption.

Don’t leave your children’s financial future to chance. At Kenbiz Registrars, we specialize in structuring robust Family Trusts that protect your business assets and seamlessly pass wealth to the next generation.

Email us: info@kenbizregistrars.com

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1. The Trustees (Perpetual Succession) Act (Cap 164): This law is about giving the trust an official, long life. Key benefits of its incorporation include:
   • the trustees is incorporated/ registered as a legal body). Once incorporated, the trust itself can own property, sign contracts, and sue or be sued in its own name. It ensures a simplified asset management as assets are registered in or transferred to the incorporated Trustees name and don’t remain in the individual trustees’ names.
   • The trust’s existence is uninterrupted: This ensures the trust continues indefinitely (perpetual succession), even if the individual trustees resign, becomes incapacitated or pass away. New Trustees are simply appointed, but the trust’s legal status and ownership of assets remain unchanged.
   • Protection from succession and probate: Assets are held by the legally incorporated trust, not by the individual family members (settlor or trustees). This Avoids court battles. Upon the death of the settlor or a trustee, the assets in the trust do not form part of their personal estate. This means the trust assets bypass the often lengthy, costly, and public process of probate (succession case). Wealth transfer to the next generation is smooth and immediate.
   • Stronger asset protection: Since the incorporated trust legally owns the assets, those assets are typically shielded from the personal risks of the settlor or trustees for example, creditors, bankruptcy claims, or personal divorce settlement. It secures the family wealth for the intended beneficiaries.
2. The Registration of Documents Act (Cap 285): This is the starting point for making the trust public and legal. It requires the Trust Deed (the master document that sets up all the rules for the trust) to be officially registered. Registering the Deed ensures it is on public record and legally recognized by the authorities.
3. The Income Tax Act & Tax Procedures Act: This law dictates the financial relationship between the trust and the government. It specifies how the income earned by the trust’s assets will be taxed and how money distributed to the beneficiaries will be taxed. Importantly, recent amendments under this Act provide key tax exemptions (for example, on certain education or medical payments) for registered family trusts in relation to Stamp Duty and CGT
4. The Trusts of Land Act, Cap 290: If the family trust holds land, this law kicks in. It governs how trustees manage and deal with land held in the trust. It ensures that land transactions, such as buying, selling, or leasing trust property, are done correctly and align with the terms of the trust and land laws.
5. The Law of Succession Act, Cap 160: This law ensures that the trust works smoothly with inheritance rules. It governs how an individual’s estate is distributed upon their death. While a living trust is set up to avoid the probate process of this Act, any assets not put into the trust will be governed by this law. For Testamentary Trusts (trusts created within a will), this Act provides the overall framework for their creation and execution after the settlor passes away.

This article is your starting point. For an in-depth, customized analysis of your family’s wealth structuring, please contact Kenbiz Registrars for a consultation.

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1. The Deciding Factor: Is Your Trust Revocable?

   The Trust Deed is your trust’s constitution, and its provisions dictate the winding-up pathway. The most critical starting point is determining if the trust is revocable or irrevocable.

   Trust Type

   Under current Cap 164, Sec 3A – winding-up implication;

   1. Revocable Trust (Living Trust) – Contains an express power of revocation in the deed. The settlor can unilaterally revoke by following the Deed’s procedure.
   2. Irrevocable Trust – No express power of revocation, or the Settlor is deceased. Cannot be unilaterally revoked; usually requires beneficiary consent or a Court Order.
   • Winding up a revocable family trust

     If the Trust Deed grants the Settlor the power to end the trust during their lifetime, the following steps are generally required:

     1. Written Declaration: The Settlor must execute a formal, legally binding declaration of revocation, explicitly stating the intent to terminate. This declaration must be formally served upon all serving Trustees.
     2. Asset Transfer (Defunding): Trustees must promptly transfer all trust assets (property, funds, etc.) back to the settlor or to the designated recipients named in the revocation document.
     3. Deregistration & dissolution: File the revocation declaration with the Registrar of the Business Registration Service (BRS) to remove the Deed from the public register.

     If the trust was incorporated under Cap 164, an additional application for dissolution of the corporate body must be made to the Registrar.

   • Winding up an irrevocable family trust

     Since the settlor cannot simply reclaim the trust, termination typically relies on one of these grounds:

     1. Termination by Consent

        If all beneficiaries meet two conditions:

        1. They are of legal age and full mental capacity.
        2. They are absolutely entitled to the entire beneficial interest: They can collectively agree to demand termination and immediate distribution, overriding future dates set in the Deed. This requires a legally binding deed of termination and release signed by all.
     2. Termination under the Trust Deed terms

        The trust automatically ends when a predetermined event occurs, such as:

        1. Final distribution to the last beneficiary:
        2. Death of the last person in a specified class (e.g., the last child reaching age 30).
     3. Termination by Court order

        The High Court of Kenya can intervene if:

        1. The trust’s purpose becomes impossible or illegal.
        2. The trust has become impractical or unworkable due to excessive costs.
        3. The trust was created through fraudulent means (e.g., to defraud creditors).
        4. There are just and equitable grounds, such as severe internal conflict.
2. Other key administrative requirements

   Regardless of revocability, these aspects must be addressed for a clean dissolution:

   1. Incorporated Trusts: If your trust gained corporate status under Cap 164, formal corporate dissolution is required in addition to winding up the trust itself. This includes a Trustee resolution and final application to the BRS after all debts are cleared.
   2. Role of the Enforcer: If the Deed appointed an Enforcer (to monitor compliance), their formal consent may be necessary to validate the termination, as they are guardians of the trust’s original purpose.
   3. Tax & Indemnity Clearance:
      1. Tax clearance: Trustees must settle all trust tax liabilities (including potential Capital Gains Tax upon asset disposal) and obtain a final certificate from the Kenya Revenue Authority (KRA).
      2. Indemnity: Obtaining a Deed of release and indemnity from all beneficiaries is the best practice to shield the trustees from future claims once the assets are distributed.

This write-up is designed to provide a foundational understanding of the legal landscape on trust winding-up principles.

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P.A.Y.E is a vital part of any company doing business in Kenya, understanding and following the rules for PAY AS YOU EARN (PAYE) in running a responsible business. PAYE is the system where an employer deducts income tax directly from the team’s salaries and sends it to the Kenya Revenue Authority (KRA).

What’s P.A.Y.E All About?

P.A.Y.E is an advance on the employee’s income tax. Employers in Kenya—whether in the public sector, a private company, or a non-profit who pay their team—are required to register for and manage P.A.Y.E. This covers all cash payments like wages, salaries, commissions, bonuses, and allowances. It also includes the value of non-cash benefits if they’re more than KShs 5,000 a month.

Why Does Your Company Need to Get P.A.Y.E?

For businesses, solid P.A.Y.E compliance brings several important upsides and helps to steer clear of big risks:

• It’s the law – avoid penalties: P.A.Y.E is a required deduction. If you don’t correctly calculate, deduct, and send PAYE by the 9th day of the following month, you’ll face penalties. This includes a 5% penalty on the amount due, plus 1% interest each month. Regularly missing payments can lead to audits, suspension of business licenses, and legal trouble.
• Build trust and boost reputation: Sending in P.A.Y.E on time and accurately (along with other required deductions like NSSF, SHIF, and the Housing Levy) builds trust with your employees, partners, and the KRA. It shows your business is well run and responsible, which can help when seeking funding or government contracts.
• Smoother employee relationships: Good P.A.Y.E management means your employees get the correct net pay and accurate pay slips. This reduces complaints, avoids disputes over underreported contributions, and promotes a healthy work environment. The Finance Bill 2025’s rule for employers to automatically apply all eligible tax reliefs (starting July 1, 2025) will ease the burden on employees.
• Help build the nation: By sending in PAYE, your company directly contributes to funding the government. This money supports essential public services, infrastructure, and social programs—playing a key role in Kenya’s growth.
• Easier tax paperwork (2025 updates): The KRA is simplifying tax processes. From July 2025, all employers must use a new Excel-based PAYE return tool. This, along with API integrations to systems like IFMIS, CBK, and GHRIS, will streamline tax handling—allowing you to manage PAYE, the Housing Levy, and SHIF more efficiently.

The Current Key Changes

• Automatic PAYE relief application: Employers must now apply all eligible tax reliefs directly during payroll processing, starting 1st July 2025. These include personal relief, insurance relief, and more.
• Simpler PAYE filing: KRA is introducing a new Excel-based return tool for monthly PAYE submissions.
• Updated NSSF rates: From February 2025, NSSF contributions will be split into two tiers with updated limits.
• Social Health Insurance Fund (SHIF): Replacing NHIF, SHIF contributions are 2.75% of the gross salary, with a minimum of KShs 300 and no cap.
• Housing Levy: Continues at 1.5% of the gross salary from both employer and employee.

Ready to Get Started?

Let us take control of your company’s tax affairs so you don’t have to. Our corporate tax experts are ready and waiting to help you plan and grow.

Inquire now: info@kenbizregistrars.com

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