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How to start an environmental trust in Kenya

How to start an environmental trust in Kenya.

  1. To come up with a vision for the Trust – the purpose of the trust, the beneficiaries, the future short and long-term goals. Potential stakeholders consultative process.
  2. Appointing a steering committee to kick-start the project. Experts and interested parties who can secure funding, essential agreements and meetings with agencies and donors. The committee should also be representative of stakeholders.
  3. To develop a list of potential donors and begin meetings to secure financial support for planning, development, incorporation expenses, legal fees among others.
  4. To redefine a more specific vision and strategy. The steering committee and the stakeholders should do this in an open transparent clear process based on their meetings and decisions.
  5. the role of the environmental trust fund in relation to national plans and strategies, civil societies, government and private sector.
  6. the legal structure of the fund (a trust or foundation)
  7. the governance structure and leadership to manage the trust       
  8. the partnerships and investments necessary to achieve the objectives
  9. the financial projections- how much is needed, plan for replenishing funds, seeking and managing donations.
  10. Draft a proposal with the conclusions on the above points to present to potential and existing donors, government officials and investment partnerships.
  11. Draft the Trust Deed necessary for registration and incorporation of the Trust. It is important to engage an Advocate or Lawyer to have this done based on the governing law of the place the trust is located and operational.
  12. Incorporate the Trust and elect the governing body of Trustees as well as hiring of employees.
  13. Ensure an initial meeting for all involved to introduce members and stakeholder to the governing body, compliance, rules, by laws, objectives and role of the Trust.

REQUIREMENTS FOR INCORPORATING THE TRUST IN KENYA

Registering an environmental trust in Kenya requires the initial Trust Deed and the following for incorporation:

  1. Name of the Trust or Foundation- (Official search is provided in the Schedule Form C of the Regulations)
  2. Main Object of the Trust. i.e Advancement of environmental protection or improvement
  3. Details of the donor of funds- name, address, description, ID card or passport, domicile/nationality
  4. The main beneficiaries of the trust and area of benefit (locality)
  5. The copies of Title documents of the immovable property of the trust showing physical location of the trust – the physical address, town, area, plot number
  6. An established Trust Fund
  7. A list of assets held by the trust/ in the absence a deed of donation indicating the properties to be donated to the trust
  8. The statement of funding from the donor stating commitment of funds.
  9. The start-up capital/initial amount or properties to be availed.
  10. The financial statement of the Trust
  11. Minutes appointing the trustees.
  12. The Trustees description:
  13. Names, addresses, description, ID card/ passport, domicile/nationality, resume or profiles, account statements, passport photos, PIN certificates, CRB clearances
  14. Standard or special administrative procedures in the administration of the    Trust.
  15. The Petition to the Minister of Lands for incorporation (FORM A- Schedule to Trustees (Perpetual Succession) Regulations, 1976)
  16. The Common Seal of the Trust. It should be rounded in shape and name of the trust inscribed

STEP 1: DRAFTING THE TRUST DEED

The Contents of the Trust Deed is as follows:

THE BACKGROUND

THE PREAMBLE

  1. THE NAME OF THE TRUST
  2. THE DEFINITIONS
  3. ESTABLISHMENT OF THE TRUST
  4. THE PUBLIC CAPITAL FUND
  5. THE AREA OF BENEFIT/ OPERATION
  6. THE VISION
  7. THE PRINCIPAL OBJECTIVES
  8. THE TRUSTEES
  9. INVESTMENTS
  10. PARTNERSHIPS
  11. MEMBERSHIP
  12. RULES OF THE TRUST
  13. ADMINISTRATION MATTERS
  14. Appointment of trustees
  15. Vacation of office of trustees
  16. Management of the trust
  17. Application of trust funds
  18. Operation of Trust accounts
  19. Audit of accounts
  20. Powers of the trustees
  21. Procedure of conducting meetings
  22. Amendment/ Alteration of the Trust deed or trust
  23. Dissolution, winding up or termination of the trust

14. COMPLIANCE

15. INDEMNITY

16. THE GOVERNING LAW

17. ADVISORY COMMITTEES

18. SIGNATURES AND EXECUTION

STEP 2: STAMP DUTY PAYMENT

The Trust Deed is to be submitted for stamp duty.

STEP 3: REGISTRATION OF DOCUMENTS

After stamping, the Deed is taken for registration under the RDA. Lodged at the Registry for Documents

STEP 4: INCORPORATION

A certified copy of the Trust Deed and a petition for incorporation is lodged at the Ministry of Lands. Issuance of the incorporation certificate may take between 3 to 6months for processing.

MATTERS TO NOTE

In Kenya,the statute governing trustees, their appointments, duties, powers and removal is the Trustee Act Cap 167.  Section 36 provides that a charitable trust may have more than 4 trustees. The rule as to the maximum of 4 trustees does not apply to an environmental trust may have more than 4. A trustee can either be an individual or a corporation. The court can always supervise the trustee and it does so through its inherent powers and through the power set out in the Trustee Act as well as Section 62 of the Civil Procedure Act for purposes of Public Trust.  The court does not administer the trust itself but it will constantly supervise and it has wide powers under the Trustee Act including:

  • In the management and administration itself for example by approving a certain sale or other transaction and in giving directions for the appointment of new trustees;
  • To permit variation in the trust and in doing so the court will have the best interests of all the beneficiaries in mind.

Registration and Incorporation of the trust to make it a body corporate is done under the Trustees (Perpetual Succession) Act.

To incorporate a trust in Kenya, please contact us on swanjiru@capitaregistrars.co.ke or by phone +254709747555.