Trust Deed (Kenya)
TRUST DEED
Trusts Act No. 11 of 2020 | Law of Contract Act Cap. 23
THIS TRUST DEED is made on [Deed Date]
BY:
[Settlor Name] (NIC: [Settlor ID Number]), of [Settlor Address] (the "Settlor");
IN FAVOUR OF:
(1) [Trustee One Name], of [Trustee One Address]; and
(2) [Trustee Two Name], of [Trustee Two Address];
(together the "Trustees")
FOR THE BENEFIT OF:
[Beneficiaries] (the "Beneficiaries").
RECITALS
A. The Settlor wishes to settle the Trust Fund (as defined below) on trust for the benefit of the Beneficiaries on the terms set out in this Deed.
B. The Trustees have agreed to act as trustees of the trust established by this Deed (the "Trust") on the terms of this Deed and in accordance with the Trusts Act No. 11 of 2020.
C. This Trust shall be known as [Trust Name] and shall be registered with the Registrar of Trusts under Section 35 of the Trusts Act No. 11 of 2020.
1. TRUST FUND
1.1 The Settlor hereby transfers to the Trustees the following property to be held on the trusts declared in this Deed (the "Trust Fund"):
[Initial Trust Fund]
1.2 Additional property: [Additional Property Power]. Where permitted, any person may transfer additional property to the Trustees, which shall be added to the Trust Fund upon acceptance by the Trustees in writing.
1.3 The Trustees acknowledge receipt of the Trust Fund and undertake to hold and administer it in accordance with the terms of this Deed and the Trusts Act No. 11 of 2020.
2. DECLARATION OF TRUST
2.1 The Trustees declare that they hold the Trust Fund on trust for the Beneficiaries in accordance with the terms of this Deed.
2.2 Trust type: [Trust Type].
2.3 Income distribution: [Income Distribution Terms].
2.4 Capital distribution and vesting: [Capital Distribution Terms].
2.5 This Trust shall endure for a maximum period of [Trust Duration], at the end of which the Trust Fund shall vest absolutely in the Beneficiaries then entitled.
3. TRUSTEES' POWERS
3.1 Investment: The Trustees shall have the power to invest the Trust Fund in accordance with the following scope: [Investment Scope], subject to the duty of care under Section 36 of the Trusts Act No. 11 of 2020 and the general investment power under Sections 40 to 45 of the Trusts Act No. 11 of 2020.
3.2 Delegation: The Trustees may delegate investment management to a professional investment manager under Section 47 of the Trusts Act No. 11 of 2020, subject to the terms of a written investment management agreement.
3.3 Professional trustee fees: [Professional Trustee Fee Power]. Where a professional trustee is appointed, the trustee shall be entitled to charge reasonable professional fees against the Trust Fund, as disclosed to the Beneficiaries.
3.4 Insurance: The Trustees may insure trust property under Section 53 of the Trusts Act No. 11 of 2020, and the insurance premiums shall be paid from the income or capital of the Trust Fund.
3.5 Trustee removal and appointment: [Trustee Removal Mechanism].
3.6 Protector: [Protector Name] is appointed as Protector of this Trust (if named above) with power to oversee the Trustees' exercise of discretions and to remove and replace Trustees in accordance with this Deed.
4. REGISTRATION AND TAX COMPLIANCE
4.1 Registration: The Trustees shall register this Trust with the Registrar of Trusts under Section 35 of the Trusts Act No. 11 of 2020 within 90 days of the date of this Deed.
4.2 KRA registration: The Trustees shall register the Trust with the Kenya Revenue Authority (KRA) and obtain a KRA PIN (Trust KRA PIN: [Trust KRA PIN]) to enable filing of annual income tax returns on behalf of the Trust under the Income Tax Act Cap. 470.
4.3 Land registration: Where trust property comprises land, the Trustees shall register the transfer of title at the relevant Land Registry under the Land Registration Act No. 3 of 2012 and pay applicable stamp duty under the Stamp Duty Act Cap. 480.
5. GOVERNING LAW AND DISPUTE RESOLUTION
5.1 This Trust Deed is governed by the laws of Kenya, including the Trusts Act No. 11 of 2020 and the Law of Contract Act Cap. 23.
5.2 Any dispute between Trustees and Beneficiaries shall be resolved by: [Dispute Resolution].
IN WITNESS WHEREOF, the Settlor has executed this Trust Deed on the date first written above, and the Trustees have signified their acceptance of the trusts hereby declared.
Settlor
________________
Signature
Trustee 1
________________
Signature
Trustee 2
________________
Signature
Witness
________________
Signature
What Is a Trust Deed (Kenya)?
A Trust Deed in Kenya conveys rights in land or assets, taking effect once executed by the parties to it.
A Kenya Trust Deed is distinct from a Will, which takes effect only upon death and must be probated under the Law of Succession Act Cap. 160 before the High Court of Kenya, Succession Division. A Trust Deed can be constituted during the settlor's lifetime (an inter vivos trust) and takes effect immediately upon execution, without the need for probate or grant of letters of administration. This characteristic makes a Trust Deed a powerful estate-planning tool for Kenyan families wishing to provide for minor children, dependants with special needs, or future generations.
The Trusts Act No. 11 of 2020 is administered by the Registrar of Trusts operating under the Office of the Attorney-General and Department of Justice. Private trusts holding immovable property in Kenya must be registered with the Registrar of Trusts under Section 35 of the Trusts Act No. 11 of 2020. Charitable trusts, defined in Section 2 of the Act as trusts established for purposes beneficial to the public, are additionally regulated by the Non-Governmental Organisations Co-ordination Bureau and must comply with the PBO Act (Public Benefit Organisations Act) where applicable.
A Trust Deed in Kenya frequently involves immovable property. Where trust property includes land, the transfer of legal title from the settlor to the trustee must comply with the Land Registration Act No. 3 of 2012 and the Land Act No. 6 of 2012, both administered by the Ministry of Lands and Physical Planning. The Stamp Duty Act Cap. 480, administered by the Kenya Revenue Authority (KRA), imposes stamp duty on instruments transferring property into trust at rates applicable to conveyances of land.
The Income Tax Act Cap. 470 treats a trust as a separate taxpayer in Kenya. The trustee is required to register the trust with the KRA, obtain a KRA PIN for the trust, and file annual income tax returns on behalf of the trust. Income accumulated within the trust and distributed to beneficiaries may have different tax treatment depending on the nature of the income and the residency of the beneficiary. The Kenya Revenue Authority has issued practice notes on trust taxation relevant to settlors and trustees.
The Trusts Act No. 11 of 2020 grants trustees broad powers of investment, delegation, and administration under Sections 40 to 55, including the power to invest trust funds in any form of property, to delegate investment management to a professional investment manager, and to insure trust property. Trustees owe a fiduciary duty to act in the best interests of the beneficiaries and must exercise the care and skill of a reasonably prudent person of business managing the affairs of another under Section 36 of the Trusts Act No. 11 of 2020.
When Do You Need a Trust Deed (Kenya)?
A Trust Deed in Kenya is required in several distinct circumstances where the outright transfer of assets to a beneficiary is impractical, premature, or undesirable.
A Trust Deed is needed when a Kenyan parent or grandparent wishes to set aside assets — cash, land, shares, or business interests — for minor children who cannot legally hold property in their own names. Under the Law of Succession Act Cap. 160 and the Trusts Act No. 11 of 2020, a trustee manages and preserves the assets until each beneficiary attains the age of majority (18 years) or such other age as the settlor specifies in the deed.
A Trust Deed is required when a settlor wishes to establish a family trust to hold the family home or ancestral land in Nairobi, Mombasa, Kisumu, or elsewhere, preventing fragmentation of the asset upon the settlor's death and avoiding the delays and costs associated with succession proceedings before the High Court of Kenya, Succession Division.
A Trust Deed is needed when a Kenyan employer or business owner establishes an employee benefit trust — for example, a share incentive trust or a pension accumulation vehicle — for the benefit of employees. Such trusts provide tax-efficient structures recognised under the Income Tax Act Cap. 470 when properly constituted and registered with the KRA.
A Trust Deed is required when an individual with dependants who have disabilities or special needs wishes to confirm that assets are managed professionally and continuously for the lifetime of the dependant, without the assets being treated as the dependant's own property for means-testing purposes.
A Trust Deed is needed whenever a High Court of Kenya order directs that money or assets awarded to a minor or a person under a legal disability be held on trust pending the beneficiary attaining capacity. Court-ordered trusts in Kenya are administered by trustees appointed by the court and governed by the Trusts Act No. 11 of 2020 and the Civil Procedure Act Cap. 21.
A Trust Deed is also required when a Kenyan entrepreneur restructures a family business into a trust structure to confirm business continuity across generations, providing a framework for governance and succession that a company constitution alone cannot achieve.
What to Include in Your Trust Deed (Kenya)
A Kenya Trust Deed under the Trusts Act No. 11 of 2020 must contain the following essential elements to be valid, registrable, and administratively sound.
Parties and Identification: Full legal names and addresses of the settlor (the person creating the trust), each trustee (at least two individual trustees or one licensed corporate trustee are recommended for private trusts under Section 17 of the Trusts Act No. 11 of 2020), and each named beneficiary. Where beneficiaries are a class — for example, "all grandchildren of the settlor living at the date of distribution" — the class must be defined with sufficient certainty to satisfy the certainty of objects requirement under Section 5 of the Trusts Act No. 11 of 2020.
Trust Property (Trust Fund): A precise description of all assets settled on trust at the date of the deed, including the title number and description of any land transferred, the share certificate numbers and issuing company of any shares, and the account number and bank of any cash. Under the Land Registration Act No. 3 of 2012, a transfer of land into trust must describe the property by reference to the registered title.
Declaration of Trust and Trusts Act Compliance: An express declaration that the trustees hold the trust fund on the trusts and subject to the powers declared in the deed, with reference to the Trusts Act No. 11 of 2020 as the governing statute. The declaration must demonstrate intention, certainty of subject matter, and certainty of objects as required by Section 5 of the Trusts Act No. 11 of 2020.
Trustees' Powers: The powers granted to trustees must be set out, including the power to invest under Sections 40 to 45 of the Trusts Act No. 11 of 2020, the power to delegate investment management under Section 47, the power to insure trust property under Section 53, and the power to charge professional fees where a corporate trustee is appointed. Trustees must exercise these powers in accordance with the duty of care under Section 36 of the Trusts Act No. 11 of 2020.
Distribution to Beneficiaries: The terms on which income and capital are to be distributed — including whether distributions are at the trustee's discretion (a discretionary trust) or mandatory at specified ages or events (a fixed-interest trust) — must be stated with precision. The deed should address the accumulation of income, the power to advance capital, and the ultimate distribution on vesting.
Registration and KRA Compliance: The deed must be executed before an advocate of the High Court of Kenya and presented for registration with the Registrar of Trusts under Section 35 of the Trusts Act No. 11 of 2020. The trust must be registered with the Kenya Revenue Authority (KRA) under the Income Tax Act Cap. 470 and a KRA PIN obtained.
Governing Law and Dispute Resolution: The Trust Deed is governed by the laws of Kenya, specifically the Trusts Act No. 11 of 2020 and the Law of Contract Act Cap. 23. Disputes between trustees and beneficiaries may be referred to the High Court of Kenya under the Trusts Act or resolved by arbitration under the Arbitration Act No. 4 of 1995 before the Nairobi Centre for International Arbitration (NCIA). The forms-legal.com Kenya Trust Deed template covers all mandatory elements required under the Trusts Act No. 11 of 2020, including trustee powers, beneficiary classes, and registration provisions, making it suitable for family trusts, property trusts, and employee benefit trusts across all 47 counties of Kenya.
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howpublished = {\url{https://forms-legal.com/kenya/estate-planning/trusts/trust-deed-kenya}},
note = {Free legal document template}
}Also available for these jurisdictions:
Frequently Asked Questions
A Trust Deed in Kenya is primarily governed by the Trusts Act No. 11 of 2020, which replaced the Trustees Act Cap. 167 and introduced a modern, detailed framework for trust creation, administration, and termination in Kenya. Section 5 of the Trusts Act No. 11 of 2020 sets out the formal requirements for a valid express trust: the trust must be evidenced in writing, the settlor must have legal capacity, the trust property must be identifiable, the objects must be sufficiently certain, and the intention to create a trust must be clear. Beyond the Trusts Act, a Kenya Trust Deed involving land must comply with the Land Act No. 6 of 2012 and the Land Registration Act No. 3 of 2012. Trusts holding income-producing assets must comply with the Income Tax Act Cap. 470 and must file annual tax returns with the Kenya Revenue Authority (KRA). The Stamp Duty Act Cap. 480 applies to the conveyance of property into the trust. The Law of Contract Act Cap. 23 governs the general contractual obligations imposed on the parties to the deed.
Yes. Private trusts holding immovable property in Kenya must be registered with the Registrar of Trusts under Section 35 of the Trusts Act No. 11 of 2020, which operates under the Office of the Attorney-General and Department of Justice. Registration provides public notice of the trust and is required before trust property comprising land can be registered in the names of the trustees at the Land Registry under the Land Registration Act No. 3 of 2012. Charitable trusts have additional registration requirements under the Non-Governmental Organisations Co-ordination Bureau. The Trust Deed must be executed before an advocate of the High Court of Kenya, and stamp duty under the Stamp Duty Act Cap. 480 must be paid before registration. The trust must also be separately registered with the Kenya Revenue Authority (KRA) to obtain a KRA PIN for the trust, which is required for filing income tax returns and for opening a bank account in the name of the trust. Failure to register does not necessarily invalidate the trust between the parties, but it prevents the trust from asserting its interests against third parties.
The Trusts Act No. 11 of 2020 does not prescribe a mandatory minimum number of trustees for a private trust, but best practice — and the conventional guidance of advocates practising in trust law in Kenya — is to appoint at least two individual trustees or one licensed corporate trustee. Appointing a sole individual trustee creates practical difficulties: the sole trustee cannot give a valid receipt for capital money arising from a sale of land under the Land Registration Act No. 3 of 2012, which requires at least two trustees or a trust corporation to provide a valid overreaching receipt. Section 17 of the Trusts Act No. 11 of 2020 provides for the appointment and removal of trustees and establishes procedures for filling vacancies. The Trust Deed should always include a mechanism for appointing replacement trustees to avoid the trust being wound up prematurely due to the death, incapacity, or resignation of a trustee. Corporate trustees — typically professional fiduciary companies licensed to act as trustees in Kenya — provide continuity and professional management but charge fees that must be budgeted for in the trust structure.
Yes, an inter vivos Trust Deed — one created and constituted during the settlor's lifetime — is one of the most effective tools for avoiding the delays and costs of succession proceedings before the High Court of Kenya, Succession Division, under the Law of Succession Act Cap. 160. Assets transferred into a constituted trust before the settlor's death no longer form part of the deceased estate subject to probate. The trustees continue to hold and manage the trust assets after the settlor's death in accordance with the terms of the Trust Deed, without any interruption or need for a grant of probate or letters of administration. This is particularly valuable in Kenya, where succession proceedings can take several years, leaving dependants without access to family assets. However, the Trust Deed must be properly constituted during the settlor's lifetime — the trust property must actually be transferred to the trustees, not merely promised — to be effective as an estate-planning tool. A Trust Deed that is not yet fully constituted (i.e. The assets have not been transferred) does not shield assets from the Law of Succession Act Cap. 160.
A trust is treated as a separate taxpayer in Kenya under the Income Tax Act Cap. 470. The trustee is required to register the trust with the Kenya Revenue Authority (KRA), obtain a KRA PIN for the trust, and file annual income tax returns disclosing the income earned by the trust fund. Income earned by the trust and accumulated (not distributed) is assessed to income tax at the rate applicable to a resident trust — currently 30% for a non-charitable trust. Income distributed to beneficiaries is treated as income of the beneficiary in the year of distribution, and the trustee must withhold applicable taxes before remitting the distribution. Capital gains arising from the disposal of trust assets are subject to Capital Gains Tax (CGT) at 15% under the Income Tax Act Cap. 470, as amended by the Finance Act 2023. The transfer of property into trust on constitution of the trust is a disposal for CGT purposes, though rollover relief may apply in certain family trust structures. Stamp duty under the Stamp Duty Act Cap. 480 is payable on the instrument of transfer of property into the trust. Settlors and trustees should obtain specific tax advice from a certified public accountant or tax advocate registered with the Institute of Certified Public Accountants of Kenya (ICPAK).
Whether a Trust Deed in Kenya can be varied or revoked depends on its express terms and the type of trust. An irrevocable trust — which is the norm for estate-planning trusts in Kenya — cannot be revoked by the settlor alone once constituted. Section 55 of the Trusts Act No. 11 of 2020 provides that a trust may be varied or terminated with the written consent of all beneficiaries who are of full legal capacity, are ascertained, and together hold the entire beneficial interest in the trust property (the rule in Saunders v Vautier as received into Kenyan trust law). Where there are minor or unborn beneficiaries, the consent of the High Court of Kenya is required for any variation under the Trusts Act No. 11 of 2020 and the Variation of Trusts Act (as applied by the Kenyan courts). A revocable trust — where the settlor reserves the power to revoke — offers less asset-protection and estate-planning benefit, since the assets may be regarded as still belonging to the settlor for succession and tax purposes. The Trust Deed should expressly state whether it is revocable or irrevocable to avoid ambiguity.
A Trust Deed establishes a private trust for the benefit of identified individuals or a defined class of private beneficiaries — typically family members, employees, or associates of the settlor. A Charitable Trust Deed, by contrast, establishes a trust for purposes that are beneficial to the public under Section 2 of the Trusts Act No. 11 of 2020, such as the relief of poverty, the advancement of education, the promotion of religion, or other community purposes. Charitable trusts in Kenya enjoy significant advantages: they are exempt from income tax under the Income Tax Act Cap. 470 on income applied exclusively for charitable purposes, and may qualify for stamp duty exemptions. However, charitable trusts are subject to additional regulatory oversight — they must register with the Non-Governmental Organisations Co-ordination Bureau under the NGO Co-ordination Act Cap. 134 or with the Registrar of Societies depending on their structure, and they must comply with public benefit organisation requirements. The governance and accountability requirements for charitable trusts are more onerous than for private trusts. A settlor wishing to endow a school, hospital, or community fund in Kenya should use a Charitable Trust Deed rather than a private Trust Deed.
This template is provided for informational purposes only and does not constitute legal advice. Laws vary by jurisdiction and change over time. Consult a qualified attorney for advice specific to your situation.Full disclaimer
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