Choosing an Enforcer: The Watchdog Role in Kenyan Trusts

A trust depends on trustees doing what the deed says, but trustees are rarely watched closely. Beneficiaries may be young, abroad, unaware of their rights or reluctant to challenge a relative. The Trust Administration Act, 2026 provides for an independent watchdog, the enforcer, whose job is to hold trustees to account. The role is optional, but for many family and purpose trusts it is one of the most valuable appointments a settlor can make. This guide explains what an enforcer does and how to choose one.

What an enforcer is

Under section 14, a settlor, or a beneficiary where there is no settlor, may appoint one or more persons as enforcers of a trust, subject to the trust deed. The appointment must be notified to the Registrar within 21 days (section 14(2)). The concept is not new to Kenyan law: enforcers were first introduced by the 2021 amendments to the now-repealed Trustees (Perpetual Succession) Act, and the 2026 Act sets out their role in more detail.

What an enforcer can do

Section 15(1) lists the enforcer’s functions, which may include:

• enforcing the terms of the trust deed;
• inquiring into the status of implementation of the trust;
• requiring the trustee to take remedial action where the deed has been breached;
• reporting financial or other breaches by the trustees to the settlor or beneficiaries; and
• pursuing legal action against the trustees, whether civil or criminal.

To do this, an enforcer has access to any document, trust deed, account or other information necessary for its functions (section 16). Trustees may also disclose trust information on an enforcer’s written request (section 49). The enforcer also has standing in other parts of the Act: if the deed is silent on appointing new trustees, an enforcer may apply to court to appoint them (section 38(2)), and trustee remuneration can be authorised with the written consent of an enforcer (section 60(1)(b)).

Limits on the role

• Independence. A person who is also a trustee cannot perform the enforcer’s functions (section 15(2)), and an enforcer who is appointed as a trustee ceases to be an enforcer (section 17(1)(e)).
• No profit. An enforcer must not directly or indirectly profit from the appointment, allow anyone else to do so, or enter into transactions with the trustees or involving trust property that could produce such a profit (section 15(3)).
• Protection. An enforcer is not liable in damages for acts or omissions in carrying out the role unless they arose from the enforcer’s own fraud, dishonesty or wilful misconduct (section 18). That protection makes it easier to find a willing enforcer.

Enforcer or reserved powers?

Settlors sometimes confuse the enforcer with the powers they can keep for themselves. Under section 13, a settlor may reserve powers to vary the trust, direct distributions, give directions on trust property, and appoint or remove trustees, enforcers and trust agents, and may delegate those powers to another person (section 13(3)). Those are powers to direct the trust. An enforcer’s role is different: it supervises the trustees and enforces the deed, but does not run the trust or make decisions for it. Many well-structured trusts use both, with the settlor, or a trusted person to whom powers are delegated, holding the power to appoint and remove trustees, and an independent enforcer checking that the trustees follow the deed. Keeping the two roles with different people avoids the enforcer marking its own homework.

When an enforcer matters most

• Purpose trusts. A non-charitable purpose trust has no beneficiaries to hold trustees to account, so an enforcer is the only practical check. Our guide to non-charitable purpose trusts explains why.
• Trusts for minors or vulnerable beneficiaries, who cannot monitor the trustees themselves.
• Diaspora families, where the beneficiaries live far from the trust’s assets. See our guide to running a Kenyan family trust from abroad.
• Family trustees. Where a relative is sole trustee, an independent enforcer reduces the risk of conflict and of assets drifting towards one branch of the family.

Choosing the right enforcer

A good enforcer is independent of the trustees, understands financial statements and trust documents, and is likely to be available for the life of the trust. Common choices are a trusted family adviser, an accountant or advocate, or a professional firm. The deed should cover:

• who appoints and removes the enforcer, and how a replacement is chosen when the settlor is no longer alive, since an enforcer ceases on resignation, death, removal by the appointing authority or the court, or under the deed’s own terms (section 17);
• which of the section 15 functions the enforcer has, and whether any are excluded;
• how often the trustees must report to the enforcer; and
• whether and how the enforcer is paid, bearing in mind the rule against profiting from the role.