Pension Scheme Trusts and Kenya’s Trust Administration Act 2026: What Trustees Need to Know

Almost every occupational pension and provident scheme in Kenya is a trust. The Retirement Benefits Act requires it: every scheme, other than one established by a written law, must be established under an irrevocable trust (section 26(1)), and the Retirement Benefits Authority will not register a scheme unless it is (section 24(1)(a)). The Trust Administration Act, 2026, in force since 25 September 2026, now governs trusts generally. It does not mention pension or retirement benefit schemes at all. Scheme trustees, sponsors and corporate trustees need to work out how the two regimes fit together.

The existing framework under the Retirement Benefits Act

• Registration. No person may establish a retirement benefits scheme except in accordance with the Retirement Benefits Act and under a certificate issued under it, and no one may act as a manager, corporate trustee, custodian or administrator without registration (section 22).
• Irrevocable trust. A scheme cannot be registered unless it is to be established under an irrevocable trust and its rules adequately protect sponsors and members (section 24(1)).
• Trustee fitness. A person cannot be a trustee of a scheme fund if, among other things, they have been sentenced to six months’ imprisonment or more, are bankrupt, or were involved in managing a scheme that was deregistered for mismanagement (section 26(2)).

That is a detailed, sector-specific regime supervised by a dedicated regulator. The question is what the new Act adds.

Does the Trust Administration Act apply to pension schemes?

There is no express exemption. The Act’s only exemption route is for charitable trusts, which may apply to the Attorney-General (section 95). Two provisions point towards the Act applying:

• Section 3(1) applies the Act to trusts “created by or under any other written law”. A scheme trust is created because the Retirement Benefits Act requires it, which arguably brings it within that description.
• Section 5 requires every written trust to be registered or incorporated under the Act, on pain of being unenforceable (section 5(3)), and a scheme’s trust deed is a written trust.

Against that, section 3(2) provides that nothing in the Act limits, invalidates or otherwise affects a trust arising under any written law. A scheme trust that exists because the Retirement Benefits Act requires it can therefore argue that its validity does not depend on registration with the Registrar of Trusts.

On our reading, the most defensible position is that the Act’s general provisions can apply to scheme trusts alongside the Retirement Benefits Act, but that section 3(2) protects scheme trusts from being invalidated simply because they have not registered with the Registrar of Trusts. That is a view, not a settled position, and it has not been tested.

The practical problems if full registration applies

• Beneficial ownership. Every trust must keep and lodge a register of beneficial owners and lodge changes within 21 days (sections 65 to 67). For a scheme with thousands of members joining and leaving every month, a literal application would be unworkable, which suggests Parliament did not have pension schemes in mind.
• Two registrars. Schemes would answer both to the Retirement Benefits Authority and to the Registrar of Trusts within the Business Registration Service (section 77), with separate filings and annual returns (section 75).
• Trustee rules. The Act’s disqualification grounds (section 36) and the Retirement Benefits Act’s (section 26(2)) overlap but are not identical, so trustees would need to satisfy both.

Corporate trustees

Corporate trustees of schemes are already registered under the Retirement Benefits Act (section 22(2)). Under the Trust Administration Act, an entity qualifies as a corporate trustee if, among other things, it is licensed to act as such under any other relevant written law (section 36(3)(c)). Registration with the Retirement Benefits Authority appears to fit that description, which would avoid a second licensing process. The Act also requires a corporate trustee to have a local contact person who is a natural person resident in Kenya (section 36(4)), which most scheme corporate trustees will already have.

What scheme trustees should do now

1. Record a position. Take advice and minute the board’s position on whether and how the Act applies to the scheme.
2. Review the trust deed and rules against the Act’s content requirements for trust deeds (section 23), since some provisions, such as a clear process for appointing and removing trustees, are good practice regardless.
3. Engage the regulator. Industry associations and the Retirement Benefits Authority are the natural route to seek clarity from the Attorney-General, who may make Regulations under section 96.
4. Watch the transition window. Existing trusts must comply with the Act within 24 months of commencement, or such time as the Registrar directs (section 99(2)(b)). If the position is not clarified, schemes should plan to be ready well before that deadline.

The same uncertainty affects security trusts in lending, discussed in our article on security trustees and the Trust Administration Act.