Registered or Incorporated? How to Set Up a Family Trust Under Kenya’s Trust Administration Act 2026

Since 25 September 2026, every written trust in Kenya must be either registered or incorporated with the Registrar of Trusts. Under section 5 of the Trust Administration Act, 2026, a written trust that is neither is not enforceable, and a court may declare it invalid (section 6(1)(f)). For anyone setting up a family trust, the first practical decision is therefore which route to take. This guide explains the difference between a registered and an incorporated family trust and how to set one up.

What makes a family trust

Section 10 of the Act defines a family trust as a living or testamentary trust, registered or incorporated, created to plan or manage a personal estate. It must be made in contemplation of beneficiaries, for the preservation or creation of wealth across generations, and it must be a non-trading entity. Beneficiaries need not be related to the settlor, and the settlor may also be a beneficiary (section 10(3)), though never the sole beneficiary (section 12(3)). A family trust needs at least one trustee (section 11(2)), and where the trustees are individuals, at least one must be a Kenyan citizen or resident (section 11(3)). Our overview of the Trust Administration Act, 2026 covers the wider framework.

A registered trust

Registration under Part III is the lighter route. The application to the Registrar must include the trust deed, the prescribed fee, a copy of the register of beneficial owners and a statement of the initial trust property, together with details of the settlor, trustees, beneficiaries, any enforcer and the trust’s registered address (section 22). Once satisfied, the Registrar issues a certificate of registration showing the trust’s name ending in “Registered Trust”, a unique identification number, the date and the type of trust (section 24).

The key limitation is in section 27(2): a certificate of registration does not give the trust legal personality. The trust remains a relationship between settlor, trustees and beneficiaries. Property is held by the trustees, contracts are signed by the trustees, and when a trustee changes, title to assets such as land or shares has to be dealt with accordingly.

An incorporated trust

Incorporation under Part IV starts with reserving a name (section 28). The application then sets out the trustees, the type and purpose of the trust, the settlor, beneficiaries, beneficial owners, any enforcer and a registered address; for a family trust, that can be the address of a trust agent (section 29(1)). It is lodged with the trust deed, the prescribed fee, a statement of initial trust property and the register of beneficial owners (section 29(2)). The certificate of incorporation names the trust ending in “Incorporated Trust” (section 30).

From incorporation, the trust is a body corporate with perpetual succession, able to sue and be sued and to acquire, hold and dispose of property in its own name (section 32). That is the practical advantage: land and shares can be registered in the trust’s name, so changing trustees does not mean re-registering every asset.

Which route should you choose?

• Registration suits a simpler family trust holding cash, investments or a small number of assets, where the trustees are stable and the family wants the most straightforward compliance path.
• Incorporation suits trusts holding land, company shares or several assets over a long period, where trustees are likely to change and continuity of title matters.

The choice is not final. A registered trust can later apply for incorporation, providing the section 29 details, and on incorporation it ceases to exist as a registered trust and becomes a body corporate (section 33).

One tax point to weigh. The Income Tax Act and the Stamp Duty Act grant certain exemptions to a “registered family trust”, a term neither Act defines. Whether an incorporated family trust under the new Act falls within that term has not yet been tested. Our guide to choosing between a trust, a will and a company sets out the tax position in more detail.

Steps to set up a family trust

1. Settle the structure. Decide the trust’s purpose, the assets it will hold, the beneficiaries or class of beneficiaries, and whether the settlor will reserve powers under section 13, such as appointing trustees or directing distributions. Remember that a trust is irrevocable unless the deed expressly provides otherwise (section 7).
2. Choose trustees and an enforcer. Check each trustee against the qualification and disqualification rules in section 36 and the residency rule in section 11(3). Consider appointing an enforcer to hold the trustees to the deed (section 14).
3. Draft the deed. Section 23 lists what it must contain, including the trust’s type and purpose, the trust property, the initial trustees and their written acceptance, the process for appointing and removing trustees, and the beneficiaries. It must be executed by the settlor and trustees and witnessed, with the witness’s occupation and postal address.
4. Compile the beneficial ownership register. This is filed with the application and must be kept up to date (sections 65 to 67).
5. Apply to the Registrar, for registration or incorporation. The Registrar of Trusts sits within the Business Registration Service (section 77).
6. Transfer the assets. The trust exists on paper until property actually moves into it: land transfers, share transfers, bank accounts. Each transfer has its own formalities and possible stamp duty.
7. Keep it compliant. File annual returns within 30 days of each anniversary (section 75), lodge beneficial ownership changes within 21 days (section 67), and keep the records listed in section 63 for at least seven years.

A trust agent, defined in the Act as an advocate, certified secretary or certified accountant, can prepare the documents, lodge them and provide a registered address for a family trust (section 76).