Public Trustee Act

Section 1. Short title Section This Act may be cited as the Public Trustee Act.

Section 2. Interpretation Section who is no longer in communication or contact with those persons who the missing person would likely or ordinarily be in communication or contact with; or

Section 3.[Repealed by ActNo. 6 of 2018, s. 4.]

Section 4. Provisions of this Act to prevail Section Where there is a conflict between any of the provisions of this Act and those of the Law of Succession Act ( Cap. 160 ), the provisions of this Act shall prevail, unless it is expressly provided to the contrary in the Law of Succession Act ( Cap. 160 ). [Act No. 10 of 1976 , s. 4.]

Section 5. Appointment of Public Trustee Section The Attorney-General may appoint a fit and proper person to be Public Trustee (hereinafter referred to as the Public Trustee), and may also appoint one or more Deputy Public Trustees and one or more Assistant Public Trustees to assist the Public Trustee; and any Deputy or Assistant so appointed shall, subject to any general or special orders of the Public Trustee, be competent to discharge any of the duties and to exercise any of the powers of the Public Trustee, and when discharging those duties or exercising those powers shall have the same privileges and be subject to the same liabilities as the Public Trustee. [Act No. 28 of 1961 , Sch., L.N. 168/1964, Sch., Act No. 11 of 1993 , Sch., Act No. 6 of 2018 , s. 5.]

Section 2A. Objects of the Act Section a manager, administrator, executor or trustee;

Section 5A. Qualification for appointment as a public trustee Section has at least fifteen years' experience as a legal practitioner or is a distinguished academic in the legal field; or

Section 5B. Office of the Public Trustee to be a body corporate Section shall be a body corporate with perpetual succession and a common seal;

Section 5C. Missing persons Section 5C(1)(a) declare the person to be a missing person; and Section 5C(1)(b) part of the property of the missing person; or Section 5C(1)(b)(i) part of the property of the missing person; or Section 5C(1)(b)(ii) the missing person's property generally. Section 5C(2)(a) administer and may with the consent of the court sell, dispose of or otherwise deal with the property or any portion of it; and Section 5C(2)(b) money that the missing person might otherwise have been liable to pay; and Section 5C(2)(b)(i) money that the missing person might otherwise have been liable to pay; and Section 5C(2)(b)(ii) a spouse or dependant of the missing person; Section 5C(3)(a) on production of the order or a certified copy of the order referred to in subsection (1); and Section 5C(3)(b) on production of an instrument effecting a disposition of immovable property under subsection (2), Section 5C(4)(a) where the missing person is located, return the property to the person; or Section 5C(4)(b) where it is determined that the missing person is deceased, administer the estate or transfer the property to the personal representative of the person's estate. Section 5C(5) Wher...

Section 5D. Payment of money for adults incapable of taking decisions by virtue of age, infirmity or other reasons to be determined by court Section 5D(1) On application, the court may appoint the Public Trustee to act as a guardian for adults who are incapable of taking decisions by virtue of age, infirmity or any other reason that may be considered by the court. Section 5D(2) Where any amount of money becomes payable to any person described under subsection (1), the amount may be paid to the Public Trustee. Section 5D(3) The Public Trustee shall charge fees under this section in accordance with any Rules made under the Act. [Act No. 6 of 2018 , s. 6.]

Section 5E. Public Trustee Investment Board Section 5E(1) There is established an Investment Board to be known as the Public Trustee Investment Board. Section 5E(2)(a) the Solicitor-General as the Chairperson; Section 5E(2)(b) the person for the time being in charge of public investment and portfolio management at the ministry responsible for matters relating to finance or a designated representative; Section 5E(2)(c) one advocate having at least ten years' experience nominated by the Law Society of Kenya; Section 5E(2)(d) one of whom shall be of opposite gender from the other two; Section 5E(2)(d)(i) one of whom shall be of opposite gender from the other two; Section 5E(2)(d)(ii) not being public officers; and Section 5E(2)(d)(iii) not being full time employees or directors of a public company; and Section 5E(2)(e) the Public Trustee. Section 5E(3) The members of the Board under subsection 2(c) and (d) shall be appointed by the Attorney-General. Section 5E(4) The Investment Board shall meet as often as may be necessary for the dispatch of its business but there shall be at least four meetings of the Board in any financial year. Section 5E(5) The Board shall submit quarterly report...

Section 5F. Functions of the Investment Board Section review and oversee matters pertaining to the investment of estate and trust funds;

Section 5G. Receipt of payments by Public Trustee Section The Public Trustee may receive payments of compensation under the Work Injury Benefits Act (Cap. 236), Pensions Act ( Cap. 189 ), Civil Servants Group Accident Insurance Scheme and any other payment arising from compensation as a result of an accident and administer the funds as prescribed. [Act No. 6 of 2018 , s. 6.]

Section 6. Grant to Public Trustee Section 6(1) Where a report of action taken under section 46 of the Law of Succession Act ( Cap. 160 ) has been made to the Public Trustee, or where the Public Trustee has been informed of the death of any person in Kenya and has been requested to take action in respect of the deceased’s estate by any person appearing to have a legitimate interest in the succession to, or administration of, the estate, the Public Trustee shall cause further inquiries to be made as to the estate of the deceased. Section 6(2)(a) the person died intestate; Section 6(2)(b) the deceased, having made a will devising or bequeathing his estate or any part thereof, has omitted to appoint an executor; Section 6(2)(c) the person or persons named as executor or executors in the will of the deceased are dead or have renounced probate thereof or otherwise are unable or unwilling to act; Section 6(2)(d) probate of the will of the deceased or letters of administration with the will annexed to the deceased’s estate has or have not been obtained within six months from the date of the death of the deceased; Section 6(2)(e) the deceased has appointed the Public Trustee as an executor...

Section 7. Grant to Public Trustee in certain circumstances Section Where the particular circumstances of any case appear to the court so to require, the court may, if it thinks fit for reasons recorded in its proceedings, of its own motion or otherwise, after having heard the Public Trustee, grant under the Law of Succession Act ( Cap. 160 ) letters of administration to the Public Trustee notwithstanding that there are persons who, under that Act or any other written law, would in the ordinary course be legally entitled to administer the estate of the deceased person concerned in preference to the Public Trustee. [Act No. 10 of 1976 , s. 6.]

Section 8. Administration of deceased’s estate without grant Section 8(1) Where the estate of a deceased person consists of property of an estimated gross value not exceeding three million and the deceased has died intestate or left a will in such circumstances that the Public Trustee may apply for a grant of probate or letters of administration pursuant to section 6 , the Public Trustee may take possession of, and administer the estate of, the deceased person without making an application under the Law of Succession Act ( Cap. 160 ), to the court for probate or letters of administration, as the case may be, and no court fees shall be chargeable in respect of any such estate. Section 8(1A) Where the Public Trustee takes possession of an estate under subsection (1), the Public Trustee shall draw a Certificate of Summary Administration entitling him or her to administer and distribute the estate. Section 8(2) Where the estate of a deceased person consists of property of an estimated gross value not exceeding one hundred thousand shillings, the Public Trustee, on the application of any person to whom probate or letters of administration, as the case may be, might be granted under the...

Section 9. Grant to Public Trustee may be revoked and made to other person Section 9(1) At any time after a grant of letters of administration to the Public Trustee under this Act, any person to whom the court might have committed administration if no such grant had been made may apply to the court for revocation of the grant and for a grant to himself of probate of the will or letters of administration; but no such application shall be made until seven days after notice in writing of intention to make it has been given to the Public Trustee. Section 9(2) Upon such application the court, after hearing the Public Trustee if he appears, may revoke the grant to the Public Trustee and grant probate or letters of administration to the applicant subject to such limitations and conditions as the court thinks fit: Provided that letters of administration granted to the Public Trustee shall not be so revoked unless the application is made within six months after the grant to the Public Trustee and the court is satisfied that there has been no unreasonable delay in making the application, or in transmitting the authority under which the application is made. Section 9(3) Upon a revocation and...

Section 10. Public Trustee to take charge of property on death of agent Section If at any time the agent or agents in charge of any estate belonging to any person not residing in Kenya die leaving the property without any responsible person in charge thereof, the Public Trustee shall, when that fact comes to his notice, apply to the court for an order to take charge of the property, and the court shall make such order in the case as it thinks fit.

Section 11. Disputes to be decided on petition by the court Section in any case in which it appears to be not desirable that the matter in question should be so decided, the court may direct such proceedings to be instituted as appear proper for the due decision thereof;

Section 12. Movable property to be realised Section 12(1) The Public Trustee may convert into money all movable property of an estate which he administers under this Act, and may with the consent of the court convert into money all or any part of the immovable property of the estate: Provided that if all parties interested in the immovable the property consent in writing to its conversion into money by the Public Trustee, or if the value of that property does not exceed five hundred thousand shillings and the Public Trustee is satisfied that the conversion of that property into money would be to the advantage of the estate, the consent of the court shall not be necessary. Section 12(2) The Public Trustee shall cause advertisements to be published in the Gazette and in such other manner as he deems expedient calling upon the creditors of the person whose estate he is administering under section 8 (1) of this Act to come in and prove their debts before him within the space of thirty days from the date of publication: Provided that where the value of an estate is within the jurisdiction of a resident magistrate or a district magistrate under the Law of Succession Act ( Cap. 160 ), it...

Section 13. Priority of Public Trustee’s fees and expenses Section Notwithstanding any rule of law to the contrary, the fees payable to the Public Trustee under this Act and any rules made thereunder and any court fees and realization expenses and other charges incurred by the Public Trustee in collecting and realizing the assets of the estate of a deceased person shall rank for payment after any funeral expenses and death-bed charges of the deceased but in priority to all other expenses and to the debts for which the deceased was liable. [Act No. 15 of 1951, s. 2, L.N. 168/1964, Sch., Act No. 10 of 1976 , s. 11.]

Section 14. Court may order partition of immovable property Section 14(1) Any person beneficially interested in any immovable property vested in the Public Trustee may apply by petition to the court for a partition thereof, and the court, if satisfied that partition would be beneficial to all persons interested, may appoint one or more arbitrators to effect it. Section 14(2) The report and final award of the arbitrators, setting out the particulars of the immovable property allotted to each of the parties interested, shall, when signed by them and confirmed by order of the court, be effectual, without any further conveyance, to vest in each allottee the immovable property so allotted; and, if the allotment be made subject to the charge of any money payable to any other interested party for equalising the partition, the charge shall take effect according to the terms and conditions in regard to time and mode of payment and otherwise which shall be expressed in the award.

Section 15. Power to collect, realize and hand over assets to Administrator-General Section 15(1) Where a person dies leaving estate in Kenya consisting of movable property only and also estate in Uganda, Tanzania, or Malawi administration whereof is committed to the Administrator-General or Public Trustee of any such territory, the Public Trustee may, if requested so to do by the Administrator-General or Public Trustee of the territory, and if satisfied that the reciprocal legislation exists in that territory and that the interests of creditors in Kenya will not thereby be prejudiced, apply to the court for an order, which order the court is hereby empowered to make, authorizing him to collect the assets of the estate in Kenya and hand them over to the Administrator-General or Public Trustee of that territory; and, upon the making of the order, the Public Trustee shall have the same rights and duties as regards the collection and realization of the assets of the estate as if administration had been committed to him, and shall not be liable therefor to any creditor or claimant, but shall be discharged from liabilities upon handing over the assets or the proceeds of the realization...

Section 16. Treatment of assets received from outside Kenya Section 16(1) Where the administration of an estate has been committed to the Public Trustee and he receives assets which at the time of the death of the deceased were situated outside Kenya, those assets shall for all purposes be treated in the same manner as assets within Kenya at the time of death: Provided that the fees chargeable by the Public Trustee on any assets or moneys received from outside Kenya only for the purpose of distribution among the heirs or beneficiaries shall be restricted to three per centum of the gross value of those assets or the net amount of money received. Section 16(2) Where any person entitled to a share under the will, or otherwise in the distribution of the estate, of a deceased person whose estate is being administered by the Public Trustee is a minor, the court may, upon the application of the Public Trustee, appoint the father or mother of the minor or some other suitable person to receive the share of the minor on his behalf, and when the appointment is made the Public Trustee may pay the share of the minor to that person on behalf of the minor, and the receipt of that person shall be...

Section 6A. Consent of a missing person Section Where the consent of a person is required before the appointment of the Public Trustee as an administrator or trustee and the person required to give consent is declared to be missing by a court of law, the appointment of the Public Trustee may be made without the consent from the missing person having been obtained. [Act No. 6 of 2018 , s. 7.]

Section 17. Duties of Public Trustee Section 17(1)(a) act as personal representative of a deceased person; Section 17(1)(b) act as an ordinary trustee of any trust not prohibited under this Act or any other law; Section 17(1)(c) act as a custodian trustee; Section 17(1)(d) act as a custodian of property of missing persons; Section 17(1)(e) act as a custodian of enemy property; Section 17(1)(f) act as an administrator of the Estate Duty Act ( Cap. 483 ); Section 17(1)(g) be appointed as a Public Guardian or Conservator; Section 17(1)(h) be appointed trustee by a court of law; Section 17(1)(i) act as a Registrar of wills; and Section 17(1)(j) formulate, implement and oversee programmes to raise awareness on law of succession and trusteeship. Section 17(2) Deleted by ActNo. 6 of 2018, s. 13. Section 17(3) The Public Trustee may decline either absolutely, or except on such conditions as he may impose, to accept any trust. Section 17(4) The Public Trustee shall not accept any trust under any composition or scheme of arrangement for the benefit of creditors. Section 17(5) The Public Trustee shall not, save as provided by any rules made under this Act, accept any trust which involves the...

Section 18. Appointment of Public Trustee as trustee by person creating trust Section 18(1) Any person intending to create a trust other than a trust which the Public Trustee is prohibited from accepting under this Act may, by the instrument creating the trust, and with the consent of the Public Trustee, appoint him by that or any other sufficient description to be either sole or joint trustee of the property subject to the trust: Provided that the consent of the Public Trustee shall be recited in the instrument, and the instrument shall be duly executed by the Public Trustee. Section 18(2) Upon any such appointment, the property subject to the trust shall vest in the trustee or trustees either solely or jointly, and shall be held by him or them upon the trusts declared in the instrument.

Section 19. Appointment of Public Trustee as trustee by court Section If the property is subject to a trust other than a trust which the Public Trustee is prohibited from accepting under this Act, and there is no trustee within Kenya willing or capable to act in the trust, the court may on application make an order for the appointment of the Public Trustee by that name with his consent to be the trustee of that property.

Section 20. Custodian trustee Section 20(1)(a) by order of the court made on the application of any person on whose application the court may order the appointment of a new trustee; or Section 20(1)(b) by the testator, settlor, or other creator of any trust; or Section 20(1)(c) by the person having power to appoint new trustees. Section 20(2)(a) the trust property shall be transferred to the custodian trustee as if he were sole trustee, and for that purpose vesting orders may, where necessary, be made under the Trustee Act ( Cap. 167 ); Section 20(2)(b) the management of the trust property and the exercise of any power or discretion exercisable by trustees under the trust shall remain vested in the trustees other than the custodian trustee (which trustees are hereinafter referred to as the managing trustees); Section 20(2)(c) as between the custodian trustee and the managing trustees, and subject and without prejudice to the rights of any other persons, the custodian trustee shall have the custody of all securities and documents of title relating to the trust property, but the managing trustees shall have free access thereto, and be entitled to take copies thereof or extracts there...

Section 21. Transfer of legacy, etc of minor or person suffering from mental disorder Section If any person suffering from mental disorder, within the definition of that term contained in section 2 of the Mental Health Act (Cap. 248) of whose estate the Public Trustee has been appointed manager under section 38 of that Act, or any minor is entitled to any gift legacy or share of the assets of a deceased person, the person by whom the gift is made, or the executor or administrator by whom the legacy or share is payable or transferable, or any trustee of any gift, legacy or share, may transfer it by an instrument in writing to the Public Trustee by that name or any other sufficient description with his consent: Provided that the consent of the Public Trustee shall be recited in the instrument and the instrument shall be duly executed by the Public Trustee. [Act No. 35 of 1962 , s. 9, Act No. 6 of 2018 , s. 14.]

Section 22. Security not required Section The Public Trustee shall not be required by any court to enter into any bond or security on his appointment in any capacity under this Act.

Section 23. Court orders Section The court may make such orders as it thinks fit respecting any trust property vested in the Public Trustee or the interest or produce thereof.

Section 24. Power to incur expenditure Section The Public Trustee may, in addition to any other powers of expenditure lawfully exercisable by him, incur expenditure on such acts as may be necessary for the proper care and management of any property belonging to any trust or estate administered by him.

Section 25. Other provisions regarding Public Trustee Section 25(1) Deleted by ActNo. 6 of 2018, s. 15. Section 25(2)(a) in all respects act in the management, collection and getting in of property under the direction of the Public Trustee, who shall not be answerable for any act or omission of an agent not in conformity with his direction or which has not happened by the Public Trustee’s own fault or neglect; Section 25(2)(b) find security to the satisfaction of the Public Trustee for the performance of his duty; Section 25(2)(c) be remunerated either by salary or by such fees or portion thereof chargeable under this Act as the Attorney-General shall fix. Section 25(3) In all proceedings under this Act and in all proceedings at law, the Public Trustee shall sue and be sued by the name of the Public Trustee, and it shall be necessary to state and prove his authority and title in the specific estate to which the proceedings may relate, but not his general authority or appointment. Section 25(4) The Public Trustee shall be at liberty without the previous leave of the court to instruct and employ an advocate in any case he thinks fit and the advocate shall be remunerated out of the fu...

Section 26. Government liability for acts of Public Trustee Section 26(1) The Government shall be liable to make good all sums required to discharge any liability which the Public Trustee, if he were a private executor, administrator or trustee, would be personally liable to discharge, except when the liability is one to which neither the Public Trustee nor any of his officers has in any way contributed, and which neither he nor any of his officers could by the exercise of reasonable diligence have averted, and in that case, the Public Trustee shall not, nor shall the Government, be subject to any liability. Section 26(2) Every sum required to meet a liability of the Government under this section shall be charged upon and paid out of the Consolidated Fund. [Act No. 21 of 1961 , Sch.]

Section 27. Rules Section defining the duties of the Public Trustee;

Section 28. Application of the Unclaimed Financial Assets Act (Cap. 494) Section The provisions in the Unclaimed Financial Assets Act (Cap. 494) that require institutions to remit unclaimed assets to the Unclaimed Financial Assets Authority shall not apply to the Public Trustee. [Act No. 6 of 2018 , s. 17.]

Section 29. Alternative dispute resolution Section The Public Trustee may apply alternative forms of dispute resolution mechanisms to resolve disputes relating to the administration of estates and trusts. [Act No. 6 of 2018 , s. 17.]