Waqf Act

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

Section 2. Interpretation Section In this Act, except where the context otherwise requires— " alim " means a Muslim scholar; "Commission" means the Waqf Commission established under section 5 ; "Director-General" means the Director-General appointed under section 11 (1); "general administration account" means an account whose funds are used for the general administration and management of the Commission; "maintenance and reserve account" means an account whose funds are used for preservation and maintenance of waqf property; "Muslim" means a person who professes the Islamic faith; "surplus account" means the account established under section 24 ; "trustee" means a person, whether alone or jointly with another, administering any waqf property; " waaqif " means a person who endows his property or cash as the subject of a waqf ; " waqf " means a religious, charitable or benevolent endowment or dedication of any property in accordance with Islamic law, and " awqaf " means more than one waqf ; " waqf ahli " means a waqf made for the benefit of an individual or a family, or for the performance of a rite or ceremony that is recognised by Islamic law; " waqf khairi " means a waqf , other t...

Section 3. Application Section This Act shall apply to the making and administration of all awqaf in Kenya.

Section 4. Validity of awaqf Section 4(1)(a) it is made in accordance with Islamic law; Section 4(1)(b) the waaqif has attained eighteen years; Section 4(1)(c) the waaqif is of sound mind; and Section 4(1)(d) it is made for religious purposes for the poor and vulnerable within the Muslim community. Section 4(2) A waqf shall not be invalid merely because the benefit of the waqf that shall be reserved for the poor or any other purpose shall not take effect until after the extinction of the family of the waaqif .

Section 5. Establishment of theWaqfCommission Section 5(1) There is established a commission to be known as the Waqf Commission. Section 5(2)(a) suing and being sued; Section 5(2)(b) taking, purchasing or otherwise acquiring, holding, charging or disposing of movable and immovable property; Section 5(2)(c) borrowing money; Section 5(2)(d) entering into contracts; and Section 5(2)(e) doing or performing all other things or acts for the proper performance of its functions under this Act which may be lawfully done or performed by a body corporate. Section 5(3) The seal of the Commission shall be authenticated by the signature of the chairperson, or a member authorised by the Commission to act in that behalf in the absence of the chairperson and the Director-General. Section 5(4) The seal of the Commission, when authenticated under subsection (3), shall be officially and judicially noticed. Section 5(5) All documents, other than those required by law to be under seal, made by, and all decisions of the Commission, may be signed by the chairperson, any commissioner authorised to do so in the absence of the chairperson, or the Director-General.

Section 6. Composition of the Commission Section one alim who shall be well-versed in Islamic jurisprudence;

Section 7. Selection panel Section 7(1) The Attorney-General shall, within fourteen days after the occurrence of a vacancy in the Commission, appoint a selection panel for the purpose of nominating suitable candidates for appointment as a member of the Commission under section 6 (a), (b) or (c). Section 7(2)(a) no Kadhi shall be appointed as a member of the selection panel; Section 7(2)(b) a person having a conflict of interest whether directly in person or indirectly as a family member or a beneficiary or lessee of a waqf shall not be appointed as a member of the selection panel; Section 7(2)(c) no state officer or public officer shall be appointed as a member of the selection panel; and Section 7(2)(d) the selection panel shall be dissolved on the appointment of the Commissioners. Section 7(3)(a) invite applications from qualified persons by notice in the Gazette and advertisement in at least two newspapers of national circulation; Section 7(3)(b) prepare a shortlist of qualified applicants; Section 7(3)(c) conduct interviews of shortlisted applicants to assess their qualifications as specified in section 6 and their compliance with Chapter Six of the Constitution; and Section 7(...

Section 8. Functions of the Commission Section register all awqaf ;

Section 9. Chairperson and quorum Section 9(1) At the first meeting of the Commission in each year, the members shall elect one person from among their number to be the chairperson during the year. Section 9(2) The chairperson shall preside over all meetings of the Commission, and in the absence of the chairperson from any meeting, the members present shall elect one person from those present to preside over the meeting. Section 9(3) The quorum of the Commission shall be five members. Section 9(4) Notwithstanding subsection (3), where quorum is not achieved in two successive meetings, three members of the Commission may hold a meeting. Section 9(5) The members of the Commission shall serve on a part-time basis. Section 9(6) Except as provided under this section the Commission may regulate its own procedure.

Section 10. Remuneration of members of the Commission Section There shall be paid to the members of the Commission such allowances as the Commission may, in consultation with the Salaries and Remuneration Commission, determine.

Section 11. The Director-General Section 11(1) There shall be a Director-General of the Commission who shall be recruited and appointed by the Commission through a competitive process on such terms and conditions as the Commission may in consultation with the Salaries and Remuneration Commission determine. Section 11(2)(a) is a Muslim; Section 11(2)(b) is a citizen of Kenya; Section 11(2)(c) holds a degree from a university recognized in Kenya; Section 11(2)(d) has at least five years' experience at senior management level in a public institution or a reputable private institution; Section 11(2)(e) administration; Section 11(2)(e)(i) administration; Section 11(2)(e)(ii) accounting; Section 11(2)(e)(iii) certified public secretarial work; Section 11(2)(e)(iv) law; Section 11(2)(e)(v) land economics; Section 11(2)(e)(vi) social work; Section 11(2)(e)(vii) architecture; Section 11(2)(e)(viii) construction management; or Section 11(2)(e)(ix) civil engineering; and Section 11(2)(f) meets the requirements of Chapter Six of the Constitution. Section 11(3) The Director-General shall be the chief executive officer of the Commission and responsible for the day-to- day management of the affai...

Section 12. Staff of the Commission Section 12(1) The Commission may appoint such other officers and staff as may be necessary for the proper discharge of its functions under this Act. Section 12(2) The persons appointed under subsection (1) shall serve on such terms and conditions as the Commission may, in consultation with the Salaries and Remuneration Commission, determine.

Section 13. Removal of a trustee Section 13(1)(a) misappropriation of a waaqif 's property; Section 13(1)(b) allowing the waqf property to fall into disrepair when the trustee has funds to maintain the property; Section 13(1)(c) knowingly or intentionally causing damage or loss to waqf property; Section 13(1)(d) breach of trust in relation to the waqf property; or Section 13(1)(e) any other sufficient reason permitted by Islamic law. Section 13(2) Despite subsection (1), a trustee may be removed from office by the waaqif , if the right to remove the trustee is reserved in the waqf deed.

Section 14. Register ofawqaf Section 14(1) All awqaf shall be registered with the Commission in such manner as the Commission may specify. Section 14(2) The Commission shall establish and maintain a register of registered awqaf in such form and containing such particulars as it may determine. Section 14(3) Every trustee of a waqf shall, within three months from the date of the establishment of the waqf , apply to the Commission for its registration in the prescribed manner. Section 14(4) An application under subsection (3) shall be accompanied by such fees as may be prescribed. Section 14(5) A trustee who fails to comply with the provisions of subsection (3) commits an offence and shall be liable, on conviction, to a fine not exceeding one hundred thousand shillings or to imprisonment for a term not exceeding one year.

Section 15. Administration ofawqafby the Commission Section 15(1) The Commission may, on the application of the trustees of a waqf khairi and subject to such conditions as may be imposed by the waaqif , take over the administration of such waqf , and any property that is the object of the waqf shall vest in the Commission. Section 15(2) The Commission may, on the application by the trustees and with the consent of the majority of the beneficiaries of a waqf ahli or waqf mushtaraq and subject to such conditions as may be imposed by the waaqif , take over the administration of such waqf , and any property that is the object of the waqf shall vest in the Commission.

Section 16. Inquiry by the Commission Section 16(1)(a) there is no properly constituted body of trustees; or Section 16(1)(b) in the case of a waqf khairi , on its own motion; or Section 16(1)(b)(i) in the case of a waqf khairi , on its own motion; or Section 16(1)(b)(ii) in the case of a waqf ahli , on the motion of the trustees or a beneficiary or any person who has an interest in the waqf , with the consent of the majority of the beneficiaries. Section 16(2) Where an inquiry is commenced by a motion filed by the trustees of a waqf a beneficiary or any person who has an interest in the waqf , the trustees shall furnish the Commission, within thirty days of the filing of the motion, with the names and addresses of the beneficiaries of the waqf and any other person who has an interest in the waqf . Section 16(3) The Commission shall issue a written notice of an inquiry to all persons having any interest in the waqf inviting them to appear and give representations before the Commission. Section 16(4)(a) declaring that the property that is the subject of the waqf shall be administered by the Commission; or Section 16(4)(b) appointing some other person to be a trustee of the waqf : Se...

Section 17. Production of documents by trustees Section 17(1) The Commission may, at any time, call upon a trustee of a waqf to produce any books or documents in his or her possession or control, including books of accounts, relating to the waqf in order to satisfy itself regarding the management of the waqf . Section 17(2) A trustee who fails to comply when called upon to do so under subsection (1) commits an offence and shall be liable, on conviction, to a fine not exceeding two million shillings or to imprisonment for a term not exceeding one year.

Section 18. Agreements relating towaqfproperty Section 18(1) An agreement purporting to lease or otherwise alienate waqf property for any period exceeding one year shall be valid only if it is authorised in writing by the Commission. Section 18(2) A person who intends to sell immovable waqf property shall make an application to the Environment and Land Court and the Environment and Land Court may allow the application or issue any other order it deems appropriate. Section 18(3) A trustee who enters into an agreement contrary to the provisions of this section commits an offence and shall be liable, on conviction, to a fine not exceeding one hundred thousand shillings or to imprisonment for a term not exceeding one year.

Section 19. Title towaqfproperty Section Notwithstanding anything to the contrary in any written law for the time being in force, no title to any waqf property shall be acquired by any person by adverse possession or by reason of the law of prescription.

Section 20. Administration of aWaqf Section 20(1)(a) are lawful; Section 20(1)(b) accord with Islamic law; Section 20(1)(c) are capable of being carried into effect, and Section 20(1)(d) are ascertainable by reference to tradition or by reference to any other evidence lawfully obtainable. Section 20(2)(a) in the case of a waqf khairi , for such benevolent or charitable purposes on behalf of Muslims as the Commission may deem proper; or Section 20(2)(b) in the case of a waqf ahli , in such manner as the Commission may deem fit for the benefit of the beneficiaries of the waqf . Section 20(3) The Commission shall apply any surplus revenue which remains after fulfilling the intentions of a waaqif in the manner set out in paragraphs (2)(a) and (b). Section 20(4)(a) if they so desire; and Section 20(4)(a)(i) if they so desire; and Section 20(4)(a)(ii) if they demonstrate a capacity to manage the waqf property themselves; or Section 20(4)(b) that the property be dealt with in accordance with section 16 (4).

Section 21. Disposal ofwaqfproperty Section 21(1)(a) the intentions of the waaqif cannot reasonably be carried into effect; and Section 21(1)(b) it is expedient that the waqf property should be sold, Section 21(2) The funds in the surplus account shall be utilised by the Commission for such benevolent or charitable purposes for the benefit of Muslims as the Commission may consider appropriate.

Section 22. Limitation on the use ofwaqfproperty by the Commission Section 22(1) The Commission shall not utilize waqf property or any revenue therefrom for any purpose connected with another waqf if there still exists waqf property or revenue from the latter waqf. Section 22(2) Notwithstanding subsection (1), if the Commission determines that a waqf khairi is urgently in need of any funds for repairs or for any other purpose, it may, notwithstanding that there exists waqf property in that waqf khairi , utilize the revenue arising from any other waqf property or another waqf khairi for that purpose. Section 22(3)(a) that revenue is not then required in relation to the latter waqf khairi; and Section 22(3)(b) the amount of the revenue so utilised shall, without prejudice to the purposes of the waqf relating to which it is used, be repaid out of the property of that waqf within one year from the date of being so utilised.

Section 23. Maintenance and reserve account Section The Commission shall ensure that, in respect of each waqf a sum which in the opinion of the Commission is necessary to maintain and preserve the waqf property is paid into a maintenance and reserve account before any payment is made for the purpose of carrying out the intentions of the waaqif .

Section 24. Surplus account Section 24(1)(a) are unlawful or unascertainable; or Section 24(1)(a)(i) are unlawful or unascertainable; or Section 24(1)(a)(ii) are incapable of being carried into effect; or Section 24(1)(a)(iii) cannot reasonably be carried into effect; or Section 24(1)(b) the beneficiaries are unascertainable, Section 24(2)(a) depositing them in a sharia compliant bank; or Section 24(2)(b) investing them in such investments and securities as are allowed by Islamic law for the investment of trust funds, and the income derived therefrom shall be utilised in the general administration of the Commission.

Section 25. Accounts and audit Section The Commission shall keep proper books of accounts of the income, expenditure, assets and liabilities of the Commission, and such accouns shall be audited in accordance with the Public Audit Act (Cap. 412B).

Section 26. Bank accounts Section 26(1) The Commission may open and maintain such sharia -compliant bank accounts as may be required for the performance of the functions of the Commission. Section 26(2) The bank accounts referred to in subsection (1) shall be operated by the Director-General and any other officer of the Commission authorized in that behalf by the Commission.

Section 27. Annual Report Section 27(1) The Commission shall, before the thirtieth of September in each year, prepare an annual report for the immediately preceding financial year and submit it to the Attorney-General before the thirtieth November in that year. Section 27(2)(a) the activities of the Commission in the previous financial year; Section 27(2)(b) the status of the awqaf under the management of the respective waqf trustees; Section 27(2)(c) the status of awqaf vested in the Commission; and Section 27(2)(d) the income, expenditure, assets and liabilities of the awqaf .

Section 28. Right to access information Section 28(1) A beneficiary of a waqf shall, at all reasonable times, be entitled to information about the waqf including the inspection of accounts and shall upon payment of the prescribed fees be supplied with copies of any deeds or documents thereof. Section 28(2) The information under subsection (1) does not include correspondence and any other confidential information.

Section 29. Disputes resolution Section Any matter or dispute relating to a waqf shall in the first instance be referred to a Kadhis' court.

Section 30. Exemption from taxation or penalties Section Despite the provisions of any other written law, the income of the Commission shall not be subjected to income tax or any other tax or penalty.

Section 31. Fees Section 31(1)(a) at the rate of five per centum per annum of the revenue of the waqf property of a waqf khairi ; or Section 31(1)(b) ten per centum per annum of the revenue of the waqf property of a waqf ahli , Section 31(2)(a) first in defraying the expenses of the management of the awqaf , and Section 31(2)(b) the surplus shall be used for such charitable purposes as the Commission may determine. Section 31(3) The fees prescribed under subsection (1) may be varied by a resolution for that purpose made by a majority of the members of the Commission present at a meeting of the Commission convened for that purpose and published in the Gazette .

Section 32. Rules Section The Attorney-General may make rules for the better carrying out of the provisions of this Act.

Section 34. Transitional provisions Section 34(1) A person who, immediately before the commencement of this Act, was appointed the Secretary or a Commissioner of the Wakf Commissioners under the Wakf Commissioners Act (repealed), shall remain in office so as to serve the remaining period of such Commissioner's term of office, after which a new Commissioner shall be appointed in accordance with the provisions of this Act. Section 34(2) Any proceedings, instruments or rights of appeal subsisting immediately before the commencement of this Act shall be deemed to be proceedings, instruments or rights under this Act. Section 34(3) All immovable and movable property and assets which immediately before the commencement of this Act were vested in, or in the possession of the Wakf Commissioners under the Wakf Commissioners Act (repealed) shall, by virtue of this section, vest in the Commission without further conveyance, transfer or assignment: Provided that the Commission shall, within one year after the commencement of this Act, review the terms and conditions of all leases to property entered into by the Wakf Commissioners under the Wakf Commissioners Act (repealed) and subsisting before...