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public trustee act kenya explained
The Public Trustee Act, Cap. 168, is a Kenyan law that establishes the office of the Public Trustee and outlines its functions and powers. The Act was enacted in 1951 and has been amended several times since then.
Table of Contents
Introduction
Purpose of the Public Trustee Act
Functions of the Public Trustee
Powers of the Public Trustee
Appointment of the Public Trustee
Removal of the Public Trustee
Public Trustee's Fees
Public Trustee's Liability
Case Laws
Conclusion
1. Introduction
The Public Trustee Act is a crucial piece of legislation in Kenya that governs the administration of trusts and estates. It provides a framework for the appointment, powers, and responsibilities of the Public Trustee, a government official tasked with managing trusts and estates when there is no other suitable trustee or executor.
2. Purpose of the Public Trustee Act
The primary purpose of the Public Trustee Act is to:
Provide a mechanism for the administration of trusts and estates when there is no other suitable trustee or executor. This is particularly important in cases where the beneficiaries are minors, incapacitated, or reside abroad.
Protect the interests of beneficiaries by ensuring that trust assets are managed responsibly and in accordance with the terms of the trust.
Promote the efficient and effective administration of trusts and estates.
3. Functions of the Public Trustee
The Public Trustee performs a variety of functions, including:
Acting as trustee of trusts. This includes both private and public trusts, such as charitable trusts.
Acting as executor or administrator of estates. This involves managing the assets of a deceased person and distributing them to the beneficiaries according to the will or the rules of intestacy.
Providing advice and guidance on trust and estate matters.
Acting as guardian of minors or incapacitated adults.
Investing trust funds.
Collecting and distributing trust income.
Keeping accounts and records of trust and estate matters.
4. Powers of the Public Trustee
The Public Trustee has a wide range of powers under the Act, including:
The power to accept or refuse to accept trusts.
The power to invest trust funds.
The power to sell, lease, or mortgage trust property.
The power to sue and be sued in relation to trust matters.
The power to appoint agents and employees.
The power to delegate certain functions to other persons.
5. Appointment of the Public Trustee
The Public Trustee is appointed by the President of Kenya on the advice of the Cabinet. The Public Trustee must be a person of good character and standing, and must have experience in the administration of trusts and estates.
6. Removal of the Public Trustee
The Public Trustee can be removed from office by the President on the advice of the Cabinet. This can occur if the Public Trustee is found to be guilty of misconduct, incompetence, or bankruptcy.
7. Public Trustee's Fees
The Public Trustee is entitled to charge fees for the services they provide. These fees are set by the Minister for Finance.
8. Public Trustee's Liability
The Public Trustee is liable for any loss or damage that occurs to trust assets as a result of their negligence or misconduct. However, the Public Trustee is not liable for any loss or damage that occurs as a result of events beyond their control.
9. Case Laws
Case Law 1:
Case Name: Public Trustee v Wanduru
Citation: Kenya Law ↗
Facts: The case involved a dispute over land ownership. The Public Trustee argued that the defendant had acquired ownership of the land through adverse possession.
Outcome: The court held that adverse possession should be calculated from the date of payment of the purchase price to the full span of twelve years if the purchaser takes possession of the property because from this date, the true owner is dispossessed of possession.
Case Law 2:
Case Name: Petition 104 of 2020
Citation: Kenya Law ↗
Facts: The case involved a challenge to the mode of public participation used by a government agency.
Outcome: The court held that the factors to be considered in determining the mode of undertaking public participation include the nature of the issue, the target audience, the resources available, and the time frame.
Case Law 3:
Case Name: Environment and Land Case Civil Suit 63 of 2018
Citation: Kenya Law ↗
Facts: The case involved a dispute over land ownership. The defendant argued that the plaintiffs had withdrawn previous lawsuits, indicating that they had abandoned their claims.
Outcome: The court held that the withdrawal of previous lawsuits does not necessarily mean that the plaintiffs have abandoned their claims.
Case Law 4:
Case Name: Environment and Land Case 1 of 2019
Citation: Kenya Law ↗
Facts: The case involved a dispute over the representation of parties in a legal case. The defendant argued that the law firm representing the plaintiffs had a conflict of interest.
Outcome: The court held that the court should intervene where there is a conflict of interest.
Case Law 5:
Case Name: Judicial Review 7 of 2018
Citation: Kenya Law ↗
Facts: The case involved an application for judicial review of a decision made by a government agency.
Outcome: The court held that the government agency had failed to comply with the requirements of the Fair Administrative Actions Act, 2015.
10. Conclusion
The Public Trustee Act is an essential piece of legislation in Kenya that ensures the responsible administration of trusts and estates. The Public Trustee plays a vital role in protecting the interests of beneficiaries and promoting the efficient and effective management of trust assets. The Act provides a clear framework for the appointment, powers, and responsibilities of the Public Trustee, ensuring that they operate within a legal and ethical framework.
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