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registration of a foundation in kenya
Introduction
The registration of a foundation in Kenya is governed by various legal frameworks, including the Trustees (Perpetual Succession) Act, the Public Benefit Organizations Act, and the Companies Act. This comprehensive guide will walk you through the steps and legal requirements for registering a foundation in Kenya.
Table of Contents
Legal Framework
Trustees (Perpetual Succession) Act
Public Benefit Organizations Act
Companies Act
Types of Foundations
Charitable Trusts
Public Benefit Organizations (PBOs)
Companies Limited by Guarantee
Steps for Registration
Name Reservation
Drafting the Trust Deed or Constitution
Application for Registration
Issuance of Certificate
Compliance and Reporting Requirements
Annual Returns
Financial Audits
Regulatory Compliance
Conclusion
1. Legal Framework
Trustees (Perpetual Succession) Act
Source: Trustees (Perpetual Succession) Act, Cap 164
Purpose: This Act provides for the incorporation of trustees for the purpose of holding property in perpetuity.
Key Provisions:
Section 3: Application for incorporation
Section 5: Issuance of Certificate of Incorporation
Public Benefit Organizations Act
Source: Public Benefit Organizations Act, 2013
Purpose: This Act provides for the establishment and operation of public benefit organizations (PBOs).
Key Provisions:
Section 6: Registration of PBOs
Section 12: Requirements for registration
Companies Act
Source: Companies Act, 2015
Purpose: This Act governs the registration and regulation of companies in Kenya.
Key Provisions:
Section 7: Types of companies
Section 18: Registration of companies limited by guarantee
2. Types of Foundations
Charitable Trusts
Definition: A charitable trust is a legal arrangement where assets are held and managed by trustees for charitable purposes.
Legal Framework: Governed by the Trustees (Perpetual Succession) Act.
Key Features:
Trustees manage the trust assets.
The trust must have a charitable purpose.
Public Benefit Organizations (PBOs)
Definition: PBOs are organizations established for public benefit purposes, including charitable, educational, and social activities.
Legal Framework: Governed by the Public Benefit Organizations Act.
Key Features:
Must be registered with the NGO Coordination Board.
Must operate for public benefit purposes.
Companies Limited by Guarantee
Definition: A company limited by guarantee is a type of company that does not have share capital but has members who act as guarantors.
Legal Framework: Governed by the Companies Act.
Key Features:
Members' liability is limited to the amount they guarantee.
Suitable for non-profit organizations.
3. Steps for Registration
Name Reservation
Process:
Submit a name reservation request to the Registrar of Companies.
Ensure the name is unique and not similar to existing entities.
Legal Reference: Companies Act, Section 48
Drafting the Trust Deed or Constitution
Charitable Trusts:
Draft a trust deed outlining the objectives, governance structure, and management of the trust.
Include clauses on the appointment and removal of trustees.
PBOs:
Draft a constitution detailing the objectives, governance, and operational framework.
Include provisions for membership, meetings, and dissolution.
Companies Limited by Guarantee:
Draft a memorandum and articles of association.
Include details on the objectives, governance, and members' guarantees.
Application for Registration
Charitable Trusts:
Submit the trust deed and application form to the Registrar of Documents.
Pay the prescribed fee.
PBOs:
Submit the constitution, application form, and supporting documents to the NGO Coordination Board.
Pay the registration fee.
Companies Limited by Guarantee:
Submit the memorandum and articles of association, application form, and supporting documents to the Registrar of Companies.
Pay the registration fee.
Issuance of Certificate
Charitable Trusts:
Upon approval, the Registrar issues a Certificate of Incorporation.
PBOs:
Upon approval, the NGO Coordination Board issues a Certificate of Registration.
Companies Limited by Guarantee:
Upon approval, the Registrar issues a Certificate of Incorporation.
4. Compliance and Reporting Requirements
Annual Returns
Charitable Trusts:
Submit annual returns to the Registrar of Documents.
PBOs:
Submit annual returns to the NGO Coordination Board.
Companies Limited by Guarantee:
Submit annual returns to the Registrar of Companies.
Financial Audits
Charitable Trusts:
Conduct annual financial audits and submit audited accounts.
PBOs:
Conduct annual financial audits and submit audited accounts.
Companies Limited by Guarantee:
Conduct annual financial audits and submit audited accounts.
Regulatory Compliance
Charitable Trusts:
Comply with the provisions of the Trustees (Perpetual Succession) Act.
PBOs:
Comply with the provisions of the Public Benefit Organizations Act.
Companies Limited by Guarantee:
Comply with the provisions of the Companies Act.
Conclusion
Registering a foundation in Kenya involves navigating various legal frameworks and fulfilling specific requirements depending on the type of foundation. Whether you choose to establish a charitable trust, a public benefit organization, or a company limited by guarantee, it is crucial to adhere to the relevant legal provisions to ensure compliance and successful registration. By following the outlined steps and maintaining ongoing compliance, you can effectively establish and operate a foundation that contributes to the public good in Kenya.
Answered by mwakili.com