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registration of a foundation in kenya

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Registration of a Foundation in Kenya

Introduction

A foundation is a non-profit organization established to support a specific cause or purpose. In Kenya, foundations are typically registered under the Companies Act or the Societies Act. The process of registering a foundation in Kenya is relatively straightforward, but it requires careful planning and adherence to legal requirements.

Legal Framework
Types of Foundations
Registration Process
Requirements for Registration
Post-Registration Obligations
Case Laws
Conclusion
TLDR

1. Legal Framework

The legal framework governing the registration of foundations in Kenya is primarily found in the following Acts:

The Companies Act, 2015: This Act provides the legal framework for the incorporation and regulation of companies in Kenya, including charitable foundations.
The Societies Act, 1990: This Act governs the registration and regulation of societies in Kenya, including non-profit organizations like foundations.
The Public Benefits Organizations Act, 2013: This Act provides a comprehensive framework for the regulation of public benefit organizations, including foundations, and aims to promote transparency and accountability in their operations.

2. Types of Foundations

In Kenya, foundations can be broadly categorized into two types:

Private Foundations: These are foundations established by individuals or families for charitable purposes. They are typically funded by private donations and operate independently of government control.
Public Foundations: These are foundations established by the government or with significant government funding. They are typically involved in public welfare activities and are subject to government oversight.

3. Registration Process

The registration process for a foundation in Kenya involves the following steps:

Preparation of the Trust Deed: This document outlines the foundation's objectives, governance structure, and operational procedures. It should be drafted by a qualified legal professional.
Name Reservation: The proposed name of the foundation must be reserved with the Registrar of Companies or the Registrar of Societies, depending on the chosen registration route.
Submission of Application: A completed application form, along with the required documents, must be submitted to the relevant registrar.
Verification and Approval: The registrar will review the application and supporting documents to ensure compliance with legal requirements.
Issuance of Certificate of Incorporation or Registration: Upon approval, the registrar will issue a certificate of incorporation or registration, which officially recognizes the foundation as a legal entity.

4. Requirements for Registration

The specific requirements for registering a foundation in Kenya vary depending on the chosen registration route (Companies Act or Societies Act). However, some common requirements include:

Name of the Foundation: The name should be unique, descriptive of the foundation's purpose, and not already in use by another organization.
Objectives of the Foundation: The foundation's objectives should be clearly stated and should be charitable in nature.
Governance Structure: The foundation's governance structure should be clearly defined, including the roles and responsibilities of the board of directors or trustees.
Membership: The foundation may require a minimum number of members or trustees, depending on the chosen registration route.
Financial Information: The foundation must provide financial information, including a proposed budget and sources of funding.
Constitution or Trust Deed: The foundation must submit a constitution or trust deed outlining its rules and regulations.
Memorandum and Articles of Association: If registering under the Companies Act, the foundation must submit a memorandum and articles of association.
Registration Fee: A registration fee is payable to the relevant registrar.

5. Post-Registration Obligations

Once registered, foundations in Kenya have certain post-registration obligations, including:

Annual Reporting: Foundations must submit annual reports to the relevant registrar, detailing their activities, financial performance, and governance practices.
Compliance with Laws: Foundations must comply with all applicable laws and regulations, including tax laws, labor laws, and environmental laws.
Transparency and Accountability: Foundations are expected to operate transparently and be accountable to their stakeholders, including donors, beneficiaries, and the public.
Auditing: Foundations may be required to undergo regular audits to ensure financial transparency and accountability.

6. Case Laws

Several case laws in Kenya have addressed issues related to the registration and operation of foundations. Some notable cases include:

The National Gay and Lesbian Human Rights Commission (NGLHRC) Case (2023): In this landmark case, the Kenyan Supreme Court ruled that the NGLHRC, an organization advocating for the rights of LGBTQIA+ individuals, must be allowed to register as a non-governmental organization (NGO). This decision affirmed the right to freedom of association and the right to form organizations for charitable purposes, regardless of sexual orientation or gender identity. (Source: https://www.jurist.org/news/2023/09/kenya-supreme-court-reaffirms-lgbtqia-organizations-right-to-registration/ ↗)
The Atheists in Kenya Society Case (2016): In this case, the High Court ruled that atheism is a constitutionally protected freedom and fundamental right. This decision has implications for the registration of organizations promoting atheism or secularism, as it affirms the right to freedom of belief and expression, even if those beliefs differ from traditional religious views. (Source: https://kenyalaw.org/caselaw/cases/view/147307 ↗)

7. Conclusion

Registering a foundation in Kenya is a process that requires careful planning and adherence to legal requirements. By understanding the legal framework, types of foundations, registration process, and post-registration obligations, individuals and organizations can establish foundations that contribute to the betterment of society while operating within the bounds of Kenyan law.

8. TLDR

To register a foundation in Kenya, you need to prepare a trust deed, reserve a name, submit an application, and comply with the requirements of the Companies Act or Societies Act. Once registered, foundations have post-registration obligations, including annual reporting, compliance with laws, and transparency.

Sample Foundation Trust Deed

Trust Deed of the [Foundation Name] Foundation

This Trust Deed is made this [Date] day of [Month], [Year], by and between:

[Trustee 1 Full Name], residing at [Trustee 1 Address], hereinafter referred to as "Trustee 1";
[Trustee 2 Full Name], residing at [Trustee 2 Address], hereinafter referred to as "Trustee 2";
[Trustee 3 Full Name], residing at [Trustee 3 Address], hereinafter referred to as "Trustee 3";

hereinafter collectively referred to as the "Trustees".

WHEREAS:

The Trustees desire to establish a charitable foundation to be known as the "[Foundation Name] Foundation" (hereinafter referred to as the "Foundation").
The Trustees have agreed upon the terms and conditions of this Trust Deed for the establishment and operation of the Foundation.

NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants hereinafter contained, the parties agree as follows:

1. Establishment of the Foundation

1.1. The Trustees hereby establish the Foundation as a charitable foundation under the laws of Kenya.

1.2. The Foundation shall be a non-profit organization dedicated to [State the Foundation's Purpose].

2. Objectives of the Foundation

2.1. The objectives of the Foundation are as follows:

[List the Foundation's Objectives]

3. Governance of the Foundation

3.1. The Foundation shall be governed by a Board of Trustees consisting of the Trustees named herein.

3.2. The Trustees shall have the following powers and responsibilities:

[List the Powers and Responsibilities of the Trustees]

3.3. The Trustees may appoint additional trustees as they deem necessary.

3.4. The Trustees shall meet at least [Number] times per year or as often as necessary to conduct the business of the Foundation.

4. Funding of the Foundation

4.1. The Foundation shall be funded by:

[List the Sources of Funding for the Foundation]

4.2. The Trustees shall manage the Foundation's funds in a prudent and responsible manner.

5. Distribution of Funds

5.1. The Trustees shall distribute the Foundation's funds in accordance with the Foundation's objectives and in a manner that is consistent with the laws of Kenya.

5.2. The Trustees may make grants, donations, or other distributions to charitable organizations or individuals that are consistent with the Foundation's objectives.

6. Dissolution of the Foundation

6.1. The Foundation may be dissolved by a majority vote of the Trustees.

6.2. Upon dissolution, the Foundation's remaining assets shall be distributed to a charitable organization or organizations that are consistent with the Foundation's objectives.

7. Amendments to the Trust Deed

7.1. This Trust Deed may be amended by a majority vote of the Trustees.

8. Governing Law

8.1. This Trust Deed shall be governed by and construed in accordance with the laws of Kenya.

IN WITNESS WHEREOF, the parties have executed this Trust Deed as of the date first written above.

[Trustee 1 Signature]

[Trustee 2 Signature]

[Trustee 3 Signature]