CONSTITUTING THE “KEBENE TRUST DEED”
A PRIVATE TRUST DRAWN & REGISTERED BY:
JAMES OYONDI & COMPANY
CERTIFIED AND PUBLIC ACCOUNTANTS OF KENYA
Auditors, taxation, accountants and debt management consultants
Royal building, 2nd floor, door 2
Digo Road –P.O BOX 80600 – 80100 –MOMBASA – KENYA
THIS TRUST DEED is made as of the Monday 19th of May 2020,
- PRINCEN PASCI all of Care of P.O. Box 462 – 80400 Ukunda
(Hereinafter the “Founder”), of the first part;
- MILDRED AJAH (Hereinafter the “Trustee” which expression shall include the Trustees for the time being in office AND their successors in title and permitted assigns), of the second part.
- JANSSEN JOHAN (Hereinafter the “Trustee” which expression shall include the Trustees for the time being in office AND their successors in title and permitted assigns), of the second part.
- FRANCOIS JAN (Hereinafter the “Trustee” which expression shall include the Trustees for the time being in office AND their successors in title and permitted assigns), of the second part.
A; The Founder are desirous of forming a Trust, the Objects of which are set out in clause two (2) here below;
B; The Founder are satisfied that these objectives can be achieved by constituting a Trust on the terms set out here below;
C; The Founder, by the execution of this Trust Deed vest the Trust created hereby in the Trustees named above irrevocably.
NOW THIS DEED WITNESSETH AS FOLLOWS:
1. THE TRUST:
The Founder hereby declare that with effect from the date hereof they constitute the above named persons as the Trustees of the Trust created hereby and to be called the “LIVING LIFE TRUST” (Hereinafter referred to as the “Trust”) AND the offices of the Trust shall be situate at Ukunda in the Republic of Kenya.
2. OBJECTIVES OF THE TRUST:
2.1 The Objects for which the Trust is established shall be:
(a) To facilitate, promote, and provide, the following.
- Building and operate apartments as a form of raising money to support the orphans.
- Building and operating an orphanage for the needy children.
- Building and operating a boarding house and/or orphanage for the children.
- Poverty Alleviation in the general society through provision of affordable education services to needy children in general, orphans and vulnerable children in Diani, Ukunda, Kwale and other adjoining areas of the Republic Of Kenya (hereinafter the “Beneficiaries”);
(b) To apply for and acquire privileges, licenses, concessions, permits and all necessary documents required for the purposes of enabling the Trust to further its stated objects upon such terms as may be acceptable to the Trustees.
(c) To stand possessed of the assets, properties, investments and monies that shall now or hereafter be vested in and/or paid to the Trustees of the Trust and the monies, investments and properties from time to time representing the same and all income arising therefrom (all of which shall hereinafter be collectively referred to as the “Trust Fund”);
(d) To invest all moneys of the Trust in the Trust Fund as are not immediately required in such manner as it may be determined by the Trustees for the timebeing hereof subject to the provisions of this Deed so as to further the Objects ofthis Trust provided always that nothing in this clause shall be deemed to authorize the Trustee(s) hereof to hinder, limit, interrupt and/or interfere with the day to day operations of the Trust as set out under clause 2.1 (a) to (e)above (both inclusive).
(e) Subject to clause 2 (d) above, to invest the proceeds from the Trust Fund into real property by purchase, lease, exchange or otherwise and/or to develop lands, buildings and hereditaments of any tenure or description both within and without the Republic of Kenya and including therewith any estate or interest therein and any right over or connected therewith AND to turn the same to account in any such manner as the Trustees in their untrammelled discretion may deem expedient, and the best means of achieving the Objects of the Trust.
(f) Subject to clause 2 (d) above, to acquire the goodwill or shares of any business and/or company carrying on any trade or business within or without the Objects of the Trust and including therewith any privileges, contracts, property and/or effects held or used in connection therewith and upon such purchase and/or acquisition to undertake the assets but not the liabilities of such business and/or company to apply the proceeds from the same to further the Objects of the Trust.
(g) To pay all costs, charges and expenses incurred or sustained in, about and/or for the purposes of the promotion and establishment of the Trust, which the Trustees may consider to be preliminary expenses, and all expenses relating to repairs and/or maintenance of the Trust Property.
(h) Subject to clause 2 (d) and (f) above, to vest any moveable and/or immovable property, rights and/or interests acquired by or belonging to the Trust in any other person, company, firm, trust and/or other unincorporated body on behalf of and/or for the benefit of the Trust, provided always that there shall be an implied condition that such vesting shall be conditional on the maintenance of an implied trust over the relevant property in favour of the Trust.
(i) Subject to clause 2 (d) and (f) above, to sell and/or dispose of the assets and/or property of the Trust or any part thereof for cash and/or such other consideration as the Trust may think fit, and in particular in consideration of the shares, debentures and/or securities of any company purchasing the same.
(j) To draw, accept and negotiate bills of exchange promissory notes, cheques and other negotiable and/or mercantile instruments for the purposes of the Trust’s Objects.
(k) To lend and advance money and/or give credit to any of the Beneficiaries on such terms as may seem expedient to the Trustees hereof AND it is hereby provided that any loans given under this clause shall be given free of interest.
(l) To carry out such activities as the Trustees may from time to time deem fit for the advancement of the Objects of the Trust AND to expend such monies for these purposes as the Trustees shall deem fit; AND it is hereby declared that the intention hereof is that each of the Objects hereinabove specified in this clause two (2) shall be independent main Objects of the Trust and shall in no wise be limited and/or restricted by reference to and/or inference from the terms of any other paragraph and/or any of the other clauses hereof.
3. THE TRUST FUND:
- The Trustees shall hold the Trust Fund upon trust to apply the same or such part thereof for all or any of the Objects of the Trust.
- The Trustees may from time to time open and maintain in the name of the Trust, Bank Accounts at such bank or banks as they shall from time to time decide AND may at any time pay any monies forming part of the Trust Fund to the credit of such accounts AND all cheques and orders for the payment of money shall be signed by at least the three(2) Founder Trustees Or any of the Trustee.
- All payments, donations and subscriptions to the Trust shall be paid into the DTB Bank located in Ukunda and Bank Accounts (0322042001, 0322042002 and 0322042003) hereafter provided for by the Trustee.
- Subject to clause 2(e) above, the Trustees shall invest the Trust Fund and all monies the Trust may receive by way of donation, grants, gifts and endowment in such investments as they may deem fit, with the sole purpose of ensuring the sustainability of the operations of this Trust as envisioned herein.
- The Trustee may receive donations, grants, gifts and assistance in all forms and of any nature including without limitation land, buildings, shares, cash, negotiable instruments, and other similar financial instruments, equipment, fittings, furniture and books for the purposes of achieving the Objects of this Trust.
- Subject to clause 2 (f) above, the Trustee may, in their absolute discretion either allow the Trust Fund and/or any other property owned by the Trust Fund and/or any part thereof to remain as actually invested or may sell, exchange, call-in or convert the same into money AND may invest the net sale proceeds thereof in the name of the Trust in or upon such investments as the Trustees may think proper
- Subject to clause 2 (f) above, the Trustee may manage or superintend the management of any properties or premises for the time being forming part of the Trust Fund with power to erect, pull down, rebuild and/or repair any of the properties comprised in the Trust Fund.
- The Trust monies and the Trust Fund shall subject to clause 2(e) and (f) above, be invested by the Trustee as they may deem fit with unrestricted powers of investing and transposing investments in all respects as the Trustees may consider desirable from time to time so as to ensure the sustainability of the Trusts’ operations as envisioned herein.
4.0 APPOINTMENT OF TRUSTEES:
- There shall be no less than two (2) AND not more than Ten (10) Trustees hereof. The Founder shall act as ‘Managing Trustee’. In case of incapability of the Founder of any kind, one of the above-mentioned Trustees, unless he/she ceases to be Trustee under the provisions hereof shall hold office until the Founder can act again as Managing Trustee. If not the Managing Trustee will hold office for a period of five (5) years AND shall upon the expiry of their first Term be entitled to be re-appointed for a second consecutive Term BUT shall not be entitled to any further re-appointment until after five (5) years following the expiry of their second consecutive term, except for such of the Trustees as are Founder(s), who shall be life Trustees.
- A person shall not be eligible for appointment as a Trustee under this Deed unless he/she:
- Is a nominee of the Founder of this Trust?
- Has attained the age of eighteen (18) years; And
- Is of sound mind.
- The power to appoint and/or remove Trustees shall be exercisable solely by a majority vote at a Special General Meeting of the Trustees convened for this purpose, AND each of the Trustees present in person shall be entitled to a single vote at such Special Meeting Save Only that either of the Founder(s) shall retain a casting vote and/or veto vote regarding any appointment and/or dismissal.
- Every new Trustee shall, before acting in the trusts of this Deed sign his/her acceptance in the Minute Book hereafter provided for, a Declaration of Acceptance and willingness to act in the trusts of this Deed.
- The Trustees may from time to time appoint from amongst their number persons to hold the office of Treasurer and Secretary to the Board of Trustees upon the same terms as are applicable to the appointments hereunder generally And the Secretary so appointed in writing shall be responsible for all Notices to and from the Trustees, Provided And It Is Hereby Agreed That the first Secretary to the Board of the Trust shall be Jan Francois AND the first Treasurer Jo Janssen (as from June 2020).
5. MEETINGS OF TRUSTEES:
- The Trustees shall meet at regular intervals to deliberate on matters related to the implementation of the Objects of the Trust AND meetings shall be conducted according to the following regulations:
- The Trustees shall meet at least once (1) every twelve months, and at such other times and in such other places as they shall decide AND shall at each meeting appoint one from their number to act as Chairperson;
- The Trustees may at any time convene a Special Meeting upon fourteen (14) days’ notice being given to each of the Trustees as required in the regulations contained herein regarding Notices, at such times and in such places as the Trustees shall decide;
- No business shall be transacted at any General Meeting of the Trustees UNLESS a quorum of Trustees is present at the time when the meeting proceeds to business
- AND save as herein otherwise provided, attendance by a minimum of two thirds (2/3) out of the total number of persons for the time being acting as Trustees present in person shall constitute a quorum;
- Every matter shall be determined by the majority of votes cast by the Trustees present AND in the event of an equality of votes, the Managing Trustee shall have a casting vote;
- The Trustees shall be required to disclose their interest(s) (if any) in all contracts to which the Trust may be a party. A Trustee may vote as a Trustee in regard to any contract in which he is interested and/or upon any matter arising therefrom, AND if he/she does so, his/her vote shall be counted, and be reckoned in constituting a quorum when any such contract or arrangement is under consideration.
- The Trustees shall not be entitled to pay themselves salaries and/or sitting allowances in respect of any meetings of the Board of Trustees BUT shall be entitled to recoup from the Trust Fund any expenses incurred by way of transportation to and from the place of such Meeting provided always that appropriate documentary evidence of such expenses are produced.
- The Trustees shall keep a Minute Book in which shall be entered the proceedings of the Meetings of Trustees AND which shall be signed by such person as shall be appointed the Chairman of that particular meeting at which the Minutes are sought to be confirmed, upon the said Minutes being confirmed by the Trustees attending the said Meeting.
- Important or pressing decisions can be performed via a postal voting procedure with majority vote (telex, telegraph, registered post)
5.0 LIABILITIES OF TRUSTEES:
The Trustee(s) or any one of them shall not be liable for the consequences of any mistake inadvertence and/or forgetfulness that he/ she may commit and/or sustain in the ordinary course of exercising his/her duties as a Trustee hereof whether of law or of fact, or their advisors, legal or otherwise or to any answer to any inquiries OR generally for any breach of duty and/or trust whatsoever whether by way of commission or omission unless it shall be proved to have been made, given done or omitted in bad faith.
6.0 DISQUALIFICATION OF TRUSTEES:
6.1 The office of Trustee shall be vacated if the Trustee:
or resigns from his/her trusteeship by notice in writing to the Trust;
- Becomes bankrupt OR if a body corporate, makes any arrangement with its creditors generally;
- Is prohibited from being a Trustee by reason of any judicial order and/or statutory amendment;
- Is removed by majority vote of the Founder at a special meeting convened for this purpose;
- Becomes of unsound mind; OR
7.0 THE SEAL:
7.1 There shall be a Trust Seal which shall not be affixed to any instrument except by the authority of a Resolution of any three (3) Trustees OR the Managing Trustee AND in the event that the Seal is affixed by the authority of Trustees other than the Managing Trustee, each of such Trustees shall sign every instrument to which the Seal is so affixed.
8.0 DAILY OPERATIONS:
- Daily Operations SHALL be directed AND observed by the Managing Trustee who will inform each Trustee upon important matters and eventually request for advice from (an)other Trustee(s) according to the subject and each one’s specialties.
- The Managing Trustee will compose a Local salaried Management which will manage the daily operations according to the needs and the resources available, defined by the Board of the Trust. The Management Trustee will act as the Executive Officer (CEO) for the organization AND will represent the Trust as well locally as internationally.
- To assure Representation of the Trust within the management at ALL times, the local management will be directed by a Trustee on a permanent basis who will act as the Managing Director (MD).
- To observe objectivity AND avoid conflicts of interests, management issues where Trustees are directly involved in, will be dealt with by the other Trustees. The involved Trustees will NOT have any vote upon the matters they are involved in.
- To provide clarity AND assure comprehension about the rules and setup of the Trust by all Trustees AND Management Board, a document, summarizing and mapping the essentials of this deed in a for all understandable wording will be composed by the Managing Trustee AND will have to be signed off by all Trustees and Management Members before they can go into function.
The Trustees may defray out of the Trust Fund or the income thereof all costs, charges and expenses of or incidental to the administration of the trusts of this Deed or in relation thereto.
Every Trustee, Managing Trustee, Secretary, agent, auditor or other official of the Trust shall be entitled to be indemnified out of the assets of the Trust against any losses or liabilities which he/she may sustain or incur in or about the execution of the duties of his office or otherwise and defending any proceedings involving the Trust and/or in which the Trust official is involved in the course of his/her duties for the Trust, whether civil or criminal, in which judgment is given in his/her favour or in which he/she is acquitted, AND no Trustee or other officer shall be liable for any loss, damage or misfortune which may happen to be incurred by the Trust in the execution of the duties of his/her office or in relation thereto. Such indemnification is to be decided through a trustee majority vote, as well as salaries related to executive management functions on a permanent basis (CEO and MD), which will be determined and reviewed yearly, respecting article 8.4 here above.
11.1 The Trustees shall on each Accounting Date prepare a full and complete Statement showing all the:
incurred by the Trustees during that Accounting Period;
- Monies received and collected by the Trustees on behalf of the Trust during that Accounting Period; AND shall present the said Statement to the Board of Trustees for inspection.
11.2 The Trustees shall keep all full and proper books of account relating to the application of the Trust Fund AND shall arrange for the audit, by external and independent auditors of such books of account. In the event that such audit and/or inspection reveals any deficiency in monies collected by The Trustees and/or not properly applied by the Trustees THEN the Trustees shall immediately convene a special meeting to investigate such discrepancies.
12.0 WINDING UP:
12.1 In the event of the Trustees hereof wanting to wind up the Trust, they shall restore all the donations made and/or assets given to the Trust Fund to their respective donors AND in default to another designated trust of similar stature and goal.
13.1 Any notice or other document required to be given under this Trust OR any communication between the Trustees with respect to any of the provisions of this Trust shall be in writing in English and shall be deemed duly given if signed by or on behalf of a duly authorised officer(s) of The Trustees OR by the Beneficiaries AND if left at the physical address of either of the parties hereto OR sent by pre-paid courier, registered post or by telex, telegram cable facsimile or other means of telecommunication in permanent written form (excluding electronic mail) to the address of the party receiving such notice.
13.2 Any such notice or other communication shall be deemed to be given to and received by the addressee at the time when the notice:
- If hand delivered, is left at the physical address of or handed to a representative of the party to be served and is registered through the signature of the recipient.
- If sent by inland post to and from an address within Kenya, on the day not being a Sunday or public holiday seven (7) days following the date of posting; AND
- In the case of a telex telegram cable or other means of telecommunication (excluding electronic mail) on the next following day.
14.0 ARBITRATION – DIFFERENCES TO BE REFERRED:
14.1 Whenever any difference shall arise between the Trustees of the Trust OR between the Trustees and the Founders of the Trust OR between the Trustees on the one hand AND any of the Beneficiaries, their executors, administrators and/or assigns on the other hand touching on the true intent, construction, OR the incidence or consequence of the provisions of this Deed, OR to any status or touching any breach or alleged breach or otherwise relating to the premises, status or affairs of the Trust, each of such differences shall be referred to the decision of an Arbitrator to be appointed by the differing parties OR if they cannot agree upon a single Arbitrator then two Arbitrators shall be appointed, one by each of the differing parties. The resulting decision of the arbitration shall be accepted by the differing parties.
15.0 DEFINITIONS & INTERPRETATION:
15.1 The following definitions shall apply in this Trust:
“Accounting Date” means a date that falls thirty (30) days immediately before the end of each Accounting Period;
“Accounting Period” means calendar year (1st January to 31st December), until the termination by consent or otherwise of this Trust. The first Accounting Period shall commence with the date of this Trust and will end on the 31st December of the same year.
“Arbitrator” shall mean any person for the time being qualified as such under the laws of Kenya.
“Beneficiaries” shall mean all needy, poor and disadvantaged in Ukunda, Msambweni, Kwale and Coast Province and later to the world;
“Day” means any period of twenty-four (24) consecutive hours starting at 0:00 hours and ending at 24:00 hours (midnight).
“Founders” shall mean the persons set out and named in the preamble hereabove as Founders;
“Month” means, with regard to the giving of notice(s), any period of thirty (30) consecutive days.
“Statement of Account” means the statements that The Trustees shall be required to produce at the end of each Accounting Period pursuant to clause 10.1 hereof.
“Trust” shall have the meaning ascribed to it in clause one (1) here above together with any Schedules annextures and/or exhibits attached hereto or incorporated herein by reference.
“Trust Fund” shall have the meaning ascribed to it in clause 2(c) and three (3) hereabove;
“Trust Property” shall include but not be limited to any moveable and/or immoveable property donated given assigned and/or bequeathed to the Trust, together with all moveable and/or immoveable property purchased by monies from the Trust Fund and/or the proceeds thereof.
“week” means any period of seven (7) consecutive days.
“Year” means any period of twelve (12) consecutive calendar months.
15.2 Any reference in this Trust to any statute or statutory provision shall be any construed as including a reference to that statute or statutory provision as from time to time amended modified extended or re-enacted whether before or after the date of this Trust AND to all statutory instruments orders and regulations for the time being made pursuant to such statutory instrument and/or deriving validity from it.
15.3 Unless the context otherwise requires words denoting the singular shall include the neuter and plural and vice-versa and words denoting any one gender shall include all genders and words denoting persons corporeal shall include persons incorporeal, bodies corporate and unincorporate, associations and partnerships.
15.4 Any references to a ‘person’ shall be construed as a reference to any legal or natural person, partnership, company, trust, joint venture, government or local authority or other body whether corporate or unincorporate.
15.5 In this Trust Deed, headings are for convenience only and shall not affect the construction or interpretation of this Deed.
15.6 Unless otherwise stated any references in this Trust to clauses, sub-clauses, paragraphs, sub-paragraphs, schedules, annextures and exhibits relate to the clauses, sub-clauses, paragraphs, sub-paragraphs, schedules, annextures and exhibits in this Trust.
16.1 If any object of this Trust shall be prohibited or adjudged by a court of law or by a statutory enactment to be unlawful void or unenforceable such object shall to the requisite extent be severed from this Trust and rendered ineffective as far as possible without modifying the remaining Objects of this Trust and shall not in any way affect any other circumstances or the validity of this Trust.
17.0 GOVERNING LAW:
This Trust shall be governed by and construed in accordance with the laws of the Republic of Kenya the courts of which shall be courts of competent jurisdiction; and shall be applicable in interpreting the provisions of this deed insofar as none of the express and/or implied provisions of this Deed are contravened in so doing.
IN WITNESS WHEREOF the parties have set their hands hereunto the day month and year first above written:
FOR THE FOUNDER:
SIGNED BY THE SAID: PRINCEN PASCI FOUNDER
FOR THE TRUSTEES:
SIGNED BY THE SAID: MILDRED AJAH TRUSTEE
SIGNED BY THE SAID: JANSSEN JOHAN TRUSTEE
SIGNED BY THE SAID: FRANCOIS JAN TRUSTEE
WITNESS FOUNDER AND TRUSTEES
SIGNED BY THE SAID: NG’ANGA KENNEDY
SIGNED BY THE SAID: WERE SARAH
DRAWN & REGISTERED BY:
JAMES OYONDI & COMPANY
CERTIFIED AND PUBLIC ACCOUNTANTS OF KENYA
Auditors, taxation, accountants
and debt management consultants
Royal building, 2nd floor, door 2
P.O BOX 80600 – 80100
MOMBASA – KENYA – Email: email@example.com