TRUST DEED

DATED ________________________ 20…

BETWEEN

[*]

(TRUSTEE)

AND

[*]

(BENEFICIARY)

DECLARATION OF TRUST OVER SHARES

HELD IN

[*] LIMITED
1. PARTIES..........................................................................................................................2
2. DEFINITIONS AND INTERPRETATION..........................................................................2
3. DECLARATION OF TRUST..............................................................................................4
4. APPOINTMENT AND REMOVAL OF TRUSTEE...............................................................4
5. POWERS AND AUTHORITY OF THE TRUSTEE..............................................................5
6. CAPITAL RE-ORGANIZATIONS......................................................................................6
7. TRUSTEE’S COVENANTS................................................................................................6
8. RESTRICTIONS............................................................................................................7
9. TRUSTEE’S REMUNERATION.........................................................................................7
10. LIABILITY OF THE TRUSTEE.....................................................................................7
11. RECORDS OF TRUST FUND CHARGES......................................................................8
12. ACCOUNTABILITY......................................................................................................8
13. TERMINATION OF TRUST..........................................................................................8
14. NO PARTNERSHIP OF AGENCY.................................................................................8
15. FORCE MAJEURE.......................................................................................................8
16. VARIATION.................................................................................................................8
17. NOTICES.....................................................................................................................8
18. COUNTERPARTS.........................................................................................................9
19. DISPUTE RESOLUTION..............................................................................................9
20. GENERAL..................................................................................................................10
21. GOVERNING LAW.....................................................................................................11

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THIS TRUST DEED (“this Deed”) is entered on the …………. day of …………, 20[*]
BETWEEN:

1. PARTIES
(1) [*], the holder of Identity Card Number/ Passport Number [*] issued by [*] and
of Post Office Box Number [*], (hereinafter referred to as the “Beneficiary” which
expression shall include his successors in title and assigns) of the first part1; and

(2) [*], a company duly incorporated with limited liability bearing the registration
number [*] and of Post Office Box Number [*] (hereinafter the “Trustee” which
expression shall include its successors in title and assigns)2 of the other part.

WHEREAS:

(A) [*] LIMITED (“the Company”) is a company incorporated in the Republic of

Kenya with the Registration Number [*] with a share capital of Kenya Shillings
[*] (KShs. [*]) divided into [*] Ordinary3 Shares of Kenya Shillings [*] (KShs. [*])
each.

(B) The Trustee is the registered proprietor of [*] Ordinary shares of Kenya Shillings
[*] (KShs. [*]) each of and in the Company (the “Shares”);

(C) It has been agreed between the Trustee and the Beneficiary (hereinafter defined)
that the Trustee shall hold the Shares in trust in accordance with the terms and
conditions of this Declaration of Trust.

NOW THIS DEED WITNESSES as follows:

2. DEFINITIONS AND INTERPRETATION

2.1. Interpretation
In this Deed and the schedules hereof unless the context otherwise requires the
following expressions shall have the following meanings:
“Beneficiary” means [*] who is the beneficial owner of the
Shares;
“the Board” means the board of directors of the Company;
“Commencement Date” means the date of this Trust Deed;
“Deed” means this trust deed as amended from time
to time by the Trustee and the Beneficiary in
accordance with the provisions herein
contained;
“Distribution Proceeds” means, for the Beneficiary, the amount
earned whether through dividends or
otherwise by the shares he is entitled to net of
any relevant tax and other deductions
1
Format to be used if the party is an individual
2
Format to be used if the party is an incorporated entity
3
OR [Preference/ Redeemable] or other class of shares
2
 permitted under this Deed;
“the Shares” means the [*] Ordinary shares of Kenya
Shillings [*] each constituting [*] % of the
current issued share capital of the Company;
“Trust Fund” means the Shares and all property added
thereto (including additional shares) by way
of a rights issue, acquisition, further
settlement, accumulation or otherwise
(including interest, dividends and income on
or provided by (1) the Shares; and (2) such
additional shares as may have been acquired
from time to time) and all property from time
to time held by the Trustee upon the trust
contained in this Deed; and
“Trust Period” means the period when this Trust subsists.

2.2. Interpretation
(a) The headings of the Clauses in this Deed are for the purpose of
convenience and reference only and shall not be used in the interpretation
of nor modify nor amplify the terms of this Deed nor any clause hereof.
(b) Unless a contrary intention clearly appears:
i. words importing any one gender include all genders; the singular
include the plural and vice versa; and natural persons include
created entities (corporate or unincorporated) and the state and
vice versa;

ii. references to “Kenya Shillings” constitute a reference to the lawful

currency of Kenya from time to time;

iii. any reference in this Deed to "date of execution hereof" shall be

read as meaning a reference to the date of the last signature of this
Deed; and

iv. any reference to an enactment is to that enactment as at the date

of signature hereof and as amended or re-enacted from time to
time.

(c) If any provision in a definition is a substantive provision conferring rights

or imposing obligations on any party, notwithstanding that it is only in
the definition clause effect shall be given to it as if it were a substantive
provision in the body of the Deed.
(d) When any number of days is prescribed the same shall be reckoned
exclusively of the first and inclusively of the last day unless the last day
falls on a Saturday, Sunday or public holiday, in which case the last day

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 shall be the next succeeding day which is not a Saturday Sunday or public
holiday.
(e) Where figures are referred to in numerals and in words, if there is any
conflict between the two, the words shall prevail.
(f) Expressions defined in this Deed shall bear the same meanings in
schedules or annexures to this Deed which do not themselves contain
their own conflicting definitions.
(g) Where any term is defined within the context of any particular clause the
term so defined unless it is clear from the clause in question that the term
so defined has limited application to the relevant clause shall bear the
meaning ascribed to it for all purposes in terms of this Deed,
notwithstanding that that term has not been defined in this interpretation
clause.
(h) References to recitals clauses and schedules are references to recitals and
clauses of and schedules to this Deed;
(i) Where any stamp duty is payable upon the transfer of shares to any
person, such stamp duty shall be payable by the transferee.

3. DECLARATION OF TRUST
3.1. There is hereby a trust declared over the Shares by the Trustee on behalf of and
for the benefit of the Beneficiary.
3.2. The Trust will subsist from the date hereof until otherwise terminated as
provided herein (the Trust Period).4
3.3. During the Trust Period and subject to the trusts, powers, restrictions, terms &
conditions hereinafter contained and to the restrictions by law from time to time
placed on the Trustee, the Trustee shall stand possessed of the Trust Fund:
a. Absolutely for the Beneficiary with respect to the shares subscribed by
such Beneficiary from time to time; and

b. Absolutely for the Beneficiary for the shares subscribed by the

Beneficiary, any funds received in relation to shares whether as dividend
or any other distribution or the proceeds of sale of the shares.

3.4. Where the Beneficiary dies before the expiry of the Trust Period, the Trustee shall
hold the Shares in trust of the deceased Beneficiary’s estate.
3.5. In the event of (i) winding up the Company; or (ii) expiry of the Trust Period, the
Trust shall be dissolved and the Shares transferred to the Beneficiary.

4. APPOINTMENT AND REMOVAL OF TRUSTEE

4.1. The Trustee is hereby appointed as the sole Trustee by the Beneficiary to hold the
Shares on the terms of this Trust Deed for the duration of the Trust Period.
4.2. The Trustee declares that with effect from the Commencement Date, it holds the
Shares and all dividends and interests thereafter accrued or to accrue upon the

4
OR [The Trust will subsist from [*] and terminate on [*]. Use this alternative clause where the
period is ascertained.
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 same in trust for the Beneficiary and agrees to transfer pay and deal with the
Shares and the dividends and interest payable in respect of the same in such
manner as the Beneficiary shall from time to time direct.
4.3. The power of appointing a new Trustee shall be vested in the Beneficiary.
4.4. The appointment of a Trustee shall terminate upon the happening of the
following:
a. Its appointment is terminated in writing by the Beneficiary in writing;

b. The Trustee is declared bankrupt;

c. On expiry of the Trust Period.

5. POWERS AND AUTHORITY OF THE TRUSTEE

5.1. Subject to the Beneficiary’s direction, the Trustee shall have the following powers
exercisable by it at any time from time to time during the Trust period:
a. Power, control and authority over the assets of the Trust Fund and over
the business and affairs of the Trust to the same extent as if the Trustee
were the sole owner of the shares and other assets in their own right and
to do all such acts and things as in their sole discretion and judgment are
necessary or incidental thereto or desirable for the carrying out of any of
the purpose of the Trust Fund or conducting the business of the Trust
Fund.

b. Power to collect, sue for and receive all sums of money due to or becoming
due to the Trust Fund and to engage in prosecute, defend, compromise,
abandon any actions, suits, proceedings, disputes, claims, demands or
other litigation relating to the Trust Fund;

c. Unless otherwise provided by law the Trustee may grant or delegate to

persons such authority as the Trustee in its sole discretion may deem
necessary or desirable for the management or administration of the Trust.
The Trustee may enter into a contract with such person relating to her
authority, term of appointment, compensation and any other matters
deemed desirable by the Trustee;

d. Power to enter into any agreement or contract with the Company or any
third party;

e. Power to borrow money from the Company or any such person for the
benefit of the Trust;

f. Power as regards any other money for the time being subject to the
provisions of this Deed to place money on deposit with a reputable
institution regulated by CBK provided that the Trustee shall not be under
any obligation to diversify the investments of the Trust Fund;

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 g. Power to exercise or refrain from exercising (either themselves or by
proxy) the voting and other rights attached to the Shares that are subject
to any of this trust in any manner whatever.

h. Power at any time on giving written notice to each Beneficiary determine

that each Share shall be sub-divided or consolidated in accordance with
any resolution passed by the Company for the sub-division or
consolidation of shares;

i. Power to appoint a representative to attend and vote on its behalf at the

Company’s general meetings.

j. To do all such other acts and things as are incidental to the foregoing and
to exercise all powers which are necessary or useful in carrying on the
business of the trust and to promote any of the purposes for which the
trust is established and to carry out the provisions of this Deed.

5.2. The Trustee has executed a Transfer of Shares Form with respect to the Shares in
favour of the Beneficiary and has authorised the Beneficiary to complete, stamp
and register the transfer in such manner as and when the Beneficiary may think
fit.
5.3. The Trustee (in addition and without prejudice to all powers vested in them by
this Settlement or by law) may exercise all or any of the same from time to time in
such manner and to such extent as may seem to them to be desirable provided
that in exercising their powers they shall not depart from the provisions of this
Deed.

6. CAPITAL RE-ORGANIZATIONS
6.1. In the event the issued share capital of the Company is increased pursuant to a
bonus issue, scrip dividend or other form of capitalization the Trustee shall apply
to exercise its rights in full to acquire additional shares credited as fully paid to be
held pursuant to the terms of this Deed.
6.2. To the extent that the same is authorized by the Board, in the event of a rights
issue of new shares in the capital of the Company (“Rights Issue”) the Trustee
shall, subject to procuring the Beneficiary’s authorization, make an offer in
writing to subscribe for additional shares pro rata to the existing shareholding.

7. TRUSTEE’S COVENANTS
7.1. The Trustee hereby covenants with the Company to:
a. deal with the Trust Fund in accordance with the Deed;
b. manage and administer the Trust Fund in accordance with the Deed;
c. subject always to the Trust Fund being sufficient for the purpose, to pay
or provide for the payment of all charges commissions fees and benefits
prescribed by this Deed;
d. to comply always with the provisions of this Deed.

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7.2. The Trustee shall execute a transfer of shares form with respect to the Shares in
favour of the Beneficiary and hereby authorises the Beneficiary to complete,
stamp and register the transfer in such manner as and when the Beneficiary may
think fit.

8. RESTRICTIONS
8.1. Notwithstanding anything to the contrary expressed or implied no discretion or
power conferred on the Trustee shall be exercised and no provision of this Deed
shall operate directly or indirectly:
(a) so as to allow the Trustee to charge, pledge, grant a lien or security over the
Shares or any shares acquired by it pursuant to this Deed except where such
charge, pledge, lien or security is necessary for their acquisition for the
purposes herein contained;
(b) so as to cause the Trust to lose or forfeit or not qualify for any tax
exemptions that are or may become available;
(c) so as to cause the annual administrative costs and expenses of the Trustee to
exceed the amounts agreed by the Beneficiary and the Trustee.

9. TRUSTEE’S REMUNERATION
9.1. The Trustee shall be entitled to charge and be paid and to retain all professional
or other proper charges for any business done or time spent or services rendered
by it in connection with the trust, powers and provisions of this Deed.
9.2. The Trustee shall charge a professional fee for its services as will be agreed by the
Trustee and the Beneficiary and the fee will be payable on the Commencement
Date.

10. LIABILITY OF THE TRUSTEE

10.1. The Trustee or any one of their number shall not be liable to the Beneficiary in
their capacity as such for any loss arising:
(a) Solely from the negligence or fraud of any agent, officer, servant or other
person employed by them or otherwise engaged or occupied in connection
with the Trust Fund notwithstanding that it may not have been strictly
necessary or expedient for any person to be so employed, engaged,
occupied; or
(b) By reason of any mistake or omission made in good faith by them or any one
of them; or
(c) By reason of any other matter or thing except their or her own willful fraud
or wrongdoing
Provided that where the Trustee is in default it shall stand liable for losses
incurred and shall indemnify the Beneficiary.

10.2. The Beneficiary will at all times indemnify and keep indemnified the Trustee
against all liabilities which the Trustee may incur by reason of the Shares being so
registered in the name of the Trustee and in particular will punctually pay all calls
and other demands which the Trustee may be or becomes liable to pay in respect

7
 of any shares or securities which may be offered to the Trustee in respect of the
shares and which the Trustee may in its discretion subject to matters mentioned
below think fit to subscribe and all costs and expenses incurred by the Trustee in
the execution of the trusts of this deed.

11. RECORDS OF TRUST FUND CHARGES

The Trustee shall keep records showing the total number of shares held by the
Trust Fund, the amount of commissions, fees and charges incurred in dealing
with the shares and all other assets, sums and investments held by it under this
Deed and a record of such other matters as are relevant to the management and
administration of the Trust Fund.

12. ACCOUNTABILITY
The Trustee will keep the Beneficiary notified and shall account to him on all
matters relating to the Shares.

13. TERMINATION OF TRUST

13.1. At the expiration of the Trust Period, the Shares allocated to the Beneficiary will
be transferred to the Beneficiary.
13.2. Pursuant to the transfer noted above, the Beneficiary will be entered as a
shareholder of the Company and his name entered into the Company’s Register
of Members.

14. NO PARTNERSHIP OF AGENCY

14.1. Nothing in this Deed is intended to, or shall be deemed to, establish any
partnership or joint venture between any of the parties, constitute any party the
agent of another party, or authorise any party to make or enter into any
commitments for or on behalf of any other party except as expressly provided
herein.
14.2. Each party confirms it is acting on its own behalf and not for the benefit of any
other person.

15. FORCE MAJEURE

Neither Party shall be in breach of this Deed nor liable for delay in performing, or
failure to perform, any of its obligations under this Deed if such delay or failure
result from events, circumstances or causes beyond its reasonable control. In
such circumstances the time for performance may be extended at the discretion
of the Trustee by a period equivalent to the period during which performance of
the obligation has been delayed or failed to be performed. If the period of delay or
non-performance continues for eight (8) weeks, the Party not affected may
terminate this agreement by giving fourteen (14) days' written notice to the
affected Party.

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16. VARIATION
The parties may by written deed add to or vary the terms of this Deed in writing
and by mutual consent.

17. NOTICES
17.1. Each party chooses the address set out opposite its name below as its address at
which all notices, legal processes and other communications must be delivered
for the purposes of this Deed. Either Party may provide changes in the above
address by notice in writing given to the other party as aforesaid.
(a) For the Company:
 Name
 Postal Address
 Tel
 Email
(b) For the Director:
 Name
 Postal Address
 Tel
 Email

17.2. Any notice shall be in writing and shall either be delivered by hand or sent by
prepaid registered post or electronic mail for routine notices and
communications:
(a) If delivered by hand it shall be deemed to have been duly received by the
addressee on the date of delivery;
(b) If posted by prepaid registered post it shall have been received by the
addressee on the eighth business day following the date of such posting;
(c) If sent by email it shall be deemed to have been serviced at the time of
transmission unless the sender receives a notification of non-delivery.

18. COUNTERPARTS
18.1. This deed may be executed in any number of counterparts, each of which when
executed and delivered shall constitute a duplicate original, but all the
counterparts shall together constitute the one deed.
18.2. Transmission of an executed counterpart of this deed or the executed signature
page of a counterpart of this deed by email (in PDF, JPEG or other agreed
format) shall take effect as delivery of an executed counterpart of this deed. Each
Party shall provide the others with the original of such counterpart as soon as
reasonably possible thereafter.
18.3. No counterpart shall be effective until each party has executed and delivered at
least one counterpart.

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19. DISPUTE RESOLUTION5
19.1. Good Faith Negotiations
The Parties agree that should any dispute arise with regard to the interpretation,
rights, obligations and/or implementation of any one or more of the provisions
of this Deed, the Parties shall use their best efforts to attempt to resolve such
dispute by amicable negotiation within a period of Thirty (30) Business Days
following notification of the dispute.

19.2. Mediation
(a) If the dispute has not been settled pursuant to the Good Faith Negotiations
under clause 13.1 within (30) Business Days from when the settlement
discussions were instituted, any Party may elect to refer the dispute to
mediation. The mediation shall take place in accordance with the Nairobi
Centre for International Arbitration (Mediation) Rules, 2015.
(b) The mediator shall be appointed by mutual agreement between the Parties
or in default of such agreement within five (5) days of the notification of a
dispute, upon the application of either Party, by the Registrar of the Nairobi
Centre for International Arbitration in accordance with the Nairobi Centre
for International Arbitration (Mediation) Rules, 2015.
(c) The mediation shall take place in Nairobi and shall be conducted in
accordance with the Nairobi Centre for International Arbitration
(Mediation) Rules, 2015.
(d) Unless otherwise agreed, the mediation will start not later than fourteen
(14) Business Days from the date of notification of the dispute. No Party
may commence any court proceedings or arbitration in relation to any
dispute arising out of this Deed until it has attempted to settle the dispute
by mediation and the mediation has terminated.
(e) Nothing in this Deed shall prevent or delay a Party seeking urgent injunctive
or interlocutory relief in a court having jurisdiction.
19.3. Arbitration
(a) If the dispute has not been settled pursuant to Good Faith Negotiations
under Clause 13.1 or under Mediation under clause 13.2 above within thirty
(30) Business Days (or such longer period as may be agreed upon between
the Parties) from when the settlement discussions were instituted, any Party
may elect to commence arbitration. Such arbitration shall be referred to
arbitration by a single arbitrator to be appointed by agreement between the
Parties or in default of such agreement within fourteen (14) days of the
notification of a dispute, upon the application of either Party, by the
Chairman for the time being of the Kenya Branch of the Chartered Institute
of Arbitration of the United Kingdom.

5
Parties have an option of directly proceeding with the court process (by amending Clause 13) in
the event the alternative dispute resolutions mechanisms provided under Clause 13 is not suitable
for the Parties involved.

10
 (b) Such arbitration shall be conducted in Nairobi in accordance with the Rules
of Arbitration of the said Institute and subject to and in accordance with the
provisions of the Arbitration Act 1995.
(c) To the extent permissible by Law, the determination of the Arbitrator shall
be final, conclusive and binding upon the Parties hereto.
(d) Pending final settlement or determination of a dispute, the Parties shall
continue to perform their subsisting obligations hereunder.
(e) Nothing in this Deed shall prevent or delay a Party seeking urgent injunctive
or interlocutory relief in a court having jurisdiction.

20. GENERAL
20.1. This Deed constitutes the entire agreement between the Parties and supersedes
any previous agreement or relationship of whatsoever nature between the Parties.
20.2. The failure by either Party to enforce at any time or for any period any one or
more of the terms or conditions of this Deed shall not be a waiver of them or of
the right at any time subsequently to enforce all terms and conditions of this
Deed.
20.3. If any provision of this Deed is declared by any judicial or other competent
authority or an arbitrator appointed hereunder to be void, voidable, illegal or
otherwise unenforceable, the Parties shall amend that provision in such
reasonable manner as achieves the intention of the Parties without illegality or at
the discretion of the Beneficiary it may be severed from this Deed or the
remaining provisions of this Deed shall remain in full force and effect.
20.4. Unless otherwise required by law, neither Party shall make, or cause to be made,
any press release, public announcement or disclosure to any third party in
respect of this Deed or the transactions contemplated hereby or otherwise
communicate with any news media without the prior written consent of the other
Party, and the Parties shall co-operate as to the timing and contents of any such
press release or public announcement.
20.5. Except where this Deed provides otherwise, the rights and remedies contained in
it are cumulative and not exclusive to rights or remedies provided by law. Any
right or remedy to which either Party is or may become entitled under this Deed
or in consequence of the other’s conduct may be enforced from time to time
separately or concurrently with any rights or remedies arising by operation of
law.

21. GOVERNING LAW

The validity, interpretation and performance of this Deed shall be governed
solely by the Laws of Kenya.

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IN WITNESS WHEREOF the Trustee and the Beneficiary have duly executed this
deed the day and year first before written.

SIGNED on behalf of[*] ]

[*] LIMITED6 by: ]
]
Director ]
]
In the presence of ]
]
Witness ] Signature: [*]
Signature: ] Name: [*]
Name: ] Date: [*]
Date: ]

SIGNED by
[ * ]7 ]
]
In the presence of ]
]
Witness ] Signature: [*]
Signature: ] Name: [*]
Name: ] Date: [*]
Date: ]

6
Format to be used if Party is an incorporated entity
7
Format to be used if Party is an individual
12
13