MUKAMBA & COMPANY ADVOCATES

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The word in the job title is the whole problem — here is how to actually test for it

31 August 2026 | By Eugene Mukamba, Advocate

Every trust lives or dies on one decision that has nothing to do with the deed’s wording: who you hand the keys to. Get the trustee wrong, and the most beautifully drafted deed in the world will not save the family from conflict.

What the Law Actually Demands of a Trustee

A trustee in Kenya is not simply a custodian — the Trustee Act imposes real, enforceable obligations.

Trustees must act in the best interests of the beneficiaries, avoid any conflict between their personal interests and their duties, manage trust property with the care a prudent person would apply to their own affairs, and keep proper accounts they can be called to produce. A trustee who breaches these duties can be held personally liable and can be removed.

Family Member or Professional Trustee?

This is the decision most families agonise over, and there is no universally right answer — only trade-offs worth being honest about.

• A trusted family member knows the family’s history and intentions intimately, and typically costs nothing — but can become the very source of resentment if beneficiaries suspect favouritism, and may lack the time, distance, or technical skill to administer the trust well over decades.
• A professional trustee — an advocate, trust company, or institution — brings independence, continuity beyond any one person’s lifetime, and technical competence, at the cost of ongoing fees. Independence is often exactly what defuses sibling conflict, because no beneficiary can accuse the trustee of favouring themselves.
• A mixed panel of trustees — combining a family member’s knowledge with a professional’s independence — is frequently the most durable compromise, provided the deed is clear on how disagreements between them are resolved.

What a Good Trustee Selection Actually Checks

• Willingness to keep proper, accessible records — not just good intentions about honesty.
• No existing financial entanglement with the trust property that could create a conflict of interest.
• Realistic capacity to serve for the likely lifespan of the trust, which may run for decades, not just the next few years.
• A track record, however informal, of handling money or property responsibly on someone else’s behalf.
• Comfort being held accountable — someone who bristles at the idea of keeping accounts or explaining decisions is signalling a problem before it happens.

Build In an Exit, Not Just an Appointment

Even the right trustee today may not be the right trustee in twenty years. A well-drafted deed sets out, from the outset, how a trustee can be removed or replaced — by the settlor while alive, by the remaining trustees, or by the beneficiaries in defined circumstances — so that a bad appointment is a correctable mistake, not a permanent one.