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A step-by-step guide to protecting land, businesses, and family peace — before a dispute forces the issue

31 August 2026 | By Eugene Mukamba, Advocate

Most families do not plan for what happens to the land when the patriarch dies. They plan the funeral. By the time the succession court gets involved, siblings who once shared a compound are sometimes not speaking, and the property sits frozen for years.

A family trust exists precisely to make sure that story does not repeat itself in yours.

What a Family Trust Actually Is

Strip away the jargon and a trust is a simple arrangement between three roles. The settlor — usually the parent or property owner — transfers assets to trustees, who are legally bound to manage those assets for the benefit of the beneficiaries, according to rules the settlor writes down in a trust deed.

Unlike a will, a trust can operate while the settlor is still alive, and the assets inside it generally bypass the succession court process that so often stalls inheritance for years.

The Two-Stage Process Most People Get Wrong

Setting up a trust in Kenya happens in two distinct stages, and skipping the second is the most common — and most expensive — mistake families make.

• Stage One: The trust deed is drafted, stamped, and registered under the Registration of Documents Act (Cap 285) at the Lands Registry. This creates the trust, but only as an unincorporated arrangement — the trustees hold everything personally, and personal liability attaches to them, not to the trust as a separate entity.
• Stage Two: The trust is incorporated under the Trustees (Perpetual Succession) Act (Cap 164). This is what gives the trust its own legal personality — able to hold land and other property in its own name, enter contracts, and outlive any individual trustee. A family trust that stops at Stage One is, in practical terms, still exposed.

The 2021 amendment to the Trustees (Perpetual Succession) Act gave “family trust” its own statutory definition for the first time, and streamlined a process that previously left families waiting up to two years for full incorporation with no clear timeline at all. It is now considerably more predictable — provided the deed is drafted correctly from the start.

The Practical Steps

• Define the purpose — asset protection, business continuity, or an orderly handover to the next generation each call for a differently structured deed.
• Choose trustees you genuinely trust, or a professional trustee, since Kenyan trustees are given considerable discretion under the law.
• Draft the trust deed carefully — this single document controls everything that follows, from who benefits to how disputes are resolved.
• Stamp and register the deed at the Lands Registry under the Registration of Documents Act.
• Incorporate under the Trustees (Perpetual Succession) Act to secure full legal personality and protect the trustees from personal exposure.
• Formally transfer the assets — title deeds, shares, accounts — into the trust’s name. An unfunded trust protects nobody.

Trust or Will? Most Families Need Both

A will only takes effect on death, and everything in it still passes through the succession court. A trust can take effect immediately, keep land and business assets out of that court process entirely, and give you control while you are alive to see it working.

In our experience, the families with the fewest post-death disputes are rarely the ones with the most detailed will — they are the ones who moved the contentious assets into a properly incorporated trust years before anyone needed one.