ADVOKS GLOBAL · KENYA
The Capital Markets (Real Estate Investment Trusts) (Collective Investment Schemes) Regulations
19. Liability of the trustee, REIT manager or auditor
Edition: 2023-10-06 · In force
19. Liability of the trustee, REIT manager or auditor
(1)Subject to regulations 25, 26, 44, and 48, any provision in the scheme documents of a real estate investment trust scheme which exempts or purports to exempt a REIT manager, a trustee including a secondary disposition trustee or an auditor from liability for any failure to exercise due care and diligence in the discharge of their functions in respect of the real estate investment trust scheme is void:Provided that any trustee, in undertaking any borrowing or financing arrangement, shall be entitled to limit its liability for any borrowing within the scope of its authority, to the assets of the fund.(2)Despite any provision in the scheme documents, a trustee including a secondary disposition trustee, a REIT manager or an auditor shall be liable for any loss, damage or depreciation in the market value of the securities or other assets in which the scheme assets arc invested where such loss, damage or deprecation arises from—(a)in the case of the trustee or the REIT manager, a breach of their fiduciary duties or obligations;(b)failure to exercise due care and diligence in the discharge of their functions;(c)negligence whether professional or otherwise; or(d)wilful default by the trustee, secondary disposition trustee, REIT manager or auditor or their agents, employees or associates.