ADVOKS GLOBAL · KENYA
The Capital Markets (Real Estate Investment Trusts) (Collective Investment Schemes) Regulations
45. Powers, obligations and duties of a trustee and any secondary disposition trustee
Edition: 2023-10-06 · In force
45. Powers, obligations and duties of a trustee and any secondary disposition trustee
(1)The trustee shall, despite being the sole trustee, to the extent permissible by law have power to issue a valid receipt for the proceeds of sale or other capital money arising under a disposition on trust for the sale of land.(2)The scheme documents may specify the obligations and general duties of a trustee which shall be consistent with the provisions of the Act, these Regulations and any other written law.(3)The trustee and the employees or officers of the trustee who undertake or supervise the carrying out of the role and functions of the trustee shall—(a)perform their duties in accordance with the terms of the trust deed, the scheme documents and these Regulations;(b)act honestly and in a fiduciary capacity as trustee in the best interests of the REIT securities holders as beneficiaries of the real estate investment trust;(c)fulfil the obligations and duties set out in the scheme documents in conformity with these Regulations;(d)act in accordance with any other written law applicable to trustees;(e)maintain the custody of, hold and protect all the assets of the real estate investment trust, ensure they are held in the name of and registered, where required, in the name of the trustee and if required in the name of any secondary disposition trustee;(f)ensure that all the necessary filings and registrations are recorded, undertaken and maintained;(g)protect the interests of the real estate investment trust in any asset;(h)ensure that the assets are—(i)clearly identified as the assets of the trust and the scheme; and(ii)held separately from any other assets of the trustee and of any secondary disposition trustee and any other trust, scheme or person;(i)appoint the REIT manager and, if necessary to protect the interests of beneficiaries, remove the REIT manager and appoint a substitute REIT manager;(j)act as the REIT manager on a temporary basis in any period where there is no other REIT manager until a new REIT manager is appointed;(k)supervise the activities of the REIT manager to ensure that they comply with the terms of the scheme documents, the Act and these Regulations;(l)not delegate to the REIT manager except if appointed by the Authority as a secondary disposition trustee or to any other person not being an officer or employee of the trustee any function of or involving—(i)the supervision of the REIT manager; or(ii)the custody or control of the assets of the scheme;(m)ensure that–(i)the fund and the assets of the scheme are invested in accordance with the terms of the trust deed, the Act and these Regulations;(ii)the income of the scheme is applied in accordance with the terms of the scheme documents:(iii)the assets of the real estate investment trust which are insurable are insured and valued as required by the scheme documents, the Act and these Regulations;(iv)all payments and distributions made out of the assets of the scheme are made in accordance with the terms of the scheme documents, the Act and these Regulations; and(v)any borrowing limitations set out in the scheme documents, the Act and these Regulations are complied with;(n)act in the best interests of the beneficiaries and where there is a conflict between the interests of the trustee and those of any beneficiary, give priority and preference to the interest of the beneficiary;(o)not make use of confidential information acquired when acting as the trustee to gain an improper advantage for itself or for another person or to cause detriment to a beneficiary.(4)Where a trustee or secondary disposition trustee contravenes an obligation imposed on it by the scheme documents, the Act or these Regulations, any person who—(a)has been involved materially in;(b)participated materially in; orsuch contravention shall also be considered to have contravened these Regulations.