Waqf Act

The Act may be cited as the Waqf Act.

This section provides definitions of terms used in the Act, including roles (alim, Director-General), bodies (Commission), accounts, categories of waqf, trustee, waaqif, Muslim, and zakat.

The Act applies to the making and administration of all awqaf in Kenya.

Sets conditions for validity of a waaqf, including that the waaqf must be made in accordance with Islamic law, the waaqif must have attained eighteen years and be of sound mind, and that it must be for religious purposes for the poor and vulnerable within the Muslim community; also provides that a waqf is not invalid merely because certain benefits take effect after the extinction of the waaqif's family.

Members of the Commission are to be paid allowances, which the Commission may determine in consultation with the Salaries and Remuneration Commission.

The Commission must recruit and appoint a Director-General through a competitive process; the Director-General must serve as chief executive, handle day-to-day management, be Secretary to the Commission, and oversee income, assets, liabilities and proper implementation of the Act; the Commission may determine terms and conditions in consultation with the Salaries and Remuneration Commission.

The Commission may appoint officers and staff; those appointed shall serve on terms and conditions determined by the Commission in consultation with the Salaries and Remuneration Commission.

Section 13 lists grounds on which a trustee may be removed, including misappropriation, neglect where funds exist, intentional damage or loss, breach of trust, or other reasons under Islamic law; subsection (2) allows the waaqif to remove a trustee if that right is reserved in the waqf deed.

Establishes the Waqf Commission and lists its corporate capacities (e.g., suing and being sued; acquiring and disposing of property; borrowing money; entering into contracts; performing acts for its functions) and rules about authentication and notice of the Commission's seal.

The Commission includes one alim who shall be well-versed in Islamic jurisprudence.

The Attorney-General must appoint a selection panel within 14 days of a vacancy; the panel must solicit and shortlist applicants, interview them, seek Muslim views on shortlisted candidates, and recommend candidates to the Attorney-General. The Government bears the panel's expenses. Commission members serve five years and may be reappointed once.

The Commission must register all awqaf.

Members must elect one member as chairperson at the first meeting each year; the chairperson shall preside at meetings; quorum is five members; if quorum fails at two successive meetings three members may hold a meeting; members serve part-time; the Commission may regulate its own procedure.

Awqaf must be registered with the Commission; trustees must apply within three months and pay prescribed fees; failure to register is an offence punishable by fine or imprisonment.

The Commission may, on trustees' application and subject to waaqif-imposed conditions, take over administration of certain waqf; property of such waqf shall vest in the Commission. For waqf ahli or waqf mushtaraq the trustees' application must be accompanied by consent of a majority of beneficiaries.

Trustees must give the Commission the beneficiaries' names and addresses within thirty days when an inquiry is started by a motion; the Commission must notify interested persons and may administer the waqf or appoint trustees; the Attorney-General may make regulations for inquiries.

The Commission may at any time require a waqf trustee to produce books or documents; a trustee who fails to comply commits an offence and on conviction faces a fine up to two million shillings or imprisonment up to one year.

Leases or other alienations of waqf property for more than one year are valid only if authorised in writing by the Commission; a person wanting to sell immovable waqf property must apply to the Environment and Land Court, which may grant or make other orders; a trustee who contravenes this section commits an offence punishable by a fine up to one hundred thousand shillings or imprisonment up to one year.

No person may acquire title to any waqf property by adverse possession or by reason of the law of prescription.

The Commission must apply any surplus revenue remaining after fulfilling the waaqif's intentions as set out in paragraphs (2)(a) and (b).

The funds in the surplus account must be utilised by the Commission for benevolent or charitable purposes for the benefit of Muslims as the Commission considers appropriate.

The Commission must not use waqf property or its revenue for another waqf if that other waqf still has property or revenue; however, the Commission may use revenue from other waqfs to assist a waqf khairi in urgent need, subject to conditions and repayment rules.

The Commission must ensure that for each waqf a sum necessary to maintain and preserve the waqf property is paid into a maintenance and reserve account before any payment is made to carry out the waaqif's intentions.

If beneficiaries are unascertainable or provisions are unlawful or cannot be carried into effect, the surplus may be deposited in a sharia compliant bank or invested in investments allowed by Islamic law, and the income shall be utilised in the general administration of the Commission.

The Commission must keep proper books of accounts recording its income, expenditure, assets and liabilities.

The Commission may open and maintain sharia-compliant bank accounts; those accounts shall be operated by the Director-General or any other officer of the Commission authorized in that behalf by the Commission.

The Commission must prepare an annual report for the preceding financial year by 30 September each year and submit it to the Attorney-General by 30 November of that year.

A beneficiary of a waqf is entitled to information about the waqf, including inspecting accounts and receiving copies of deeds or documents on payment of the prescribed fees; confidential correspondence is excluded.

Any matter or dispute relating to a waqf must in the first instance be referred to a Kadhis' court.

The income of the Commission is exempt from income tax and any other tax or penalty.

The Commission may determine charitable uses of surplus awqaf revenue; a majority of Commission members at a convened meeting may vary the fees in subsection (1) by resolution which must be published in the Gazette.

The Attorney-General may make rules to carry out the provisions of this Act.

Transitional provisions: existing Wakf Commissioners and Secretary continue to serve their remaining terms; the Commission must review existing Wakf leases within one year; staff of the former Wakf Commissioners are deemed appointed under this Act on their prior terms.