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THE RETIREMENT BENEFITS ACT

The Act Establishes And Incorporates The Retirement Benefits Authority. The Authority Is A Corporate Entity Capable Of Suing And Can Be Sued, Can Purchase Or Otherwise Acquire, Hold, Charge, Dispose Of Movable And Immovable Property. In Addition, It Can Borrow Or Lend Money. The Authority Is Empowered To Perform All Other Things Or Acts For The Provisions Of This Act, Which May Be Lawfully Done Or Performed By A Body A Corporate.

  1. Regulate and supervise the establishment and management of retirement benefits schemes;
  2. Protect the interests of members and sponsors of retirement benefits sector;
  3. Promote the development of the retirement benefits sector;
  4. advise the Minister on the national policy to be followed with regard to retirement benefits schemes and to implement all Government policies relating thereto;
  5. Perform such other functions as are conferred on it by this Act or by any other written law.

Management of the Authority vests in the Board of Directors which comprises of;

  1. A Chairman appointed from amongst the members, not being public officers, appointed by the Minister by virtue of their knowledge or experience in matters relating to the administration of scheme funds, banking, insurance, law or actuarial studies.
  2. A Chief Executive Officer
  3. Permanent Secretary in the Ministry responsible for matters relating to finance
  4. The Commissioner of Insurance
  5. The Chief Executive of the Capital Markets Authority
  6. Five members, not being public officers, appointed by the Minister by virtue of their knowledge or experience in matters relating to the administration of scheme funds, banking, insurance, law or actuarial studies:

NOTE: Provided that no person shall be eligible to be appointed under paragraph (f) if such person is an employee or director of any company, firm or institution where such employment or directorship may lead to a conflict of interest.

Link to current Board Members (per RBA website).

The Board has all the powers necessary for the performance of its functions under the Act. In particular the board shall;

  1. control, supervise and administer the assets of the Authority in such manner and for such purposes as best promote the purpose for which the Authority is established;
  2. determine the provisions to be made for capital and recurrent expenditure and for reserves of the Authority;
  3. receive any grants, gifts donations or endowments on behalf of the Authority and make legitimate disbursements there from;
  4. enter into association with other bodies or organizations within or outside Kenya as the Board may consider desirable or appropriate and in furtherance of the purpose for which the Authority is established;
  5. open a banking account or banking accounts for the funds of the Authority; and

Invest funds of the Authority not currently required for its purposes in the manner provided for under the Act.

The common seal of the Authority shall be kept in such custody as the Board may direct and shall not be used except on the order of the Board.

The common seal of the Authority when affixed to a document and duly authenticated shall be judicially and officially noticed and unless and until the contrary is proved, any necessary order or authorization by the Board under this section shall be presumed to have been duly given.

The Authority shall, in determining whether a person is suitable to act as a trustee, manager, custodian or an administrator under this Act, consider the following;

  1. financial status or solvency of the person;
  2. educational or other qualifications or experience of the person, having regard to the nature of the functions which, if the application is granted, the person shall perform;
  3. status of any other licence or approval granted to the person by any financial sector regulator;
  4. ability of the person to carry on the regulated activity competently, honestly and fairly; and
  5. reputation, character, financial integrity and reliability;-
  1. in the case of a natural person, of that individual; or
  2. in the case of a company, of the company, its chairperson, directors, chief executive, management and all other personnel including all duly appointed agents, and any substantial shareholder of the company, if the chairperson, director, chief executive, management or the personnel are shareholders of the company.

The Authority shall give a person an opportunity to be heard before determining whether a person is fit and proper for the purposes of this Act.

A person proposing to establish a retirement benefits scheme or to act as a manager, a custodian or an administrator shall apply to the Authority for, and obtain, a certificate of registration before establishing the scheme or commencing the performance of any of the functions of a manager, a custodian or an administrator.

 

The application shall be addressed to the Chief Executive Officer; in the prescribed form; and accompanied by the prescribed fee. In considering an application under this section, the Authority may request the applicant to supply such additional information as it considers necessary in determining the application.

The Retirement Benefits (Forms and Fee) Regulations, 2000 Rules 2-9A, provides for the form and fee payable when applying for registration as a Custodian, Manager, Administrator and the respective certificates of registration. In addition to that it provides for the form for application for registration of Individual Retirement Benefits Schemes and Occupational Retirement Benefits Schemes.

No scheme, other than a scheme established by a written law shall be registered under this Act unless; it is proposed to be established under an irrevocable trust; and the proposed scheme rules adequately protect the rights and interests of the sponsors and members thereof.

Rules 4-6 of the Retirement Benefits (Individual Retirement Benefits Schemes) Regulations, 2000 and Retirement Benefits (Occupational Retirement Benefits Schemes) Regulations, 2000 both provides for registration of Individual Retirement Benefits Schemes and Occupational Retirement Benefits schemes respectively.

Rule 7 of the Retirement Benefits (Individual Retirement Benefits Schemes) Regulations, 2000 provides on what should be the content of Scheme rules and under Rule 8, amendment of the same rules.

Under the Retirement Benefits (Occupational Retirement Benefits Schemes) Regulations, 2000, amendment of the scheme rules is provided for under Rule 16.

Manager

No applicant for registration as a manager shall be registered unless such applicant;-

  1. is a limited liability company incorporated under the Companies Act whose liability is limited by shares and whose main object is to manage scheme funds;
  2. has such minimum paid up share capital as may be prescribed;
  3. is capable of meeting the obligations to members and sponsor specified in the scheme rules;
  4. has the professional capacity to manage scheme funds;
  5. has never been involved in the management of the scheme fund of any scheme which was deregistered due to any failure on the part of the management;

       f. meets such additional requirements as may be prescribed

Custodians

No applicant for registration as a custodian shall be registered unless such applicant;

  1. is a limited liability company incorporated under the Companies Act whose main function is to perform the functions of a custodian within the meaning of this Act; and
  2. has the professional and technical capacity and adequate operational systems to perform the said functions; and
  3. has never been a custodian of any scheme fund which was deregistered due to any fault, either fully or partially, of the custodian;
  4. meets such additional requirements as may be prescribed.

Administrators

No applicant for registration as a scheme administrator shall be registered unless such applicant;

  1. is a limited liability company incorporated under the Companies Act whose liability is limited by shares and whose main objective is to render administrative services to schemes;
  2. has such minimum paid up share capital as may, from time to time, be prescribed;
  3. is capable of meeting the obligations to members and sponsors specified in the scheme rules;
  4. has the professional and technical capacity and adequate operational systems to perform it’s functions;
  5. has never been an administrator of any scheme fund which has been either deregistered, wound up or placed under an interim administrator due to any fault, either fully or partially, of the administrator;
  6. has in its Board of Directors and top management such number of persons as may be prescribed who are academically and professionally qualified in matters relating to administration of schemes, insurance, law, accounting, actuarial science, economics, banking, finance or investment of scheme funds;
  7. has at least sixty percent of its paid up share capital owned by Kenyan citizens unless the applicant is a bank or an insurance company;
  8. meets such additional requirements as may, from time to time, be prescribed.

The following cannot be trustees in any scheme, one who;

  1. has been sentenced to imprisonment by a court of competent jurisdiction for a period of six months of more;
  2. is adjudged bankrupt;
  3. was previously involved in the management or administration of a scheme which was deregistered for any failure on the part of the management or the administration thereof;
  4. is disqualified under any other written law, or his holding office as such is deemed by the Authority as being, in any way, detrimental to the scheme.

The Authority may refuse to register any scheme, manager, custodian or administrator if satisfied that;

  1. the information contained in the application for registration is false or untrue in any material particular; or
  2. The applicant does not meet the requirements for registration.

Where the Authority refuses to register any scheme, manager, or custodian, it shall forthwith notify the applicant in the prescribed form, specifying the reasons for such refusal.

The Retirement Benefits (Forms and Fee) Regulations, 2000 Rule 10 provides for the form of notice of refusal to register a custodian, manager or scheme.

The Authority may deregister a scheme if;

  1. it discovers after registration that a statement was made in connection with the application therefore which the applicant knew to be false or untrue in any material particular; or
  2. the scheme is wound up or is otherwise dissolved; or
  3. The scheme does not conform to the provisions of the Act or any regulations made or directions issued under the Act or any condition of the certificate of registration.

Deregistration of a scheme shall not in any way prejudice the claims of members under the scheme. Where the assets of a deregistered scheme are insufficient to fully discharge its obligations to its members, the Chief Executive Officer may, subject to the approval of the Board, take over the distribution or transfer of the assets and the supervision of the scheme in order to protect the interests of members.

NOTE: The Authority shall, before deregistering a scheme, give the trustees, sponsors and members of the scheme at least twenty-eight days notice of its intention and shall consider any representations made to it in writing by the trustees, sponsors or members within that period before deregistering the scheme.

The Authority may deregister a manager, custodian or administrator if;

  1. it discovers after registration that the manager, custodian or administrator made a statement in or in connection with the application there for which was false or untrue in any material particular; or
  2. any event occurs which renders the manager, custodian or administrator ineligible to manage or provide custodial services to a scheme fund, as the case may be;
  3. the manager’s, custodian’s or administrator’s business is wound up or is otherwise dissolved;
  4. the manager, custodian or administrator is in breach of any condition attached to the certificate of registration;
  5. the manager, custodian or administrator does not comply with any of provisions of this Act, or with any regulations made or directions issued thereunder.

A certificate of registration issued in respect of a scheme shall be valid from the date of issue and shall remain in force until the scheme is deregistered or wound up in accordance with the scheme rules or the provisions of the written law under which the scheme is established.

A certificate of registration issued to a manager, custodian or administrator shall be valid from the date of issue and shall, unless suspended or revoked, remain valid.

It is the duty of the manager, custodian or administrator to submit current audited financial statements, a list of the directors and top management, any changes in clientele and such further information as the Authority may request by the 30th September of every year. A manager, custodian or administrator shall communicate to the Authority any changes in shareholding, directorship or top management within thirty days after the change has occurred.

Scheme Funds (Section 32)

Every Scheme other than a scheme funded out of the Consolidated Fund shall contain a scheme fund into which all contributions, investment earnings, income and all other moneys payable under the scheme rules or the provisions of the Retirement Benefits Act shall be paid. The scheme fund and all monies therein shall at all times be maintained separately from any other funds under the control of the trustees or the manager.

Statutory Contributions (Section 33)

Notwithstanding the provisions of any written law for the time being in force, an employer may, with the approval of his employees, pay any statutory contributions in respect of such employees into any scheme fund prescribed for that purpose.

Where such payment involves a transfer of funds from another scheme fund, the employer shall, at least sixty days before commencing such payment, give written notice thereof to the Authority and to the trustees of the scheme fund from which such funds shall be transferred.

NOTE: “statutory contributions” means contributions required under the provisions of a written law to be paid into a retirement benefits scheme

Protection against attachment (Section 36)

Notwithstanding anything to the contrary contained in any other written law, where a judgement or order against a member of a scheme is made, no execution or attachment or process of any nature shall be issued in respect of the contributions or funds of the member or his employer except in accordance with the scheme rules and such contributions shall not form part of the assets of the member or of his employer in the event of bankruptcy.

Treatment of death benefits (Section 36A)

Upon the death of a member of a scheme, the benefit payable from the scheme shall not form part of the estate of the member for the purpose of administration and shall be paid out by the trustees in accordance with the scheme rules.

Appointment of interim administrator (Section 45)

The Chief Executive Officer may, with the approval of the Authority;

  1. appoint any person (in this Act referred to as “an interim administrator”) to assume the management, control and conduct of the affairs and business of the trustees, the manager, the custodian or the administrator, as the case may be, to exercise all the powers of the trustees, the manager, the custodian or the administrator to the exclusion of such trustees, manager, custodian or administrator;
  2. remove any officer or employee of the trustees, the manager, the custodian or the administrator who, in the opinion of the Chief Executive Officer, has caused or contributed to any contravention of the provisions of this Act or any regulations made thereunder or to any deterioration in the financial stability of the scheme or has been guilty of conduct detrimental to the interests of the members or sponsors of the scheme; or
  3. by notice in the Gazette, revoke or cancel any existing power of attorney, mandate, appointment or other authority by the trustees, the manager, the custodian or the administrator in favour of any officer, employee or any other person.

The appointment of an interim administrator shall be for such period, not exceeding twelve months, as the Chief Executive Officer may specify in the instrument of appointment but may be extended by the High Court, upon application by the Chief Executive Officer, if such extension appears justified.

The responsibilities of the interim administrator shall be;

  1. tracing, preserving and securing all the assets and property of the scheme;
  2. recovering all debts and other sums of money due to and owing to the scheme;
  3. evaluating the solvency and the liquidity of the scheme;
  4. assessing the scheme’s, the manager’s, the custodian’s and the administrator’s compliance with the provisions of this Act and any regulations made thereunder;
  5. determining the adequacy of the capital and reserves and the management of the scheme and recommending to the Chief Executive Officer any restructuring or re-organization which he considers necessary and which, subject to the provisions of any other law, may be implemented by him on behalf of the trustees, the manager, the custodian or the administrator; and
  6. obtain from any former trustee, manager or administrator of the scheme or any officer, employee or agent thereof, any documents, records, accounts, statements, correspondence or information relating to the scheme.

 

 

 

Any member of a scheme who is dissatisfied with a decision of the manager, administrator, custodian or trustees of the scheme may request, in writing, that such decision be reviewed by the Chief Executive Officer with a view to ensuring that such decision is made in accordance with the provisions of the relevant scheme rules or the Act under which the scheme is established. A copy of every request under this section shall be served on the manager, administrator, custodian or trustees of the scheme.

Establishment of Appeals Tribunal (Section 47)

The Tribunal shall consist of a chairman and four other members who shall be appointed by the Minister and who shall hold office for a period of three years upon such terms and conditions as may be prescribed.

The chairman of the Tribunal shall be an advocate of the High Court of Kenya of not less than seven years standing. The quorum of the Tribunal for the purposes of a hearing shall be the chairman and any two members. All matters before the Tribunal shall, in the event of a difference of opinion, be decided by the votes of the majority of the members thereof.

Appeals to the Tribunal (Section 48)

Any person aggrieved by a decision of the Authority or of the Chief Executive Officer under the provisions of this Act or any regulations made thereunder may appeal to the Tribunal within thirty days of the receipt of the decision.

Where any dispute arises between any person and the Authority as to the exercise of the powers conferred upon the Authority by this Act, either party may appeal to the Tribunal in such manner as may be prescribed.

Powers of Appeals Tribunal (Section 49)

On the hearing of an appeal, the Tribunal shall have all the powers of a subordinate court of the first class to summon witnesses, to take evidence upon oath or affirmation and to call for the production of books and other documents.

Where the Tribunal considers it desirable for the purpose of avoiding expense or delay or any other special reason so to do, it may receive evidence by affidavit and administer interrogatories and require the person to whom the interrogatories are administered to make a full and true reply to the, interrogatories within the time specified by the Tribunal.

In its determination of any matter, the Tribunal may take into consideration any evidence which it considers relevant to the subject of an appeal before it, notwithstanding that the evidence would not otherwise be admissible under the law relating to admissibility of evidence.

The Tribunal shall have power to award the costs of any proceedings before it and to direct that costs shall be paid in accordance with any scale prescribed for suits in the High Court or to award a specific sum as costs.

All summons, notices or other documents issued under the hand of the chairman of the Tribunal shall be deemed to be issued by the Tribunal.

Costs (Section 51)

Where the Tribunal awards costs in an appeal, it shall, on application by the person to whom the costs are awarded, issue to him a certificate stating the amount of the costs.

Every certificate issued may be filed in the High Court by the person in whose favour the costs have been awarded and upon being so filed, shall be deemed to be a decree of the High Court and may be executed as such.

Rules for appeals to the Appeals Tribunal (Section 52)

The Chief Justice may make rules governing the making of appeals and providing for the fees to be paid, the scale of costs of any such appeal, the procedure to be followed therein, and the manner of notifying the parties thereto; and until such rules are made and subject thereto, the provisions of the Civil Procedure Act (Cap. 21) shall apply as if the matter appealed against were a decree of a subordinate court exercising original jurisdiction

 

SECTION

OFFENCE

INGREDIENTS

PUNISHMENT

Section 34 (4A)

 

fails to submit a copy of the audited accounts, in respect

of a scheme, to the Chief Executive Officer

a fine not exceeding five hundred

thousand shillings, or to imprisonment for a term not exceeding two years or to both

Section 34 (4B)

continuing offence under Section 34 (4A)

 

in addition to the penalty prescribed under 34 (4A), be liable

to further fine of five thousand shillings for each day or part thereof during which the offence continues.

 

Section 39

Unsafe and unsound practices

 

to a fine

not exceeding five hundred thousand shillings, or to imprisonment for a term not exceeding two years, or to both.

 

Section 42

 

  1. refuses or fails to comply with a requirement of an inspector which is applicable to him, to the extent to which he is able to comply with it; or
  2. obstructs or hinders an inspector in the exercise of his powers under this Act; or
  3. furnishes information or makes a false statement which he knows to be false or misleading in any material particular; or
  4. when appearing before an inspector for examination, makes a statement which he knows to be false or misleading in any material particular

 

a fine not exceeding five hundred thousand shillings, or, in the case of a natural person, to imprisonment for a term not exceeding three years, or to both.

 

Where the offence is continuing, the person convicted shall, in addition to the penalty prescribed above, be liable to a further fine of one thousand shillings for every day during which the offence continues.

Section 50

 

  1. refuses or fails to attend at the time and place mentioned in the summons served on him; or
  2. refuses or fails to answer, fully and satisfactorily, to the best of his knowledge and belief, all questions lawfully put to him by the Tribunal;
  3. refuses or fails to produce any records, books of account, statements or other documents which are in his possession or under his control or mentioned or referred to in any summons served on him,

 

a fine not exceeding one hundred thousand shillings, or to imprisonment for a term not exceeding two years, or to both.

 

 

Section 53

 

  1. contravenes any provision of this Act which is expressly stated to be an offence but for which no other penalty is prescribed; or
  2. fails to comply with any direction given by the Chief Executive Officer under this Act,

 

a fine not exceeding one hundred thousand shillings, or to imprisonment for a term not exceeding one year, or to both.

 

 

 

 

When an offence under the provisions of the Retirement Benefits Act is committed by a body corporate, the body corporate and every director or officer thereof who principals and employees had knowledge or should have had knowledge of the commission of the offence and who did not exercise due diligence to ensure compliance with the Act commits an offence.

Where an offence is committed under the Act by a partnership, every partner or officer of the partnership who had knowledge or who should have had knowledge of the commission of the offence commits an offence.

A person shall be personally liable for an offence against the Act whether committed by him on his own account or as an agent or servant of another person.

An employer or principal shall be liable for an offence committed by an employee or agent against the Act unless the employer or principal proves that the offence was committed against his express or standing directions.

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