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THE UNCLAIMED FINANCIAL ASSETS REGULATIONS, 2016
ARRANGEMENT OF REGULATIONS
PART I – PRELIMINARY
PART II – REPORTS AND TRANSFER OF ASSETS
| 3. |
Deposit for utility services
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| 4. |
Delivery of certificate
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| 5. |
Report of presumed abandoned assets; duties of assets holder
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| 6. |
Opening of, and determining the contents of a safe deposit box
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| 7. |
Assessment of value of safe deposit box contents
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| 8. |
Costs of opening safe deposit box
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| 9. |
Process of due diligence to trace owners or beneficiaries of life insurance or assurance policies
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| 10. |
Charges and deductions
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PART III – DEALING WITH UNCLAIMED FINANCIAL ASSETS, DUTIES OF HOLDERS AND CERTAIN POWERS OF THE AUTHORITY
| 14. |
Availability and access to information by the public
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PART IV – GENERAL AND MISCELLANEOUS PROVISIONS
SCHEDULES
THE UNCLAIMED FINANCIAL ASSETS REGULATIONS, 2016
PART I – PRELIMINARY
| 1. |
Citation
These Regulations may be cited as the Unclaimed Financial Assets Regulations, 2016.
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| 2. |
Interpretation
In these Regulations, unless the context otherwise requires—
"account" means a deposit account, savings account or current account by whatever name called;
"abandoned property" means assets that appear to have been forsaken by their owner by virtue of no generated activity and to which it is presumed the owner has relinquished his or her interest to the property without vesting such interest in another person or entity;
"agent" means a person who is either the attorney-in-fact for the living owner, or the court appointed guardian, custodian, conservator or fiduciary of the living owner, or a Trust that is registered for and on behalf of an owner or a beneficiary, or the court-appointed bankruptcy trustee for the living owner, or the custodial parent of the living owner of the asset being claimed, who is a minor;
"certificate" means proof of ownership, physical or electronic, of property;
"certified copy" means a copy of a document certified by a Commissioner for Oaths, notary public, magistrate or judge to be a true copy of the original document;
"claimant" means a person who claims ownership of an unclaimed financial asset;
"document" means accounts, deeds, letters, writings, books and any other record of information, however compiled, recorded or stored and whether in electronic, written or printed form, on microfilm or in any other form;
"record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form;
"safe deposit box" means a secure container, lockable box, locker, safe, vault or drawer maintained by a holder on behalf of an owner for the purpose of retaining personal assets of the owner and may include sealed parcels and envelopes; and
"valuer" means a registered valuer under the Valuers Act (Cap. 532) and, unless otherwise stated, words and expressions contained in the Act shall have the same meaning in these Regulations.
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PART II – REPORTS AND TRANSFER OF ASSETS
| 3. |
Deposit for utility services
In accordance with section 9 of the Act, the following unclaimed monies held or owing by utilities shall be deemed abandoned property—
| (a) |
any deposit made by the consumer or subscriber with such a utility to secure the payment for utility services furnished by such utility, or the amount of such deposit after deducting any sums due to such utility by such consumer or subscriber, which shall have remained unclaimed by the person entitled thereto for two years after the termination of the utility services to secure the payment of which such deposit was made;
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| (b) |
any amount paid in advance by the consumer or subscriber to such a utility in anticipation of the supply of a utility service; which the utility defaults in supplying, which shall remain unclaimed for two years;
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| (c) |
any amount which is the balance of money paid in advance for a utility service to a utility part of which is supplied by the utility; which shall remain unclaimed by the owner for two years; and
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| (d) |
the amount of any refund of excess or increased rates or charges collected by any such utility for utility services lawfully furnished by such utility which has been or shall hereafter lawfully be ordered refunded to the consumer or other person entitled thereto, which shall have remained unclaimed by the person entitled thereto for two years from the date it became payable in accordance with the final determination or order providing for such refund.
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| 4. |
Delivery of certificate
| (1) |
Where an asset is evidenced by a share certificate, a holder of the asset shall deliver a certificate to the Authority as set out in the Eleventh Schedule.
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| (2) |
Where the share certificate is dematerialized, the delivery date is the date the asset is credited to the account of the Authority.
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| (3) |
A holder of shares shall establish and maintain a register of inactive shareholders, and shall avail a certified copy of inactive shareholders register of the company when required to do so by the Authority.
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| 5. |
Report of presumed abandoned assets; duties of assets holder
| (1) |
In accordance with section 20 of the Act, a holder shall file a report with the Authority as set out in the First, Second, Third, Twelfth and Sixteenth Schedules and in the case where the unclaimed asset is in a safe deposit box, the holder shall file a report as set out in the Fourth Schedule.
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| (2) |
The report specified in paragraph (1) shall be submitted to the Authority on or before the first day of November of each year for the twelve month period ending on the immediately preceding thirtieth day of June.
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| 6. |
Opening of, and determining the contents of a safe deposit box
| (1) |
Upon receiving the report specified in regulation 5, the Authority shall, in consultation with the holder, set a date and time when the safe deposit box shall be opened.
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| (2) |
The following shall be present at the opening of the safe deposit box—
| (a) |
a designated official or agent of the Authority;
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| (b) |
an authorised representative of the holder;
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| (d) |
a valuer appointed by the Authority.
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| 7. |
Assessment of value of safe deposit box contents
| (1) |
The assets retrieved from the safe deposit box shall be—
| (a) |
recorded and the record endorsed by the persons specified in regulation 6 (2); and
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| (b) |
assessed by the valuer and the value indicated as set out in the Fifth Schedule
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| (2) |
Where a safe deposit box was opened before the commencement of this Act, the holder shall—
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as set out in the Fifth Schedule record the contents of the safe deposit box; and
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| (b) |
transfer the balance of the value and assets in his possession to the Authority.
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| (3) |
Non-financial assets shall not be transferred to the Authority and shall be managed in accordance with any other written law.
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| 8. |
Costs of opening safe deposit box
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Where a safe deposit box is forced open, the Authority shall bear the cost of the forced opening of the box and the repair of the box.
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| (2) |
A holder shall not claim a lien on the contents of a safe deposit box except for any amount owed by the owner of the safe deposit box.
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| 9. |
Process of due diligence to trace owners or beneficiaries of life insurance or assurance policies
The Authority shall publish in the Gazette and in at least one newspaper of wide circulation a notice of the presumed loss of a life insurance policy or life assurance policy and indemnify the holder who shall have done due diligence in reporting to the respective regulator against any liability in relation to the loss of the policy.
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| 10. |
Charges and deductions
| (1) |
holder shall not levy any charges on an asset unless the charges are expressly permitted under the Act or these Regulations.
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| (2) |
Where a holder has levied charges on an asset, that holder shall provide the following information with respect to the asset on which charges have been deducted—
| (a) |
income earned by the asset;
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| (b) |
cost incurred on the asset; and
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| (c) |
such other information as the Authority may require.
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PART III – DEALING WITH UNCLAIMED FINANCIAL ASSETS, DUTIES OF HOLDERS AND CERTAIN POWERS OF THE AUTHORITY
| 11. |
Claim on assets
| (1) |
A person who claims ownership of any asset held by the Authority shall submit the following documents—
| (a) |
a completed Form 4A, as set out in the Sixth, and Seventeenth Schedules, by the owner or Form 4B, as set out in the Seventh, Fourteenth, Fifteenth, Seventeenth and Eighteenth Schedules, by the beneficiary or Form 4D, as set out in the Seventh, Fourteenth, Fifteenth, Seventeenth and Eighteenth schedules, by the agent of the owner;
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| (b) |
where the owner has changed, the new owner's name, a certified copy of the relevant notice in the Gazette;
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| (c) |
any original document, where applicable, showing ownership of the asset to be claimed;
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| (d) |
a certified copy of the claimant's national identity card or passport;
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| (e) |
a deed of assignment or deed of nomination, where applicable; and
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| (f) |
a certificate of summary administration issued under the Public Trustee Act /(Cap. 168), where applicable.
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| (2) |
Where the claimant is a business entity, the claimant shall submit a completed Form 4C as set out in the Thirteenth, Fourteenth, Fifteenth, Seventeenth and Eighteenth schedule and executed by an authorized person accompanied by certified copies of the following documents—
| (a) |
certificate of incorporation, or any other document of identity prescribed by any written law as the case may be;
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| (b) |
certificate of change of name; and
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| (c) |
personal identification number issued by the Kenya Revenue Authority.
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| (3) |
Where the claimant is not the owner but has or asserts a legal right to an unclaimed asset, the claimant shall submit to the Authority the following as set out in the Fourteenth and Fifteenth Schedules—
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confirmation of grant letters of administration; or
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| (b) |
confirmation of grant of probate; or
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| (c) |
registered power of attorney; or
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| (d) |
a court order that establishes representation by reason of incompetence or incapacity; or
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| (e) |
in case of a guardian, a deed in that regard.
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| (4) |
For purposes of ascertaining a claim, the Authority may seek further information from the claimant as set out in the Fourteenth and Fifteenth Schedules.
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| (5) |
The Authority shall within a period of sixty days from the date of submission of the claim with all the relevant documentation, notify the claimant of the Authority's decision regarding the claim.
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| 12. |
Payment of claims
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The Authority shall, in accordance with section 28 of the Act, where it is satisfied that the claimant has met the requirements of these Regulations and having satisfied itself that there are no disputes relating to the asset—
| (b) |
where the claimant is a beneficiary or an agent, publish a thirty days' notice of no objection in the Gazette, at least two newspapers of wide circulation and on the Authority's website.
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| (c) |
Where there is no dispute in relation to the publication of a notice of no objection in the Gazette, pay the claimant after fourteen days of the expiry of the notice.
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| 13. |
Indemnity agreement
In accordance with section 45(3) of the Act, the Authority shall require a successful claimant to sign an indemnity agreement as set out in the Thirteenth Schedule.
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| 14. |
Availability and access to information by the public
In accordance with section 27 of the Act, the Authority shall provide information to the public at a fee of one hundred shillings.
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PART IV – GENERAL AND MISCELLANEOUS PROVISIONS
| 15. |
Investment of funds
In accordance with section 48 of the Act, the Authority shall invest monies in the Fund which are not for the time being required to be applied for the purposes of the Fund as outlined in the following table—
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No.
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Categories of Assets
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Maximum Investment
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1.
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Cash and Current Account/ Demand Deposits, Savings Deposit, Call Deposit and Fixed Deposits in institutions licensed under the Banking Act of the Republic of Kenya.
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10%
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2.
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Government securities and bonds.
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90%
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