Wakf means to bind the property.  It is a trust for charitable purposes established under Islamic Law and it is therefore tied up to purposes related to religion.  Like in all other trusts the donor gives and the trustees take and then the purposes of the trust are identified and administered through case law for essentials of the WAKF have been established as follows:

1.            It must be a final gift to charity; 
2.            the donor must actually divest himself of his right in the property – this means that with respect to a wakf there can never be anything like a resulting trust.  They are supposed to divest themselves.
3.            It must be an irrevocable and absolute gift;
4.            It must be perpetual.

The rule against perpetuity – the requirement of the wakf offends this rule – Acts such as the RLA there are exceptions for purposes of the waqf.

With regard to the 1st essential – final gift to charity – the purpose can be any object which Mohamedan Law would approve of and therefore the objects must fall within the Sheriat.  The public or a section of the public and other groups approved by equity will qualify.  For purposes of charitable trusts equity does not approve of any other group apart from the public, a section of the public and other groups approved by equity will qualify.  However in a WAQF even family members and specific groups which equity would normally exclude as not charitable will qualify.  Therefore a trust as a waqf for the education of members of the family is a good trust.

With regard to the 2nd and 3rd essentials this is a fundamental part of a wakf a gift as trust fund and a wakf cannot be contingent.  It must not only be an absolute gift but the donor must actually divest himself of the property.  He cannot retain title to the property.  As a result no resulting trust to the donor or his Estate can arise. 

With regard to the 4th essential, a wakf is a trust in perpetuity contrary to a trust in equity perpetuity is not only permitted, it is a characteristic of a waqf and even if the donor does not state that he gives his gift in perpetuity the law will deal with the gift as a perpetual trust.

Under Section 88 of the RLA a transfer shall not limit disposal of real property otherwise it shall be void.  This is a rule against perpetuities.  Section 88(4) makes exceptions for purposes of a wakf which conflicts with this rule.  The administration of a wakf is by administration of person called Mutawalis.  The Wakf is administered by trustees called Mutawalis.  Any person may be appointed a Mutawali including the donor but he may not by reason of such appointment retain any right in the property.  Refer to Kermali & Others V. Dhalla & Others [1957] EA 168 and Abdoo & Others V. Saleh [1964] EA 115

Note that a Wakf being a public trust is subject to Section 62 of the Civil procedure Act and which fact was upheld in the above cases.

In Kermali a wakf was held public and an action which had been brought under the equivalent of Section 62 of Cap 21 asking for the removal of a trustee was refused in the exercise of the Court’s discretion.

The WAQF is also governed by the WAQF Commissioners Act Cap 109 of the Laws of Kenya.


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