Operationalization of the Public Benefit Organisations Act, 2013

On 14 May 2024, the Public Benefit Organisations Act, 2013 (the Act) became operative in accordance with Legal Notice No. 78 of 2024 (the Legal Notice). This gazettement by the Cabinet Secretary for Interior and National Administration in exercise of the powers conferred by the Act concludes the long process that started on 14 January 2013, when the President ratified the Act.

The Act repeals the Non-Governmental Organisations Co-ordination Act, Cap. 134 of the Laws of Kenya (NGO Act) and establishes a new regulatory and institutional framework for all non-profit organisations carrying out public interest activities in Kenya. The Act also establishes a new regulatory body for non-profit organizations engaging in public benefit activities: the Public Benefit Organisations Authority (the Authority), which will, among other functions monitor whether Public Benefit Organisations (PBOs) are complying with their statutory obligations under the law.

The Act defines a “Public Benefit Organisation” as a voluntary membership or non-membership grouping of individuals or organisations, which is autonomous, non-partisan, non-profit making and which is:

• organised and operated locally, nationally, or internationally;
• engages in public benefit activities in any of the areas set out in the Act; and
• is registered as such by the Authority.

No organisation may claim to be a PBO or receive the benefits of a PBO status unless it is registered under the Act or has been granted PBO status by the Authority. An application for registration of a PBO under the Act shall be made to the Authority accompanied by:

• a copy of the constitution or other constitutive document of the PBO;
• names and addresses of the founders of the PBO;
• the public benefit purposes for which the PBO is organized and operated and all of the principal activities that it shall engage in;
• the postal and physical address of the principal place of doing business of the PBO;
• the prescribed fee; and
• such other particulars or information as may be required by the Authority to assist the Authority in determining whether or not the organization meets the requirements for registration under the Act.

An international non-governmental organization may register as a PBO in Kenya by filing the following documentation:

• a filled out application form;
• proof that it is a legal entity in another country;
• the organization’s address in Kenya; and
• a written statement from a representative of the organization’s headquarters with authority to provide such statement stating:
• the purposes of the international non-governmental organization;
• a general description of the activities that the international non-governmental organization is planning to carry out in Kenya; and
• the name, address and other contact information of the authorized agent.

The Authority may waive the requirement for registration and instead grant an international non-governmental organization permission to operate in Kenya if an international organization does not intend to:

• engage in direct implementation of any activity or program in Kenya or operate from Kenya to implement any activities or programs in another country; or
• raise any subscriptions or engage in any other form of fund-raising in Kenya.

Non-Governmental Organisations (NGOs) registered under the NGO Act will be considered to be registered as PBOs under the Act and have up to one (1) year from the date of coming into force of the Act to seek registration as a PBO whereas NGOs that were exempt from registration under the NGO Act have three (3) months from the date of coming into force of the Act to apply for registration. NGOs will lose their PBO status if they do not register as PBOs under the Act within the allotted time frames.

After that, the Authority will either approve the application, grant a registration certificate, or reject registration, giving a written explanation for any rejection. A PBOs’ certificate of registration must unequivocally show that it has complied with all registration requirements, been properly registered under the Act, is a body corporate, and has been granted authorization to operate across Kenya, as stated in the PBOs’ certificate or constitution.

The Act’s operationalisation marks a critical turning point in Kenya’s regulatory framework for not-for-profit organizations and it will be essential for sustaining the expansion and long-term viability of non-profit organizations, which are vital to the country’s social, cultural, and economic development.

This alert is for general use only and should not be relied upon without seeking specific legal advice on the matter.