Software copyright in Kenya starts from a premise that many founders get wrong. Copyright is not something you apply for and wait to be granted. Under the Copyright Act (Cap. 130), rights accrue to the author automatically once an original work is fixed in material form, and failure to register does not bar a claim. The real business question is therefore not whether source code is protected, but how to build a documentation trail that proves who wrote it, when, and who owns it if a dispute reaches court.
What the Copyright Act says about software copyright in Kenya
Section 22 lists the works eligible for copyright, including literary works, and the Act’s definition of a literary work includes computer programs. Under section 22(3), a literary work is not eligible unless sufficient effort has been expended on it to give it an original character and it has been written down, recorded or otherwise reduced to material form. Section 22(5) provides that rights accrue to the author automatically on affixation of a work in material form, and that non-registration or the absence of formalities does not bar any claim by the author.
Voluntary registration with the Kenya Copyright Board
The Act establishes a National Rights Registry as an office within the Kenya Copyright Board (KECOBO) (section 22B), whose functions include digital registration of right holders and of copyright works (section 22C). Under section 22D, the author or owner of copyright works may register them on the Registry through an online portal, and section 22A allows eligible works to be entered on the Register on application by the author, owner, assignee or exclusive licensee. Registration is optional and does not create the copyright, but it creates an official record that a counterparty or investor can inspect during due diligence. Fees and processing times are set outside the Act and change, so confirm the current position with KECOBO before budgeting.
Why software needs more than a single deposit
A book manuscript or a design file is fixed the moment it is written or drawn, and its authorship is usually easy to show from one dated copy. Code is different. It evolves through many hands, commits and versions, and a single registration at one point in time will not by itself show who wrote which part of the codebase or when a feature was created. In practice, the strongest evidence is often the development record: version control history showing authorship and commit dates, code review records and internal documentation of the development timeline.
A business should therefore treat its version control system as part of its copyright evidence strategy, configured with accurate per-developer authorship rather than a single shared identity. This matters most when ownership is most likely to be disputed, for example when a contractor, a departing employee or a co-founder leaves and a disagreement arises over who owns what was built.
Who owns the code: employees, contractors and assignments
Section 31(1) of the Copyright Act provides that copyright vests initially in the author, but where a work is commissioned by a person who is not the author’s employer under a contract of service, or is made in the course of employment under a contract of service, the copyright is deemed to be transferred to the person who commissioned the work or to the employer, subject to any agreement between the parties excluding or limiting the transfer. That default is helpful, but it is expressly subject to agreement, so the contract should say who owns what. Our guide to software development agreements in Kenya covers drafting in more depth.
Where ownership is to be transferred by assignment, section 33(3) provides that no assignment of copyright and no exclusive licence has effect unless it is in writing signed by or on behalf of the assignor or licensor, and section 33(3A) provides that an assignment is not valid unless it is lodged at the Board and a certificate of recordal is issued and an entry made in the Assignment Register. A signed assignment that has not been lodged and recorded may therefore be open to challenge. Section 33(5) allows an assignment or licence to be made in respect of a future work, which is useful for ongoing development engagements.
Building a practical documentation trail
A disciplined practice includes keeping version control with accurate per-developer authorship; using written assignment language in every contractor and employment agreement instead of relying on the statutory default alone; keeping dated records of design specifications and technical documentation separate from the code; recording signed assignments with the Board where the Act requires it; and registering the most commercially significant works rather than every minor update. A cap table or IP schedule prepared for a fundraising round should identify the registered works, because investors will ask what has actually been registered and assigned.
Trade secrets as an alternative
Registering a work involves placing a copy of it on a register that may be accessible to others on the conditions the Board sets, so some businesses prefer to keep source code and build processes confidential. Our guide to trade secrets in Kenya explains when confidentiality protection is the better fit. The two approaches can be combined, with a public-facing release registered for evidence and the proprietary algorithms kept confidential. For a wider view of the available protections, see our guide to Kenya’s IP protection tools.
Technical documents and design files
The same principles apply to manuals, training materials and design files. A copyright notice with the owner’s name and the year of first creation costs nothing and helps a later ownership claim, yet it is often left off internal documents. Where a document was produced with an external consultant or agency, the services agreement should say who owns the copyright in the specific deliverables it covers.
How We Can Help
Clay & Associates Advocates advises technology and creative businesses on software ownership, assignment and licensing provisions, copyright registration and the choice between registration and confidentiality. Our intellectual property practice can review your contracts and documentation. To discuss a matter, please contact us.
Sources: Copyright Act (Cap. 130), sections 22, 22A to 22D, 31 and 33, Kenya Law.
Frequently asked questions
Do I have to register my software to own the copyright?
No. Under section 22(5) of the Copyright Act, rights accrue to the author automatically on affixation of the work in material form, and non-registration does not bar a claim.
Is software protected as a literary work?
Yes. The Act’s definition of a literary work includes computer programs, provided the work meets the originality and material form requirements in section 22(3).
Who owns code written by a contractor?
Under section 31(1), commissioned work is deemed transferred to the commissioner, subject to any agreement excluding or limiting the transfer. A written assignment that is lodged and recorded under section 33 gives greater certainty.
Does an assignment need to be in writing?
Yes. Section 33(3) requires a signed writing, and section 33(3A) provides that an assignment is not valid unless it is lodged at the Board and recorded.
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This article is general information on Kenyan law as at its publication date, not legal advice. Reading it does not create an advocate and client relationship.
