Who Owns It? Employee and Contractor IP Assignment Clauses in Kenya

A founder commissions a freelance designer to build a logo, or hires a developer on a fixed-term contract to write core product code. Who owns the result? The answer in Kenya is not the same for every type of intellectual property, and the gap between what people assume and what the law actually says is where disputes start. This article covers employee and contractor IP assignment for copyright and trademarks specifically, since patent ownership for employee inventions and trade secret confidentiality are already addressed in our guides to patent registration in Kenya and trade secrets versus patents.

Employee and contractor IP assignment: the default rule for copyright

Section 31 of the Copyright Act sets the starting point: copyright vests initially in the author. Two statutory exceptions matter most for businesses. First, where a work is commissioned by a person who is not the author’s employer under a contract of service, copyright is deemed transferred to the person who commissioned the work. Second, where a work not so commissioned is made in the course of the author’s employment under a contract of service, copyright is deemed transferred to the employer. A separate provision vests copyright in the Government for works made under government commission. All of these defaults apply “subject to any agreement between the parties excluding or limiting the transfer,” meaning a contract can override them in either direction.

This means Kenyan copyright law already does more work than many founders assume. A logo, a brochure, or a piece of software commissioned from an outside freelancer transfers to the commissioning business by default, even without a written assignment, provided the relationship is genuinely a commission and not, say, a joint creative collaboration where authorship is shared. The same applies to work created by a salaried employee within the scope of their job. The risk is not the general rule; it is the exceptions and edge cases: work created before the engagement began, work created outside the scope of the role or brief, and work created by someone whose status as “employee” versus “independent contractor” is itself disputed.

Moral rights survive the transfer

Section 32 of the Copyright Act gives every author moral rights, independent of and surviving the transfer of economic rights: the right to claim authorship of the work, and the right to object to distortion, mutilation, or other modification prejudicial to their honour or reputation. These rights are stated to be non-transmissible during the author’s lifetime. In practice, this means a business that owns the copyright in a commissioned work under Section 31 still cannot prevent the original human author from asserting authorship, and the statute does not clearly provide a mechanism for the author to waive that right in advance. Businesses relying heavily on attribution-sensitive content, such as published written work or design credited to a specific individual, should be aware that an assignment clause transfers ownership, not the author’s underlying personal connection to the work.

Trademarks: no equivalent default rule

The Trade Marks Act does not contain a provision equivalent to Section 31. Trademark rights in Kenya belong to the “proprietor,” a concept built around use and registration rather than authorship, and the Act does not deem a commissioned mark or a mark created by an employee to transfer automatically to the commissioning business or employer. Assignment of a registered or pending trademark must be in writing to be effective.

This creates a genuine trap that the copyright default rule can obscure. A business that commissions a logo from a designer may, under Section 31, automatically own the copyright in the artistic work that is the logo design. That is a different right from ownership of the trademark that the business later files at KIPI using that logo. If the designer, rather than the business, is recorded as the applicant, or if there is a dispute about who first used the mark in trade, copyright ownership of the underlying artwork does not resolve who the trademark’s proprietor is. The safer practice is a written agreement that separately and explicitly assigns both the copyright in any created materials and any trademark or brand-related rights arising from the engagement, rather than relying on Section 31 to do double duty.

Employees versus contractors: why the label matters

Section 31’s employment exception applies only to work made “under a contract of service,” the standard Kenyan legal test for an employment relationship, as distinct from a “contract for service,” which describes an independent contractor engagement. Courts and tribunals look past job titles to substance: control over how and when work is done, provision of tools and equipment, integration into the business, and whether the individual bears their own business risk. A “contractor” who is in reality treated as an employee may fall under the employment exception regardless of the label in their engagement letter, and conversely, a genuine independent contractor’s work falls instead under the commissioning exception, which has its own separate wording and its own gaps. Businesses that rely on a mix of staff and freelancers should not assume a single boilerplate clause covers both relationships correctly; the statutory basis for ownership differs depending on which category actually applies.

Drafting a clause that actually closes the gaps

A properly drafted IP assignment clause should go beyond restating the statutory default. It should cover: work created before the engagement began (pre-existing IP, which should be scheduled and excluded); work created using personal equipment or outside scheduled hours, which can otherwise fall into the ambiguous zone the employment exception does not clearly reach; a present assignment of future IP rather than a mere promise to assign later, since Kenyan courts are more likely to give full effect to a clause that operates immediately on creation; an express, separate assignment of any trademark, design, or brand-identifier rights, given the gap described above; and a requirement to execute further documents (such as KIPI or trademark assignment forms) on request, since recordal of an assignment at the registry is what protects the assignee against a later, unrecorded competing claim.