A cross-border buyer or investor doing due diligence on a Kenyan target’s IP portfolio usually starts, reasonably enough, by pulling the KIPI and Trade Marks Registry extracts and checking that the marks and patents listed in the data room are actually registered and current. That step is necessary but far from sufficient. Kenyan law creates several ways for a target’s IP position to look clean on paper while carrying real, undisclosed risk, and the areas that matter most rarely show up in a simple registry search.
Chain of Title: Unrecorded Assignments Are Not Just an Administrative Gap
Both the Industrial Property Act and the Trade Marks Act treat recordal of an assignment as more than a formality. Under the Industrial Property Act, any change in ownership of a patent, utility model, or industrial design must be recorded in the register, and until it is recorded, the document evidencing the change is not admissible in any proceedings as evidence of title, save where the Tribunal directs otherwise. The Trade Marks Act takes the same position on assignments of marks. This means a target that acquired a mark or patent from a prior owner years ago, but never filed the recordal, may hold a document that looks like proof of ownership but cannot actually be relied on as such if the title is challenged. Due diligence needs to trace each right back through every prior assignment in the register itself, not just take the data room’s copy of an old assignment deed at face value.
Employee and Contractor-Created IP: The Default Rules Are Employer-Friendly, But Only Within Their Terms
Kenyan law is more favourable to employers on this point than many buyers assume, which can cut both ways in diligence. Under the Industrial Property Act, the right to a patent for an invention made in execution of an employment contract belongs to the employer by default, absent agreement to the contrary, subject to equitable remuneration where the invention is of exceptional importance. The Copyright Act takes a similar position for works made in the course of an author’s employment under a contract of service: copyright is deemed transferred to the employer, again subject to any contrary agreement. The gap buyers need to check for is not whether the target has written assignment agreements with its employees; the statutory default often covers that ground already. It is whether the work was actually done by an employee under a contract of service, as opposed to a consultant, contractor, or founder working without a formal employment relationship, since none of these default rules apply to that category, and Kenyan disputes over exactly this line, whether a given piece of software or invention was made “in the course of employment,” are a recurring source of litigation. Our guide to proving software ownership for Kenyan tech businesses covers the documentation gap this creates in more detail.
Security Interests: A Second Registry Buyers Often Miss
Since the Movable Property Security Rights Act, 2017, intellectual property is recognised as a registrable form of collateral in Kenya, alongside receivables and other intangible assets, through the Collateral Registry run by the Business Registration Service. A target’s IP can carry a registered security interest that will not appear anywhere in the KIPI or Trade Marks Registry search; it only shows up in a separate Collateral Registry search against the entity. Practitioner commentary on the registry, as recently as the version current in 2025, has also flagged that its records for companies incorporated before 2010 are incomplete, so a clean result from an older Kenyan target should be treated with some caution rather than as conclusive comfort. Where the deal involves financing secured against the target’s IP going forward, the same registry, and the priority rules under the Act, will govern how that security is created and made effective against third parties.
Status Checks That a Simple Registration Search Won’t Surface
A registration extract shows whether a mark or patent is currently on the register; it does not show whether it is under active challenge. Opposition proceedings on trademarks, and revocation or invalidation proceedings on patents and designs before the Industrial Property Tribunal, run on separate case files that need to be checked directly rather than inferred from the registry status. A mark or patent can appear registered and current in the extract while a pending opposition or revocation request would, if successful, take it away entirely.
How We Can Help
Clay & Associates Advocates conducts IP due diligence for cross-border M&A and investment transactions involving Kenyan targets, working alongside our Corporate & Commercial practice on the wider transaction. Our guide to local agent requirements for foreign IP applicants covers the filing side of the same cross-border practice. Contact our Intellectual Property practice to scope an IP due diligence exercise ahead of a Kenyan transaction.
Sources: Industrial Property Act, 2001; Trade Marks Act, Cap. 506; Copyright Act, 2001; Movable Property Security Rights Act, 2017.
Frequently asked questions
If the target has a signed assignment deed for a trademark, is that enough to prove ownership?
Not on its own. Unless the assignment is also recorded in the Trade Marks Register, it is not admissible as evidence of title in proceedings, other than between the original parties to it.
Do we need to see IP assignment agreements for every person who worked on the target’s product?
For genuine employees under a contract of service, the statutory default already vests patent and copyright ownership in the employer. The real question is whether everyone who contributed was actually an employee on that basis, since consultants and contractors fall outside the default and need their own written assignment.
Would a KIPI search reveal a security interest registered over the target’s IP?
No. Security interests over IP as collateral are registered separately at the Collateral Registry under the Movable Property Security Rights Act, not at KIPI or the Trade Marks Registry.
Can a registration extract tell us if a mark is being opposed or a patent is facing revocation?
No. Opposition and revocation proceedings run on separate case files and need to be checked directly rather than inferred from the registration status shown in an extract.
