Kenya for West African Tech Companies: Trade in Services Under AfCFTA

A Nigerian, Ghanaian or other West African tech company weighing Kenya as a regional base often assumes the African Continental Free Trade Area (AfCFTA) gives it a clean right to operate. It does not work that way. The AfCFTA services framework is built from schedules that each country negotiates for itself, and the public record shows Kenya and Nigeria at different points in that process. That difference matters for how a West African company should plan its Kenyan entry.

Two Different Starting Points

Kenya signed the AfCFTA Agreement on 21 March 2018 in Kigali, ratified it on 6 May 2018 and deposited its instrument of ratification on 10 May 2018. It was one of the first two states, with Ghana, to deposit. Nigeria did not sign at Kigali. It signed in July 2019 and ratified in December 2020. The Agreement entered into force on 30 May 2019, once the required number of instruments had been deposited.

Both countries are therefore parties to the Agreement. But ratifying the Agreement is only the first step. A company can rely on AfCFTA for services market access only to the extent that the host country has put specific commitments on the table, and Kenya and Nigeria are not at the same stage on that.

What the AfCFTA Does for Services

The Protocol on Trade in Services entered into force on 30 May 2019. It covers four modes of supply: cross-border supply, consumption abroad, commercial presence and the temporary movement of natural persons. Setting up a Kenyan subsidiary or branch to deliver software or IT services is commercial presence, the third mode.

The Protocol does not hand a company market access by itself. Each State Party sets out in a Schedule of Specific Commitments which sectors and sub-sectors it opens, on what terms, and with what limitations on market access and national treatment. The first phase of negotiations covers five priority sectors: business services, communication services, financial services, tourism and transport. If a sector or mode is not scheduled, or is scheduled with limits, the company cannot claim more than the schedule says.

Kenya’s Schedule and Nigeria’s Position

Kenya’s schedule is among the 22 Schedules of Specific Commitments that the African Union Assembly adopted in February 2023. Kenya is listed with the other East African Community states, Burundi, the Democratic Republic of the Congo, Rwanda, Tanzania and Uganda. The ECOWAS states, by contrast, were listed in tralac’s November 2023 factsheet as having submitted offers that were still under verification.

Nigeria’s side has moved since then. Nigerian press reports of the Federal Government’s 2025 AfCFTA review state that Nigeria submitted its Schedule of Specific Commitments on Trade in Services to the ECOWAS Commission in October 2025, covering more than 90 services. We have not found a published source showing that this schedule has been adopted at continental level. If you need to know where it stands today, check with the AfCFTA Secretariat or the Nigerian trade ministry before relying on it.

We have also not confirmed how Kenya’s schedule has been given effect in Kenyan domestic law, or exactly what it says for communication and ICT-related services. Those entries, and any limitations attached to them, are the part that matters for a technology company, so they should be read from the schedule text itself and not from summaries.

What This Means in Practice

For a West African tech company entering Kenya, the relevant question is what Kenya has committed to. Market access commitments run on the host country’s schedule, so what governs a Nigerian company’s commercial presence in Kenya is Kenya’s schedule, not the stage Nigeria’s own schedule has reached. A Kenyan company looking at the Nigerian market is in the reverse position, and cannot treat Nigeria’s schedule as settled until it is.

The AfCFTA does not replace Kenyan law. A foreign company that wants to carry on business in Kenya must either incorporate a Kenyan company or register as a foreign company under Part XXXVII of the Companies Act, 2015. Section 974 of that Act provides that a foreign company shall not carry on business in Kenya unless it is registered under that Part, or has applied and the application has not yet been dealt with within the prescribed period. Breach is an offence carrying a fine of up to five million shillings for the company and each officer in default.

Sector licensing, tax and immigration rules also continue to apply. If your business touches regulated activities such as digital credit, payments or data, read our guide to phasing regulated activities into a Kenyan company. For the practical set-up steps and what the process involves, see our article on setting up a foreign-owned company in Kenya. If your service falls under ICT licensing, our piece on the history of Kenya’s ICT local ownership rule explains why you should confirm the current position rather than rely on older commentary.

Practical Takeaway

Treat the AfCFTA as a possible layer of protection against being treated worse than a Kenyan or third-country competitor in the sectors and modes Kenya has scheduled. It sits on top of, and not instead of, ordinary Kenyan incorporation and licensing. Do not assume the reverse route, using a Kenyan base to reach your home market on AfCFTA terms, carries the same weight until your home country’s schedule has been adopted and is in operation. Before you commit capital, confirm three things: the text of Kenya’s commitment for your service, the licensing regime that applies to your activity, and the position on profit repatriation, which we cover in our guide to repatriating profits as a tech investor in Kenya.

Frequently asked questions

Does the AfCFTA let a Nigerian company skip Kenyan company registration?
No. The AfCFTA addresses discriminatory treatment in the sectors a country has scheduled. It does not remove the requirement to incorporate in Kenya or register as a foreign company under the Companies Act, 2015, or to obtain any sector licence.

When did Nigeria ratify the AfCFTA?
Nigeria signed in July 2019 and ratified in December 2020, according to the public ratification record. Ratifying the Agreement is separate from having a services schedule adopted.

Why does Kenya’s schedule matter more than Nigeria’s for a Nigerian company entering Kenya?
Commitments under the Protocol on Trade in Services are made by each host country in its own schedule. What Kenya has committed to for service suppliers from other State Parties is what a Nigerian company can point to in Kenya.

Where can I read Kenya’s services commitments?
The schedule text is held by the AfCFTA Secretariat. Check the sector and mode that matches your service, and the limitations listed against it, before relying on it.

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.