Kenya has no dedicated trade secrets statute. Protection rests on the common law action for breach of confidence, ordinary contract law, and, for employees specifically, the Contracts in Restraint of Trade Act. That combination makes the drafting of the confidentiality agreement itself unusually important: a vague or overbroad NDA is exactly the kind of document a Kenyan court will decline to enforce in full. Our guide to trade secrets versus patents in Kenya covers the strategic choice between the two protection routes; this article goes into the actual drafting mechanics of a confidentiality agreement built to hold up.
What a confidential information clause needs to actually define
The single most common weakness in NDAs used in Kenya is a definition of “confidential information” so broad it becomes meaningless, typically “any information disclosed by either party.” Courts assessing a breach of confidence claim look for information that is genuinely confidential in character and identifiable, not merely labelled so. A stronger clause defines confidential information by category (financial data, customer lists, technical specifications, source code, pricing models, unpublished business plans) and requires that information disclosed orally be confirmed in writing within a stated period to fall within the protection. This is not just drafting hygiene; it directly affects whether a court will find the necessary “quality of confidence” if the agreement is ever tested.
Exclusions are not optional
Every properly drafted confidentiality agreement excludes information that: was already lawfully known to the recipient before disclosure; is or becomes public through no fault of the recipient; is independently developed without reference to the disclosed information; or is required to be disclosed by law, regulation, or court order. Omitting these exclusions does not make the obligation stronger; it makes the entire clause look unreasonable and increases the risk a court treats it as an unenforceable restraint rather than a legitimate protection of genuine business interests. The required-by-law exclusion should also require the recipient to give the discloser notice before complying with the legal demand, where practicable, so the discloser has a chance to seek a protective order or narrow the disclosure.
Duration: perpetual clauses invite trouble
Kenyan courts scrutinise restraints on former employees and contractors for reasonableness, and duration is one of the factors explicitly weighed under the Contracts in Restraint of Trade Act’s general reasonableness framework, alongside the nature of the business and the geographic scope of any accompanying restriction. A confidentiality obligation that runs indefinitely for ordinary commercial information is more likely to be read down or refused enforcement than one tied to a defined period, commonly two to five years post-termination for general business information. Genuine trade secrets, information that retains commercial value only for as long as it stays secret, can justify a longer or indefinite obligation, but the agreement should say so explicitly and explain why, rather than applying one blanket duration to every category of information.
Confidentiality obligations and non-compete restrictions are not the same clause
NDAs are frequently drafted alongside, or accidentally blended with, non-solicitation and non-compete restrictions. This matters because the reasonableness test that Kenyan courts apply to restraints of trade is stricter for clauses that restrict a former employee’s ability to work at all, as opposed to clauses that simply prohibit misuse of specific confidential information. Keeping the confidentiality obligation as a separate, clearly delineated clause from any non-compete or non-solicitation restriction improves the odds that a court enforces the confidentiality piece even if it takes issue with the breadth of an accompanying restraint. Bundling them into one paragraph risks a court striking down the whole provision for uncertainty.
Remedies: what to actually ask for
A confidentiality agreement should specify the remedies contemplated for breach, since this shapes what a court can be asked to grant: an injunction restraining further use or disclosure (including, where the misuse gives the recipient an unfair head start rather than an ongoing threat, an injunction of limited duration reflecting that head start, known in other common law jurisdictions as springboard relief), delivery up or destruction of confidential materials, and damages or an account of profits where the breach has already caused loss. An agreement silent on remedies does not lose access to these remedies, since they derive from general contract and equitable principles, but naming them focuses the parties on what enforcement will actually look like and can support a more persuasive urgent application if a breach happens.
How We Can Help
Clay & Associates Advocates drafts confidentiality agreements built to survive scrutiny, not just to look thorough on the page. Our guide to trade secrets in Kenyan manufacturing covers process know-how specifically, and our employee and contractor IP assignment guide addresses the related question of who owns what gets created. Contact our Intellectual Property practice to review or draft your confidentiality agreements.
Sources: Contracts in Restraint of Trade Act, Cap. 24; general contract law and the common law action for breach of confidence as applied in Kenyan courts.
Frequently asked questions
Is an NDA legally enforceable in Kenya even without a specific trade secrets law?
Yes. Confidentiality agreements are enforced as ordinary contracts, and misuse of genuinely confidential information can separately be restrained through the common law action for breach of confidence, regardless of whether the information is written down in a contract at all. The absence of a dedicated statute affects the source of the obligation, not whether Kenyan courts will enforce it.
How long should a confidentiality obligation last?
It depends on the category of information. Ordinary commercial information is typically protected for a defined period, often two to five years; genuine trade secrets that retain value only through continued secrecy can justify an indefinite obligation if the agreement explains why. An unexplained perpetual clause covering everything is the version most likely to be challenged.
Should a non-compete clause be included in the same paragraph as the confidentiality clause?
No. Kenyan courts apply a stricter reasonableness test to restraints that limit a person’s ability to work than to obligations that simply prohibit misusing specific confidential information. Keeping the clauses separate protects the confidentiality obligation from being struck down alongside a broader restraint a court finds unreasonable.
What happens if the NDA doesn’t mention remedies for breach?
The right to seek an injunction, delivery up, or damages exists independently of whether the agreement names them, since these derive from contract and equity. Naming them in the agreement is a drafting choice that focuses both parties on the consequences of breach and can strengthen an urgent application, not a precondition to obtaining them.
