An employer who hands a departing senior manager a blanket clause banning them from working anywhere in the same industry for two years is not protecting the business; they are handing that manager a ready-made argument to have the clause struck out entirely. Kenyan law does not treat non-compete clauses as automatically enforceable, and it does not treat them as automatically void either. It asks a narrower question: is this specific restriction reasonable, and does it protect something the employer is actually entitled to protect.

The statutory starting point

Non-compete and other restraint of trade clauses in Kenya are governed by the Contracts in Restraint of Trade Act, Cap 24, which gives the High Court discretion to interpret and enforce, or refuse to enforce, a restrictive covenant after considering the nature of the profession, trade, or business involved, the duration and geographical area the restriction covers, and whether the restriction is reasonable in the interests of the parties or in the interest of the public. Section 2 of the Act allows the court to declare a restraint of trade provision void where it fails that reasonableness test, and the Act separately provides that a non-compete clause will not be enforced where the employer itself terminated the employment relationship in breach of the contract; an employer cannot unlawfully dismiss someone and then hold them to a restriction that assumed the relationship would end on proper terms.

What Kenyan courts actually look for

The Employment and Labour Relations Court has developed a consistent set of factors it weighs when a former employer seeks to enforce a restraint: the reasonableness of the duration, the geographical scope of the restriction, whether the employer has a legitimate business interest genuinely at stake, whether enforcement serves or harms the public interest, the relative bargaining power of the parties when the contract was signed, and the nature of the employee’s role and the extent of their access to sensitive commercial information. The court has also been clear that a restraint of trade clause is not automatically defeated merely because the employee resigned rather than being dismissed. In Excel Global Limited v Kithinji & another, the court upheld a non-compete clause against a former employee who had resigned, holding that the contract had not been unlawfully terminated by the employer and so the statutory carve-out that voids a restraint on wrongful dismissal did not apply. More broadly, because section 2 of the Act empowers the court to override the parties’ own bargain and declare an unreasonable restraint void, restraint of trade clauses sit closer to public policy concerns about employment and competition than most ordinary contractual terms, and courts approach them with a correspondingly more interventionist eye.

Kenyan courts have also been candid about the practical backdrop against which they assess these clauses. Where enforcing a restriction would mean depriving someone of their livelihood in a difficult labour market, without a correspondingly strong justification from the employer, courts have been willing to treat that imbalance as itself a reason the restraint is unreasonable. A clause that simply tries to prevent a former employee from working for a competitor at all, with no attempt to tie the restriction to genuine trade secrets, client relationships, or confidential information, tends to fare badly for exactly this reason.

Duration, geography, and scope in practice

As a general guide, Kenyan practitioners treat a non-compete period of roughly six months to a year as within the range courts are likely to accept, with enforceability becoming progressively harder to defend the longer the restriction runs. Courts have shown a willingness to enforce a narrower restriction, for example barring a former employee from soliciting the former employer’s clients for a defined period, while declining to enforce a broader clause in the same contract that would have stopped the same employee from taking any job with a competing business at all. This pattern is worth drafting around directly: a narrowly targeted non-solicitation or confidentiality restriction is considerably more likely to survive scrutiny than a blanket non-compete, and courts will sever an unreasonable clause from an otherwise valid contract rather than necessarily striking down the whole agreement, though relying on the court to redraft an overreaching clause down to something reasonable is a poor substitute for drafting it narrowly in the first place.

What a defensible restraint clause actually protects

A restraint of trade clause is much harder to challenge successfully where it is tied to something concrete: genuine trade secrets or confidential technical or commercial information the employee had access to, real client relationships the employee personally built or managed on the employer’s behalf, or specialised training the employer invested in. A restriction aimed simply at preventing the ordinary competitive disadvantage of a skilled former employee taking their general knowledge and experience to a rival is not protecting a legitimate interest in the eyes of the court; it is trying to suppress ordinary competition, which the Act’s public interest test exists specifically to guard against.

How We Can Help

Clay & Associates Advocates drafts restraint of trade and non-compete clauses designed to survive challenge under the Contracts in Restraint of Trade Act, advises employers on enforcing or declining to enforce existing restrictions against departing staff, and represents employees challenging restrictive covenants they consider unreasonable. Contact our corporate and commercial practice to review an existing non-compete clause or to draft one that is more likely to hold up if it is ever tested in court.

Sources: Contracts in Restraint of Trade Act, Cap 24, sections 2 and 3; Excel Global Limited v Kithinji & another, Cause E137 of 2025, [2025] KEELRC 1687 (KLR).

Frequently asked questions

Are non-compete clauses automatically enforceable in Kenya?
No. Under section 2 of the Contracts in Restraint of Trade Act, a court can declare a restraint of trade clause void if it is not reasonable in the interests of the parties or the public.

What duration is likely to be treated as reasonable for a non-compete clause?
Roughly six months to a year is generally within the range courts have accepted, with longer periods becoming progressively harder to justify.

Can an employer enforce a non-compete clause if it wrongfully dismisses the employee?
No. The Act provides that a restraint of trade clause is not enforceable where the employer terminated the employment relationship in breach of the contract.

Is a narrow non-solicitation clause more likely to be enforced than a broad non-compete?
Yes. Courts have shown more willingness to uphold restrictions targeted at specific client relationships or confidential information than blanket bans on working for any competitor.

Does an employee’s own resignation defeat a non-compete clause?
No. Courts have held that the statutory carve-out applies to a wrongful termination by the employer, not to an employee’s own decision to resign, so a properly drafted restraint can still be enforced against an employee who resigned.