Contracts · Licensing · Intellectual property
Commercial Contracts and Intellectual Property
The agreement you sign determines what you can enforce two years later, when the relationship has changed and the other side reads the clause differently. We draft and negotiate the contracts that carry commercial risk.
The agreements we draft, review and negotiate
- Commercial contract drafting
- Contract review and negotiation
- Supply, distribution and agency
- SaaS, software and technology agreements
- Master services and consultancy agreements
- NDAs and confidentiality
- Trade mark registration and protection
and 7 further areas set out below
A contract earns its fee twice: once when it closes the deal, and once when something goes wrong and it decides who bears the loss. Most commercial agreements in circulation do the first job adequately and the second badly.
The pattern we see repeatedly is a business scaling on documents it outgrew — a two-page services agreement now governing a seven-figure relationship, a distribution arrangement with no territory definition, a software product sold on terms that never addressed data, uptime or what happens on termination. None of this matters until it does, and by then the drafting is fixed.
We work on the agreements where the downside is real: supply and distribution, technology and SaaS, licensing, franchising, outsourcing and joint ventures, together with the intellectual property that sits underneath them. That includes the unglamorous parts — limitation of liability, indemnities, termination rights, governing law and the dispute clause — because those are the provisions that are actually litigated.
Areas of work
The agreements we draft, review and negotiate
Commercial contract drafting
Agreements drafted for the specific transaction rather than adapted from a template that was written for a different one. The work concentrates on allocation of risk: who bears what, capped at what, and on what notice.
ExploreContract review and negotiation
Review of agreements presented to you, with a marked-up position and a clear separation between what is genuinely unacceptable and what is merely unfavourable. Useful when the counterparty is larger and the document is theirs.
ExploreSupply, distribution and agency
Territory, exclusivity, minimum volumes, pricing mechanics and termination. Post-termination consequences — stock buy-back, customer lists, restraint of trade — cause more disputes here than the commercial terms do.
ExploreSaaS, software and technology agreements
Subscription terms, service levels, support commitments, data processing and exit. A Kenyan SaaS contract now has to address the Data Protection Act, 2019 as a matter of course, including where the data is hosted.
Master services and consultancy agreements
Framework agreements with statements of work beneath them, for clients who contract repeatedly with the same counterparty and need the commercial terms settled once rather than every engagement.
NDAs and confidentiality
Mutual and one-way confidentiality agreements that define the confidential information tightly enough to be enforceable, and set a duration that survives the discussion the NDA was signed for.
ExploreTrade mark registration and protection
Clearance searches, filing and prosecution at KIPI, oppositions, and enforcement against infringement and passing off. Registration under the Trade Marks Act gives you a right you can act on; unregistered use largely does not.
ExploreCopyright and creative works
Ownership, assignment and licensing of software, written work, music, film and design. Ownership does not follow payment by default — a commissioned work needs a written assignment or the creator keeps the copyright.
ExplorePatents, utility models and designs
Protection of inventions and industrial designs under the Industrial Property Act, 2001, including filing strategy and the disclosure timing that determines whether an invention remains patentable at all.
ExploreIP licensing and commercialisation
Turning intellectual property into revenue: licence scope, field of use, territory, royalty mechanics, audit rights, sub-licensing and what happens to the licence if either party is acquired.
ExploreFranchising
Franchise agreements, disclosure documents, operations manuals and multi-unit arrangements, for franchisors expanding into Kenya and for Kenyan businesses franchising their own model.
ExploreEcommerce and digital trading terms
Website and marketplace terms, consumer-facing conditions of sale, returns and refunds, and the privacy documentation that has to sit alongside them.
ExploreMarketing, sponsorship and creator agreements
Sponsorship, brand ambassador and influencer arrangements: deliverables, exclusivity, usage rights in the content produced, approval rights and the disclosure obligations that apply to paid promotion.
ExploreTrade secrets and confidential information
Protecting information that is valuable because it is not public — pricing models, formulations, customer data — through contractual protection and, where necessary, urgent injunctive relief.
ExploreThe law that applies
The Kenyan law behind a commercial agreement
Kenyan contract law is largely common law, supplemented by statute in specific areas. These are the instruments that most often determine whether a clause is enforceable and who owns what.
Law of Contract Act (Cap 23)
Applies English common law principles of contract to Kenya, subject to local statute. It also imposes writing requirements for certain contracts, including guarantees — an oral guarantee is generally unenforceable, which matters when a parent company has informally backed a subsidiary's obligation.
Trade Marks Act (Cap 506)
Governs registration and protection of trade marks through the Kenya Industrial Property Institute. Registration confers the exclusive right to use the mark for the registered classes and is the practical basis for infringement proceedings; without it you are limited to a passing-off claim, which is harder and more expensive to prove.
Copyright Act No. 12 of 2001 (Cap 130), as amended by the Copyright (Amendment) Act, 2022
Protects literary, musical, artistic and audiovisual works and computer programs, and is administered by the Kenya Copyright Board. Copyright arises automatically on creation, but assignments must be in writing and signed — which is why a commissioned logo or a contractor-written codebase often does not belong to the business that paid for it.
The 2022 amendment came into force on 22 April 2022. The Copyright Regulations, 2020 apply alongside it.
Industrial Property Act, 2001
Provides for patents, utility models and industrial designs, administered by KIPI. Patent protection requires novelty, so public disclosure — including a product launch, a pitch or a trade show — before filing can defeat the application entirely.
Data Protection Act, 2019
Applies to any contract under which personal data is shared or processed. Controller-to-processor arrangements require specific contractual terms, and cross-border transfer of personal data is subject to conditions — a routine issue for any Kenyan business using overseas cloud infrastructure.
Competition Act, 2010
Restricts agreements that fix prices, allocate markets or impose resale price maintenance, and regulates conduct by dominant undertakings. Exclusivity, territory and pricing provisions in distribution agreements need to be drafted with this in mind rather than added afterwards.
This page describes the legal framework in general terms and is not legal advice. Legislation and regulator practice change; the position below was reviewed on 26 August 2026. Advice on your own circumstances requires an engagement with the firm.
Who we act for
Who we draft and negotiate for
Growing businesses
Trading on documents drafted when the company was much smaller, and now carrying contractual exposure that is disproportionate to the margin on the deal.
Technology and SaaS companies
Selling a product that needs subscription terms, a data processing position and service levels that the engineering team can actually meet.
Manufacturers, distributors and importers
Building or restructuring a route to market, and needing exclusivity, territory and termination provisions that hold up when a distributor underperforms.
Founders and creators
Holding intellectual property that was developed informally, by contractors or co-founders, with no written assignment recording who owns it.
International businesses contracting into Kenya
Needing a Kenyan-law position on an agreement, or adaptation of a group standard form so it works under local law.
Brands and rights holders
Licensing intellectual property for revenue, or dealing with infringement, counterfeiting and unauthorised use in the Kenyan market.
Send us the agreement before you sign it
A review before signature costs a fraction of a dispute afterwards. Send the document and tell us what the deal is meant to achieve, and we will come back with a clear position on the terms that carry risk.
How we work
How a contract instruction runs
- 01
Commercial briefing
We start with the deal, not the document: what each side is really giving and getting, where the money is, and what you are most concerned could go wrong.
- 02
Drafting or mark-up
A first draft, or a marked-up version of theirs with a covering note that separates the points worth fighting for from the points worth conceding to close.
- 03
Negotiation
We can run the negotiation directly with the counterparty's counsel or stay behind you, depending on the relationship and how much of the commercial discussion you want to keep.
- 04
Execution and follow-through
Signature, and the steps that are routinely forgotten afterwards: IP assignments recorded, registrations filed, and the agreement's key dates diarised.
Legal insights
Further reading on commercial contracts & ip
- Commercial LawContract Review in Kenya: What a Proper Review Actually CoversA contract review that only checks legal enforceability has done half the job. The commercial risk allocation is the other half.
- Commercial LawThe Commercial Contract Terms That Decide Kenyan DisputesCommercial disputes in Kenya turn on five clauses. Negotiating effort usually goes to price, which is rarely disputed.
- Banking & FinanceKenyan Loan Agreements: The Security That Actually Gets EnforcedSecurity not registered within the statutory window is void against a liquidator. The window is short and unforgiving.
Common questions
Questions we are asked most
Related Gracen Law Services
Work that sits alongside commercial contracts & ip
Most matters in this area touch at least one of the following. Each links through to the relevant Gracen Law practice or sector page.
- Commercial LawCommercial relationships that protect revenue and reduce risk.
- Corporate LawOwnership, capital, and governance structured for long-term value.
- Dispute ResolutionDisputes resolved to protect value and achieve practical outcomes.
- Technology, Startups, and Digital Business
- Creative and Digital Economy
- Manufacturing, Trade, and Logistics
Request a consultation
Send us the agreement before you sign it
A review before signature costs a fraction of a dispute afterwards. Send the document and tell us what the deal is meant to achieve, and we will come back with a clear position on the terms that carry risk.
Confidentiality guaranteed. All communications with Gracen Law are protected by legal professional privilege. Your information is never shared with third parties.
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Reviewed by the Gracen Law commercial contracts & ip team · Last reviewed 26 August 2026