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.
Explore 02Contract 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.
Explore 03Supply, 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.
Explore 07Trade 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.
Explore 08Copyright 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.
Explore 09Patents, 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.
Explore 10IP 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.
Explore 11Franchising
Franchise agreements, disclosure documents, operations manuals and multi-unit arrangements, for franchisors expanding into Kenya and for Kenyan businesses franchising their own model.
Explore 12Ecommerce 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.
Explore 13Marketing, 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.
Explore 14Trade 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.
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.
Common questions
Questions we are asked most
What does it cost to have a commercial contract drafted in Kenya?
It depends on whether the agreement is bespoke or an adaptation, and on how much negotiation follows. A straightforward one-off agreement is usually a fixed fee agreed before we start; a complex or heavily negotiated transaction is more sensibly handled on a fee estimate with an agreed scope. We quote before beginning work, and we will tell you where a lighter-touch review would serve you as well as a full draft.
Who owns intellectual property created by a contractor or freelancer?
Ordinarily the creator, not the business that paid for it. Under the Copyright Act, copyright vests in the author, and an assignment must be in writing and signed to transfer it. Paying an invoice does not transfer ownership by itself. This routinely surfaces in due diligence, when a company discovers it cannot demonstrate ownership of its own logo, website or software — the fix is a written assignment, which is far easier to obtain before a relationship ends than after.
Do I need to register a trade mark in Kenya, or is using the name enough?
Use alone gives you only a passing-off claim, which requires you to prove reputation, misrepresentation and damage — expensive and uncertain. Registration at KIPI gives you an exclusive statutory right in the registered classes and a much more direct route to stopping an infringer. It also prevents the more damaging outcome, where someone else registers your mark first and you are the one having to justify continued use.
How long does trade mark registration take in Kenya?
The sequence is a clearance search, filing at KIPI, examination, publication in the Industrial Property Journal for opposition, and then registration. Straightforward applications that attract no objection or opposition typically complete within several months to about a year; an examination objection or a third-party opposition extends that materially. A clearance search before filing is the cheapest step in the process and the one that most often prevents wasted cost.
Can we agree that a contract is governed by foreign law?
Yes — Kenyan courts will generally give effect to an express choice of governing law in a commercial contract between sophisticated parties. The more consequential question is usually the dispute resolution clause: a foreign court judgment can be difficult to enforce in Kenya, whereas an arbitral award from a New York Convention state is comparatively straightforward. If the counterparty's assets are in Kenya, that distinction matters more than the governing law does.
What should a SaaS agreement cover under Kenyan law?
Beyond the commercial terms, four areas do the real work: data protection, including the controller and processor roles and any cross-border hosting, which the Data Protection Act, 2019 regulates; service levels and the remedy when they are missed; limitation of liability, since uncapped exposure on a subscription product is rarely commercially sane; and exit, meaning what happens to the customer's data on termination and in what format they get it back.