Non-Compete Clauses in Kenya: Enforceability, Evidence and Injunctions

A Kenyan non-compete clause is neither automatically valid nor automatically void. The controlling question is whether the restriction protects a legitimate interest without going further than is reasonably necessary, taking account of the work, the market, the duration, the geographical reach, the parties’ bargaining position and the public interest. A clause designed around an employee’s actual access to customers, confidential information or a saleable business connection has a different legal character from a blanket promise never to work in the same industry.

The practical problem often arrives at speed. An employee resigns and announces a move to a competitor; a former employer alleges that client lists or pricing files were copied; the new employer wants certainty before the start date; or a departing founder begins contacting customers. The first response should preserve facts, not trade accusations. Identify the exact covenant, how employment ended, what interest is said to need protection, what information or relationship the individual actually held, the threatened activity and the date on which any restraint expires.

Start with the statutory test, not the label “non-compete”

Section 2 of the Contracts in Restraint of Trade Act provides that a covenant restraining a lawful profession, trade, business or occupation is not void merely because it restrains trade. It also gives the court power to declare a covenant void where, having regard to the nature of the activity, the time, the area and all the circumstances, it is unreasonable between the parties or injurious to the public interest. The protection claimed must therefore be identified and measured. The clause cannot lawfully operate as punishment for leaving.

Section 3 adds a decisive employment-specific rule: a restraint is void where the employer terminates the employee’s services in contravention of the contract of service. This makes the exit record important. A resignation, mutual separation, expiry, redundancy or employer dismissal cannot be treated as interchangeable. Preserve the termination letter, notice, disciplinary record, settlement deed, resignation correspondence and evidence of the last working day before taking a position on enforcement.

Article 41 of the Constitution protects fair labour practices. It does not erase freely negotiated confidentiality or non-solicitation obligations, but it reinforces the need to balance contractual protection against a person’s ability to work. In Mwaura v Taxify Kenya Limited [2023] KEELRC 1849, the court examined a twelve-month restraint after a mutual separation and treated reasonableness, bargaining power and public interest as central. The decision illustrates why copying a broad covenant into every employment contract is a poor substitute for role-specific drafting.

Separate four different protections before drafting or disputing a clause

“Restrictive covenant” can conceal several obligations. A non-compete prevents specified competitive work or business activity. A non-solicitation clause restricts approaches to defined customers, suppliers or employees. A confidentiality clause prevents use or disclosure of protected information. A non-dealing clause may prohibit business with specified contacts even if they approached first. Each interferes with future activity to a different degree and needs its own justification.

An employer should ask what harm cannot be adequately controlled by the narrower tools. If the concern is a confidential bid model, a focused confidentiality and return-of-data obligation may protect it. If the concern is a sales manager’s personal influence over a limited portfolio, a time-limited customer non-solicit tied to customers dealt with during a defined look-back period may be more defensible than an industry-wide ban. If a business has been sold with its goodwill, a proportionate restraint on the seller may be justifiable on different facts from an employee covenant.

The employee should perform the same separation in reverse. A challenge to a broad non-compete does not create permission to retain company files, divert opportunities developed during employment or misuse trade secrets. The site’s guide to trade secret disputes in Kenya addresses the separate proof needed for confidential business information. Keeping those issues distinct improves both settlement and court pleadings.

A protectable interest must be proved with particular facts

Courts do not protect an employer from ordinary competition as such. The claimed interest may lie in genuinely confidential information, stable customer connections, a trained team vulnerable to targeted poaching, or goodwill acquired in a business sale. The employer should identify the information, relationship or commercial asset with precision and explain why it remains valuable during the restraint period.

For confidential information, prepare an inventory. Record the document or database, its owner, who could access it, how access was controlled, when the former employee last used it, how quickly it becomes stale and why public or remembered skill is insufficient to recreate it. In SBI International Holdings AG (Kenya) v Amos Hadar [2015] KEELRC 1073, the court recognised a duty concerning proprietary information disclosed in confidence but found that no particular trade secret had been placed before it. A claim framed only as “the employee knows our business” is therefore vulnerable.

For customer connection, list the clients the employee personally served, the duration and closeness of contact, decision-makers, contract cycles, pending tenders and the employer’s evidence that the relationship belongs to the business rather than being general industry familiarity. Do not claim every customer in a national database if the employee dealt with a small territory or product line. For staff solicitation, identify actual approaches, messages, offers or coordinated departures instead of treating colleagues’ voluntary moves as proof of unlawful poaching.

Time, geography and activity must fit the protected interest

A defensible clause connects duration to evidence. Confidential prices may become obsolete after one tender cycle; strategic plans may retain value for a financial year; a customer relationship may require a shorter handover period. State why the chosen period is necessary. An open-ended restraint, or one lasting longer than the information remains useful, risks giving more than adequate protection.

Geography should reflect the market in which influence can realistically be exercised. “Kenya and any country where the group conducts business” is difficult to justify for an employee responsible only for Nairobi accounts. Digital businesses may not fit a kilometre radius, but that does not justify a worldwide prohibition. Product, customer and role limits can define the relevant competitive activity more accurately.

The restricted activity also matters. A ban on working “in any capacity” for any competitor may capture a role unrelated to the former employee’s knowledge or contacts. Draft against the functions that create the risk: selling a named product to a defined client group, managing particular accounts, using identified technology, or soliciting employees with whom the individual worked. Avoid definitions of “competitor” that the employer can expand unilaterally after signature.

The Employment and Labour Relations Court applied a fact-specific approach in Excel Global Limited v Kithinji [2025] KEELRC 1687. The interim orders were confined to the agreed six-month non-compete period and lapsed automatically at its end. The result is not a general rule that six months is always reasonable; it shows why the contract dates, actual role, protected interests and remaining duration must be before the court.

Evidence should be preserved before demand letters are exchanged

The former employer should preserve the signed contract and amendments, job descriptions, access logs, device and download records, client allocations, confidentiality markings, departure checklist, messages about the new role and proof of any approach to clients or staff. Secure business systems through ordinary access controls, but do not secretly enter personal accounts or interfere with the employee’s new workplace. A forensic image should be obtained lawfully and with a recorded chain of custody.

The employee should preserve the complete contract, policies received, records of negotiation, the termination or separation documents, evidence of the new job’s duties, information returned, deletion confirmations, and communications showing how a client or colleague initiated contact. Do not delete messages after a dispute is threatened. Do not forward company material to a private account to “prove” what happened; describe and seek lawful disclosure instead.

Sections 107 to 109 of the Evidence Act place the burden on the party asserting facts necessary to the legal right or liability. That burden affects both sides. The employer must prove the covenant, the interest, the threatened breach and the need for relief. The employee who relies on facts about wrongful termination, a narrower role, public-domain information or independent client contact should preserve evidence capable of proving those facts.

Urgent injunctions require more than a contractual quotation

Restraint disputes commonly begin with an application for a temporary injunction. Order 40 rule 2 of the Civil Procedure Rules permits an application to restrain a breach of contract or other injury. The applicant must still establish a proper basis for interim relief, including a prima facie case, threatened harm that damages may not adequately repair and a favourable balance of convenience. Delay can be decisive because the clause may substantially expire while parties exchange letters.

An urgent affidavit should exhibit the entire contract, not one extracted sentence. It should explain the employee’s responsibilities, specify the legitimate interest, identify the competing activity, connect each requested prohibition to evidence and state the restraint’s exact end date. If confidential information is relied on, use a confidential schedule or seek case-management protection rather than publishing the alleged secret in an open affidavit.

The respondent should answer the same issues directly: whether the contract is authentic, whether the exit engages section 3, whether the interest is real, whether the new role overlaps, whether the period or territory is excessive, and whether narrower protection would suffice. In Amitruck Limited v Ochieng [2022] KEELRC 13548, the court considered the statutory reasonableness objections within the established injunction framework. Bare assertions of constitutional freedom or commercial danger are less useful than a clause-by-clause, evidence-linked answer.

The 2026 cases reinforce disciplined drafting and proof

Hemo v Westgate Shopping Mall Ltd [2026] KEELRC 1466 revisited restraints extending beyond employment. The decision emphasised reasonableness in scope and time and addressed the burden of proving that a restraint is reasonable. Read with sections 2 and 3, it warns against assuming that a signed clause enforces itself. The party relying on it should be ready to justify the protection on the real record.

The authorities do not all produce the same result because facts differ. A six-month restriction linked to named products, clients and proven confidential material may receive interim protection; a twelve-month industry-wide ban with no geographical limit and unequal bargaining may fail; and a confidentiality injunction may fail where the alleged secret is never identified. Good advice therefore cannot be reduced to “non-competes are enforceable” or “non-competes are illegal.”

Draft for proportionate protection and a workable exit

The employer should define the protected interest, restricted activity, client group, territory, start date and expiry. Link the covenant to the employee’s role and revise it when the role materially changes. Use separate confidentiality, non-solicitation and return-of-property obligations. A severability clause may assist interpretation, but it should not be used to present an intentionally excessive restraint in the hope that a court will rewrite it.

The employment contract should also state what happens during notice, garden leave and suspension; how devices, documents and credentials are returned; how prospective conflicts are disclosed; and who can consent to a proposed role. Where the employee says the employer’s breach forced the resignation, the site’s detailed guide to constructive dismissal in Kenya explains the separate evidence and timing issues. The lawfulness of the exit should be analysed alongside, not collapsed into, the restraint question.

An employee reviewing a proposed covenant should seek clarity before signing. Ask which information and customers are protected, how “competitor” is defined, whether the clause applies after redundancy or employer breach, how long it lasts and whether a narrower non-solicit would meet the concern. Seniority does not by itself prove equal bargaining power, and access to ordinary professional skill does not turn that skill into employer property.

Resolve the immediate risk without destroying the underlying careers or business

Many disputes can be narrowed by an undertaking: return and verify deletion of files, preserve evidence, avoid named clients for a short period, exclude particular accounts from the new role, use an information barrier, or confirm that specified staff will not be solicited. The undertaking should define dates, conduct and verification rather than repeat vague contract language. It should not concede enforceability beyond what is needed for the interim solution.

If you need to enforce or challenge a Kenyan non-compete, obtain an early review of the complete contract, the way employment ended, the new role, customer and staff relationships, confidential-information controls, access logs, communications, duration, geography and the urgent relief contemplated. A Kenyan employment advocate can assess sections 2 and 3, preserve the evidential record, propose a proportionate undertaking and prepare or resist an injunction before the restraint expires.