Contract templates in Kenya: the rules to know

• Permanent employment contract

  Hiring for a permanent position

  Common-law country: the Employment Act 2007 governs the contract; writing is required once engagement reaches three months.

  • Common-law country: the employment contract is governed by the Employment Act 2007 and the case law of the Employment and Labour Relations Court.
  • Writing is required if the engagement totals three months or more; the employer prepares the contract and obtains the employee's consent (s. 9).
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• Fixed-term employment contract

  Assignment or replacement with an end date

  Kenya, a common-law country, governs employment contracts through the Employment Act 2007: writing is required from three months, and casual workers have a specific status.

  • Writing is required if the contract lasts three months or more, or covers work that cannot be completed within three months (s. 9).
  • Casual employee: paid daily, engaged for no more than 24 hours (s. 2).
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• Internship agreement

  Internships and first-job schemes

  Common law country: the Employment Act 2007 expressly includes apprentices in the definition of employee and requires writing once the relationship reaches three months.

  • The Employment Act expressly includes apprentices and indentured learners in the definition of "employee" (s. 2); apprenticeships also fall under the Industrial Training Act.
  • Where the relationship lasts three months or more, the contract of service must be in writing (Employment Act, s. 9(1)).
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• Resignation letter

  Leaving a job properly

  Common law country: the Employment Act 2007 sets notice according to the pay period and requires a certificate of service when employment ends.

  • Monthly pay: 28 days' written notice (s. 35(1)(c)), unless the contract provides longer (s. 35(2)); daily pay: termination at the end of any day.
  • Either party may end the contract without notice by paying the wages for the notice period (s. 36).
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• Service agreement

  Work carried out for a client

  Kenya is a common-law country: the service agreement rests on freedom of contract, the received English common law and the Law of Contract Act.

  • No writing is required in general, except for contracts concerning an interest in land (Law of Contract Act, s. 3(3)).
  • The agreement usefully specifies the deliverables, fee, deadlines, intellectual property, limitation of liability, Kenyan governing law and jurisdiction or arbitration.
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• Agreement between two parties

  Mutual commitments in writing

  Kenya is a common-law country; the Law of Contract Act (Cap. 23) sets formal requirements for certain agreements, notably those concerning land.

  • For a land agreement, the terms may be set out in the document itself or incorporated by reference to another document (Law of Contract Act, s. 3(5)).
  • A memorandum of understanding may be non-binding; this is stated expressly through a “subject to contract” clause or equivalent.
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• Freelance contract

  Independent professional and client

  Kenya is a common-law country: whether someone is an employee or an independent contractor depends on the reality of the relationship, not its label.

  • A “contract of service” may be oral or written, express or implied (Employment Act, s. 2): classification depends on reality, not on the label.
  • Reclassification gives rise to notice, protection against unfair termination and social contributions.
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• Non-disclosure agreement (NDA)

  Sharing sensitive information

  Kenya is a common-law country; contracts are governed in particular by the Law of Contract Act (Cap. 23).

  • Define precisely the confidential information, the exclusions, the term and what happens to documents at the end.
  • Injunctions are the main remedy for disclosure; damages should also be provided for.
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• Partnership agreement

  Joint project between companies

  A common-law country: no form is imposed on a cooperation agreement between companies.

  • In practice, the contract expressly rules out any intention to create a partnership, agency or joint venture where that is not the aim.
  • The contract covers governance, allocation of costs and revenues, intellectual property, exclusivity, exit and dispute resolution.
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• Sale of goods

  Selling goods and movable property

  A common law country: sales fall under the Sale of Goods Act (Cap. 31) and the Consumer Protection Act 2012; Kenya is not a party to the CISG.

  • Implied conditions: right to sell (s. 14), correspondence with description (s. 15), fitness for purpose and merchantable quality where the seller deals in such goods (s. 16).
  • Property passes when the parties intend (s. 19); specific goods in a deliverable state: on conclusion (s. 20(a)); risk follows property unless otherwise agreed (s. 22).
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• Influencer agreement

  Brand and creator collaboration

  Common law country: influencer agreements fall under contract law; the Consumer Protection Act 2012 targets false sponsorship or approval claims.

  • Unfair practice: any false or misleading representation, notably a sponsorship or approval that does not exist (Consumer Protection Act 2012, s. 12).
  • Use of images and followers' data is subject to the Data Protection Act 2019.
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• Residential lease

  Renting a home

  Kenya is a common-law country; residential leases are governed by the Land Act 2012 and, for low rents, by the Rent Restriction Act (Cap. 296).

  • The Rent Restriction Act (Cap. 296) covers only dwellings whose standard rent does not exceed KSh 2,500 per month (s. 2(1)); above that, general law applies.
  • The Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap. 301) governs commercial leases, not residential ones.
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• Commercial lease

  Renting business premises

  Kenya is a common-law country: "controlled" tenancies of shops, hotels and restaurants fall under Cap. 301, which regulates termination and rent review.

  • Controlled tenancy (Cap. 301): shop, hotel or catering premises, unwritten lease or written lease of up to five years, or terminable within five years (s. 2(1)).
  • Termination or adverse change only by notice in the prescribed form, stating reasons, effective at least two months after receipt; tenant's written reply within one month (s. 4).
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• Acknowledgment of debt

  Money lent between individuals

  A common-law country: the law sets no general interest ceiling between individuals; a rate found unconscionable may be set aside.

  • The law sets no general ceiling on interest between individuals; the agreed rate applies in principle, unless it is found unconscionable.
  • Electronic signature is possible; it is excluded if the document takes the form of a negotiable instrument, such as a promissory note (Kenya Information and Communications Act, s. 83B).
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• Car sale agreement

  Selling a used vehicle

  Kenya is a common-law country; the transfer of a used vehicle goes through the NTSA and the eCitizen portal.

  • The transfer is made online: the seller starts the request on eCitizen (NTSA portal), uploads the logbook and enters the buyer's details.
  • The buyer receives a notification, accepts, completes the declaration and confirms; the new logbook is collected at an NTSA centre.
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• Power of attorney

  Acting on someone else's behalf

  A common law country: for land, the power of attorney is verified and registered under the Land Registration Act 2012.

  • Land: the registrar only accepts a document signed by an agent if the power of attorney is signed and verified under s. 45; the original is filed (s. 48).
  • Each land registry keeps a register and a file of powers of attorney (Land Registration Act, s. 7(1)(g)).
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