Non-Disclosure Agreements (NDAs), or confidentiality agreements, in Kenya are legally binding contracts designed to protect sensitive information shared between parties in business or professional settings.
The agreements are used to maintain proprietary data and personal information and to ensure confidentiality.
Unlike some countries that have dedicated NDA statutes, Kenya does not regulate NDAs through a single specific law. In Kenya, the agreements are governed as ordinary contracts under established legal principles.
NDA regulation in Kenya is governed by the Law of Contract Act (Cap. 23), which applies English common law principles of contract as modified by equity.
“Save as may be provided by any written law for the time being in force, the common law of England relating to contract, as modified by the doctrines of equity, by the Acts of Parliament of the United Kingdom applicable by virtue of subsection,” Section 2 of the Law of Contract Act, Cap. 23 states.
Under the provisions of the Law of Contract Act, NDAs are treated like any other contract, with no special registration or stamp duty required.
Certain contracts, however, may attract duties under the Stamp Duty Act that is upheld by the Kenyan laws.
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Elements of a Valid and Enforceable NDA
- A precise description of what the confidential information is in plain, understandable language.
- The obligations of the receiving party.
- Duration of the confidentiality obligation.
- Exclusions, such as information that is already public, independently developed, or required to be disclosed by law.
- Governing law and jurisdiction clauses from the Kenyan law and Kenyan courts.
- Compliance with data protection and constitutional requirements.
- Survival clauses for post-termination obligations.
Despite the law governing confidentiality during the signing of the non-disclosure agreement, the agreement cannot be used to violate constitutional rights under the 2010 Constitution.
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The agreement does not conflict with Article 33 of the Kenyan Constitution on the freedom of expression or Article 35 on the right of access to information.
Public bodies and private entities holding information of public significance cannot invoke contractual confidentiality to block access requests under the Constitution and the Access to Information Act, 2016.
Additionally, the Data Protection Act, 2019, safeguards the lawful processing and data minimization when the agreements involve personal data.
Data controllers and processors ensure that the agreements comply with the principles in the Data Protection Act 2019, which requires the Data Commissioner and staff to sign confidentiality undertakings during the agreement-making process.
