Can a commercial non-compete be enforced against a business partner in Kenya?
Yes. Commercial non-competes — agreed between businesses in the context of a partnership, acquisition, or franchise — are viewed more favourably by Kenyan courts than employment non-competes, because the parties are of equal bargaining power and the restriction is usually tied to the protection of the business being sold or the investment made.
What makes a commercial non-compete enforceable?
It must protect a genuine business interest (e.g. customer relationships, trade secrets acquired through the partnership), be limited to a reasonable geographic area and time period, and be proportionate to the commercial context. A restriction that covers the entire world indefinitely is unlikely to be enforced.
Is a commercial non-compete valid in the UK, Australia, and other common law countries?
Yes. Common law courts in these jurisdictions consistently enforce commercial non-competes that meet the reasonableness test, particularly where the restriction was agreed as part of a business sale or substantial commercial transaction.