Frequently Asked Questions
Are non-compete clauses enforceable in Kenya?
Kenyan courts take a restrictive approach. A non-compete will only be enforced if it protects a legitimate business interest (e.g. trade secrets, client relationships), is reasonable in geographic scope, duration, and activity restricted, and does not unfairly prevent the employee from earning a living. Courts have struck down overly broad clauses.
How long can a post-employment non-compete last in Kenya?
There is no statutory maximum, but courts typically consider 6–12 months reasonable for most roles. Longer periods (up to 2 years) may be justified for senior executives with access to sensitive strategic information, but must be proportionate.
Are non-compete clauses enforceable in common law countries?
Common law courts across the UK, Australia, and other jurisdictions apply a 'reasonableness' test. The clause must be no wider than necessary to protect a legitimate interest. Courts will sever unreasonable parts rather than enforce them wholesale in some jurisdictions (UK, Australia) — so a well-drafted clause is essential.
What is a legitimate business interest that justifies a non-compete in Kenya?
Kenyan courts recognise: protecting trade secrets and confidential information, protecting established client relationships built using the employer's resources, and protecting goodwill in the case of a business sale. A non-compete that goes beyond protecting one of these interests — for example, preventing an employee from working in any capacity in an industry — will likely be struck down.
Can an employee challenge a non-compete in Kenya?
Yes. An employee can apply to the Employment and Labour Relations Court to have an unreasonable non-compete declared unenforceable. The court will assess: whether the clause protects a legitimate interest, whether it is proportionate in scope and duration, and whether it unfairly prevents the employee from earning a living.
Is a non-compete in an employment contract enforceable in the UK?
Yes, but UK courts apply a strict reasonableness test. The clause must go no wider than necessary to protect a legitimate interest. Courts will not rewrite an overly broad clause — they will simply refuse to enforce it entirely. Employees in England and Wales can seek a declaration that the clause is unenforceable. A well-drafted, proportionate clause is essential.
Should a non-compete be paid for separately in Kenya?
Kenyan law does not require separate 'garden leave' pay for a non-compete, but courts are more likely to enforce a clause where the employer provides some compensation for the restriction period — such as continued salary during a garden leave period or a specific non-compete payment. An unpaid restriction is not automatically invalid but is at greater risk of being challenged.