Frequently Asked Questions
Is a settlement agreement binding in Kenya?
Yes. A settlement agreement is a contract and is fully enforceable under the Law of Contract Act (Cap. 23). Once both parties sign, they are generally barred from bringing further claims on the same matter. Kenyan courts strongly encourage settlement and will enforce settlement agreements.
Does a settlement agreement need to be filed with a court in Kenya?
For disputes that are already in court, a settlement agreement can be filed as a consent order, which gives it the force of a court order. For pre-litigation settlements, filing is not required — the agreement itself is enforceable as a contract.
Can a settlement agreement include a confidentiality clause?
Yes. Confidentiality ('gagging') clauses are common in settlement agreements and are enforceable in Kenya and common law countries, provided they do not prevent a party from reporting criminal conduct to the authorities.
Can a settlement agreement be set aside in Kenya?
Yes, in limited circumstances: if it was obtained by fraud, misrepresentation, duress, or mistake, or if the party lacked capacity to contract. A settlement agreement freely negotiated and signed by both parties with access to legal advice is very difficult to challenge afterwards.
Should I get legal advice before signing a settlement agreement in Kenya?
Yes — especially for employment disputes. Courts take notice of whether both parties had independent legal advice when assessing a challenge to a settlement agreement. For employment settlements, the Industrial Court expects parties to have had an opportunity to seek advice before signing.
Is a settlement agreement valid in the UK?
Yes. Settlement agreements (called 'compromise agreements' before 2013) are standard in UK employment and commercial disputes. For UK employment settlements, the Employment Rights Act 1996 requires the employee to receive independent legal advice for the agreement to be valid as a waiver of employment claims.
Does a settlement agreement affect a claim in court?
Yes. Once signed, a settlement agreement bars both parties from bringing any further claim covered by the agreement. If a party later files a court claim despite a settlement, the other party can apply to have it struck out and seek costs. The agreement should specify exactly which claims it resolves.