A new offer arrives, and your old contract contains a clause restricting you from joining a competitor. Whether that clause can actually stop you depends on its wording and on reasonableness, not on the clause simply existing. This guide explains how Kenyan law treats restraint of trade.
What is a restraint of trade clause?
It is a term seeking to limit what you may do after the employment ends: joining a competing business, soliciting former clients or colleagues, or working within a defined area for a defined period. Employers use them to protect confidential information, client relationships and investment in training. The clause binds you contractually the moment you sign, though its enforceability is a separate question.
Are restraint clauses enforceable in Kenya?
Courts do not enforce restraints automatically, because everyone is entitled to earn a living. The approach comes from the decided cases published on Kenya Law: a court examines whether the employer has a legitimate interest to protect and whether the restraint is reasonable in duration, geography and scope, no wider than the interest requires. A blanket two-year nationwide ban on working anywhere in the industry is unlikely to be enforced; a narrowly drawn clause protecting genuine trade secrets is a different matter.
What should you check before signing or leaving?
- The exact wording: duration, area and the activities actually restricted
- Whether the employer genuinely has interests of the kind the clause protects
- What you take with you: confidential information must stay, whatever the clause says
- Whether the clause can be severed if part of it is unreasonable
- Advice before you resign, not after the first letter arrives
Practical next steps
Read the clause before signing and negotiate it then, while negotiation is still open; on exit, have the wording reviewed before accepting any restriction at face value, since enforcement happens through the courts. We review restraint and confidentiality clauses for employees and professionals through our contract practice, within the firm’s wider practice areas.
This article was written by Bruno Walela Situma, who advises on dispute resolution, insurance and litigation matters at CS Advocates LLP.
For guidance on your specific situation, contact CS Advocates LLP , call, WhatsApp, or book a confidential consultation at our Westlands, Nairobi office.