Commercial agreements are the foundation of every business relationship in Kenya, with suppliers, lenders, distributors, employees, and partners. Our Nairobi-based contract law practice advises on the full life of an agreement: drafting, negotiation, performance, and, where necessary, enforcement or defence in court or arbitration.
What our contract law practice covers
- Drafting and negotiation of commercial agreements: supply, distribution, service level, shareholder, partnership, and employment contracts
- Contract structuring for transactions involving foreign investors entering Kenya
- Review and advice on standard-form terms and conditions
- Enforcement of contractual rights through the High Court of Kenya at Milimani and arbitration before NCIA and KIAC
- Defence of breach-of-contract claims and settlement negotiation
- Advice on termination, force majeure, and frustration
Which law governs contract disputes in Kenya?
Contractual rights and obligations in Kenya are principally governed by the Law of Contract Act (Cap 23) and common law principles of equity. Disputes are heard by the High Court of Kenya, by magistrates’ courts depending on value, or by arbitral tribunals where the agreement contains an arbitration clause. The Limitation of Actions Act (Cap 22) sets a six-year window for simple contract claims, twelve for contracts under seal.
When should a business consult a contract lawyer?
The most valuable stage for legal input is before signature. We review draft agreements to identify ambiguous obligations, unbalanced remedies, and clauses that may prove unenforceable under Kenyan law. Where a dispute has already arisen, early advice helps preserve evidence, comply with notice provisions, and choose the most suitable forum.
Talk to our Nairobi contract team
Book a confidential consultation with a partner at our Westlands office. We will review your agreement, explain your position under Kenyan law, and set out the available options with clear fee structures.
Service packages
Most commercial disputes are decided by what the contract actually says and by the records kept while it was performed. These packages cover drafting, review and the point where an agreement starts to go wrong.
Commercial Agreement Drafting
Who it is for: Businesses entering a supply, distribution, services, partnership or shareholder arrangement.
What it includes
- Structuring the agreement around the commercial deal you have agreed
- Drafting of obligations, deliverables, acceptance and payment terms
- Risk allocation: liability caps, indemnities, force majeure, termination
- Dispute resolution and governing law clauses
- Confidentiality, intellectual property and data protection provisions
- A plain-language summary of what the clauses mean in practice
What it does not include
- Commercial negotiation of price or commercial terms
- Regulatory licensing for the underlying business
- Tax structuring advice
What we need from you: Heads of terms or the commercial deal in writing, the parties' details, and any standard terms either side insists on.
Contract Review and Risk Report
Who it is for: Businesses asked to sign a counterparty's standard agreement.
What it includes
- Line-by-line review against your position
- A written report ranking the clauses that create real exposure
- Proposed alternative wording for the clauses that matter most
- A short list of points to raise in negotiation, in priority order
- Guidance on the practical consequences of signing as drafted
What it does not include
- Negotiating directly with the counterparty unless separately agreed
- Verification of the counterparty's solvency or standing
What we need from you: The draft agreement, the background to the deal, and what you need the contract to protect.
Breach, Termination and Recovery Strategy
Who it is for: Businesses facing non-payment, non-delivery, or a counterparty threatening to walk away.
What it includes
- Reading the contract against the facts to establish what has actually happened
- Notice, cure, suspension and termination mechanics
- Preservation of evidence and a documented chronology
- A demand letter where that is the right first step
- A written options note covering negotiation, mediation, arbitration and court
- Advice on limitation periods before they become a problem
What it does not include
- Court or arbitration proceedings unless separately instructed
- Insolvency or winding-up proceedings
What we need from you: The contract and any variations, the correspondence, invoices and delivery records, and a note of what you want to achieve.
Questions clients ask
Select a question to read the answer, or speak with our team.
01Does a contract have to be in writing to be enforceable in Kenya?
No, not in general. Most commercial agreements can be formed orally or by conduct. The problem is proof rather than validity. A small number of contracts must be in writing or evidenced in writing, including dispositions of interests in land, and certain consumer and credit arrangements. Where a dispute is likely, an oral agreement is a poor instrument to litigate on. See whether a contract must be in writing.
02How long do I have to sue for breach of contract in Kenya?
For most contract claims the limitation period is six years from the date the cause of action arose, under the Limitation of Actions Act. There are shorter periods for some claims and different rules where the claim is based on fraud or where the claimant lacked knowledge. Time can run from earlier than clients expect. We check the position early because a limitation defence can end an otherwise strong claim. See limitation periods for contract disputes and limitation periods for commercial claims.
03Is a penalty clause in a contract enforceable in Kenya?
A genuine pre-estimate of loss is generally enforceable. A clause that operates as a penalty, meaning it is aimed at punishing breach rather than compensating for it, is not. Kenyan courts apply that distinction to the facts, including the commercial context and the relationship between the sum and any likely loss. This is why liquidated damages clauses need to be drafted with the actual risk in mind. See remedies for breach of contract.
04What is the difference between terminating a contract and accepting a repudiation?
They are not the same and the distinction matters. Terminating for breach requires the breach to be sufficiently serious, or the contract to give you that right, and it must be exercised correctly. Accepting a repudiation is treating the contract as at an end because the other side has shown it will not perform. Getting the wrong label, or continuing to perform after a repudiatory breach, can cost you the right to terminate. Take advice before you write the letter. See contract clauses that prevent disputes.
05Can we agree in the contract to arbitrate instead of going to court?
Yes. A written arbitration agreement is enforceable in Kenya under the Arbitration Act 1995, and a valid clause generally means the dispute goes to arbitration rather than court. The clause needs to be drafted with care, because a badly worded clause creates its own dispute about where and how the matter should be heard. We also check whether the seat, the institution and the number of arbitrators are all clearly identified. See drafting an arbitration clause.
General information for readers in Kenya, not legal advice. Every transaction turns on its own facts, documents and current registry practice, and the law can change. Please take advice on your own matter before you act or pay money.
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