A deal is done on a handshake and months later the terms are disputed. The first question is often whether there was a binding contract at all, and the second is how to prove what was agreed. Kenyan law does not require every contract to be in writing, but it does require writing for some transactions, and practice favours it for most commercial ones. This article explains when writing is legally required, what a written contract must contain, and how to turn an oral agreement into a usable record.
Quick answer
Most commercial contracts in Kenya can be made orally and are binding if the ordinary elements of a contract are present. Some transactions must be in writing, including contracts of guarantee and contracts for the disposition of an interest in land. In practice the problem with an oral contract is rarely validity; it is proof. A written record is the simplest way to avoid a dispute about what was agreed.
The general rule: oral contracts can bind
Kenyan contract law does not impose a general writing requirement. A contract is formed by offer and acceptance, supported by consideration, with an intention to create legal relations, capacity and a lawful purpose. Those elements can be established by words, conduct or a mixture of both. A purchase confirmed by email, work begun after a telephone instruction, or goods accepted without a formal order can all point to a binding contract.
The firm’s contract practice advises on formation questions and on disputes about what was agreed. Where an oral arrangement is already in place, the practical task is to gather the conduct and documents that show its terms, and the related article on remedies for breach of contract explains what is at stake if performance fails.
Transactions the law requires in writing
The Law of Contract Act (Cap 23) is the main statute to check. It requires certain contracts to be in writing or evidenced in writing, and it imposes a written form for contracts for the disposition of an interest in land. A contract of guarantee is the classic example of an agreement that must be evidenced in writing. The general framework of contract law is in the same Act, which Kenya Law publishes.
Land transactions have their own framework. The Land Act, 2012 and the Land Registration Act, 2012 govern dispositions, registration and the formalities that accompany a transfer. A contract for the sale or other disposition of land should be in writing, executed by the parties and supported by the documents the registry requires. An oral land deal is a poor foundation for any of those steps.
What writing must contain
Writing is only useful if it records the right things. The document should identify the parties, describe the subject matter, state the price and payment terms, set out the obligations and the date or event for performance, and deal with what happens on default. It should be signed by the parties whose obligations it records, and witnessed or attested where the transaction requires it. Completeness matters: a document that leaves an essential term to be agreed later invites the argument it was meant to prevent.
For land documents, the description of the property should match the register, and the execution formalities should be checked against the registry’s requirements. For guarantees, the document should make clear who is guaranteeing what, to whom, for what amount and for how long, so that the obligation can be identified without argument.
Electronic records and signatures
Electronic records and signatures are used in Kenyan commerce, and a contract can be formed through an exchange of emails where the ordinary requirements are met. The safer position is that electronic records support proof of an agreement rather than remove the need for formality. Where a statute requires a written and executed instrument, or requires attestation or registration, those steps must still be completed. The position should be confirmed for the particular transaction rather than assumed from the platform used.
Proving an oral agreement
Where the contract is oral, the evidence is usually the conduct of the parties. Useful material includes emails, messages and call records, invoices and payment confirmations, delivery notes, site instructions, meeting notes and the pattern of performance. Witness evidence can help, but memories fade and recollections differ. The earlier the record is assembled, the more reliable it is. The related article on oral agreements for the sale of land explains the particular problem that arises with land.
Turning an oral agreement into a written record
- Prepare a short written record of the terms already agreed and the terms still to be performed, and send it promptly to the other party.
- Ask the other party to confirm it in writing, even by a short reply, and keep the reply.
- Record any variation in writing at the time it is agreed.
- Keep invoices, receipts, delivery notes and correspondence in one file.
- Where the transaction requires a formal instrument, have it prepared and executed without delay.
When to take advice
Advice is worth taking where the transaction concerns land, where a guarantee or personal liability is involved, where the amount or the risk is significant, where the other party is outside Kenya, or where a contract is already disputed. The firm’s contract practice prepares and reviews agreements and advises on how an existing oral arrangement can be documented.
Which transactions need writing
| Transaction | Is writing required? | Practical point |
|---|---|---|
| Ordinary commercial supply or services | Not generally required by statute | Oral terms can bind, but proof rests on conduct and records |
| Contract of guarantee | Required to be evidenced in writing | Identify the parties, the guaranteed obligation and the amount |
| Disposition of an interest in land | Required in writing and properly executed | Check registry formalities, spousal consent and Land Control Board consent where applicable |
| Regulated or specialised agreements | Set by the governing statute or regulator | Confirm the form requirements before relying on an oral arrangement |
Primary sources
- Law of Contract Act (Cap 23), Kenya Law, for the general framework and the transactions requiring writing.
- Land Act, 2012, Kenya Law, for the framework governing dispositions of land.
- Land Registration Act, 2012, Kenya Law, for registration and the formalities of land transactions.
This article is general information, not legal advice.