A new job offer arrives, and the existing contract contains a clause restricting what you may do after you leave. Employers rely on these clauses to protect confidential information, client relationships and training investment. Employees experience them as a limit on their next move. Kenyan law does not enforce restraint clauses automatically, and the outcome depends on the wording, the role and the interest the employer is trying to protect. This article explains how the courts approach these clauses and what to check before signing or resigning.
Quick answer
A restraint of trade clause is enforceable only if the employer can show a legitimate interest to protect and the restriction is reasonable in duration, geography and scope. The starting position is that such a clause is contrary to public policy unless the employer justifies it. Employees should read the clause before signing and negotiate it while negotiation is open; on exit, advice should come before a resignation letter is sent or a new role is accepted.
What a restraint clause covers
A restraint of trade clause seeks to limit what a person may do after the employment ends. The common forms are a non-compete clause, which restricts joining a competing business or starting one; a non-solicitation clause, which restricts approaching former clients; a non-poaching clause, which restricts recruiting former colleagues; and a confidentiality clause, which restricts the use and disclosure of confidential information. Some contracts combine all four and add a restriction on dealing with former clients.
The clause binds contractually when it is signed, but enforceability is a separate question. An employer that relies on a restraint should be able to explain which interest it protects and why the restriction goes no further than that interest requires. The related article on checking an employment contract before signing covers the wider set of terms to review, and the article on notice periods in Kenya explains how the exit timetable interacts with the restraint period.
The legal test in Kenya
Restraint of trade is governed by the general law of contract and by common law and equity principles, which apply in Kenya through the Judicature Act (Cap 8). The Employment Act, 2007 regulates the employment relationship, but the enforceability of a post-employment restraint is analysed through the restraint of trade doctrine. The Constitution’s protection of fair labour practices sits in the background, and courts are alert to clauses that would prevent a person from earning a living in their field.
The employer must first identify a legitimate proprietary interest. Trade secrets, confidential information, customer connections and specialised training can qualify. General skill, knowledge and experience do not. The restriction must then be reasonable: it should be limited to what is needed to protect that interest, and it must not be against the public interest. A blanket ban on working anywhere in an industry is unlikely to satisfy that test.
Duration, geography and scope
Reasonableness is assessed as a whole. Duration should reflect the time the employer’s interest actually needs protection. Geography should reflect where the employer’s clients or business are, not the whole country by default. Scope should describe the activities restricted, such as competing products, named customers or a defined territory, rather than a general ban on working.
The employee’s role matters. A senior employee with access to pricing, strategy and client relationships may justify a wider restraint than a junior employee with limited exposure. A clause drafted for a senior manager and then applied to every employee is a common weakness, and courts examine it against the role actually held.
Clause types compared
| Clause | What it restricts | Drafting point |
|---|---|---|
| Non-compete | Joining or starting a competing business | Limit to defined activities, area and period linked to the protected interest |
| Non-solicitation of clients | Approaching former clients | Define which clients, usually those dealt with in a stated period before exit |
| Non-poaching of staff | Recruiting former colleagues | Limit to named roles or a defined team and a reasonable period |
| Confidentiality | Use and disclosure of confidential information | Define the categories of information and the legitimate exclusions |
Severability and how problems are handled
Where part of a restraint is unreasonable, the court may decline to enforce the whole clause or, if the drafting allows, sever the unreasonable part and enforce the rest. Severability is easier where the clause is drafted in separate, severable parts. A clause that reads as one indivisible restriction may fall entirely if one element is unreasonable.
That is why the drafting should separate the interests protected and the restrictions imposed. An employer that wants to protect client relationships should not do it only through a broad non-compete; a targeted non-solicitation clause is easier to justify. An employee facing a clause should check whether its parts can stand alone.
Enforcement and what a court may do
Enforcement usually begins with a demand letter and, where the employer acts quickly, an application for an interim injunction to restrain the alleged breach. The court may grant the injunction, refuse it, or grant it on terms. A final decision follows the full hearing, at which the employer must prove the interest and the reasonableness of the clause. The Employment and Labour Relations Court deals with employment and labour relations disputes, and the court’s process should be checked with an advocate for the particular case.
Damages are also available in principle where a breach is proved, but the employer must prove its loss. The time and cost of enforcement mean that a badly drafted clause often goes unenforced, while a well-drafted clause can substantially affect an employee’s next role. The firm’s employment law practice advises employers and employees on these clauses.
Practical steps for employees
- Read the restraint before signing and negotiate the duration, geography and activities restricted.
- Ask which interest the clause is meant to protect and keep the answer in writing.
- Keep a copy of the signed contract and any variation.
- Do not take or retain confidential information when leaving, whatever the clause says.
- Check how the new role compares with the wording, and disclose the clause to a new employer where appropriate.
- Take advice before resigning, accepting an offer or signing anything the former employer sends.
- Keep the correspondence and record the dates, because timing affects the injunction risk.
Practical steps for employers
- Identify the specific interest to protect before drafting the clause.
- Tailor the restriction to the role, the clients and the territory.
- Separate confidentiality, non-solicitation and non-compete obligations so that each stands on its own.
- Review the clause at promotion or a change of role, and keep the wording current.
- Treat similar roles consistently, and take advice before relying on the clause in a dispute.
Primary sources
- Employment Act, 2007, Kenya Law, for the statutory framework of employment in Kenya.
- Judicature Act (Cap 8), Kenya Law, for the application of common law and equity.
- Constitution of Kenya, 2010, Kenya Law, for the protection of fair labour practices.
This article is general information, not legal advice.