Open Source Software Licence (Kenya)
Open Source Software Licence
OPEN SOURCE SOFTWARE LICENCE Copyright © [Copyright Year] [Licensor Name]. All rights reserved except as expressly granted herein. This licence is issued under the Copyright Act No. 12 of 2001 of Kenya (which defines computer programs as literary works protected by copyright) and the Law of Contract Act Cap. 23. Effective Date: [Licence Effective Date]
1. The Licensed Software
1.1 This licence governs the use of the following software work (the "Software"): Name: [Software Name] Version: [Software Version] Description: [Software Description] Source Code Repository: [Repository URL] Primary Language(s): [Programming Languages] 1.2 The Software is a literary work as defined in Section 2 of the Copyright Act No. 12 of 2001 of Kenya. Copyright in the Software vests in [Licensor Name] (the "Licensor") from the date of creation under Section 26 of the Copyright Act No. 12 of 2001, without requirement of registration with the Kenya Copyright Board (KECOBO). 1.3 The Licensor is: [Licensor Name] [Licensor Type] [Licensor Address] [Licensor Email]
2. Grant of Licence
2.1 Subject to the conditions set out in Section 3, the Licensor hereby grants to any person who obtains a copy of the Software (the "Licensee") a perpetual, worldwide, royalty-free, non-exclusive licence to exercise the following rights under the Copyright Act No. 12 of 2001: (a) Reproduction: to copy and reproduce the Software in whole or in part; (b) Adaptation: to modify, adapt, and create derivative works based on the Software; (c) Distribution: to distribute copies of the Software or derivative works to third parties; (d) Commercial Use: [Commercial Use Permitted]; (e) Modification: [Modification Permitted]; (f) Redistribution: [Distribution Permitted]. 2.2 Patent Licence Grant: [Patent Grant Included]. Where the answer is yes, the Licensor grants each Licensee a perpetual, worldwide, royalty-free, irrevocable licence under any patent rights held by the Licensor that are necessarily infringed by the use or distribution of the Software as licensed herein. This patent grant terminates automatically if the Licensee initiates patent litigation alleging that the Software infringes any patent.
3. Conditions of Licence
3.1 Notice Retention: [Notice Retention Required]. Where required, the Licensee must retain the following copyright notice and this licence text in all copies or substantial portions of the Software: "Copyright © [Copyright Year] [Licensor Name]. Licensed under the Open Source Licence available at [Repository URL]." 3.2 Attribution: [Attribution Required]. Where required, the Licensee must provide appropriate credit to [Licensor Name] in documentation, user interfaces, or other materials accompanying the distributed Software or derivative works. 3.3 Copyleft / Share-Alike Obligation: [Copyleft Obligation]. Where the answer is yes, any derivative work — being any software that incorporates, modifies, or is substantially based on the Software — must be distributed under the same terms as this licence. The Licensee must make the source code of such derivative work publicly available under this licence. 3.4 Licence Type Selected: [Licence Type]. 3.5 Additional Conditions: [Custom Licence Terms].
4. Warranty Disclaimer and Limitation of Liability
4.1 THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. THE LICENSOR MAKES NO WARRANTY THAT THE SOFTWARE WILL BE ERROR-FREE, SECURE, OR UNINTERRUPTED. 4.2 The exclusion of implied warranties in this Section 4 is made to the maximum extent permitted by the Law of Contract Act Cap. 23 and the Sale of Goods Act Cap. 31 of Kenya, and is not intended to exclude liability for fraud or any liability that cannot be excluded by law. 4.3 TO THE MAXIMUM EXTENT PERMITTED BY KENYAN LAW, IN NO EVENT SHALL THE LICENSOR BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES — INCLUDING LOSS OF PROFITS, DATA, OR BUSINESS — ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF THE LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 4.4 Data Protection: Where the Licensee uses the Software to process personal data of persons in Kenya, the Licensee is solely responsible for compliance with the Data Protection Act No. 24 of 2019 administered by the Office of the Data Protection Commissioner (ODPC). This licence does not transfer any Data Controller or Data Processor obligations to the Licensor.
5. Intellectual Property
5.1 Copyright in the Software remains vested in [Licensor Name] under the Copyright Act No. 12 of 2001. This licence does not transfer ownership of copyright to the Licensee. 5.2 Copyright in any derivative work created by the Licensee vests in the Licensee. Where the copyleft condition in Section 3.3 applies, the Licensee must make the source code of the derivative work available under this licence. 5.3 The Licensor's trade names, trademarks, and logos — if any, registered under the Trade Marks Act Cap. 506 administered by the Kenya Industrial Property Institute (KIPI) — are not licensed under this agreement. The Licensee may not use the Licensor's marks to endorse or promote products derived from the Software without prior written consent. 5.4 The Kenya Copyright Board (KECOBO) administers copyright registration and enforcement in Kenya. Infringement of copyright in the Software may result in civil remedies under Section 34 of the Copyright Act No. 12 of 2001, including injunctions, damages, account of profits, and delivery up of infringing copies, as well as criminal penalties under Section 35 of the Act.
6. Governing Law and Dispute Resolution
6.1 This licence is governed by and construed in accordance with the laws of Kenya, including the Copyright Act No. 12 of 2001, the Law of Contract Act Cap. 23, the Industrial Property Act No. 3 of 2001, and the Data Protection Act No. 24 of 2019. 6.2 Any dispute arising out of or in connection with this licence — including disputes about the validity, breach, or termination of the licence — shall be resolved by: [Dispute Resolution]. 6.3 Termination: This licence terminates automatically if the Licensee breaches any material condition of the licence and fails to cure the breach within 30 days of written notice from the Licensor. On termination, the Licensee must cease all use and distribution of the Software and destroy all copies in their possession.
Licensor (Copyright Owner)
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Signature
What Is a Open Source Software Licence (Kenya)?
An Open Source Software Licence in Kenya documents the open source software licence in a form the parties and authorities can rely on.
The Kenya Copyright Board (KECOBO), established under Section 3 of the Copyright Act No. 12 of 2001 and operating under the Ministry responsible for Information and Communications Technology, administers copyright registration and enforcement in Kenya. While copyright subsists automatically under the Copyright Act No. 12 of 2001 without registration, KECOBO maintains a voluntary copyright registry, and software developers may lodge their source code with KECOBO as evidence of ownership in the event of a dispute. The Copyright Act No. 12 of 2001 defines a computer program as a literary work in Section 2, bringing it squarely within the scope of copyright protection and making the Act the applicable statute for software licensing in Kenya.
The Industrial Property Act No. 3 of 2001, administered by the Kenya Industrial Property Institute (KIPI) under the Ministry of Trade, Industry and Cooperatives, provides for the registration of patents, utility models, and industrial designs, but expressly excludes computer programs as such from patentability under Section 26(3) of the Industrial Property Act No. 3 of 2001. However, software that is embedded in a technical process or that produces a technical effect beyond the normal physical interactions between the program and the computer may be patentable as part of a broader technical invention. The interaction between copyright protection under the Copyright Act No. 12 of 2001 and patent law under the Industrial Property Act No. 3 of 2001 is particularly relevant for AI software, firmware, and industrial control software developed in Kenya.
Open source licensing models recognised in global practice — including the MIT Licence, the Apache Licence 2.0, the GNU General Public Licence (GPL) v2 and v3, the GNU Lesser General Public Licence (LGPL), the Mozilla Public Licence (MPL), and the Creative Commons licences — are all enforceable in Kenya as contracts or as licences under the Law of Contract Act Cap. 23 and the Copyright Act No. 12 of 2001. Kenyan courts apply the rules of contract interpretation in the Law of Contract Act Cap. 23 and the precedents of the Commonwealth jurisdictions — particularly English law and South African law — to software licensing disputes, in the absence of specific Kenyan software licensing case law.
The Data Protection Act No. 24 of 2019, administered by the Office of the Data Protection Commissioner (ODPC), is relevant where the open source software processes personal data. Where the licence permits commercial use of the software in products or services that process personal data of Kenyan residents, the licensee becomes a Data Controller or Data Processor under the Data Protection Act No. 24 of 2019 and must comply with the Act's requirements for lawful processing, data subject rights, and security measures. The ICT Authority Act No. 28 of 2013 established the ICT Authority of Kenya, which has issued Kenya ICT Master Plan and interoperability frameworks encouraging the adoption of open source software by public sector entities — making Kenya government open source licences an active area of policy.
The Science, Technology and Innovation Act No. 28 of 2013 established the National Commission for Science, Technology and Innovation (NACOSTI) and the Kenya National Innovation Agency (KeNIA), which support open source software development as part of Kenya's national innovation ecosystem. The Kenya ICT Action Plan 2021 explicitly promotes the adoption of open source software in public institutions and encourages Kenyan developers to release government-funded software under open source licences.
When Do You Need a Open Source Software Licence (Kenya)?
An Open Source Software Licence in Kenya is needed in a range of software development, distribution, and procurement contexts under the Copyright Act No. 12 of 2001 and the ICT regulatory framework.
An Open Source Software Licence is needed when a Kenyan software developer, technology startup, or university research team wishes to release their software project to the public with rights to copy, modify, and redistribute, while retaining copyright ownership and setting the terms on which downstream users may use and build upon the code. Without a licence, all rights remain exclusively with the copyright owner under the Copyright Act No. 12 of 2001, and any copying by a third party — including cloning from a public code repository — would technically infringe copyright.
An Open Source Software Licence is needed when a company contributes software code to an open source project maintained by a foundation or community organisation — such as the Linux Foundation, the Apache Software Foundation, or a Kenyan technology community such as the Open Institute Kenya — and must grant the project a licence to incorporate and distribute the contributed code.
An Open Source Software Licence is needed when a public sector entity in Kenya — including national government ministries, county government offices, state corporations, or constitutional commissions — procures or develops software under the Public Procurement and Asset Disposal Act No. 33 of 2015, and the ICT Authority of Kenya requires that government-funded software be released under an open source licence to enable public access and reuse.
An Open Source Software Licence is needed when a technology company incorporating open source components into a commercial product must confirm compliance with the terms of the upstream open source licences — for example, the GPL v3 copyleft requirement to release the source code of derivative works, or the Apache 2.0 patent grant and notice retention obligations — to avoid copyright infringement liability under the Copyright Act No. 12 of 2001 before the High Court of Kenya.
An Open Source Software Licence is needed when a startup or technology company seeking investment or acquisition in Kenya must conduct — or support — intellectual property due diligence on its software codebase, demonstrating to investors that all open source components are used in compliance with their licence terms and that no licence contamination risk exists.
What to Include in Your Open Source Software Licence (Kenya)
A legally strong Open Source Software Licence in Kenya under the Copyright Act No. 12 of 2001 must address the following essential elements.
Licensor Identification and Copyright Notice: The full legal name of the copyright owner (licensor) — whether an individual, a company registered under the Companies Act No. 17 of 2015, a university, or a public body — and a clear copyright notice in the form: '© [Year] [Author Name]. All rights reserved except as expressly granted herein.' The copyright notice establishes the licensor's ownership claim under Section 26 of the Copyright Act No. 12 of 2001 and alerts users to the existence of the licence.
Description of Licensed Software: A precise identification of the software work being licensed — including the software name, version number, repository URL, and a brief description of its function. Where the licence applies to a defined version or set of files within a larger project, the scope of the licence should be clearly delimited to avoid ambiguity about which components are covered.
Grant of Licence: The specific rights granted to any recipient of the software, expressed clearly and unambiguously. Under the Copyright Act No. 12 of 2001, the licence grant must cover each of the acts restricted by copyright that the licensor intends to permit: reproduction (copying), adaptation (modification), publication (distribution), and broadcasting or communication to the public (making available online). The grant should state whether the licence is perpetual, irrevocable, worldwide, royalty-free, and sublicensable, and whether it extends to commercial as well as non-commercial use.
Conditions of Use: The conditions that the licensee must satisfy to retain the benefit of the licence — for example: retention of the copyright notice and licence text in all copies (notice retention); release of derivative works under the same or a compatible licence (copyleft or share-alike condition); provision of attribution to the original authors in documentation and user interfaces; and — in patent-granting licences such as the Apache Licence 2.0 — the grant back of patent rights necessary to use the licensed software and the termination of the patent grant upon initiation of patent litigation against the licensor.
Copyleft or Permissive Choice: Whether the licence is permissive — allowing the licensee to incorporate the licensed code into proprietary software without releasing the source code of the combined work (as in the MIT Licence or Apache 2.0) — or copyleft — requiring that derivative or combined works also be released under the same open source licence (as in the GPL v3 or LGPL). This choice determines the commercial and competitive implications of the licence for downstream users and is the most critical strategic decision in open source licensing.
Patent Licence Grant: An express grant of any patent rights held by the licensor that are necessarily infringed by the use, modification, or distribution of the licensed software, consistent with the approach of the Apache Licence 2.0. In Kenya, patents relevant to software may be registered under the Industrial Property Act No. 3 of 2001 through the Kenya Industrial Property Institute (KIPI), and the licence should address these rights to provide licensees with freedom to operate.
Warranty Disclaimer and Limitation of Liability: An express disclaimer of all warranties — including fitness for purpose, merchantability, and non-infringement — consistent with Section 16 of the Sale of Goods Act Cap. 31 (which permits exclusion of implied terms in commercial contracts). The disclaimer protects the licensor from claims where the software fails or causes damage, subject to the Law of Contract Act Cap. 23 provisions on unconscionable exclusion clauses. The limitation of liability should exclude consequential and indirect damages.
Governing Law and Jurisdiction: The licence should state that it is governed by the laws of Kenya and that disputes are subject to the jurisdiction of the High Court of Kenya, Commercial Division, under the High Court (Organisation and Administration) Act No. 27 of 2015. Where the licensor anticipates international use, the licence may alternatively specify international arbitration under the Nairobi Centre for International Arbitration (NCIA) Rules 2015 or the UNCITRAL Rules.
Forms-legal.com provides this Kenya Open Source Software Licence template as a starting point for developers and organisations releasing software in Kenya. Intellectual property matters — including software copyright assignments, patent applications at KIPI, and open source compliance audits — should be reviewed by an advocate specialising in intellectual property law enrolled with the Law Society of Kenya (LSK) or registered with the Kenya Industrial Property Institute (KIPI) as a patent agent.
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Forms Legal. (2026). Open Source Software Licence (Kenya) (Kenya) [Legal document template]. Forms Legal. https://forms-legal.com/kenya/business/intellectual-property/open-source-software-licence-kenya
"Open Source Software Licence (Kenya) (Kenya)." Forms Legal, 2026, https://forms-legal.com/kenya/business/intellectual-property/open-source-software-licence-kenya.
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}Frequently Asked Questions
Yes. Under Section 26 read with Section 2 of the Copyright Act No. 12 of 2001, a computer program qualifies as a literary work and is automatically protected by copyright from the moment it is created and reduced to a material form — typically when the source code is first written or saved. No registration, deposit with the Kenya Copyright Board (KECOBO), or any other formality is required for copyright to subsist. The copyright owner has the exclusive right to reproduce, adapt, publish, and communicate the program to the public under Section 26 of the Copyright Act No. 12 of 2001. Copyright in a work created by an employee in the course of their employment vests in the employer by default under Section 32 of the Copyright Act No. 12 of 2001, unless the employment contract provides otherwise. For software created by independent contractors or consultants, copyright vests in the contractor unless expressly assigned in writing to the commissioning party under Section 33 of the Act. The duration of copyright in software in Kenya is the lifetime of the author plus 50 years under Section 23 of the Copyright Act No. 12 of 2001.
The fundamental distinction between permissive and copyleft open source licences — both enforceable under the Copyright Act No. 12 of 2001 in Kenya — lies in the obligations placed on downstream users who modify and redistribute the software. A permissive licence, such as the MIT Licence or the Apache Licence 2.0, grants broad rights to use, modify, and redistribute the software — including incorporation into proprietary commercial products — with minimal conditions, typically requiring only retention of the original copyright notice and licence text. This means a company in Kenya can incorporate MIT-licenced code into a closed-source commercial product and distribute it without releasing their own source code. A copyleft licence, such as the GNU General Public Licence (GPL) v3, requires that any derivative work — software that incorporates, links with, or modifies the original GPL code — must itself be released under the GPL v3 when distributed. This 'share-alike' obligation ensures that modifications remain freely available to the community but can restrict commercial monetisation. The GNU Lesser General Public Licence (LGPL) represents a middle ground — it permits incorporation into proprietary software through dynamic linking without triggering the copyleft obligation, but requires that modifications to the LGPL library itself be released.
Yes. Kenyan government agencies at both the national and county level can use open source software and are actively encouraged to do so under the Kenya ICT Master Plan administered by the ICT Authority of Kenya established under the ICT Authority Act No. 28 of 2013. The Public Procurement and Asset Disposal Act No. 33 of 2015 and the Public Procurement and Asset Disposal Regulations 2020 permit government entities to procure open source software solutions through competitive procurement processes, and the ICT Authority has issued open source adoption guidelines for public sector entities. Where a government agency develops or commissions the development of software using public funds, the Science, Technology and Innovation Act No. 28 of 2013 and the ICT Authority guidelines encourage release of such software under an open source licence — typically a permissive licence such as the Apache 2.0 — to maximise public benefit and enable reuse by other government agencies and citizens. Copyright in government works in Kenya vests in the Government of Kenya under Section 34 of the Copyright Act No. 12 of 2001, and the Cabinet Secretary responsible for ICT has authority to authorise the release of government software under open source licence terms. Kenya's eCitizen platform and several national government digital services have incorporated open source components, and the Government of Kenya participates in the Digital Public Goods Alliance promoting open source digital infrastructure in low and middle-income countries.
The Data Protection Act No. 24 of 2019, administered by the Office of the Data Protection Commissioner (ODPC), has important implications for open source software that is used to process personal data of Kenyan residents. Where a licensee deploys open source software to collect, store, process, or analyse personal data — such as a web application, mobile app, or analytics platform built on open source components — the licensee becomes a Data Controller or Data Processor under Section 3 of the Data Protection Act No. 24 of 2019, regardless of the open source licence under which the software was obtained. The licensee must comply with all applicable obligations under the Act, including registration with the ODPC under the Data Protection (Registration of Data Controllers and Data Processors) Regulations 2021, obtaining lawful basis for processing, implementing appropriate technical and organisational security measures, and upholding data subject rights. The open source licence itself does not exempt the licensee from Data Protection Act obligations — these obligations flow from the licensee's own data processing activities, not from the software licence. Developers releasing open source software that is designed to process personal data should consider including a Data Protection notice in the documentation, advising downstream users of their obligations under the Data Protection Act No. 24 of 2019 and recommending a Data Protection Impact Assessment (DPIA) under the ODPC DPIA Guidelines before deployment.
A copyright owner whose open source software is used in violation of the licence terms — for example, where a company incorporates GPL-licenced code into a proprietary product without releasing the source code as required — may pursue several remedies before the Kenyan courts. Under Section 34 of the Copyright Act No. 12 of 2001, civil remedies for copyright infringement include: an injunction restraining further infringement, an order for delivery up or destruction of infringing copies, damages for actual loss suffered, an account of profits made by the infringer, and statutory damages where actual loss is difficult to quantify. The High Court of Kenya, Intellectual Property Division (operating within the Commercial and Tax Division) has jurisdiction over copyright infringement claims under the Copyright Act No. 12 of 2001. Criminal penalties under Section 35 of the Copyright Act No. 12 of 2001 apply to wilful copyright infringement for commercial purposes, with fines up to KES 800,000 or imprisonment for up to 10 years, or both. The Kenya Copyright Board (KECOBO) also has enforcement powers under Section 30A of the Copyright Act No. 12 of 2001 and may conduct raids and seizure of infringing materials in coordination with the Kenya Police Service. The open source licensor should document the infringement thoroughly — including downloading and preserving the infringing product — before initiating legal proceedings, as the burden of proof lies with the copyright owner under Section 34 of the Copyright Act No. 12 of 2001.
This template is provided for informational purposes only and does not constitute legal advice. Laws vary by jurisdiction and change over time. Consult a qualified attorney for advice specific to your situation.Full disclaimer
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