Force Majeure Notice (Kenya)

A Force Majeure Notice in Kenya is a formal written communication from one contracting party to another, invoking a force majeure clause in a contract to excuse or suspend the notifying party's obligations due to an extraordinary event beyond that party's reasonable control, in accordance with principles recognised under the Law of Contract Act Cap. 23 and Kenyan common law.

Kenyan contract law, derived from English common law as received through the Law of Contract Act Cap. 23 and the Judicature Act (Cap. 8), does not impose an automatic force majeure doctrine. Force majeure relief is available only if the underlying contract contains a force majeure clause that is triggered by the relevant event. Where no clause exists, a party may alternatively seek relief under the doctrine of frustration — codified to a limited extent in Section 64 of the Sale of Goods Act (Cap. 31) for sales of goods contracts, and recognised in Kenyan common law for other contracts — which discharges contractual obligations when performance becomes legally or physically impossible through no fault of either party.

The High Court of Kenya and the Court of Appeal have considered force majeure and frustration in several notable decisions. In Rift Valley Railways (Kenya) Ltd v Karuturi Ltd [2013] eKLR, the Court of Appeal examined whether changed circumstances amounted to frustration. The High Court in CMC Aviation Ltd v Principal Secretary, Ministry of Transport [2014] eKLR discussed the conditions for invoking force majeure in government contracts. Kenyan courts apply the English common law approach that force majeure clauses are construed strictly and narrowly: the event must be expressly covered by the clause, causation must be direct, and the claiming party must not have assumed the risk of the event occurring.

A Force Majeure Notice is a distinct document from a Notice of Termination and a Notice of Breach. A Force Majeure Notice suspends or excuses performance for the duration of the force majeure event, whereas a Notice of Breach records a contractual failure and initiates remedies including damages. Under most force majeure clauses, if the event persists beyond a specified period, either party may then serve a Notice of Termination. A Demand Letter under Cap. 23 may be required to restart obligations once the force majeure event ends.

The Nairobi Centre for International Arbitration (NCIA), established under the Nairobi Centre for International Arbitration Act No. 26 of 2013, has jurisdiction to arbitrate disputes about whether a force majeure clause was validly invoked, including disputes in infrastructure, energy, and construction contracts governed by Kenyan law. The Kenya Electricity Generating Company (KenGen) and Kenya Power and Lighting Company (KPLC) routinely include force majeure provisions in their power purchase agreements and supply contracts governed by the Energy Act No. 1 of 2019. Under Kenya law, Section 3 of the Companies Act 2015 (No. 17 of 2015) and Section 15 of the Employment Act 2007 (No. 11 of 2007) govern the core requirements for this type of document.

A Force Majeure Notice in Kenya is required whenever a party to a contract wishes to formally invoke a force majeure clause and suspend or excuse its contractual performance due to an extraordinary event, and several specific circumstances make prompt service of the notice essential.

A construction company or infrastructure contractor performing works under a contract governed by Kenya's Public Procurement and Asset Disposal Act No. 33 of 2015 — or under FIDIC Conditions of Contract — must serve a Force Majeure Notice within the contractually stipulated timeframe when an event such as a flood, declared state of emergency, or civil unrest prevents site access or supply of materials. Failure to serve within the notice period is commonly treated as a waiver of force majeure rights under the contract.

An energy company holding a Power Purchase Agreement with the Kenya Electricity Generating Company (KenGen) or Kenya Power and Lighting Company (KPLC) under the Energy Act No. 1 of 2019 must serve a Force Majeure Notice when a natural disaster, drought, or equipment failure prevents electricity generation or supply at contracted volumes. The Energy and Petroleum Regulatory Authority (EPRA) may also need to be notified depending on the licence conditions.

A Kenyan business importing or exporting goods under a commercial contract must serve a Force Majeure Notice on its counterparty when a port closure, customs disruption, or Kenya Revenue Authority (KRA) embargo prevents timely delivery. The Kenya Ports Authority (KPA) at Mombasa Port regularly issues notices of force majeure events — such as severe weather or labour disputes — that freight forwarders and cargo owners should reference in their notices.

A real estate developer who cannot deliver a completed property by the contractually agreed date due to a government-declared state of emergency under the National Disaster Management Act No. 45 of 2016, or due to planning authority delays caused by circumstances outside the developer's control, should serve a Force Majeure Notice to protect against breach of contract claims under the Law of Contract Act Cap. 23.

Any party to a long-term services or supply agreement who faces a COVID-19-type pandemic, government lockdown, or directive from the Cabinet Secretary for Health under the Public Health Act (Cap. 242) that makes performance impossible or illegal must serve the notice promptly to preserve force majeure rights.

A valid Force Majeure Notice under Kenyan contract law and the Law of Contract Act Cap. 23 must contain the following essential elements to properly invoke force majeure rights and withstand scrutiny in proceedings before the High Court of Kenya or the Nairobi Centre for International Arbitration (NCIA).

Identification of Parties and Contract: Full legal names and addresses of the notifying party and the recipient party; the title, date, and reference number of the contract containing the force majeure clause; and a clear statement that the notice is served pursuant to the specific force majeure clause (with the clause number cited). For companies registered with the Business Registration Service (BRS), the registration number should be included.

Description of the Force Majeure Event: A precise description of the event being invoked, including the date it commenced, its nature (e.g., flood, declared state of emergency, government directive, act of God, war, epidemic), and the geographic scope of its impact. The description must match the events covered by the force majeure clause — Kenyan courts construe force majeure clauses strictly, so events not expressly listed require careful legal analysis before the notice is served.

Causal Link to Non-Performance: A clear explanation of how the force majeure event directly prevents, delays, or makes performance commercially impracticable. The notice must identify which specific contractual obligations are affected — partial suspension (e.g., only delivery obligations) or total suspension — and confirm that performance of the affected obligations would be impossible or illegal due to the event, not merely more costly or inconvenient. Kenyan courts and the NCIA have rejected force majeure claims where the claimant failed to demonstrate a direct causal nexus.

Notification Timeline and Steps Taken: The date the force majeure event commenced; the date the notifying party became aware of the event; and an explanation of any mitigation steps taken. Most force majeure clauses under Kenyan contracts require notice within 7 to 14 days of the event occurring. The notice should confirm the notifying party's obligations to mitigate losses under common law as recognised in Kenyan decisions following Hadley v Baxendale principles.

Expected Duration and Resumption Plan: The notifying party's reasonable estimate of how long the force majeure event will last; interim measures being taken to minimise the period of suspension; and confirmation of the party's intention to resume performance as soon as the event ends. For events declared by government bodies — such as a state of emergency declared under the National Disaster Management Act No. 45 of 2016 — reference to the official government declaration strengthens the notice.

Reserved Rights: A clear reservation that service of the Force Majeure Notice is without prejudice to any other rights or remedies under the contract or Kenyan law, including the right to seek arbitration at the NCIA or refer the matter to the High Court (Commercial Division) under the Arbitration Act No. 4 of 1995 if the parties cannot agree on the scope or duration of the force majeure suspension.

Forms-legal.com provides this Kenya Force Majeure Notice template as a practical tool for businesses and individuals seeking to formally invoke force majeure rights under contracts governed by Kenyan law. Legal advice from an advocate admitted by the Law Society of Kenya (LSK) is recommended before serving the notice where the contract value is significant. Under Kenya law, Section 3 of the Companies Act 2015 (No. 17 of 2015) and Section 15 of the Employment Act 2007 (No. 11 of 2007) govern the core requirements for this type of document.