Non-Solicitation Agreement (Kenya)

A Non-Solicitation Agreement in Kenya sets out the rights, duties and consideration binding the parties to it.

The Law of Contract Act Cap. 23 governs the formation, validity, and enforcement of Non-Solicitation Agreements in Kenya. For a non-solicitation clause to be binding, Section 2 of Cap. 23 requires offer, acceptance, consideration, capacity of parties, and legality of purpose. The doctrine of restraint of trade received into Kenyan law through Section 3(1) of the Judicature Act Cap. 8 applies to non-solicitation obligations, but courts apply a more permissive reasonableness standard than for full non-compete clauses because the restriction on the individual's freedom of trade is more narrowly circumscribed.

The Employment Act No. 11 of 2007 establishes the statutory framework for employment relationships in Kenya and is read alongside the Law of Contract Act Cap. 23 when interpreting post-employment non-solicitation obligations contained in employment contracts. The Employment and Labour Relations Court (ELRC), established under Article 162 of the Constitution of Kenya 2010 and the Employment and Labour Relations Court Act No. 20 of 2011, has exclusive jurisdiction over non-solicitation disputes arising from employment relationships. The ELRC has consistently enforced well-drafted non-solicitation clauses covering specific named clients and senior employees, provided the restriction is time-limited and proportionate to the employer's legitimate interest in protecting its client base.

Kenyan courts distinguish between passive receipt of business from a former employer's client — which is generally not a breach of a non-solicitation covenant — and active solicitation, which involves deliberately approaching former clients to divert their custom. This distinction follows English common law authorities received through Section 3(1) of the Judicature Act Cap. 8, including cases such as Wessex Dairies Ltd v Smith [1935] 2 KB 80. Where a former employee sets up a competing business and former clients voluntarily migrate without any active solicitation, a non-solicitation clause may not have been breached — but a Non-Compete Agreement would provide stronger protection in such circumstances.

In the financial services sector, non-solicitation obligations have additional regulatory dimensions. The Capital Markets Authority (CMA), established under the Capital Markets Act Cap. 485A, and the Central Bank of Kenya (CBK), established under the Central Bank of Kenya Act Cap. 491, expect licensed firms to have appropriate arrangements — including contractual protections — to maintain client relationships and prevent the misuse of confidential client data by departing staff. The Data Protection Act No. 24 of 2019, administered by the Office of the Data Protection Commissioner (ODPC), applies where non-solicitation is predicated on the use of client personal data: a departing employee who uses a downloaded client list to solicit former clients may be liable not only for breach of contract under the Law of Contract Act Cap. 23 but also for unlawful processing of personal data under Section 25 of the Data Protection Act.

Forms-legal.com provides this Kenya Non-Solicitation Agreement as a specifically drafted, Kenya-law compliant template for employers, businesses, and advisers seeking to protect client relationships and workforce stability following the departure of key personnel.

A Non-Solicitation Agreement in Kenya is required in a range of employment and commercial situations where an employer or business owner needs to protect established client relationships, key staff, and supplier connections from being diverted by a departing employee, contractor, or business associate.

A Non-Solicitation Agreement is needed when hiring or retaining a customer-facing employee — such as a sales executive, relationship manager, account manager, or business development officer — who will develop close relationships with the company's key clients over the course of their employment. In Nairobi's competitive financial services, telecommunications, FMCG, and professional services sectors, the risk of a departing employee soliciting major clients to follow them to a competitor or a new venture is a recognised commercial threat that Non-Solicitation Agreements under the Law of Contract Act Cap. 23 are designed to address.

A Non-Solicitation Agreement is required when engaging a contractor, consultant, or freelancer who will interact directly with the company's clients or who will be introduced to existing client relationships as part of the service delivery. In the absence of an employment relationship governed by the Employment Act No. 11 of 2007, the Law of Contract Act Cap. 23 provides the sole basis for post-engagement obligations, making a written Non-Solicitation Agreement the primary protective mechanism.

A Non-Solicitation Agreement is necessary when a senior manager or director who has recruited and developed the company's talent pool decides to leave. An employee non-solicitation clause — prohibiting the departing executive from inducing colleagues to follow them to a new employer — protects the company's investment in training and team stability, and is routinely enforced by the Employment and Labour Relations Court (ELRC) where the restriction is reasonable in scope and duration.

A Non-Solicitation Agreement is required as part of a business sale or acquisition where the seller interacted closely with the acquired business's clients and has the goodwill to attract those clients to a new enterprise. In conjunction with a Non-Compete Agreement, a non-solicitation clause in the business sale documentation confirms the purchaser retains the client relationships that form the core of the goodwill acquired under the transaction.

A Non-Solicitation Agreement is needed when a franchise arrangement terminates, to prevent the former franchisee from actively soliciting the franchisor's existing customers, suppliers, or other franchisees within the network, consistent with the franchise agreement and the Law of Contract Act Cap. 23.

A valid and enforceable Non-Solicitation Agreement in Kenya under the Law of Contract Act Cap. 23 must include the following key elements.

Parties: Full legal names and addresses of both parties. Where the employer is a company, the Business Registration Service (BRS) registration number and registered office address should be stated. Capacity to contract under Section 11 of the Law of Contract Act Cap. 23 must be confirmed for both parties.

Definition of Solicitation: A precise definition of what constitutes prohibited solicitation. Kenyan courts apply a distinction between active solicitation — making direct approaches, sending communications, or using personal connections to divert business — and passive receipt of unsolicited contact from former clients. The definition should be clear enough that a court can determine whether specific conduct constitutes a breach, and should expressly cover digital communications, social media approaches, and indirect solicitation through third parties.

Protected Clients and Customers: Identification of the clients, customers, or categories of client covered by the restriction. The restriction may cover all clients with whom the restricted party had material contact during the final 12 months of employment, or a specific list of named key accounts. Overly broad definitions covering all clients of the business — regardless of whether the restricted party had any contact with them — risk being found unreasonable by the Employment and Labour Relations Court (ELRC) as an unjustified restraint of trade under the Law of Contract Act Cap. 23.

Protected Employees: An employee non-solicitation clause restricts the departing party from soliciting, recruiting, or inducing colleagues to leave the employer's service. The clause should specify the categories of employee covered — typically restricted to employees above a certain seniority level or in specific roles — to avoid an overbroad restriction that catches even casual contacts with former colleagues.

Duration: The period for which the restriction applies after the termination date. Kenyan courts routinely enforce non-solicitation durations of 6 to 18 months where the restriction is otherwise reasonable. The duration should be commensurate with the time realistically needed for the employer to re-establish the protected relationships with a replacement employee, and should be expressed as commencing from the effective date of termination.

Consideration: The benefit provided to the restricted party in exchange for accepting the restriction. Non-Solicitation Agreements signed at commencement of employment are supported by the offer of employment as consideration. Mid-employment Non-Solicitation Agreements require fresh consideration under the Law of Contract Act Cap. 23, such as a salary increase, promotion, or one-off payment, to be enforceable. In a business sale context, the purchase price constitutes the consideration flowing to the seller.

Data Protection Obligations: Where the non-solicitation restriction is linked to the use of client personal data, the agreement should incorporate obligations consistent with the Data Protection Act No. 24 of 2019, administered by the Office of the Data Protection Commissioner (ODPC). The restricted party should be expressly prohibited from retaining, copying, or using client data obtained during the employment or engagement, and should be required to return or delete all such data on termination under the Data Protection (General) Regulations 2021.

Remedies and Enforcement: The agreement should specify remedies for breach, including the employer's right to seek interlocutory injunctive relief from the Employment and Labour Relations Court (ELRC) or the High Court of Kenya without proof of actual damage, as well as claims for damages, account of profits, and delivery up of confidential documents. A liquidated damages clause — specifying a pre-agreed sum per breach — may be included if it represents a genuine pre-estimate of loss rather than a penalty under the Law of Contract Act Cap. 23.

Governing Law and Dispute Resolution: The agreement should be governed by the laws of Kenya. Disputes arising from employment Non-Solicitation Agreements are heard by the ELRC; commercial disputes are heard by the High Court of Kenya, with the option of referring disputes to the Nairobi Centre for International Arbitration (NCIA) under its Commercial Arbitration Rules 2015.

Forms-legal.com offers this Kenya Non-Solicitation Agreement template as a practical, country-specific starting point. Employers in regulated industries — including financial services, insurance, and capital markets — should seek guidance from an advocate admitted to the Roll of Advocates of the Law Society of Kenya (LSK) to confirm full compliance with applicable sector regulations.