Non-Disclosure Agreements (NDAs) in Sale–Purchase Transactions Under Kenyan Law

In a sale–purchase transaction in Kenya, a Non-Disclosure Agreement (NDA) can be initiated by either party, depending on the circumstances of the transaction.

 

1. Who Initiates the NDA?

 (a) Seller – Most Common

The seller usually initiates the NDA, especially where:

• Confidential financial records will be shared
• Trade secrets or proprietary information are involved
• Due diligence is required before negotiations progress

This is common in:

• Business sales
• Share purchase transactions
• Asset acquisitions
• Real estate transactions involving sensitive valuation data

 (b) Buyer

A buyer may initiate the NDA where:

• The buyer is disclosing funding sources
• The buyer is revealing investment strategy or proprietary acquisition structures
• The transaction involves competitive bidding

 (c) Mutual NDA

In many structured transactions, parties sign a mutual NDA, meaning both sides agree to protect each other's confidential information.

 

2. Legal Parameters Under Kenyan Law

In Kenya, NDAs are governed primarily by contract law and related statutes.

(a) Contract Law Requirements

Under the Law of Contract Act, an NDA must satisfy the essential elements of a valid contract:

1. Offer
2. Acceptance
3. Consideration
4. Intention to create legal relations
5. Capacity of parties

Without these elements, the NDA may be unenforceable.

 

(b) Confidentiality & Commercial Protection

While Kenya does not have a single standalone “Trade Secrets Act,” protection arises under:

• Common law principles of confidentiality
• The Trade Secrets Act (where applicable)
• The Competition Act (in cases of unfair competition or misuse of confidential information)

Courts in Kenya recognize and enforce confidentiality obligations where:

• Information has the necessary quality of confidence
• It was disclosed in circumstances importing an obligation of confidence
• There is unauthorized use or disclosure

 

(c) Data Protection Compliance

If the NDA involves personal data, compliance with the Data Protection Act is mandatory.

Key considerations:

• Lawful processing of personal data
• Data subject rights
• Security safeguards
• Restrictions on cross-border transfer

Failure to comply can attract regulatory penalties.

 

(d) Reasonableness & Public Policy

Kenyan courts will not enforce:

• Clauses that are overly broad or indefinite
• NDAs used to conceal illegal conduct
• Terms contrary to public policy

The duration and scope must be reasonable.

 

3. Key Clauses Required in a Kenyan NDA

A properly drafted NDA should include:

• Definition of confidential information
• Purpose limitation clause
• Non-disclosure obligations
• Permitted disclosures
• Term/duration
• Return or destruction of information
• Remedies (injunction, damages)
• Governing law clause (Kenyan law)
• Dispute resolution (litigation or arbitration)

 

4. Remedies for Breach in Kenya

If breached, the injured party may seek:

• Injunction (to stop further disclosure)
• Damages
• Account of profits
• Specific performance

Proceedings are filed before the High Court of Kenya depending on jurisdictional value.

 

Practical Summary

• Seller usually initiates the NDA in sale transactions.
• Kenyan NDAs are governed mainly by the Law of Contract Act, common law principles of confidentiality, and the Data Protection Act (if personal data is involved).
• The agreement must be reasonable, specific, and legally compliant to be enforceable.

Rectification of a Name on a Land Title in Kenya: Legal Process Under the Land Registration Act, 2012

Errors in names appearing on land titles are more common than many property owners realize. Whether caused by a typographical mistake, transposition of names, or a lawful change of name after marriage or through deed poll, such discrepancies should be formally corrected to avoid complications in future transactions.

Under the Land Registration Act (LRA), 2012, rectification of a name on a land title is provided for under Section 79, which empowers the Land Registrar to correct errors in the register.

Below is a practical guide to the process.

 

The Applicable Forms

Rectification of a name is initiated using the prescribed forms under the LRA:

• Form LRA 87 – Application to Rectify the Register
  This is the primary application form. It specifies the incorrect name appearing in the register and provides the correct name to be entered.
• Form LRA 89 – Consent to Rectify the Register
  This form is often required where the rectification affects proprietorship details, confirming that the registered owner consents to the correction.

In some cases, the Registrar may also issue:

• Form LRA 90 or LRA 91 – Notice of Intention to Rectify the Register, allowing for objections (if any) before the correction is effected.

 

Required Supporting Documents

The following documents are typically required to support the application:

• Original Title Deed or Certificate of Lease
• Copy of National ID or Passport
• Copy of KRA PIN Certificate
• Registered Deed Poll (where the name change was formal)
• Affidavit explaining the discrepancy (e.g., spelling error or name rearrangement)
• Birth Certificate or Marriage Certificate (where applicable)
• Two coloured passport-size photographs

Providing complete and consistent documentation is critical to avoid delays.

 

How the Process Works

1. Filing the Application

The application is lodged with the Land Registrar at the registry where the property is registered. Currently, most applications are processed online through the ArdhiSasa platform.

In practice, applications are typically prepared and filed by an advocate on behalf of the applicant to ensure compliance with statutory requirements.

2. Verification by the Registrar

The Land Registrar reviews the submitted documents to confirm the existence of an error and the legitimacy of the proposed correction.

3. Issuance of Notice (Where Necessary)

If required, the Registrar may issue a formal notice of intention to rectify the register to allow any interested parties to raise objections.

4. Payment of Fees

A statutory fee of approximately Kshs. 1,000 is generally payable for the rectification.

Upon approval, the register is corrected and an updated title document reflecting the correct name is issued.

 

Where to File

Applications should be submitted at the relevant Land Registry where the property is registered or online via the ArdhiSasa platform (for registries that are digitized).

 

Why Rectification Is Important

An incorrect name on a title document can:

• Delay property sales or transfers
• Complicate succession proceedings
• Create difficulties when charging property to a bank
• Raise unnecessary due diligence concerns

Prompt rectification ensures the integrity of ownership records and protects your proprietary interests.

 

Professional Guidance

While the process may appear straightforward, land registration matters require strict compliance with statutory and procedural requirements. Professional legal guidance helps prevent rejection, delays, or unintended legal consequences.

If you require assistance with rectification of a land title or any other land registration matter, our firm is available to provide comprehensive support from preparation to successful registration.

 

Disclaimer: This article is for general informational purposes only and does not constitute legal advice. For advice tailored to your specific circumstances, please consult a qualified advocate.

 

Emerging Jurisprudence on Matrimonial Property and the Law of Succession in Kenya

By Ogeka, Advocate

Introduction

The intersection of matrimonial property rights and succession law has become one of the most contested areas in Kenyan jurisprudence. Since the enactment of the Matrimonial Property Act 2013 – Empirical review of a decade of decided cases and the continued application of the Law of Succession Act (LSA), courts have grappled with reconciling equitable distribution during marriage with the devolution of property upon death. This has significant implications for spouses, families, and estate planning, particularly in a legal landscape shaped by constitutional equality and evolving societal norms.

1. Matrimonial Property under Kenyan Law

The Matrimonial Property Act, 2013 (MPA) defines matrimonial property as property acquired during the subsistence of a marriage and subject to joint ownership based on contribution — monetary and non-monetary. Kenyan courts have reiterated that:

• A property acquired during marriage, even if registered in one spouse’s name, is prima facie held in trust for both spouses.
• Contribution — including domestic work, childcare and management of family assets — is a key determinant of entitlement upon division.

Court decisions emphasise that mere registration in the name of one spouse does not negate the other’s interest if there is demonstrable contribution. Jurisprudence is evolving on the scope of contribution and the evidentiary threshold required, mirroring global trends towards recognising non-financial contributions in family law.

2. The Succession Law Interface

The Law of Succession Act governs devolution of property upon death. Historically, succession law and matrimonial property law operated in silos: the former regulating inheritance and estate administration, the latter focusing on property rights between spouses during life or at divorce. However, emerging case law now confronts their convergence.

In FEO v ACO (Estate of the Late BPO) [2024] KEHC 14889 (KLR), the High Court held that the concept of matrimonial property, strictly speaking, does not organically belong in succession causes. The court reasoned that matrimonial property rights arise during a marriage and, upon death, transform into rights enforceable only through succession — not as an independent cause of action. Critically, it underscored that a claim to matrimonial property ought ideally to be determined before death to avoid prejudice to other heirs.

Similarly, in In re CKN & ENM (Deceased) [2026] KEHC 332 (KLR), the High Court clarified that once a spouse dies before a matrimonial claim is substantiated, any rights they may have had under the MPA fall to the deceased’s estate — and must be pursued through succession proceedings.

3. Procedural and Jurisdictional Challenges

Recent decisions highlight procedural complexities:

• In LWM v Kioko & 2 others [2024] KEHC 8270 (KLR), a matrimonial property claim filed post-death without timely substitution of parties was dismissed for abatement, illustrating the importance of procedure in preserving substantive rights.
• Cases such as KW v Estate of KW [2023] KEHC 23180 (KLR) emphasise that courts may redirect spouses to probate causes rather than entertain matrimonial actions once a spouse has died, reaffirming that the probate court has exclusive jurisdiction over estate matters.

These decisions underscore that practitioners must strategically plan litigation — ensuring matrimonial property issues are addressed while both spouses are alive or immediately upon death within proper succession proceedings.

4. Constitutional Dimensions and Emerging Issues

A notable emerging trend pertains to gender equality in succession rights. In Dennis Kivuti Mungai vs Attorney General (2025), the High Court declared Section 29(c) of the Law of Succession Act unconstitutional for imposing unequal dependency requirements on widowers compared to widows. The court held that this discriminatory burden violated constitutional equality provisions. This decision signals an increasing judicial willingness to align succession statutes with constitutional norms of gender equality.

5. Theoretical and Policy Considerations

The apparent tension between matrimonial property rights and succession rights calls for doctrinal and legislative harmonisation. Academic commentary highlights inconsistencies between the Matrimonial Property Act and the Law of Succession Act, particularly in polygamous families where spousal contributions are not adequately reflected in intestate distribution provisions. Without reform, the current framework may fail to protect the contributions of spouses — especially women — in both marital and post-death contexts.

Conclusion

Jurisprudence on matrimonial property and succession in Kenya is at a critical inflection point. Courts are increasingly clarifying that:

• Matrimonial property rights do not automatically transfer into succession causes but must be validated during life or efficiently transitioned into estate claims.
• Procedural compliance is crucial to preserving rights after death.
• Constitutional principles, particularly gender equality, now inform succession jurisprudence.

For legal practitioners and clients alike, the evolving case law underscores the necessity of early action, careful litigation planning, and estate planning that anticipates these intersecting issues. As Kenyan courts further refine these doctrines, stakeholders must remain attentive to both statutory developments and judicial interpretations to ensure equitable outcomes.

This publication is intended for informational purposes for members of the legal sector and public and does not constitute legal advice.

Parallel Titles, Dissolved Companies and the Anatomy of Land Fraud - The Lessons from the case of Williams & Kennedy Ltd v David Kimani Gicharu & Others

Land ownership disputes in Kenya continue to be plagued by competing titles, missing records, and the persistent problem of “parallel registers.” In Williams & Kennedy Limited v David Kimani Gicharu & Others (Civil Appeal Nos. E682, E686 & E705 of 2024), the Court of Appeal confronted one of the most intricate land disputes in recent years, involving allegations of historical fraud, titles purportedly emanating from a dissolved company, conflicting deed plans, and the reconstruction of land registers.

The consolidated appeals centred on the lawful root of title to a prime parcel of land in Runda, Nairobi, and whether titles allegedly originating from a dissolved company could override the claim of a registered proprietor who traced his ownership to an earlier deed plan and conveyance.

Key Determinations by the Court of Appeal

Proof of root of title
The Court reaffirmed the settled principle that where a title is challenged, a registered proprietor must do more than produce a certificate of title. The holder must demonstrate the legality of the acquisition and compliance with all statutory processes. The Court underscored that the doctrine of indefeasibility does not protect titles tainted by fraud or illegality, and cannot be invoked to shield an unlawful root of title.

Effect of titles purportedly issued to a dissolved company
A central issue concerned the legal capacity of Williams & Kennedy Ltd. The Court accepted evidence that the company was dissolved in 1973 and had neither been reinstated nor re-incorporated. As a result, it lacked the legal capacity to receive a presidential grant in 1983 or to transact in land thereafter.

The Court held unequivocally that a non-existent legal person cannot acquire, hold, charge, or transfer land. Any titles or interests purportedly flowing from such an entity were therefore null and void ab initio.

Parallel registers and the role of the Chief Land Registrar
The Court strongly criticised the existence of parallel land registers, holding that they undermine the integrity and reliability of the land registration system. It affirmed that the Chief Land Registrar cannot lawfully maintain multiple parent files for the same parcel of land. Further, the reconstruction of land registers must strictly comply with statutory requirements and cannot be used to defeat ongoing litigation or to legitimise defective titles.

Practical Implications

For conveyancers, developers, lenders, and litigators, the decision serves as a clear cautionary tale. Effective due diligence must go beyond the face of a title deed and include scrutiny of corporate status, deed plans, surrender history, and the integrity of registry records.

In an environment where land fraud has grown increasingly sophisticated, the judgment represents a firm judicial commitment to restoring legality, certainty, and public confidence in Kenya’s land ownership regime.

 

Legal Advisory: Replacement of a Lost Title Deed in Kenya

The loss of a title deed is a serious legal matter in Kenya, as a title deed is the primary evidence of ownership of land. The process for replacing a lost or destroyed title deed is governed principally by the Land Registration Act, 2012, and must be handled with care to prevent fraud, duplication, or future disputes.

This advisory outlines the lawful procedure, key requirements, and practical considerations involved in replacing a lost title deed in Kenya.

1. Reporting the Loss

The first legal step is to report the loss or theft to the police. The registered proprietor must obtain a police abstract or Occurrence Book (OB) reference, which formally records the circumstances of the loss. This document is mandatory for any application to the Land Registry.

2. Official Land Search

An official land search should be conducted at the relevant Land Registry or through the e-Citizen platform. The purpose of the search is to confirm:

• The identity of the registered proprietor
• The correct parcel details
• Whether the land is subject to any encumbrances, cautions, or restrictions

This step also serves as a safeguard against fraudulent replacement.

3. Statutory Declaration

The applicant is required to swear a statutory declaration (affidavit) before a Commissioner for Oaths or an advocate. The declaration should clearly state:

• The applicant’s ownership of the land
• The circumstances under which the title was lost or destroyed
• Confirmation that the title has not been charged, sold, or otherwise disposed of

Providing false information in the affidavit constitutes a criminal offence.

4. Application for Replacement

The registered proprietor must complete Form LRA 12 (Application for Replacement of Certificate of Title or Lease) and submit it to the Land Registry together with:

• Police abstract
• Statutory declaration
• Official land search
• Certified copies of identification documents and KRA PIN
• Passport-size photographs
• Any additional documents required by the Registrar

For corporate entities, a board resolution and company registration documents are typically required.

5. Gazette and Public Notice

Upon receipt of the application, the Land Registrar will cause a notice of the lost title to be published in the Kenya Gazette and, in most cases, a national newspaper.
This initiates a statutory objection period of not less than sixty (60) days, during which any person with a legitimate interest in the land may lodge an objection.

6. Objection Period and Determination

If no objection is raised within the prescribed period, or if objections raised are resolved in favour of the applicant, the Registrar proceeds to authorize the replacement. Where disputes arise, the matter may be referred for further investigation or determination.

7. Issuance of Replacement Title

After compliance with all legal requirements, the Land Registrar issues a replacement title deed, and the land register is duly updated.
It is important to note that if the original title is later recovered, it must be surrendered to the Land Registrar, as possession of two valid titles over the same parcel is unlawful.

Practical Considerations and Legal Cautions

• Applicants are advised to register a caution or restriction immediately upon discovering the loss to prevent fraudulent dealings during the replacement process.
• The replacement process may take several months, largely due to the mandatory public notice period.
• Where land is of high value, subject to disputes, or previously charged, legal counsel is strongly recommended.

Conclusion

While Kenyan law provides a clear mechanism for replacing a lost title deed, strict compliance with statutory requirements is essential. The process is intentionally rigorous to protect property rights and maintain the integrity of the land registration system. Property owners should act promptly, transparently, and with appropriate legal guidance to avoid delays or complications.

Impartiality Matters: A Key Lesson from Mabonga v Agricultural Finance Corporation

Introduction

In the recent decision of Mabonga v Agricultural Finance Corporation [2025] KEELRC 2851 (KLR), the Employment and Labour Relations Court (ELRC) delivered a reminder that fairness in disciplinary hearings is not just about valid reasons for dismissal — it is equally about how the process is conducted.

The Facts in Brief

• The claimant (an employee of Agricultural Finance Corporation (“AFC”)) was dismissed for alleged negligence and misconduct.
• During the investigation, one member of the disciplinary panel had already participated in the investigation — for example, by extracting data from the employee’s computer.
• That same person then sat on the disciplinary hearing panel and questioned the employee.
• Although the employer had substantive grounds for dismissal, the ELRC found the termination to be procedurally unfair because the investigation + adjudication roles were merged.

Why This Matters

1. Impartiality is a core component of procedural fairness.
The court emphasised that allowing an investigator to sit on the disciplinary panel undermines the independence and neutrality required of the decision-maker. A fair hearing is not only about giving the employee a chance to respond; it’s also about who hears the evidence and how.

2. Valid reasons do not cure procedural defects.
Here, AFC had credible allegations of negligence and misconduct, but the ELRC held that the flawed process rendered the dismissal unfair. Thus, even if the wheels of misconduct are turning, the fairness of the journey counts.

3. Structural separation of roles matters.
For employers (both public and private), this case is a signal: make sure that the person who investigates alleged misconduct is not the same person who sits in judgment of it. Investigative, prosecutorial and adjudicatory roles should be distinct to preserve fairness and confidence in the outcome.

Practical Take-aways for Employers and HR Teams

• Review your disciplinary policies and panel-structures to ensure that the investigation team is separate from the hearing panel.
• At the hearing, ensure the decision-maker did not have prior direct involvement in evidence-gathering or investigations.
• Document the independence of the disciplinary panel: show that members were not involved in the investigation, that they approached the hearing impartially, and that the employee had a fair opportunity to respond.
• Train hearing panels and HR practitioners on the risk of perceived bias — it is enough for an employee to reasonably think that the adjudicator has been involved in the investigation.

Broader Implications

The decision aligns with broader labour jurisprudence in Kenya and internationally: the right to a fair hearing inherently includes the right to an honest and impartial decision-maker. Its application in the workplace context reinforces employer accountability beyond the substantive merits of misconduct.

Conclusion

Mabonga v Agricultural Finance Corporation is more than another dismissal case — it is a practical blueprint for integrity in disciplinary systems. If the process lacks impartiality, the best of substantive reasons may fail. For HR leaders, legal advisers, and employment practitioners, it’s a timely reminder: fair process is non-negotiable.

Disclaimer: This article is for informational purposes only and does not constitute legal advice.

 

Filing a Claim for any amount below KSh 1,000,000 in Kenya

1. Jurisdiction

A claim of KSh 100,000 falls within the Small Claims Court’s jurisdiction.

Court	Monetary Jurisdiction
Small Claims Court	Up to KSh 1,000,000

➡️ Therefore, your case should be filed in the Small Claims Court located within the area where:

• The defendant resides or carries on business, or
• The loan transaction occurred (see Section 15 of the Civil Procedure Act).

2. Required Documents

To file your claim, you’ll need:

• Statement of Claim (instead of a plaint, used in the Small Claims Court).
• Verifying affidavit (confirming the truth of your claim).
• List of documents and witnesses.
• Demand letter (and proof of delivery).
• Loan agreement or evidence of the loan (e.g., M-Pesa statements, bank records, or acknowledgment of debt).

Filing is done online via the Judiciary e-filing system: https://efiling.court.go.ke

3. Process Overview

1. Send a demand letter to the borrower requesting repayment within 7–14 days.
2. File the claim in the Small Claims Court through the e-filing portal.
3. Serve the claim on the defendant after court acceptance.
4. Defendant’s response: they must appear or file a response within 15 days.
5. Hearing: Small Claims Court hearings are usually fast-tracked (concluded within 60 days).
6. Judgment: If the court finds in your favor, it will order the defendant to pay KSh 100,000, plus interest and costs.

4. Enforcement

If the defendant still does not pay after judgment, you may enforce it through:

• Warrants of attachment and sale (auctioning property), or
• Garnishee orders (to recover money from their bank or employer).

 

5. Costs and Interest

The court may also award:

• Interest on KSh 100,000 (as per the agreement or court rate of ~12% p.a.), and
• Costs of the suit (usually modest in Small Claims matters).

Disclaimer: This article is for informational purposes only and does not constitute legal advice.