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Contract Drafting Checklist in Kenya

A contract is a legally binding agreement between two or more parties. It is essential to have a well-drafted contract to protect your interests and ensure that your agreement is enforceable. This checklist will help you draft a contract that is clear, concise, and legally sound in Kenya.

Introduction
Parties
Subject Matter
Consideration
Terms and Conditions
Representations and Warranties
Indemnification
Limitation of Liability
Termination
Dispute Resolution
Governing Law and Jurisdiction
Notices
Entire Agreement
Severability
Waiver
Assignment
Force Majeure
Confidentiality
Miscellaneous
Case Laws
Conclusion
TLDR

Introduction

This checklist is intended to be a guide for drafting contracts in Kenya. It is not exhaustive and should not be considered legal advice. You should always consult with a qualified attorney before entering into any contract.

Parties

Identify the parties to the contract. This includes their full legal names and addresses.
Specify the capacity of the parties. For example, if a party is a corporation, you should state its registered name and the state of incorporation.
Ensure that the parties have the legal capacity to enter into a contract. This means that they must be of legal age and mentally competent.

Subject Matter

Clearly define the subject matter of the contract. This should be specific and unambiguous.
Include all relevant details about the subject matter. For example, if the contract is for the sale of goods, you should include the quantity, quality, and price of the goods.

Consideration

Identify the consideration for the contract. This is the thing of value that each party is giving in exchange for the other party's promise.
Ensure that the consideration is legal and sufficient. The consideration must be something that the law recognizes as having value.

Terms and Conditions

Include all of the essential terms and conditions of the contract. This includes the price, payment terms, delivery terms, and any other relevant terms.
Use clear and concise language. Avoid using jargon or technical terms that the parties may not understand.
Be specific about the obligations of each party. This will help to avoid misunderstandings and disputes.

Representations and Warranties

Include any representations and warranties that the parties are making to each other. This could include statements about the quality of goods or services, the financial condition of a party, or the legal status of a property.
Ensure that the representations and warranties are accurate and truthful. If a party makes a false representation or warranty, they may be liable for damages.

Indemnification

Include an indemnification clause. This clause protects one party from liability for certain losses or damages caused by the other party.
Specify the scope of the indemnification. This should include the types of losses or damages that are covered and the circumstances under which the indemnification will apply.

Limitation of Liability

Include a limitation of liability clause. This clause limits the amount of damages that one party can recover from the other party.
Specify the types of damages that are limited. This could include direct damages, indirect damages, consequential damages, or punitive damages.

Termination

Include a termination clause. This clause specifies the circumstances under which the contract can be terminated.
Specify the grounds for termination. This could include breach of contract, insolvency, or force majeure.
Include a procedure for termination. This should specify how the contract will be terminated and what steps need to be taken.

Dispute Resolution

Include a dispute resolution clause. This clause specifies how any disputes arising from the contract will be resolved.
Specify the method of dispute resolution. This could include negotiation, mediation, arbitration, or litigation.
Specify the governing law and jurisdiction. This will determine which laws will be applied to the dispute and where the dispute will be heard.

Governing Law and Jurisdiction

Specify the governing law of the contract. This will determine which laws will be applied to the contract.
Specify the jurisdiction of the contract. This will determine where any disputes arising from the contract will be heard.

Notices

Include a notices clause. This clause specifies how notices will be given to the parties.
Specify the method of delivery. This could include personal delivery, registered mail, or email.
Specify the address for delivery. This should be the address where the parties want to receive notices.

Entire Agreement

Include an entire agreement clause. This clause states that the contract constitutes the entire agreement between the parties and that any prior agreements or understandings are superseded.
This clause helps to prevent disputes about the terms of the contract.

Severability

Include a severability clause. This clause states that if any provision of the contract is held to be invalid or unenforceable, the remaining provisions will remain in full force and effect.
This clause helps to ensure that the contract remains enforceable even if some of its provisions are invalid.

Waiver

Include a waiver clause. This clause states that a waiver of any breach of the contract by one party does not constitute a waiver of any subsequent breach.
This clause helps to prevent one party from arguing that they have waived their rights under the contract.

Assignment

Include an assignment clause. This clause specifies whether the contract can be assigned to a third party.
If the contract can be assigned, specify the conditions for assignment.

Force Majeure

Include a force majeure clause. This clause excuses a party from performing their obligations under the contract if they are prevented from doing so by an event beyond their control.
Specify the types of events that are covered by the force majeure clause. This could include natural disasters, war, or government regulations.

Confidentiality

Include a confidentiality clause. This clause protects confidential information that is disclosed by one party to the other party.
Specify the types of information that are confidential. This could include trade secrets, financial information, or customer lists.

Miscellaneous

Include any other miscellaneous provisions that are necessary to protect the interests of the parties. This could include provisions relating to insurance, governing law, or dispute resolution.

Case Laws

The Law of Contract Act (Cap 23) of the Laws of Kenya is the primary legislation governing contracts in Kenya. It sets out the general principles of contract law, including the requirements for a valid contract, the different types of contracts, and the remedies available for breach of contract.
The Employment Act, 2007 governs employment contracts in Kenya. It sets out the minimum requirements for employment contracts, including the terms of employment, the rights and obligations of employers and employees, and the procedures for termination of employment.
The Sale of Goods Act (Cap 31) of the Laws of Kenya governs contracts for the sale of goods in Kenya. It sets out the requirements for a valid contract for the sale of goods, the rights and obligations of buyers and sellers, and the remedies available for breach of contract.
The Hire Purchase Act (Cap 50) of the Laws of Kenya governs contracts for the hire purchase of goods in Kenya. It sets out the requirements for a valid hire purchase agreement, the rights and obligations of the hirer and the owner, and the procedures for repossession of goods.
The Consumer Protection Act, 2012 protects consumers in Kenya from unfair business practices. It sets out the rights of consumers, including the right to a fair price, the right to safety, and the right to information.
The Competition Act, 2010 promotes competition in Kenya. It prohibits anti-competitive practices, such as price fixing and market sharing.
The Insurance Act (Cap 408) of the Laws of Kenya governs contracts of insurance in Kenya. It sets out the requirements for a valid insurance contract, the rights and obligations of the insurer and the insured, and the procedures for making claims.
The Civil Procedure Act (Cap 21) of the Laws of Kenya governs the procedure for resolving disputes in Kenya. It sets out the rules for filing a lawsuit, serving a summons, and conducting a trial.
The Arbitration Act (Cap 49) of the Laws of Kenya governs the procedure for resolving disputes through arbitration in Kenya. It sets out the rules for appointing arbitrators, conducting an arbitration hearing, and enforcing an arbitration award.

Conclusion

A well-drafted contract is essential for protecting your interests and ensuring that your agreement is enforceable. This checklist provides a framework for drafting contracts in Kenya. However, it is important to consult with a qualified attorney before entering into any contract.

TLDR

This checklist provides a framework for drafting contracts in Kenya. It covers essential elements such as parties, subject matter, consideration, terms and conditions, representations and warranties, indemnification, limitation of liability, termination, dispute resolution, governing law and jurisdiction, notices, entire agreement, severability, waiver, assignment, force majeure, confidentiality, and miscellaneous provisions. It is important to consult with a qualified attorney before entering into any contract.

Sample Contract

This is a sample contract that can be used as a starting point for drafting your own contract. You should always consult with a qualified attorney before using this sample contract.

CONTRACT

This Contract is made and entered into as of [Date] by and between [Your Full Name], residing at [Your Address], hereinafter referred to as "Party A", and [Other Party Full Name], residing at [Other Party Address], hereinafter referred to as "Party B".

WITNESSETH:

WHEREAS, Party A desires to [State the purpose of the contract]; and

WHEREAS, Party B desires to [State the purpose of the contract];

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties agree as follows:

1. DEFINITIONS

1.1. "Agreement" means this Contract, including all exhibits and attachments hereto.

1.2. "Effective Date" means the date first written above.

2. PURPOSE

2.1. The purpose of this Agreement is to [State the purpose of the contract].

3. SERVICES

3.1. Party A agrees to [State the services to be provided by Party A].

3.2. Party B agrees to [State the services to be provided by Party B].

4. PAYMENT

4.1. Party B shall pay Party A the sum of [Amount] for the Services.

4.2. Payment shall be made [State the payment terms].

5. TERM AND TERMINATION

5.1. This Agreement shall commence on the Effective Date and shall continue for a period of [Term] (the "Term").

5.2. This Agreement may be terminated by either party upon [State the grounds for termination].

6. CONFIDENTIALITY

6.1. Each party agrees to hold confidential all information disclosed by the other party in connection with this Agreement, except to the extent such information is already in the public domain or is required to be disclosed by law.

7. GOVERNING LAW

7.1. This Agreement shall be governed by and construed in accordance with the laws of the Republic of Kenya.

8. DISPUTE RESOLUTION

8.1. Any dispute arising out of or relating to this Agreement shall be settled by [State the dispute resolution method].

9. ENTIRE AGREEMENT

9.1. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous communications, representations, or agreements, whether oral or written.

10. SEVERABILITY

10.1. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall remain in full force and effect.

11. WAIVER

11.1. No waiver of any breach of this Agreement shall be deemed a waiver of any subsequent breach.

12. ASSIGNMENT

12.1. This Agreement may not be assigned by either party without the prior written consent of the other party.

13. FORCE MAJEURE

13.1. Neither party shall be liable for any delay or failure to perform its obligations under this Agreement due to any cause beyond its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, civil unrest, labor disputes, or governmental action.

14. NOTICES

14.1. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered personally, sent by certified mail, return receipt requested, or sent by overnight courier service, addressed as follows:

If to Party A:

[Your Full Name] [Your Address]

If to Party B:

[Other Party Full Name] [Other Party Address]

or to such other address as either party may designate in writing from time to time.

15. MISCELLANEOUS

15.1. This Agreement may be amended only by a writing signed by both parties.

15.2. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.

[Signature of Party A]

[Signature of Party B]

This sample contract is for illustrative purposes only and should not be used without the advice of a qualified attorney. You should always consult with a qualified attorney before entering into any contract.