Ask a lawyer:
example non disclosure agreement

mwakili.com

Non-Disclosure Agreement (NDA) in Kenya

Introduction
Purpose of a Non-Disclosure Agreement
Key Elements of a Non-Disclosure Agreement
Legal Framework Governing NDAs in Kenya
Case Laws and Legal Precedents
Sample Non-Disclosure Agreement
Conclusion
TLDR

1. Introduction

A Non-Disclosure Agreement (NDA), also known as a confidentiality agreement, is a legally binding contract that establishes a confidential relationship between parties. The primary purpose of an NDA is to protect sensitive information from being disclosed to unauthorized parties. In Kenya, NDAs are commonly used in various business transactions to safeguard trade secrets, business plans, proprietary information, and other confidential data.

2. Purpose of a Non-Disclosure Agreement

The main objectives of an NDA include:

Protection of Confidential Information: Ensuring that sensitive information shared between parties remains confidential.
Facilitation of Business Transactions: Allowing parties to share information freely without the fear of unauthorized disclosure.
Legal Recourse: Providing a legal framework for addressing breaches of confidentiality.

3. Key Elements of a Non-Disclosure Agreement

An effective NDA should include the following key elements:

Definition of Confidential Information: Clearly specifying what constitutes confidential information.
Obligations of the Receiving Party: Outlining the responsibilities of the party receiving the confidential information.
Exclusions from Confidentiality: Identifying information that is not subject to confidentiality obligations.
Duration of the Agreement: Stating the period during which the confidentiality obligations will remain in effect.
Consequences of Breach: Detailing the legal consequences and remedies available in case of a breach of the agreement.

4. Legal Framework Governing NDAs in Kenya

In Kenya, NDAs are governed by general contract law principles as outlined in the Law of Contract Act (Cap 23). Additionally, specific provisions related to confidentiality and non-disclosure can be found in various statutes, including:

The Companies Act, 2015: This Act includes provisions on the disclosure of information by companies and the protection of confidential information.
The Consumer Protection Act, 2012: This Act addresses issues related to consumer agreements and the protection of consumer information.
The Data Protection Act, 2019: This Act provides a comprehensive framework for the protection of personal data and privacy.

5. Case Laws and Legal Precedents

Several case laws in Kenya have addressed issues related to NDAs and confidentiality agreements. Some notable cases include:

Kenya High Court Case on Access to Information: In a recent judgment, the High Court determined the scope of the constitutional right to access information under Article 35 (1) and the ability of parties to rely on contractual non-disclosure clauses in refusing to grant access to information sought by third parties. This case highlights the balance between the right to access information and the enforcement of NDAs. (Source: Bowmans ↗)
Constitutional Petition E004 of 2023: This case involved allegations of non-disclosure of material facts and the concealment of information. The court emphasized the importance of full disclosure and the consequences of breaching confidentiality obligations. (Source: Kenya Law ↗)

These cases provide valuable insights into how Kenyan courts interpret and enforce NDAs, emphasizing the importance of clear and unambiguous terms in such agreements.

6. Sample Non-Disclosure Agreement

Below is a sample Non-Disclosure Agreement tailored for use in Kenya:

Non-Disclosure Agreement (NDA)

This Non-Disclosure Agreement (the "Agreement") is made and entered into as of [Date], by and between [Disclosing Party's Full Name], with an address at [Disclosing Party's Address] (the "Disclosing Party"), and [Receiving Party's Full Name], with an address at [Receiving Party's Address] (the "Receiving Party").

1. Definition of Confidential Information

For purposes of this Agreement, "Confidential Information" includes all information or material that has or could have commercial value or other utility in the business in which Disclosing Party is engaged. Confidential Information also includes all information of which unauthorized disclosure could be detrimental to the interests of the Disclosing Party, whether or not such information is identified as Confidential Information by the Disclosing Party.

2. Obligations of Receiving Party

The Receiving Party shall hold and maintain the Confidential Information in strictest confidence for the sole and exclusive benefit of the Disclosing Party. The Receiving Party shall carefully restrict access to Confidential Information to employees, contractors, and third parties as is reasonably required and shall require those persons to sign non-disclosure restrictions at least as protective as those in this Agreement. The Receiving Party shall not, without prior written approval of the Disclosing Party, use for the Receiving Party's own benefit, publish, copy, or otherwise disclose to others, or permit the use by others for their benefit or to the detriment of the Disclosing Party, any Confidential Information.

3. Exclusions from Confidentiality

Confidential Information does not include information that:

Is or becomes generally known to the public through no wrongful act of the Receiving Party;
Is in the possession of the Receiving Party at the time of disclosure as shown by the Receiving Party's files and records immediately prior to the time of disclosure;
Is independently developed by the Receiving Party without breach of this Agreement;
Is received from a third party without breach of any obligation of confidentiality.

4. Duration of Agreement

The confidentiality obligations of the Receiving Party shall survive the termination of this Agreement and shall remain in effect until the Confidential Information no longer qualifies as confidential or until the Disclosing Party sends written notice releasing the Receiving Party from this Agreement, whichever occurs first.

5. Consequences of Breach

In the event of a breach or threatened breach by the Receiving Party of any of the provisions of this Agreement, the Disclosing Party shall be entitled to an injunction restraining the Receiving Party from disclosing, in whole or in part, the Confidential Information. Nothing herein shall be construed as prohibiting the Disclosing Party from pursuing any other remedies available to the Disclosing Party for such breach or threatened breach, including the recovery of damages from the Receiving Party.

6. Miscellaneous

Governing Law: This Agreement shall be governed by and construed in accordance with the laws of the Republic of Kenya.
Entire Agreement: This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, whether written or oral, relating to such subject matter.
Amendments: Any amendments or modifications to this Agreement must be made in writing and signed by both parties.

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

Disclosing Party:

[Disclosing Party's Full Name]
[Disclosing Party's Title]
[Disclosing Party's Company]

Receiving Party:

[Receiving Party's Full Name]
[Receiving Party's Title]
[Receiving Party's Company]

7. Conclusion

Non-Disclosure Agreements are essential tools for protecting confidential information in various business transactions. In Kenya, NDAs are governed by general contract law principles and specific statutory provisions. It is crucial for parties entering into NDAs to clearly define the scope of confidential information, outline the obligations of the receiving party, and specify the consequences of breach. By doing so, parties can ensure that their sensitive information remains protected and that they have legal recourse in case of unauthorized disclosure.

8. TLDR

A Non-Disclosure Agreement (NDA) in Kenya is a legal contract that protects confidential information from unauthorized disclosure. It includes key elements such as the definition of confidential information, obligations of the receiving party, exclusions from confidentiality, duration of the agreement, and consequences of breach. NDAs are governed by general contract law principles and specific statutory provisions in Kenya. Sample NDAs should be tailored to include clear and unambiguous terms to ensure effective protection of sensitive information.

Sources: