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Introduction

A Non-Disclosure Agreement (NDA) is a legally binding contract that establishes a confidential relationship between parties. The party or parties signing the agreement agree that sensitive information they may obtain will not be made available to any others. In Kenya, NDAs are governed by various laws, including the Law of Contract Act (Cap 23) and the common law principles of confidentiality.

Definition and Purpose of an NDA
Key Elements of an NDA
Types of NDAs
Legal Framework Governing NDAs in Kenya
Sample Non-Disclosure Agreement
Conclusion

1. Definition and Purpose of an NDA

Definition: A Non-Disclosure Agreement (NDA) is a contract through which the parties agree not to disclose information covered by the agreement. An NDA creates a confidential relationship between the parties to protect any type of confidential and proprietary information or trade secrets.

Purpose:

To protect sensitive information.
To establish a confidential relationship.
To outline the consequences of unauthorized disclosure.
To define the scope of what is considered confidential.

2. Key Elements of an NDA

Parties Involved:

Disclosing Party: The party that discloses the confidential information.
Receiving Party: The party that receives the confidential information.

Definition of Confidential Information:

Clearly defines what constitutes confidential information.
May include business plans, customer lists, trade secrets, financial information, etc.

Obligations of the Receiving Party:

To maintain the confidentiality of the information.
To use the information solely for the purpose outlined in the agreement.
To restrict access to the information to authorized personnel only.

Exclusions from Confidential Information:

Information that is already public knowledge.
Information that is independently developed by the receiving party.
Information that is disclosed by a third party without breach of the NDA.

Term and Duration:

Specifies the duration for which the information must be kept confidential.
May include a clause for the return or destruction of confidential information after the term ends.

Consequences of Breach:

Outlines the legal remedies available in case of a breach.
May include injunctive relief, damages, or specific performance.

3. Types of NDAs

Unilateral NDA:

Involves two parties where only one party discloses confidential information.

Bilateral NDA:

Involves two parties where both parties disclose confidential information to each other.

Multilateral NDA:

Involves three or more parties where at least one party discloses confidential information to the others.

4. Legal Framework Governing NDAs in Kenya

Law of Contract Act (Cap 23):

Governs the formation and enforcement of contracts in Kenya.
Sections relevant to NDAs include those on offer, acceptance, consideration, and breach of contract.

Common Law Principles:

Principles of equity and confidentiality.
Case law that interprets and enforces confidentiality agreements.

5. Sample Non-Disclosure Agreement

Sample NDA:

NON-DISCLOSURE AGREEMENT

This Non-Disclosure Agreement (the "Agreement") is entered into as of [Date], by and between:

[Disclosing Party Name], a company incorporated under the laws of Kenya with its principal place of business at [Address] (the "Disclosing Party"), and

[Receiving Party Name], a company incorporated under the laws of Kenya with its principal place of business at [Address] (the "Receiving Party").

1. Definition of Confidential Information
For purposes of this Agreement, "Confidential Information" includes all written, electronic, or oral information disclosed by the Disclosing Party to the Receiving Party that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.

2. Obligations of the Receiving Party
The Receiving Party agrees to:
- Maintain the confidentiality of the Confidential Information.
- Use the Confidential Information solely for the purpose of [Purpose].
- Restrict access to the Confidential Information to employees, agents, or third parties who need to know the information for the purpose of this Agreement and who are bound by confidentiality obligations.

3. Exclusions from Confidential Information
Confidential Information does not include information that:
- Is or becomes publicly known through no breach of this Agreement by the Receiving Party.
- Is rightfully received by the Receiving Party from a third party without restriction on disclosure.
- Is independently developed by the Receiving Party without use of or reference to the Disclosing Party's Confidential Information.

4. Term and Duration
This Agreement shall commence on the date first written above and shall continue in effect until [End Date], unless terminated earlier by either party with [Number] days' written notice. The obligations of confidentiality shall survive the termination of this Agreement for a period of [Number] years.

5. Consequences of Breach
In the event of a breach or threatened breach of this Agreement, the Disclosing Party shall be entitled to seek injunctive relief, specific performance, or any other equitable remedy, in addition to any other rights and remedies available at law or in equity.

6. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of Kenya.

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

[Disclosing Party Name]
By: ___________________________
Name: _________________________
Title: __________________________

[Receiving Party Name]
By: ___________________________
Name: _________________________
Title: __________________________

6. Conclusion

A Non-Disclosure Agreement is a crucial legal tool for protecting sensitive information in business and other relationships. In Kenya, NDAs are governed by the Law of Contract Act and common law principles. The key elements of an NDA include the definition of confidential information, obligations of the receiving party, exclusions, term and duration, and consequences of breach. By understanding and properly drafting an NDA, parties can ensure that their confidential information remains protected.