Unlike patents, trademarks, and copyrights, trade secrets and confidential information are typically invisible on paper but enormously valuable in practice. They are not registered rights in Kenya. Yet their protection is essential to preserving competitive advantage for businesses and employers. This article explains how the law in Kenya treats trade secrets and confidential information, where the protections arise, and practical steps to manage risk.

What are trade secrets and confidential information?

A trade secret refers to any information that: is not generally known or readily accessible to persons within the relevant industry; confers a commercial advantage on its holder because it is secret; and is subject to reasonable efforts to keep it secret. Examples include: manufacturing processes, pricing models, formulas and algorithms, customer lists and strategic business plans.

“Confidential information” is a broader term that can include trade secrets and other information an employer reasonably expects to remain private (e.g., employee data, internal reports, planned projects).

Unlike patents or trademarks, there is no registration system for trade secrets in Kenya. Protection arises through contract and the common law.

Legal basis for protection in Kenya

1. Contract law (express protection)

The most common and strongest protection mechanism for trade secrets is the employment contract and other contractual agreements such as: Non Disclosure Agreements (NDAs); Confidentiality clauses and separation/exit agreements

Under contract law, parties can agree that certain information is confidential and restrict its use or disclosure. Where an employee or contractor breaches this contractual promise, the employer can seek remedies including damages and injunctions.

Key point: In the absence of a written confidentiality obligation, proving that information was intended to be confidential can be legally difficult.

2. Common Law (implied protection)

Kenyan common law recognises a cause of action for misuse of confidential information, even without a specific contract, where: the information is clearly private; it was communicated in circumstances importing an obligation of confidence; and there is unauthorised use or disclosure to the detriment of the holder. Courts will ask whether the information: is not public knowledge; has commercial value because it is secret; and was imparted or accessed in circumstances that reasonably imply confidentiality.

This protection arises without registration and can be enforced with orders preventing further misuse.

3. Fiduciary and Statutory Duties

Though not labelled as “trade secret law,” certain statutes and relationships inherently protect confidential information:

• Employment law: employees owe duties of fidelity, good faith, and loyalty to employers. Using an employer’s confidential information to compete can breach these duties.
• Industrial Property Act (Cap 509): while this statute governs patents, it also recognises aspects of confidentiality where inventions and technical information are concerned, particularly where secrecy is part of protecting proprietary know how pending patenting.
• Competition law: misuse of confidential information to distort market competition may attract scrutiny under fair competition principles.

What the law does not provide

There is no specific “Trade Secrets Act” in Kenya similar to those in some other jurisdictions. There is no registration process for trade secrets, no statutory definition of trade secrets, and no dedicated enforcement body. Protection depends on contract terms and common law principles, not a standalone statutory right.

When protection arises

Legal protection for trade secrets and confidential information arises when:

1. The information is clearly defined and documented with confidentiality expectations.
2. Those expected to maintain confidentiality (employees, contractors, partners) are contractually bound.
3. Reasonable measures were taken to safeguard secrecy (e.g., access controls, confidentiality notices).
4. There is evidence that disclosure or use of the information caused or will cause harm to the holder.

Without these factors, a court may find that information was not legally protected.

What happens in a breach?

Where confidential information or a trade secret is misused, an aggrieved party can seek:

• Interim injunctions to restrain threatened disclosure,
• Permanent injunctions preventing further misuse,
• Damages or account of profits for losses suffered,
• Delivery up or destruction of documents and electronic copies.

The availability of these remedies depends on proving: the information was truly confidential, there was an obligation of confidence and the defendant misused or threatened to misuse it.

Practical risk management

To protect trade secrets and confidential information, Kenyan businesses should:

1. Draft clear confidentiality clauses in all employment and contractor agreements.
2. Use Non Disclosure Agreements (NDAs) with third parties before disclosing sensitive information.
3. Classify sensitive information, distinguishing public from confidential.
4. Limit access on a need to know basis.
5. Train employees about confidentiality obligations.
6. Document protection measures so that if enforcement becomes necessary, there is evidence that secrecy was maintained.

Conclusion

In Kenya, trade secrets and confidential information are powerful but invisible assets. They are not protected by registration, yet they are protected by contract and the common law when properly defined and guarded.

While Kenyan law does not have a dedicated “trade secret statute,” the protections that exist can be strong and enforceable if the right steps are taken upfront. For businesses that depend on proprietary knowledge, proactive confidentiality governance is not optional, it is essential.