restraint of trade is presumed unreasonable in Kenya. The employer who wants it enforced carries the burden of rebutting the presumption, and the rebuttal succeeds or fails on the drafting choices made before the dispute begins.
The three variables
The court will read three variables against the employer's legitimate interest: duration, geography, and the scope of activity restrained. Each must be no wider than the protection requires. Each, in our experience, is the variable that most precedents over-draft.
- Duration, six to twelve months is the band the court most readily enforces for senior executives. Two-year and three-year restraints are not impossible but require a particular evidential foundation.
- Geography, a global restraint is rarely supportable. A restraint tied to the geographic markets the employee actually serviced, with named territories, is more defensible.
- Scope, restrain the specific activity that engages the protected interest, not the entire industry.
“The restraint the court enforces is almost always narrower than the one the employer first drafted.”
The protected interest
The clause should identify the protected interest on its face, confidential information, customer connections, workforce stability, and the restraint should be the proportionate response to that interest. A general 'protection of the business' formulation is the formulation the court most often refuses to enforce.
Severance and blue-pencilling
Kenyan courts will sometimes sever an unreasonable element from a restraint and enforce the remainder. Drafting on the assumption that they will is poor risk management. The better drafting is layered, separate covenants for separate interests, separately enforceable, so that the failure of one does not infect the others.