Kenya has appended the World Trade Organization (WTO) Telecom Reference Paper to its schedule of commitments.

It is reported that the Communication Authority of Kenya, the executive authority for the supervision and administration of services in the telecommunications sector, is independent from the government in the decision-making process.

The National ICT Policy Guidelines (paragraph 4.4) provide that all arms of government build, deploy, operate and manage locally built back-end and front-end systems. The Guidelines also require that all Kenyan data remains in Kenya and is stored safely and in a manner that protects the privacy of citizens to the utmost.

According to Art. 34.2 of the Industrial Property Act of 2001, an applicant whose ordinary residence or principal place of business is outside Kenya is obliged to be represented by an agent who shall be a citizen of Kenya admitted to practice before the Kenya Industrial Property Institute.

Kenya is a party to the Patent Cooperation Treaty (PCT).

The Copyrights Act provides a regime of copyright exceptions that follows the fair dealing model, which enables the lawful use of copyrighted work by others without obtaining permission. According to Art. 26, it is permitted the use of copyrighted works for educational purposes, the incidental inclusion of works in a broadcast or film, the non-for-profit use of works in public, the broadcast of works intended to be used for systematic instructional activities, the use of works by the government, public libraries and non-commercial documentation centres as well as the use of works for judicial purposes, provided the author and the source are indicated.

Copyright is not adequately enforced online in Kenya. Copyright piracy and the use of unlicensed software are reported to be prevalent in the country. Businesses in the country have also expressed concern about the online distribution of copyright-infringing content.

Kenya has signed the World Intellectual Property Organization (WIPO) Copyright Treaty in December 1996, but has not ratified it.

Kenya has signed the World Intellectual Property Organization (WIPO) Copyright Treaty in December 1996, but has not ratified it.

Kenya does not have a comprehensive framework in place that provides effective protection of trade secrets, but there are limited measures addressing some issues related to them. The protection of trade secrets is mostly by way of common law and equity (and there are a few judicial decisions on this topic). Trade secret protection can be inferred from common law protection of confidentiality. However, regarding whether trade secrets are kept confidential during court proceedings, there is currently no clear judicial precedent on the handling of evidence containing a trade secret while still maintaining its confidentiality. A review of the available case law shows that such matters are determined on a case-by-case basis, and one must demonstrate that the trade secret is indeed useful and applicable in the relevant trade or industry; is not public knowledge or public property; is of economic value to the business seeking to protect it and that the disclosure of such information would be prejudicial to the business.
Moreover, protection is granted locally by virtue of the Constitution (Arts. 2.5 and 2.6). Some forms of protection of trade secrets can also be found in various pieces of legislation, such as those relating to employment and contracts.

It is reported that Kenya does not mandate functional separation for operators with significant market power (SMP) in the telecom market. However, there is an obligation of accounting separation.

Kenya is not a party to the World Trade Organization (WTO) Agreement on Government Procurement (GPA) nor does it have observer status.

Paragraph 7.2.4 of the National Information Communication and Technology Policy Guidelines of 2020 mandated that a company must have at least 30% substantive Kenyan ownership to be licensed by the Communication Authority to provide ICT services in Kenya. This requirement applied until August 2023 when, through Gazette Notice 11079 dated 22 August 2023, the Kenyan Cabinet Secretary for Information, Communications, and the Digital Economy formally announced the deletion of the paragraph. According to Section 2 of the Kenya Information and Communications Act, information and communication technologies encompass the technologies used in collecting, storing, using, or transmitting information, including those involving computers or any telecommunication system. This definition includes ICT, telecommunication, and audiovisual services. Previously, this ownership requirement was 20% for telecommunications licensees.

Kenya is not a signatory of the 1996 World Trade Organization (WTO) Information Technology Agreement (ITA) nor the 2015 expansion (ITA II).

According to Section 157.8 of the Public Procurement and Asset Disposal Act, exclusive preferences are given to citizens of Kenya where the funding is 100% from the national government, county government or a Kenyan body, and the amounts are below the prescribed threshold. The prescribed threshold for exclusive preference should be above five hundred million shillings (approx. USD 3,600,000)