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 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.

It is reported that enforcement of IPR continues to pose a challenge to rights holders. It is estimated that piracy and counterfeiting of business software, records, music, and electronics such as mobile phones, costs firms over USD 300 million in lost sales annually. However, several case laws in Kenya highlight the commitments in protection of the IP rights of authors and content creators. The ruling of 2013 in the case "Nonny Gathoni Njenga & anor v. Catherine Masitsa & 2 ors" (Civil Case No. 490 of 2013) is one of several cases where court decisions have affirmed rights of copyright holders against abuse or continued infringement. In addition, it is reported that the rate of unlicensed software installation in the country was 74% in 2017 (above the 56% rate of the Middle Eastern and African countries), for an estimated commercial value of USD 99 million.

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 centers as well as the use of works for judicial purposes, provided the author and the source are indicated.

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

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.

The National Information Communication and Technology Policy Guidelines of 2020 (paragraph 6.2.4), last amended in April 2021, make it a requirement for a company to have at least 30% substantive Kenyan ownership in order to be licensed by the Communication Authority to provide ICT services in Kenya. In accordance with Section 2 of the Kenya Information and Communications Act, information and communication technologies means technologies employed in collecting, storing, using or sending out information and include those involving the use of computers or any telecommunication system. These include ICT, telecommunication and audiovisual services. This is an increase from the 20% which was required of telecommunications licensees under the law. This change will not affect broadcasters, who are already required to have 30% local ownership by the Communication Authority.

Section 4.3 (Skills and Innovation) of the National ICT Policy Guidelines 2020 establishes that skills transfer to local firms and personnel is a mandatory requirement to win public tenders.

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

It is reported that foreign firms have had very limited success bidding on Kenyan Government tenders. There are widespread reports that corruption often influences the outcome of public tenders, and many of these tenders are challenged in the courts. Foreign firms, some without proven track records, have won government contracts when partnered with well-connected Kenyan firms or individuals. As of January 2019, all tenders and procurements are required to be undertaken through the Kenyan Government’s electronic procurement system, the Integrated Financial Management Information System (IFMIS). Certain foreign companies have expressed concerns about IFMIS due to insufficient connectivity and technical capacity in county government offices, apathy from county government officials, central control shutdowns, and security gaps that render the system vulnerable to manipulation and hacking.

Where the procuring entity seeks to contract with non-Kenyan firms or procure foreign goods, the Public Procurement and Asset Disposal Act requires a report detailing evidence of an inability to procure locally (Section 155 (5)). On the other hand, for the purpose of ensuring sustainable promotion of local industry, a procuring entity must have in its tender documents a mandatory requirement as preliminary evaluation criteria for all foreign tenderers participating in international tenders to source at least 40% of their supplies from citizen contractors prior to submitting a tender (Section 157 (9)). Notably, since 2015, an initiative dubbed “Buy Kenyan Build Kenya” has required Kenyan state ministries, departments, and agencies to procure at least 40% of their supplies locally. Furthermore, the Act calls for at least 30% of government procurement contracts to go to firms owned by women, youth, and persons with disabilities (Section 157 (10)).
Implementing regulations issued by the National Treasury mandate that tender proposals include skills and knowledge transfer to Kenyan citizens, a 75% set aside of employment opportunities for Kenyans, and a local content plan (Regulation 144).

According to Section 157 (8) of the Public Procurement and Asset Disposal Act, exclusive preferences is 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)

According to The National Information Communication and Technology Policy Guidelines of 2020, Kenyan built ICT solutions are preferred over any other solution in the award of public tenders. Where there are no local Kenyan businesses that meet tender requirements, the successful tenderer must provide adequate proof that they will implement a skills transfer program to local firms and personnel as part of the tender award process. Foreign companies have until August 2023 to adhere to this requirement.

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