Non-disclosure agreements were once reserved for boardrooms and business partnerships.
Four years ago, MaryAnn Joy met her husband, a wealthy businessman in Nairobi who had two children from a previous relationship. Although they are not legally married, they have been living together after their traditional engagement.
“My husband is in no rush to formalise our marriage, and I am okay with that. We are building our lives quietly, with no drama. We have bought land, started an internet business, among other investments.”
However, some time back, MaryAnn’s partner suggested something that set off her antennae.
“He told me to quit my job and focus on our family and that he would take care of everything. First, I wasn’t ready to have children, and this proposal made me cautious.”
Non-disclosure agreements are slowly finding their way into personal relationships.
She had heard stories of women who had lost everything by trusting a man whom they were not legally married to. Her fears were heightened by the fact that there was another woman and two children involved.
“All the same, I was persuaded but on one condition. We had to sign a non-disclosure agreement (NDA). In case anything happened to him, the document would protect my contribution and investments in the relationship.”
The NDA, drafted by her lawyer, doesn’t read like a romantic document. It outlines their shared financial ventures, defines ownership rights and ensures confidentiality around their joint businesses.
“It basically says that any business we run together, even if it’s registered in his name, remains partly mine. It also prevents his family from any interference in case something happens to him,” she explains, adding that so far, that is the only legally binding document for the couple.
Why not sign a prenup?
“We aren’t legally married, so a prenup didn’t make sense. I needed something binding, something that gave me a legal voice.”
The silent clause
MaryAnn’s NDA, however, does more than protect her financially. It also binds her to confidentiality. She cannot reveal the details of their shared ventures, his client lists, or the profits they make.
“It’s funny because as much as the NDA protects me, it also protects him. I can’t speak about certain things even if I wanted to.”
But she doesn’t see it as a burden. “It gives me peace because it’s better than living in fear that one day everything could disappear,” she says.
“Some people think it’s cold and unromantic, but I think it’s smart. Love can change, people can change, but the law doesn’t forget what’s written down.”
Can love be confidential?
When relationships end, emotions often spill beyond the private walls and sometimes get themselves on social media timelines and group chats. But what if heartbreak could be legally bound to silence?
NDAs were once reserved for boardrooms and business partnerships; however, they are slowly finding their way into personal relationships. Instances of couples seeking to protect their intimate information, ex-partners hoping to keep their financial details private, and the agreement has been explored as legal shields for privacy.
According to Charity Njuguna, Advocate of the High Court, such agreements are legal under Kenyan law as long as they meet the conditions of a valid contract.
Charity Njuguna, an Advocate of the High Court.
Like any other contract, NDAs must show offer, acceptance, consideration, and intention to create legal relations. While traditionally common in corporate and employment settings, Kenyan courts are open to enforcing them between private individuals, including ex-partners, if they are fair, clear, and reasonable.
“Private individuals, including ex-partners, are not barred from signing NDAs. Courts assess whether the agreement is fair, clear, and reasonable before enforcing it,” Ms Njuguna says.
Limits of NDAs in marriage
Lawyer Danstan Omri says a non-disclosure agreement (NDA) on financial matters between couples may be rendered invalid for several reasons.
These include vagueness or poor drafting that makes the terms unclear or unenforceable, an unreasonably long duration of execution that unfairly restricts one party, a lack of mutuality where the obligations are one-sided or a breach of the agreement by the party seeking to enforce it.
Workplace relationships
Mr Omari added that an NDA may be invalidated due to lack of consideration (where no value or benefit was exchanged between the parties), if it conflicts with matters of public interest or public safety, involves illegality or unlawful acts, or where the information sought to be protected was already in the public domain before the agreement.
According to Mr Omari, marriage is a legal and emotional covenant governed by the Marriage Act, 2014.
Lawyer Danstan Omari speaks during an interview at his office in Nairobi.
“The law that governs such unions is the Marriage Act 2014. Marriage and NDAs operate on completely different principles. NDAs are commercial in nature, while marriage is founded on trust, partnership, and mutual obligation.” Mr Omari says.
Mr Omari explains that NDAs clash with the very essence of marriage vows.
“In marriage, you stand for each other till death do you part. The principle of marriage does not favour NDAs because they are contractual instruments meant for business, not for emotional or lifelong unions.”
He adds that NDAs have rarely, if ever, succeeded in Kenyan courts when invoked in domestic or spousal conflicts.
“NDAs have never really found their way in court unless the matter is commercial, where there is division of property, issues of profit, or shareholding disputes,” he explains.
In his view, introducing an NDA into a marriage can even signal deeper trust issues.
“A married couple cannot rely on an NDA because it will not withstand legal scrutiny. In fact, NDAs in a marriage setup are often interpreted as a sign of mistrust and can easily become grounds for divorce.”
NDAs in workplace
In one example of how NDAs are reshaping workplace relationships in Kenya, a former employee of an international organisation sued her former employer for breaching confidentiality.
After working for a period of time, there arose what was termed as irreconcilable difference and the parties had to part ways in a negotiated agreement.
The document included a clause preventing either party from publicly discussing the reasons for her exit.
However, things took an unexpected turn when the former employee later appeared for a job interview with another organisation. During the session, a former board member in her previous job appeared before the panellists and tabled documents that she considered adverse to her.
A non-disclosure agreement (NDA) on financial matters between couples may be rendered invalid for several reasons.
She sued, saying the documents were internal to the company and by the terms of the separation agreement, they were barred by confidentiality clauses from disclosure, publication or circulation outside of or beyond the parties.
She filed a case in court, accusing her former employer of defamation and breaching the NDA and defaming her character by allowing confidential information to be discussed publicly.
Although she lost the case, the matter reveals how NDAs are increasingly being used not just in corporate boardrooms, but also in employee relations.
What makes an NDA fool-proof?
For an NDA to hold water in court, it must be precise and lawful.
“A well-drafted NDA outlines the rights and obligations of both parties, clearly stating what information is protected, for how long, and for what purpose,” Ms Njuguna notes.
This includes defining what counts as confidential even from private messages and photos, bank records or business plans. It should also specify exceptions, such as information already in the public domain or legally required disclosures.
“Under the Kenya Information and Communications Act and the Electronic Transactions Regulations (2020), electronic signatures are legally recognised,” she adds, meaning NDAs can be signed digitally and still remain valid.
Reasonable time limits also matter. While indefinite confidentiality may apply to trade secrets or highly sensitive personal data, courts often prefer NDAs with clearly defined durations. Can an NDA stop an ex-partner from airing dirty laundry?
“In essence, an NDA can provide a framework for preventing the public discussion of private relationship issues between spouses or former partners,” Njuguna explains.
However, Kenya’s Constitution demands balance between the right to privacy (Article 31) and freedom of expression (Article 33).
“An NDA that violates freedom of expression, hides illegal activity, or seeks to silence victims of abuse or harassment would likely be declared unenforceable,” she says.
Still, reasonable NDAs that protect legitimate privacy such as intimate images, private communication or confidential financial information are more likely to be upheld.
A well-drafted non-disclosure agreement (NDA) outlines the rights and obligations of both parties, clearly stating what information is protected, for how long, and for what purpose.
However, Ms Njuguna says there is a price for breach. “Kenyan law treats an NDA as a legally binding contract. Therefore, if someone breaches an NDA years after signing it, the breach is treated as a contractual violation.”
The remedies, she says might involve monetary damages, injunctions to stop further disclosure, or court orders requiring the return or destruction of protected materials.
“Under the Limitation of Actions Act, contract claims must generally be brought within six years from the date of breach. The exceptions apply in cases of fraud or concealment, which may extend the timeline,” she adds.
The burden of proof, however, lies with the claimant.
“To prove a breach of an NDA, the claimant must present clear and credible evidence showing that the agreement was valid and that the other party disclosed or misused protected information,” Ms Njuguna explains.
Post-relationship NDAs
Emails, text messages, digital records, and witness statements all qualify as evidence, provided they meet the standards under the Evidence Act (Cap 80) and the Evidence (Electronic Records) Regulations 2020.
“Electronic evidence must include a certificate of authenticity confirming that the data was obtained legally and without tampering,” she adds.
What happens if a party argues freedom of expression after breaching an NDA?
“Article 33 guarantees freedom of expression, but this right is not absolute,” Ms Njuguna says.
By signing an NDA, she explains, individuals voluntarily limit their own freedom of expression regarding certain information. Courts view this as a reasonable restriction. However, disclosures made in the public interest, for example, exposing corruption or crime may be excused.
“Courts generally uphold NDAs unless they violate constitutional values or public policy, or unless the disclosure benefits justice or public interest,” she says.
Signing after the breakup
Contrary to popular the belief, NDAs don’t have to be signed during a relationship.
“Yes, an NDA can be signed after a breakup, not only during or before a relationship,” Ms Njuguna confirms.
However, such post-relationship NDAs are often used to protect private photos, messages, or sensitive financial disclosures. “A post-breakup NDA can successfully protect privacy, identity, and sensitive information when properly drafted,” she adds.
How long can an NDA last?
Ms Njunguna says the Kenyan law leaves the duration of NDAs to the parties’ agreement.
“The duration of an NDA depends entirely on the wording agreed upon by the parties.”
Some NDAs specify fixed periods like five or 10 years while others last “in perpetuity.” But the courts tend to favour reasonable durations, unless the information remains sensitive indefinitely. Although the confidentiality may last a lifetime, claims for breach must be made within six years of the violation.
When it comes to the monetary value. “A standard NDA for personal communication or basic business information will typically costs between Sh10,000 and Sh30,000,” Ms Njuguna says.
However, she says that the complex or multi-party NDAs can cost up to Sh100,000. These costs depend on complexity, urgency, and the advocate’s experience.
Currently, the law treats NDAs as private contracts without explicit provisions for personal or digital privacy. This gap, Ms Njuguna notes, “creates uncertainty, particularly where NDAs intersect with constitutional rights such as privacy, freedom of expression, and access to justice.”
“Like the UK and USA, Kenya would benefit from clearer statutory guidance governing personal Non-Disclosure Agreements (NDAs),” she adds.
Beyond the legal complexities, Ms Njuguna believes that personal NDAs have benefits.
“They build trust, deter unauthorised disclosure, and empower individuals to control how personal information is handled,” she says.
By documenting confidentiality, NDAs also deter misconduct like revenge leaks or online defamation.
