Quote from Lawyer on July 16, 2025, 8:00 am

A Share Purchase Agreement (SPA) is a critical legal document used in Kenya to facilitate the transfer of shares in a company from one party to another. It outlines the terms and conditions of the sale, ensuring clarity and protection for both the buyer and the seller. In Kenya, SPAs are governed by a combination of statutory laws, including the Companies Act, 2015, and common law principles. This article explores the essential clauses of an SPA, the legal protections available to parties, and key considerations for drafting a robust agreement in Kenya.

Understanding Share Purchase Agreements

An SPA is a contract that governs the sale and purchase of shares in a Kenyan company, whether a private or public entity. It is commonly used in mergers and acquisitions, private equity investments, or transfers of ownership among shareholders. The agreement ensures that the transaction is legally binding and protects the interests of both parties by clearly defining their rights, obligations, and remedies in case of disputes.

In Kenya, SPAs must comply with the Companies Act, 2015, which regulates the transfer of shares, shareholder rights, and corporate governance. Additionally, other laws, such as the Capital Markets Act (for listed companies) and the Competition Act (for mergers and acquisitions), may apply depending on the nature of the transaction.

Essential Clauses in a Share Purchase Agreement

A well-drafted SPA in Kenya should include specific clauses to address the unique aspects of the transaction and provide legal protection. Below are the essential clauses typically included in an SPA:

1. Parties to the Agreement

This clause identifies the buyer and seller, including their legal names, addresses, and contact details. In Kenya, it is crucial to verify the identity of the parties, especially for foreign entities, to ensure compliance with the Foreign Investments Protection Act and other regulations. For corporate entities, details such as the company registration number and registered office should be included.

2. Definitions and Interpretation

To avoid ambiguity, the SPA should include a definitions section that clarifies key terms used throughout the document, such as "shares," "purchase price," "closing date," and "warranties." This ensures that both parties have a common understanding of the agreement's provisions.

3. Sale and Purchase of Shares

This clause outlines the core of the transaction: the number of shares being sold, the type of shares (e.g., ordinary or preference shares), and the percentage of ownership being transferred. It should also specify whether the shares are fully paid-up, as required under Section 97 of the Companies Act, 2015.

4. Purchase Price and Payment Terms

The purchase price clause details the agreed price for the shares and the payment structure (e.g., lump sum, installments, or deferred payments). In Kenya, the agreement should specify the currency (typically Kenyan Shillings) and any adjustments to the purchase price, such as earn-outs or escrow arrangements. It is also advisable to address any tax implications, such as stamp duty or capital gains tax, which may apply under the Income Tax Act.

5. Conditions Precedent

Conditions precedent are requirements that must be fulfilled before the transaction can proceed. These may include obtaining regulatory approvals from bodies like the Capital Markets Authority (CMA) or the Competition Authority of Kenya, securing shareholder consent, or completing due diligence. In Kenya, transactions involving significant shareholdings (e.g., over 30% in a public company) may trigger mandatory takeover offers under the Capital Markets (Takeovers and Mergers) Regulations.

6. Representations and Warranties

Representations and warranties are assurances provided by the seller about the company's status, such as its financial health, compliance with laws, and absence of undisclosed liabilities. The buyer may also provide warranties regarding their ability to complete the purchase. In Kenya, these warranties are critical to protect against misrepresentations and may cover areas like tax compliance, litigation, and intellectual property ownership.

7. Indemnities

This clause outlines the seller's obligation to compensate the buyer for losses arising from breaches of warranties or other specified events. Indemnities provide a financial safety net and are particularly important in Kenya, where undisclosed liabilities (e.g., tax disputes or pending litigation) can surface after the transaction.

8. Confidentiality

Both parties often agree to keep the terms of the SPA and any sensitive information exchanged during negotiations confidential. This is especially relevant in Kenya, where data protection is governed by the Data Protection Act, 2019. The confidentiality clause should specify the duration of the obligation and any exceptions, such as disclosures required by law.

9. Non-Compete and Non-Solicitation

To protect the buyer's investment, the SPA may include non-compete and non-solicitation clauses, preventing the seller from engaging in similar businesses or poaching employees/customers for a specified period. In Kenya, such clauses must be reasonable in scope, duration, and geographic area to be enforceable under common law principles.

10. Dispute Resolution

This clause specifies how disputes arising from the SPA will be resolved, such as through arbitration, mediation, or litigation. In Kenya, arbitration is a popular choice due to its confidentiality and efficiency, as governed by the Arbitration Act, 1995. The clause should also designate the governing law (typically Kenyan law) and the jurisdiction for resolving disputes.

11. Termination

The termination clause outlines the circumstances under which the SPA can be terminated, such as failure to meet conditions precedent or mutual agreement. It should also address the consequences of termination, including the return of any deposits or costs incurred.

12. Closing and Post-Closing Obligations

This clause details the steps to be taken at the closing of the transaction, such as the transfer of share certificates and registration of the transfer in the company's share register. Post-closing obligations may include filing returns with the Business Registration Service (BRS) or notifying the Kenya Revenue Authority (KRA) of the transaction.

Legal Protections in Share Purchase Agreements

SPAs in Kenya are designed to provide legal protection to both parties by addressing potential risks and liabilities. Below are key legal protections embedded in a well-drafted SPA:

1. Due Diligence

Before signing an SPA, both parties should conduct thorough due diligence to verify the company's financial, legal, and operational status. For buyers, this includes reviewing financial statements, tax compliance records, contracts, and pending litigation. Due diligence helps identify risks that can be addressed through warranties or indemnities.

2. Regulatory Compliance

In Kenya, share transfers must comply with the Companies Act, 2015, which requires the approval of the company's board of directors and, in some cases, shareholders. For listed companies, compliance with the Capital Markets Authority regulations is mandatory. The SPA should ensure that all regulatory requirements are met to avoid legal challenges.

3. Escrow Arrangements

To mitigate risks, the parties may agree to hold the purchase price or a portion of it in an escrow account until certain conditions are met (e.g., resolution of pending litigation). This provides financial security for the buyer while ensuring the seller receives payment upon fulfillment of conditions.

4. Dispute Resolution Mechanisms

Including a clear dispute resolution mechanism in the SPA helps avoid costly and time-consuming litigation. Arbitration or mediation, as governed by Kenyan law, can provide a quicker and more private resolution process.

5. Data Protection Compliance

With the enactment of the Data Protection Act, 2019, SPAs must ensure that any personal data exchanged during the transaction (e.g., shareholder details) is handled in compliance with data protection principles. This includes obtaining consent for data sharing and ensuring secure storage.

Key Considerations for Drafting an SPA in Kenya

When drafting an SPA in Kenya, parties should consider the following:

• Engage Legal Experts: Given the complexity of SPAs, it is advisable to engage a qualified Kenyan lawyer to ensure compliance with local laws and to tailor the agreement to the specific transaction.

• Tax Implications: Share transfers may attract stamp duty (typically 1% of the transaction value) or capital gains tax. The SPA should clearly allocate tax responsibilities between the parties.

• Foreign Investment Rules: If the buyer or seller is a foreign entity, compliance with the Foreign Investments Protection Act and foreign exchange regulations is essential.

• Cultural and Market Factors: Understanding the local business environment, including market practices and corporate governance norms, can help avoid misunderstandings during negotiations.

Conclusion

A Share Purchase Agreement is a vital tool for facilitating the transfer of shares in Kenya while protecting the interests of both the buyer and the seller. By including essential clauses such as representations and warranties, indemnities, and dispute resolution mechanisms, parties can mitigate risks and ensure a smooth transaction. Compliance with Kenyan laws, thorough due diligence, and professional legal advice are critical to drafting an effective SPA.

For expert assistance in drafting or reviewing a Share Purchase Agreement in Kenya, contact us at +254 716 808 104 or info@lawguide.co.ke.