Legal Practice: Corporate & Commercial Law | International Trade | Commercial Contracts
Jurisdiction: Kenya
Last reviewed: 18 September 2026

Legal information notice: This article provides general information for Kenyan exporters. The legal requirements for a particular export can depend on the product, destination country, transaction structure, applicable trade agreement, governing law, regulatory requirements and dispute-resolution mechanism. A transaction-specific legal review is advisable before signing a significant international sales contract.

How Should a Kenyan Exporter Draft an International Sales Contract?

A Kenyan exporter should draft an international sales contract so that it clearly answers what is being sold, who is responsible for each stage of the transaction, when risk passes, how payment is made, which documents must be provided, which law governs the agreement and how disputes will be resolved.

A strong export sales contract should normally address:

Identity of the seller and buyer.
Description and specifications of the goods.
Quantity and tolerances.
Price and currency.
Incoterms® rule and named place.
Delivery date and shipment arrangements.
Transfer of risk and, where relevant, title.
Inspection and acceptance.
Packaging and labelling.
Export and import documentation.
Customs responsibilities.
Payment mechanism and payment security.
Taxes, duties and charges.
Warranties and quality standards.
Rejection, claims and remedies.
Insurance.
Force majeure.
Governing law.
Dispute resolution.
Sanctions, compliance and applicable regulations.
Confidentiality and intellectual property where relevant.
Electronic communications and signatures.
Data protection where personal data is processed.
Termination and consequences of termination.

The important principle is simple:

An international sales contract should allocate commercial risk deliberately rather than leaving important questions to assumptions, trade customs or email conversations.

1. Why International Sales Contracts Require More Detail

A domestic sale may involve a seller and buyer operating in the same legal and commercial environment.

An export transaction can involve:

Kenyan exporter → foreign buyer → freight forwarder → carrier → customs authorities → insurer → bank → destination customs → warehouse/distributor.

Each participant can introduce a different risk.

For example:

the goods may be damaged during transportation;
the buyer may delay payment;
customs may reject documentation;
the destination country may require a particular certificate;
the buyer may claim that the goods do not meet specifications;
currency movements may affect the transaction;
a shipment may be delayed;
a new regulatory restriction may affect export or import;
or the parties may disagree about which country’s law applies.

The contract should allocate these risks before the shipment leaves Kenya.

2. Start With the Parties — and Verify Them

The contract should identify the parties precisely.

For the Kenyan exporter, include:

full registered company name;
registration details;
registered address;
trading address where different;
KRA PIN where commercially appropriate;
authorised representative;
email address for contractual notices; and
banking details where appropriate.

For the foreign buyer, obtain equivalent information.

Do not rely solely on a trading name.

A company should establish:

Who is buying? → Where is it incorporated? → Who represents it? → Who has authority to sign? → Where is it located?

This becomes particularly important where the buyer operates through:

a subsidiary;
distributor;
purchasing agent;
branch;
representative office; or
intermediary.

Verify signing authority

The person signing the agreement should have authority to bind the contracting company.

The electronic execution of a document does not, by itself, resolve the separate question of corporate authority.

3. Define Exactly What Is Being Sold

One of the most common sources of disputes in international sales is an unclear description of the goods.

The contract should identify the goods with enough precision to allow the parties, logistics providers and customs authorities to understand exactly what is being sold.

Depending on the product, include:

product name;
model or product code;
grade;
size;
weight;
quantity;
quality;
technical specifications;
composition;
packaging;
country of origin;
shelf life;
applicable standards;
inspection requirements;
tolerances; and
relevant certificates.

For agricultural exports, additional requirements may include:

variety;
maturity;
grade;
size;
moisture;
residue requirements;
packaging;
traceability;
phytosanitary requirements; and
destination-market standards.

KEPHIS states that phytosanitary certification for plant and plant products is intended to demonstrate compliance with the importing country’s phytosanitary requirements.

For regulated horticultural exports, AFA requirements may also apply depending on the crop and transaction.

4. Use a Clear Product Schedule

For recurring exports, consider attaching a product schedule.

For example:

Item	Specification
Product	Kenyan Hass Avocados
Grade	As agreed
Size	As agreed
Quantity	20 metric tonnes
Packaging	Export-grade cartons
Origin	Kenya
Destination	Rotterdam, Netherlands
Quality standard	Contract specification
Inspection	Independent inspection before shipment

The exact commercial terms should be determined by the transaction.

The principle is that the contract should make it possible to answer:

What exactly must the exporter deliver?

5. Price and Currency Must Be Unambiguous

International contracts should specify:

unit price;
total contract value;
currency;
quantity on which the price is calculated;
whether the price includes freight;
whether insurance is included;
applicable taxes;
duties;
bank charges;
commissions;
discounts; and
adjustment mechanisms where applicable.

For example:

USD 4,500 per metric tonne, CIP Rotterdam, Incoterms® 2020.

That short statement carries considerably more meaning when the relevant Incoterms® rule is properly incorporated into the contract.

6. Choose the Correct Incoterms® Rule

Incoterms® rules are among the most important tools for drafting international sales contracts.

The International Chamber of Commerce currently identifies Incoterms® 2020 as the latest edition and describes the rules as standards that clarify the tasks, costs and risks involved in delivering goods. There are 11 Incoterms® 2020 rules.

They include:

EXW — Ex Works
FCA — Free Carrier
CPT — Carriage Paid To
CIP — Carriage and Insurance Paid To
DAP — Delivered at Place
DPU — Delivered at Place Unloaded
DDP — Delivered Duty Paid
FAS — Free Alongside Ship
FOB — Free On Board
CFR — Cost and Freight
CIF — Cost Insurance and Freight

Do not simply write “FOB”

A contract should state the precise formulation, for example:

FOB Mombasa Port, Kenya — Incoterms® 2020

The named place matters.

7. Incoterms® Do Not Replace the Sales Contract

This is an important drafting point.

Incoterms® rules allocate specific responsibilities relating to:

delivery;
risk;
transport;
insurance under relevant rules;
export/import formalities; and
certain costs.

They do not replace the entire sales agreement.

They do not, by themselves, determine every issue concerning:

ownership;
payment;
warranties;
remedies;
governing law;
dispute resolution;
intellectual property;
confidentiality;
contractual liability; or
termination.

ICC itself describes Incoterms® rules as terms for the delivery of goods rather than a complete set of contractual provisions.

Therefore:

Incoterms® should be incorporated into the contract, not used as a substitute for the contract.

8. Clearly Allocate Risk During Transportation

The contract should answer:

Who bears the risk if the goods are damaged during transport?

This depends partly on the selected Incoterms® rule.

For example, under CIP, ICC explains that risk transfers when the seller delivers the goods to the carrier, even though the seller contracts for carriage to the named destination.

That means the exporter should not assume:

“I am paying the freight, therefore I carry the risk until the goods reach the buyer.”

Those are different concepts.

A carefully drafted contract should distinguish:

Cost → risk → insurance → title.

9. Address Transfer of Title Separately

Risk and ownership are not necessarily the same thing.

The contract should specify when ownership or title passes if this matters to the transaction.

Kenya’s Sale of Goods Act provides that, for specific or ascertained goods, property passes at the time the parties intend it to pass, with the terms of the contract, conduct and circumstances being relevant to determining that intention.

Therefore, exporters should avoid assuming that an Incoterms® rule automatically answers the separate question of title.

A contract can expressly state:

“Title to the goods shall pass to the Buyer upon [specified event], subject to payment of the purchase price.”

The wording should be adapted to the transaction and applicable law.

10. Specify Delivery Dates and Shipment Windows

The contract should distinguish between:

contractual delivery date;
shipment date;
estimated arrival;
delivery window;
port of loading;
port of discharge;
final destination; and
permissible delay.

For recurring exports, consider whether delivery should be structured as:

one shipment;
several shipments;
monthly quantities;
quarterly quantities; or
shipment against purchase orders.

The contract should also state what happens when shipment is delayed.

11. Address Partial Shipments

Can the exporter make a partial shipment?

Can the buyer reject one shipment without terminating the entire contract?

These questions matter particularly where goods are exported in batches.

The contract should state:

whether partial shipment is permitted;
whether transshipment is permitted;
whether delivery by instalments is permitted;
how each shipment is invoiced;
whether a defective shipment affects future shipments; and
when a delay becomes a material breach.

12. Payment Terms Are a Core Risk-Control Mechanism

The payment clause should be one of the most carefully drafted sections.

Possible structures include:

Advance payment

The buyer pays before shipment.

Letter of credit

A bank-based payment mechanism can provide additional payment structure where the transaction justifies it.

Documentary collection

Banks handle specified commercial documents under the agreed collection arrangement.

Open account

The exporter ships before receiving payment.

Milestone payments

Payment occurs against agreed stages or documents.

Mixed structure

For example:

30% advance + 70% against specified shipping documents.

The appropriate structure depends on the buyer, country, transaction value and risk profile.

13. Protect Against Currency Risk

A Kenyan exporter may incur costs in:

Kenya shillings;
US dollars;
euros;
pounds;
or another currency.

The contract should therefore state the payment currency.

For longer-term arrangements, consider addressing:

exchange-rate adjustments;
currency conversion;
payment-date exchange rate;
bank charges;
withholding taxes where applicable; and
consequences of currency restrictions.

Do not leave currency assumptions to invoices.

14. Define the Required Shipping Documents

The contract should identify exactly which documents the exporter must provide.

Depending on the transaction, these may include:

commercial invoice;
packing list;
certificate of origin;
export declaration;
bill of lading;
airway bill;
insurance certificate;
inspection certificate;
phytosanitary certificate;
health certificate;
quality certificate;
certificate of conformity;
permits;
licences; and
other destination-specific documentation.

KRA states that export clearance documentation can include a commercial invoice, certificate of origin, permits or licences for restricted goods, PIN documentation, purchase orders/contracts and packing lists.

The precise documents depend on the goods and destination.

15. Make Documentation a Contractual Obligation

A strong contract should not merely say:

“The seller shall provide all necessary documents.”

That can create disputes about what “necessary” means.

Instead, use a schedule identifying:

Document	Responsible party	Timing
Commercial invoice	Exporter	Before shipment
Packing list	Exporter	Before shipment
Certificate of origin	Agreed party	Before/with shipment
Phytosanitary certificate	Exporter where applicable	Shipment
Bill of lading	Carrier/exporter process	Shipment
Insurance certificate	Party responsible under Incoterms®	Shipment

The schedule should be adjusted to the product and destination.

16. Check the Importing Country’s Requirements Before Signing

One of the biggest mistakes an exporter can make is drafting the contract based only on Kenyan export requirements.

The buyer’s country may impose additional requirements.

For example:

import permits;
product registrations;
labelling rules;
food safety requirements;
packaging rules;
plant-health requirements;
animal-health requirements;
conformity assessments;
certificates of origin;
language requirements;
product testing; or
sustainability documentation.

For plant products, KEPHIS specifically notes that the exporter should obtain the importing country’s requirements and comply with the applicable phytosanitary conditions.

The contract should allocate responsibility for obtaining each required document.

17. Be Precise About Quality Standards

The contract should identify the quality standard against which the goods will be assessed.

Possible standards include:

Kenyan standards;
international standards;
destination-country standards;
buyer specifications;
industry standards;
agreed laboratory specifications;
sample;
technical drawings; or
an attached product specification.

Kenya’s Sale of Goods Act contains statutory provisions concerning sales by description and sample, including requirements that goods correspond with their contractual description and, in appropriate circumstances, sample.

A recent Kenyan High Court decision has also applied section 16 of the Sale of Goods Act in considering fitness for purpose and quality issues.

The practical lesson is:

Do not use vague quality language where the transaction requires measurable specifications.

18. Decide How Inspection Will Work

The contract should establish:

who inspects the goods;
where inspection occurs;
when inspection occurs;
who pays;
which inspection standard applies;
whether an independent inspector is required;
what happens if inspection fails;
whether the inspection is final; and
whether the buyer retains rights to make claims after arrival.

For high-value exports, an independent inspection mechanism can reduce disputes.

19. Address Rejection and Claims

The contract should answer:

What happens if the buyer says the goods are defective?

Specify:

notification period;
evidence required;
inspection process;
testing procedure;
return procedure;
replacement;
repair where relevant;
refund;
price reduction;
credit;
rejection rights; and
consequences for future shipments.

The Sale of Goods Act contains provisions dealing with examination and acceptance of goods, including circumstances in which a buyer is deemed to accept goods.

For international sales, however, the contract should not rely blindly on default statutory rules. Draft the intended commercial process expressly.

20. Include Packaging and Labelling Requirements

Packaging can become a contractual issue when the buyer’s destination country imposes specific requirements.

The contract should specify, where relevant:

packaging material;
package dimensions;
weight;
pallet requirements;
markings;
barcodes;
batch numbers;
expiry dates;
country-of-origin markings;
handling instructions;
language requirements; and
environmental requirements.

This is particularly important for food, agricultural products, pharmaceuticals, chemicals and regulated goods.

21. Allocate Customs Responsibilities

The contract should clearly state who handles:

Export clearance

Who prepares and submits export documentation?

Import clearance

Who handles customs clearance in the destination country?

Import duties

Who pays?

Export taxes or levies

Who bears them?

Permits

Which party obtains each permit?

Customs delays

Who bears the consequences of a delay caused by incomplete documentation?

Incoterms® can allocate many responsibilities, but the contract should still identify the practical documentation process.

KRA states that exporters generally engage licensed customs clearing agents for export declarations and processing.

22. Consider the Rules of Origin

Where preferential tariff treatment may be available, the contract should identify the applicable origin requirements.

This can matter under:

EAC arrangements;
COMESA;
AfCFTA;
bilateral trade arrangements; or
other applicable preferential schemes.

Rules of origin determine whether goods qualify as originating products for preferential treatment.

For example, the EAC Rules of Origin provide for issuance of certificates of origin and require supporting evidence of originating status in the circumstances specified by the rules.

A Kenyan exporter should therefore avoid promising preferential tariff treatment unless the relevant origin requirements have been verified.

23. Include an Insurance Clause

The contract should establish:

whether insurance is required;
which party arranges it;
the insured value;
scope of cover;
risks covered;
claims procedure; and
beneficiary/insured parties where relevant.

The selected Incoterms® rule may impose insurance obligations on the seller or buyer.

But the parties should still ensure that the actual insurance arrangement matches the commercial risk.

24. Decide the Governing Law

An international sales contract should normally contain an express governing-law clause.

For example:

“This Agreement shall be governed by and construed in accordance with the laws of Kenya.”

Or the parties may select another legal system.

The choice should be deliberate.

Kenyan courts have recognised the principle of party autonomy in choosing the law applicable to a contract, subject to applicable qualifications such as legality and public policy.

But there is an important international-sales issue: the CISG.

25. Do Not Ignore the CISG

The United Nations Convention on Contracts for the International Sale of Goods (CISG) provides a uniform framework for international sales of goods.

UNCITRAL states that the CISG can apply to sales between parties whose places of business are in different contracting states and can also apply in other circumstances depending on private international law or the parties’ choice.

The current UNCITRAL status table lists 97 contracting states. Kenya is not listed among those contracting states.

This does not mean that a Kenyan exporter can ignore the CISG.

Suppose:

Kenyan exporter + buyer located in a CISG contracting state

The contract’s governing-law wording should be reviewed carefully.

If the parties choose the law of a CISG contracting state, the CISG may become relevant depending on the wording and applicable rules.

Therefore, the contract should expressly address whether the parties intend the CISG to apply or be excluded where that issue can arise.

This is a specialised drafting point that should be reviewed for the particular transaction.

26. Draft the Dispute-Resolution Clause Before There Is a Dispute

An international sales contract should answer:

Where and how will a dispute be resolved?

Possible mechanisms include:

Kenyan courts;
foreign courts;
arbitration;
mediation followed by arbitration;
mediation followed by litigation; or
another agreed mechanism.

For international transactions, arbitration can provide a framework for resolving disputes across jurisdictions.

Kenya’s Arbitration Act provides for recognition and enforcement of international arbitral awards and incorporates the New York Convention framework, to which Kenya acceded in 1989 with a reciprocity reservation.

27. Do Not Write a Weak Arbitration Clause

A clause saying:

“Any dispute shall be resolved by arbitration.”

may leave important questions unanswered.

A more developed clause can address:

arbitration institution;
rules;
seat;
number of arbitrators;
appointment procedure;
language;
governing law;
confidentiality;
interim measures; and
enforcement.

The choice of seat is particularly important because it determines the legal framework supervising the arbitration.

28. Governing Law and Jurisdiction Are Different

This distinction is frequently misunderstood.

Governing law

Answers:

Which law governs the contractual rights and obligations?

Jurisdiction

Answers:

Which court has authority to hear the dispute?

Arbitration seat

Answers:

Which legal jurisdiction supervises the arbitration?

These concepts can interact but are not necessarily identical.

A Kenyan exporter might, for example, agree to:

Kenyan substantive law;
arbitration seated in Nairobi;
English language; and
institutional arbitration under specified rules.

Alternatively, the parties may agree on different arrangements.

The appropriate structure depends on the transaction.

29. Include Force Majeure

International trade is exposed to events beyond either party’s control.

A force-majeure clause should address events such as:

war;
embargoes;
port closures;
government restrictions;
natural disasters;
epidemics where appropriate;
strikes;
serious transport disruption;
export restrictions;
import restrictions;
major infrastructure failures; and
other specified events.

The clause should also state:

notice requirements;
mitigation obligations;
duration;
suspension of obligations;
allocation of additional costs; and
when either party can terminate.

Avoid defining force majeure so broadly that ordinary commercial difficulty becomes an excuse for non-performance.

30. Consider Regulatory and Sanctions Compliance

A Kenyan exporter may transact with buyers, banks, freight providers or intermediaries located in several jurisdictions.

Depending on the transaction, the contract may need provisions concerning:

sanctions;
export controls;
anti-bribery laws;
anti-money-laundering requirements;
prohibited destinations;
restricted products;
end-user requirements; and
compliance representations.

These requirements can vary significantly by destination and product.

The exporter should conduct appropriate due diligence rather than relying solely on a standard clause.

31. Address Data Protection in Digital Export Contracts

International sales increasingly involve electronic systems.

A Kenyan exporter may exchange:

buyer contact information;
employee information;
passport or identification information;
delivery information;
payment details;
customs information;
signatures; or
information relating to individual representatives.

Where personal data is transferred outside Kenya, the Data Protection Act and applicable regulations need to be considered.

Kenya’s Data Protection Act contains provisions addressing transfers of personal data outside Kenya, including circumstances involving safeguards and specified contractual or legal bases.

Therefore, where the transaction involves international processing of personal data, the contract should address the relevant data-protection responsibilities.

32. Electronic Signatures Can Be Used in Export Contracts

A Kenyan exporter does not necessarily need a physical signing ceremony for every international contract.

KICA provides that offers and acceptances may be expressed through electronic messages and that a contract cannot be denied validity solely because electronic messages were used in its formation.

KICA also contains provisions concerning attribution of electronic messages and advanced electronic signatures.

For significant export contracts, however, the exporter should preserve:

the final signed agreement;
signing certificates where applicable;
audit trail;
identity-verification information;
authorisation records;
relevant email correspondence; and
amendments.

The objective is to be able to prove what was signed, by whom, when and under what authority.

33. Protect Against Electronic Payment Fraud

International exporters should pay particular attention to changes in:

bank accounts;
beneficiary details;
payment instructions;
intermediary details; and
contact information.

A fraudulent email can appear to come from a legitimate buyer or exporter.

The contract can establish a procedure for changing payment details.

For example:

“No amendment to the Seller’s nominated bank account shall be effective unless independently verified through the designated verification procedure.”

The exact procedure should be designed around the company’s actual controls.

34. Include Limitation of Liability Provisions Carefully

International transactions can create substantial exposure.

The contract should consider:

direct losses;
indirect losses;
consequential losses;
lost profits;
product liability;
recall costs;
transportation losses;
regulatory penalties;
intellectual-property claims; and
third-party claims.

A limitation-of-liability clause should also identify any agreed exceptions.

Do not simply copy a foreign limitation clause into a Kenyan export agreement without reviewing whether it works under the governing law.

35. Address Product Liability and Recalls

For products entering foreign markets, consider what happens if:

the product causes injury;
a regulatory authority rejects the product;
a batch fails testing;
contamination is discovered;
a product must be recalled; or
the buyer faces claims from downstream customers.

The contract can establish:

notification procedures;
investigation;
testing;
recall responsibilities;
allocation of costs;
insurance;
indemnities; and
cooperation requirements.

36. Include a Clear Termination Mechanism

The contract should explain when either party may terminate.

Possible grounds include:

material breach;
repeated late payment;
insolvency;
regulatory prohibition;
prolonged force majeure;
sanctions exposure;
failure to meet quality requirements; or
failure to obtain required permits.

It should also explain what happens after termination.

For example:

outstanding payments become due;
goods already manufactured are treated in a specified manner;
confidential information is returned;
documents are retained;
outstanding claims survive; and
dispute-resolution provisions remain effective.

37. Use Schedules Instead of Overloading the Main Contract

A sophisticated international sales agreement can use schedules for technical details.

Schedule 1 — Product specifications

Schedule 2 — Pricing

Schedule 3 — Delivery schedule

Schedule 4 — Quality standards

Schedule 5 — Required documents

Schedule 6 — Packaging and labelling

Schedule 7 — Inspection procedure

This makes the main contract easier to update while preserving the legal framework.

38. A Model Structure for a Kenyan Export Sales Contract

A practical international sales agreement can follow this structure:

1. Parties

Legal identity and addresses.

2. Definitions

Key commercial and legal terms.

3. Goods

Detailed product description.

4. Quantity

Quantity, tolerances and shipment schedule.

5. Price

Unit price, currency and adjustments.

6. Payment

Payment method, timing and security.

7. Delivery

Delivery obligations and schedule.

8. Incoterms®

Selected rule, named place and edition.

9. Risk and title

Separate treatment where required.

10. Shipping and documentation

Required documents and responsibilities.

11. Inspection

Testing and acceptance.

12. Quality and warranties

Specifications and remedies.

13. Packaging and labelling

Destination requirements.

14. Insurance

Responsibility and coverage.

15. Customs and regulatory compliance

Export/import obligations.

16. Taxes and duties

Allocation of charges.

17. Force majeure

Events beyond reasonable control.

18. Confidentiality

Protection of information.

19. Intellectual property

Where applicable.

20. Data protection

Where personal data is processed.

21. Compliance

Sanctions, anti-bribery and regulatory obligations where applicable.

22. Limitation of liability

Risk allocation.

23. Indemnities

Specified third-party or contractual risks.

24. Termination

Termination rights and consequences.

25. Governing law

Applicable substantive law.

26. Dispute resolution

Court or arbitration mechanism.

27. Notices

Contractual communication method.

28. Electronic execution

Electronic signatures and counterparts.

29. Entire agreement

Relationship between contract documents.

30. Amendments

How changes become binding.

31. Assignment

Whether rights can be transferred.

32. Severability

Effect of invalid provisions.

33. Waiver

Treatment of failure to enforce rights.

34. Counterparts

Execution of multiple copies/electronic counterparts.

39. Kenyan Export Contract Checklist

Before signing, an exporter should ask:

Commercial

☐ Who is the buyer?
☐ What exactly is being sold?
☐ What quantity is required?
☐ What is the price?
☐ Which currency applies?
☐ When must payment be made?

Delivery

☐ Which Incoterms® rule applies?
☐ What is the named place?
☐ When does risk transfer?
☐ Who arranges transport?
☐ Who arranges insurance?
☐ Who handles import clearance?

Documentation

☐ Commercial invoice
☐ Packing list
☐ Certificate of origin
☐ Export declaration
☐ Bill of lading/airway bill
☐ Inspection certificate
☐ Phytosanitary certificate where applicable
☐ Other destination-specific certificates

Quality

☐ Product specifications
☐ Applicable standards
☐ Testing procedure
☐ Inspection procedure
☐ Rejection process
☐ Claims period

Legal

☐ Governing law
☐ CISG position considered
☐ Dispute-resolution mechanism
☐ Arbitration seat if applicable
☐ Jurisdiction
☐ Force majeure
☐ Termination
☐ Liability limitations

Risk

☐ Payment security
☐ Currency risk
☐ Transport risk
☐ Insurance
☐ Regulatory risk
☐ Product liability
☐ Cybersecurity/payment fraud
☐ Data protection

40. Common Mistakes Kenyan Exporters Should Avoid

1. Using a purchase order as the entire contract

A purchase order may not adequately allocate international legal and commercial risk.

2. Writing “FOB” without identifying the port and Incoterms® version

The named place and applicable edition matter.

3. Assuming the buyer will handle everything after shipment

The contract must establish responsibility clearly.

4. Using vague product descriptions

Words such as “premium quality” can create disputes if the parties have different expectations.

5. Ignoring destination-country requirements

A product that can legally leave Kenya may still face import restrictions abroad.

6. Leaving payment security to trust

International enforcement can be costly. Payment arrangements should reflect the buyer and transaction risk.

7. Ignoring the CISG

Where a transaction involves a CISG contracting state, the parties should deliberately consider whether the Convention applies.

8. Treating title and risk as the same thing

They may pass at different times.

9. Using a weak dispute-resolution clause

A vague clause can create disputes about the dispute process itself.

10. Signing a foreign buyer’s template without legal review

The template may assume laws, regulations and remedies that do not fit the Kenyan exporter.

41. What Documents Should a Kenyan Exporter Have Before Shipment?

Depending on the goods and destination, an exporter may need a combination of:

signed sales contract;
purchase order;
commercial invoice;
packing list;
certificate of origin;
customs export declaration;
applicable permits;
inspection certificates;
phytosanitary certificate;
bill of lading;
airway bill;
insurance documentation;
export licences;
product certificates; and
destination-country documents.

KRA identifies commercial invoices, certificates of origin, relevant permits/licences, PIN documentation, purchase orders/contracts and packing lists among export-clearance documentation.

Requirements vary according to the goods and destination.

42. Exporters Should Also Monitor Current Customs Requirements

International sales contracts should be drafted with the actual logistics and customs process in mind.

For example, KRA currently states that an Advance Cargo Declaration (ACD) platform became operational for containerised cargo destined for Kenyan ports from 3 August 2026, with the shipper/exporter required to obtain an ACD Reference Code before loading and the code being endorsed on the Bill of Lading.

This is a good illustration of why export contracts should not assume that logistics requirements remain static.

The legal and operational checklist should be reviewed before shipment.

43. Why Kenyan Exporters Need Transaction-Specific Contracts

A Kenyan exporter of:

tea,
coffee,
flowers,
avocados,
processed food,
textiles,
manufactured goods,
machinery,
software-related products,
pharmaceuticals,
chemicals,
minerals, or
other goods

may face completely different regulatory and commercial risks.

There is therefore no single “Kenya export contract” that works for every transaction.

A good contract reflects:

the product + buyer + destination + transport method + payment method + regulatory environment + applicable law + enforcement strategy.

44. How a Kenyan Commercial Lawyer Can Help

A lawyer reviewing an international sales contract should look beyond grammar and formatting.

The legal review should consider:

Contract formation

Is there a clear and enforceable agreement?

Risk allocation

Who carries the major commercial risks?

Delivery

Does the Incoterms® rule match the actual logistics arrangement?

Payment

What happens if the buyer does not pay?

Quality

What objectively determines conformity?

Regulatory compliance

Who obtains each licence and certificate?

Governing law

Which legal system governs?

CISG

Has its possible application been addressed?

Dispute resolution

Can the exporter realistically enforce its rights?

Data and cybersecurity

Are electronic contracting and data-processing risks addressed?

Termination

Can the exporter exit if the commercial relationship becomes untenable?

45. Final Takeaway

For a Kenyan exporter, an international sales contract is more than a document recording the price of goods.

It is the legal framework that allocates the risks created by distance, transportation, payment, customs, regulation, quality, currency, technology and different legal systems.

A properly drafted contract should make the following clear:

What is being sold?

At what price?

When must it be delivered?

Who arranges transport?

When does risk transfer?

When does title transfer?

Who obtains each export and import document?

Who bears duties and other charges?

What happens if the goods are defective or delayed?

Which law governs the contract?

Does the CISG apply?

Where will disputes be resolved?

How will an award or judgment be enforced?

How are electronic records, payments and personal data protected?

For Kenyan exporters entering international markets, answering these questions before signing the contract can be substantially more effective than trying to resolve them after a shipment, payment or quality dispute has already arisen.

Frequently Asked Questions

What should a Kenyan export sales contract contain?

At minimum, it should clearly address the parties, goods, quantity, price, currency, payment, delivery, Incoterms®, risk, title, documentation, quality, inspection, warranties, customs responsibilities, force majeure, governing law and dispute resolution.

Which Incoterms® should Kenyan exporters use?

There is no universally appropriate Incoterms® rule. The appropriate rule depends on the goods, transport method, logistics structure and commercial allocation of risk. The contract should specify the selected rule, named place and Incoterms® 2020.

Should a Kenyan exporter use Kenyan law?

The parties can choose governing law subject to applicable legal constraints. Whether Kenyan law is appropriate depends on the transaction, counterparty, destination and enforcement considerations.

Does the CISG apply to Kenyan exporters?

Kenya is not listed as a CISG contracting state in the current UNCITRAL status table. However, the CISG can become relevant to an international sale depending on the other party’s country, applicable private international law and the parties’ contractual choices.

Can an international sales contract be signed electronically?

Kenyan law recognises electronic contract formation and provides a framework for electronic signatures and electronic messages. The specific transaction should still be reviewed for any statutory formalities that apply.

Who pays customs duties in an export transaction?

The answer depends on the transaction and, where incorporated, the selected Incoterms® rule. The contract should state the allocation clearly rather than relying on assumptions.

What happens if an international buyer does not pay?

The contract should establish payment security, default provisions, interest where appropriate, suspension/termination rights and the dispute-resolution mechanism. The appropriate remedy will also depend on the governing law.

Should Kenyan exporters use arbitration?

Arbitration can be useful for international transactions, particularly where enforcement across jurisdictions matters. The clause should be drafted carefully to address the institution or rules, seat, language, appointment and enforcement. Kenya’s Arbitration Act provides a framework for international arbitration and enforcement of foreign arbitral awards.