Why You Should Never Draft These Documents Yourself.A document you draft yourself may be legally worthless — or legally catastrophic. Get it professionally drafted →
✍ A document you draft yourself may be legally worthless — or legally catastrophic. Get it professionally drafted →
Every week, in courts across Kenya, a judge considers a document that someone drafted themselves — a Will scrawled on a notebook page, a "partnership agreement" typed on WhatsApp and printed, a tenancy agreement copied from the internet, an employment contract assembled from a Google template. And every week, these documents cause the same outcome: confusion, litigation, financial loss, and sometimes the complete destruction of relationships, businesses, and estates that took a lifetime to build.
I am Advocate Purity K Mbaabu of Purity K Mbaabu & Associate Advocates, a licensed law firm of the High Court of Kenya. I practise across real estate, corporate, employment, family, and intellectual property law. In this article, I want to be direct with you — not to generate business, but because I have seen the consequences of DIY legal drafting up close, and they are serious enough to warrant plain speaking.
Certain documents are not simply paperwork. They are legal instruments that derive their power and effect from precise compliance with statutory requirements, established common law principles, and court-sanctioned formalities. When drafted incorrectly — or drafted without understanding these requirements — they do not merely fail to achieve their purpose. They often achieve the opposite.
Under Kenyan law, a document has legal effect not because it exists in writing, but because it meets specific legal requirements — the correct parties, the correct formalities, the correct language, the correct execution, and often registration or notarisation. A document that fails any of these requirements may be void ab initio — meaning it never had legal effect from the moment it was created. There is no "mostly valid" in law.
The Law of Succession Act (Cap. 160) contains some of the most prescriptive formality requirements in Kenyan law. A Will that does not satisfy these requirements is not simply weak — it is legally void and has no effect whatsoever. Your estate will be distributed as though you never made a Will at all, under the intestacy provisions of the Act — which may bear no resemblance to your wishes.
Under Section 11 of the Law of Succession Act, a valid Will must be in writing; signed or acknowledged by the testator at the foot or end of the Will in the simultaneous presence of at least two competent witnesses; and those witnesses must attest and subscribe the Will in the presence of the testator and of each other. A Will that is typed on a template, signed without proper witnesses, or witnessed by a beneficiary (whose gift under the Will is then automatically void under Section 13) is either wholly invalid or partially defeated. Beyond formalities, a properly drafted Will must unambiguously identify beneficiaries, describe property with legal precision, appoint a competent executor, include appropriate contingency provisions, and — critically — address residuary estate. A Will drafted without legal knowledge routinely fails on every one of these points.
A Trust Deed creates a three-party legal relationship between the settlor (who transfers assets), the trustee (who holds and manages them), and the beneficiaries (who benefit from them). The deed must precisely define the trust property, the powers and duties of the trustee, the discretionary or mandatory nature of distributions, the mechanism for appointing and removing trustees, and the circumstances for variation or dissolution. A trust created without clear beneficial interest definitions and trustee powers is a recipe for litigation. Additionally, the tax implications of different trust structures under the Income Tax Act must be properly considered — something no internet template accounts for.
A letter of wishes accompanies a discretionary trust or a Will and guides the trustee or executor on how to exercise their discretion. While not legally binding in itself, it must be carefully worded so that it does not inadvertently create legally binding obligations on the trustee, does not contradict the trust deed, and does not undermine the trust's validity by suggesting a sham.
Gifting property to a child, spouse, or relative is a legal transaction that requires a properly drafted Transfer and compliance with the Stamp Duty Act, Land Registration Act, and potentially the Matrimonial Property Act. A "letter" or informal document expressing an intention to give property has no legal effect on title. Only a properly executed and registered Transfer changes legal ownership.
A businessman prepared his own Will using a template, listing his properties by their common names rather than their legal parcel numbers. Upon his death, the High Court in succession proceedings found the descriptions too ambiguous to identify the specific parcels with legal certainty. Two of his three properties fell into intestacy and were distributed among his heirs by the court — not according to his clearly stated wishes. A lawyer would have cross-referenced every property against the registered title in the Land Registry. The cost of the Will that was never drafted: a contested succession that took four years and legal fees exceeding KSh 1.2 million.
Under Section 37 of the Advocates Act (Cap. 16), the preparation of any instrument relating to the creation, transfer, extinguishment, or recording of an interest in land is reserved exclusively for licensed advocates. It is not merely advisable for a lawyer to draft property documents — in many cases, it is a legal requirement. A document prepared by a non-advocate in contravention of this section is of questionable enforceability and may be unpresentable to the Land Registrar.
A Sale Agreement for property is not a simple receipt. It must comply with the formal requirements of the Land Registration Act and Law of Contract Act. It must correctly describe the property by reference to its legal parcel number, identify all parties with precision, detail the conditions precedent (including Land Control Board consent where required under the Land Control Act), set out the completion mechanism, provide for risk and insurance, address vacant possession, and include professional indemnity warranties as to title. A self-drafted Sale Agreement that omits critical provisions — or worse, includes them incorrectly — may be void for uncertainty, unenforceable, or binding in ways wholly contrary to your intentions.
The Transfer is a statutory instrument whose preparation is reserved for advocates under the Advocates Act. It must precisely match the details on the title deed and official search, include correct consideration, stamp duty assessment, and certification of compliance. The Land Registrar will reject — and is required to reject — a Transfer that is defective in form, incorrectly executed, or not presented by an advocate.
Commercial leases regulated by the Landlord and Tenant Act require specific statutory provisions — particularly around renewal rights, goodwill, and compensation. A lease that omits, contradicts, or incorrectly invokes these provisions either deprives the tenant of statutory protections or creates unenforceable obligations on the landlord. The rent review mechanism, forfeiture clause, dilapidations obligations, service charge provisions, permitted use restrictions, and alienation (subletting) rights are all areas where self-drafted leases routinely create costly ambiguity.
A Power of Attorney used in land transactions must be drafted in compliance with the Land Registration (General) Regulations, 2017 — specifically conforming to the prescribed form in the Seventh Schedule. It must be stamped, registered at the Land Registry using Form LRA 5, and executed with proper notarisation if the Donor is abroad. A PoA drafted on a plain paper template, without compliance with these specific requirements, will be rejected by the Land Registrar as insufficient authority for the attorney to execute any land instrument.
Creating a charge over land as security for a loan is a highly regulated transaction under Part VIII of the Land Act. The charge instrument must comply with statutory requirements for execution, incorporate a statutory power of sale in compliant terms, and be registered to be enforceable against third parties. A self-drafted charge that omits the statutory redemption provisions or fails to comply with the prescribed execution formalities may be void as a security instrument — meaning the lender has no enforceable claim on the property.
The Companies Act, No. 17 of 2015 replaced the Companies Act (Cap. 486) wholesale and introduced significant changes to company formation, governance, and documentation requirements. Corporate documents that were compliant before 2015 may no longer be — and templates that circulate online are frequently based on the old Act. The commercial consequences of a defective corporate document can include voided transactions, personal liability for directors, and unresolvable deadlocks between shareholders.
A shareholder agreement is the most important document a company will ever have — more important, in many respects, than the Articles of Association, because it governs what happens when shareholders disagree. It must address: voting thresholds for reserved matters; pre-emption rights on share transfers; drag-along and tag-along rights; anti-dilution provisions; dividend policy; remuneration of founder-directors; deadlock resolution mechanisms; and exit provisions including put and call options. A self-drafted shareholder agreement that omits deadlock provisions has, in my practice, been the single most common cause of company dissolution through litigation. You cannot draft this document adequately without understanding company law, contract law, and corporate finance simultaneously.
The Partnerships Act, 2012 creates default rules that apply to every partnership that has no written deed — and those rules are frequently contrary to what partners actually agreed. Without a deed, profits and losses are shared equally regardless of contribution; any partner can bind the firm without limit; and dissolution can be triggered by the death, bankruptcy, or resignation of any partner with no buy-out mechanism. A properly drafted partnership deed overrides these destructive defaults and replaces them with the commercial terms the partners actually intend.
The Articles are the constitutional document of every company, binding the company and every shareholder as a statutory contract under Section 34 of the Companies Act. Model Articles under the Act are generic and may be entirely inappropriate for your specific company — particularly for companies with multiple share classes, investor rights, or complex governance structures. Bespoke Articles drafted by a lawyer ensure the company's governance reflects the founders' commercial intentions from day one.
Before accepting investment from any external party, the terms must be documented in a legally precise investment agreement. Anti-dilution provisions, liquidation preferences, information rights, board representation, veto rights, and step-in rights are all standard investor protections — and each one has a specific legal and commercial meaning that affects the founders' long-term control and economics. A founder who signs an investor term sheet without legal advice frequently discovers, years later, that they have surrendered far more than they intended.
Selling or acquiring a business requires a comprehensive Sale and Purchase Agreement covering representations and warranties, indemnities, conditions precedent, transitional arrangements, employee transfer obligations under TUPE principles as applied in Kenya, non-compete provisions for the seller, and completion accounts. A self-drafted agreement invariably fails to allocate risk properly between buyer and seller — and when the business turns out to be different from what was represented, there is no contractual remedy.
The Employment Act, 2007, the Labour Relations Act, 2007, the Work Injury Benefits Act, 2007, and the National Labour Commission Act create a comprehensive framework of minimum employment standards in Kenya. An employment contract that falls below statutory minimums is not simply unenforceable — the statutory minimum applies automatically in its place, and the employer may still face liability for failing to comply with what the law required regardless of what the contract said.
Section 10 of the Employment Act mandates that every employee receive a written statement of employment particulars within two months of commencing employment. But "written statement" is not the same as a properly drafted employment contract. A lawyer-drafted contract goes beyond the statutory minimum: it specifies notice periods that are commercially appropriate, includes enforceable IP assignment clauses (ensuring the employer owns all work product), creates valid confidentiality obligations, includes lawful probationary periods with correct performance management provisions, and incorporates enforceable — not merely aspirational — restraint-of-trade provisions. A Google-template employment contract typically does none of these things correctly.
Section 41 of the Employment Act requires that before any disciplinary action is taken, the employee must be given a fair hearing and an opportunity to respond to allegations, with the right to be represented by a fellow employee or shop steward. Your disciplinary procedure must be drafted to operationalise this statutory right correctly. A procedure that short-circuits the Section 41 hearing process — however many internal "warnings" it purports to require — results in every dismissal made under it being challenged as procedurally unfair before the Employment and Labour Relations Court.
A settlement agreement that extinguishes an employee's right to bring claims under the Employment Act must be drafted with care. The scope of the release — what claims are being settled — must be precisely defined. A broadly worded release clause that attempts to extinguish all possible statutory claims may be challenged as contrary to public policy. An employee who later claims the settlement was not entered voluntarily, with full knowledge of their rights, can revisit it before the ELRC.
Under Section 30 of the Copyright Act, an assignment of copyright must be in writing and signed by the assignor to be effective. A verbal agreement to "hand over" creative work — a logo, a website, a photograph, a piece of music, marketing content — has no legal effect on copyright ownership. The creator retains copyright until a properly executed written assignment is in place. A self-drafted "IP waiver" that fails to use correct assignment language, identify the specific works being assigned, or address moral rights may not transfer copyright at all — meaning your branding or content is legally owned by the designer or developer who created it.
The Data Protection Act imposes mandatory obligations on every data controller and data processor in Kenya — including obligations to provide a lawful basis for processing, publish a compliant privacy notice, implement data subject rights procedures, enter into written data processing agreements with processors, and register with the Office of the Data Protection Commissioner. A privacy policy copied from a foreign website or generated by a chatbot does not comply with Kenyan law. The ODPC has powers to impose administrative fines and order cessation of processing for non-compliance.
Commissioning software development requires a contract that addresses: IP ownership of all code and deliverables; source code escrow or access rights; acceptance testing criteria and procedures; warranty periods and liability for defects; data handling and security obligations; confidentiality obligations; termination rights and handover of assets; and ongoing maintenance and support terms. A self-drafted software contract — or worse, no contract at all — typically results in the developer retaining all IP rights and the business having no enforceable recourse for delivered software that is buggy, late, or abandoned.
Section 6 of the Matrimonial Property Act expressly recognises the right of parties to a marriage to regulate their matrimonial property by written agreement. But such an agreement, to be enforceable, must be: entered voluntarily, without duress or undue influence; supported by full financial disclosure from both parties; fair and not unconscionable at the time of signing; and ideally, with each party having had independent legal advice. A prenuptial agreement drafted informally — without proper financial disclosure schedules, independent advice provisions, and sunset or review clauses — is highly vulnerable to challenge and may be set aside entirely by a court.
A separation agreement governs the financial arrangements, property division, maintenance obligations, and parenting responsibilities of parties who have separated but not yet divorced. For it to be enforceable, it must address all matrimonial property (including property held in other parties' names), child maintenance in compliance with the Children Act, spousal maintenance obligations, and — critically — what happens on either party's death before the divorce is finalised. A document drafted without these provisions is incomplete and routinely litigated.
Kenya currently lacks specific surrogacy legislation, but agreements between commissioning parents and surrogate mothers have been considered by courts. The legal parentage, financial arrangements, medical decision-making rights, and obligations of all parties must be clearly documented to provide the maximum possible protection — for the child, the commissioning parents, and the surrogate. These documents must be drafted with sensitivity to the constitutional principles around the best interests of the child.
An arbitration clause in a commercial contract must be precisely drafted to be enforceable as a bar to court proceedings under Section 6 of the Arbitration Act. It must identify the arbitral rules or appointing authority, the seat of arbitration, the number of arbitrators, the language of proceedings, and any applicable time bars. A self-drafted clause that is "pathological" — ambiguous, contradictory, or incomplete — may be unenforceable, meaning a party can ignore the arbitration clause and go directly to court, or conversely, may be stuck in litigation for years about whether arbitration was agreed at all.
A debenture creating a fixed and floating charge over a company's assets must be in the prescribed form, registered at the Companies Registry within 30 days of creation under the Companies Act, and comply with the priority provisions of the Insolvency Act. An unregistered charge is void against a liquidator and any creditor of the company. A self-drafted debenture that fails to correctly define the charged property, crystallisation events, or priority ranking may be partially or wholly void as a security instrument.
Informal investment groups — chamas, table banking groups, and investment clubs — manage billions of shillings collectively in Kenya. Yet most operate on verbal arrangements or hastily typed constitutions that omit the most critical provisions: voting thresholds for major decisions, admission and exit of members, valuation of a departing member's share, distribution of profits and losses, governance of the chairperson and treasurer's powers, and dissolution procedures. When money grows large enough, every absent provision becomes a dispute.
Correspondence, applications, and formal responses to regulatory bodies — NEMA, the Communications Authority, the Capital Markets Authority, and the Kenya Revenue Authority — carry legal consequences and statutory deadlines. A response to a KRA objection, an application for a regulatory licence, or a compliance report to a regulatory authority must be drafted with precision by an advocate who understands the relevant statutory framework, the penalties for non-compliance, and the applicable appeal procedures.
The Complete List — Documents That Must Be Lawyer-Drafted
For easy reference, here are all document categories that require professional legal drafting to have full legal effect and provide proper protection:
This blog post is published by Purity K Mbaabu & Associate Advocates for general informational and educational purposes only. Nothing in this article constitutes legal advice, and no reader should treat the content herein as a substitute for specific, individual legal advice from a qualified and licensed advocate of the High Court of Kenya. The legal frameworks, statutory requirements, and consequences described reflect the general position under Kenyan law as at the date of publication and are subject to change. Every document and transaction is unique, and the applicable legal requirements and risks will vary according to the specific facts and circumstances of each situation. Purity K Mbaabu & Associate Advocates expressly disclaims all liability for any loss, damage, or adverse outcome arising from reliance on this publication without obtaining proper, independent legal advice. Readers are strongly encouraged to book a consultation before drafting, signing, or relying on any legal document.
Comments
Post a Comment