By Jerameel Kevins Owuor Odhiambo
Kenya has in recent years seen a marked rise in intellectual property (IP) creation, particularly in sectors like manufacturing, agribusiness, and education. Universities and research institutions are increasingly filing patents, with Kenya being one of the top designated states in regional patent applications via ARIPO. The government has established legal frameworks such as the Industrial Property Act, the Trademarks Act, and the Copyright Act to protect various forms of IP. Despite these laws, many innovations in Kenya remain uncommercialized due to lack of awareness, funding, and weak linkages between inventors and the market. There is also increasing institutional support, such as Technology Transfer Offices (TTOs) in universities (for example JKUAT) collaborating with national innovation agencies.
A major challenge is financing: innovators often struggle to find capital to take an idea from prototype to market, while valuing IP assets remains weak due to few experts in IP valuation. Additionally, legal enforcement of IP rights is costly and slow, making it especially difficult for small and medium enterprises (SMEs) to pursue claims. There is also a gap in institutional capacity, for example many TTOs lack strong staff, or the formal structure, incentives or resources to actively commercialize inventions. The problem of awareness is another – many creators do not know how to protect or exploit their IP, or even what rights they have. Finally, regulatory and market distortions, including competition law constraints, sometimes restrict how IP rights can be used in licensing or other agreements.
One common route to monetize IP is through licensing. Under a licensing agreement, the IP owner (licensor) grants another party (licensee) the right to use the IP under agreed terms, for example geographic territory, duration, scope (exclusive or non-exclusive), and royalties or fees. In Kenya, licensing allows creators who may not have the resources to commercialize themselves to partner with larger firms that have markets and capacity. Legal solutions to improve licensing outcomes include standardizing licensing templates, ensuring transparent royalty structures, and including enforcement mechanisms in contracts. Also, having a registry or mechanism at KIPI (Kenya Industrial Property Institute) to track licensing agreements may help provide certainty.
Another way is IP assignment, where the owner transfers ownership of the entire IP (or part of it) to another party, who then has full rights to exploit it. Assignments can yield immediate revenues for inventors but entail giving up future returns, so the price must reflect both current and future potential. Legal safeguards here include ensuring the assignment agreement is in writing, includes warranties (e.g. no prior conflicting rights), records assignment in the relevant IP register (e.g. at KIPI), and provides for possible residual rights (such as moral rights, or residual royalties, if agreed).
Franchising is another commercialization route especially for business models or brands: the franchisor grants a franchisee the rights to use trademarks, trade secrets, business methods among others, often for fees and royalties. Particularly well‐known brands in retail, hospitality, or quick service restaurants in Kenya use franchising. Merchandising (for example using character rights, branded designs etc.) is also used especially in entertainment or media sectors. Legal considerations include protecting brand identity (trademark registration), ensuring quality control in franchise agreements, establishing clear territorial rights, and ensuring franchise agreements comply with Kenyan laws (including competition law and consumer protection law).
Kenya’s Moveable Property Security Rights Act (2017) allows movable assets, potentially including registered IP, to be used as security for loans. This enables innovators to access capital without having to sell or licence their IP. Securitization involves forming special purpose vehicles (SPVs) to issue securities backed by future income streams from IP (like royalties) or other monetizable rights. Legal solutions to this way include clear legal recognition of the IP as collateral in transactional law, ensuring registration systems are functioning so lenders can record security interest over IP, and clarifying rights in default (what happens if borrower fails to repay, how the IP is transferred or exploited).
Spin‑off companies (from universities or research institutions) translate research outputs into commercial entities. Such start‑ups often attract investment and can bring to market innovations that individual inventors cannot commercialize alone. Joint ventures and collaborations (between public institutions, private firms, sometimes foreign partners) allow pooling resources, expertise, and networks, especially useful in fields needing high R&D, say biotechnology or ICT. Legal solutions include having clear agreements of ownership, profit sharing, licensing of background and foreground IP, clauses on dispute resolution, exit strategies, and ensuring compliance with national and international IP and competition laws.
To support all these ways, legal and institutional frameworks need strengthening. First, capacity building: more legal experts in IP valuation, more skilled staff in TTOs, more awareness among creators about IP rights. Regulatory reforms might include simplifying and speeding up the registration process for IP (patents, trademarks etc.), reducing costs, perhaps through subsidies or grants. Strengthening enforcement via specialized IP courts or divisions, or more efficient administrative or ADR (alternative dispute resolution) for IP disputes. Also, improving coherence among institutions (KIPI, KECOBO, ACA, KeNIA), ensuring support to innovators from stage of concept through to commercialization.
In conclusion, commercialization of IP in Kenya holds significant promise for economic growth, innovation, and job creation. While there are legal frameworks in place, realizing this potential requires overcoming gaps in funding, awareness, valuation, and enforcement. The six main commercialization pathways licensing, assignment, franchising/merchandising, collateral/securitization, spin‑offs/collaborations, and direct exploitation offer diverse avenues depending on the nature of the IP and resources available. Legal solutions such as standardized contracts, clear registration and rights recording, robust enforcement, capacity building, and institutional coordination are central to enabling those pathways to succeed. Stakeholders government, universities, private sector, innovators must work together to implement these solutions so Kenya can better harness its intellectual creative output for sustainable development.
The Writer is a Legal Writer and Researcher
Mt Kenya Times