Kenya’s Competition Act No. 12 of 2010 establishes a comprehensive competition law regime administered by the Competition Authority of Kenya (CAK). The Act prohibits anti-competitive agreements, abuse of dominance, and mergers that substantially lessen competition.
Anti-Competitive Agreements
Section 21 prohibits agreements between competitors that restrict competition. Price-fixing, market sharing, bid rigging, and output limitation are per se prohibited. Vertical agreements are assessed under the rule of reason and are prohibited only if they substantially lessen competition.
Abuse of Dominant Position
A business with a market share above 50 per cent has additional obligations. Dominance is not itself prohibited. Abusing that dominance is. Prohibited conduct includes predatory pricing, exclusive dealing arrangements designed to foreclose competition, tying, and refusal to supply on terms that harm competition.
Merger Control: Mandatory Notification
Mergers above specified thresholds must be notified to and approved by the CAK before implementation. Implementing a notifiable merger without CAK approval is an offence and can result in the merger being unwound. The CAK reviews mergers for effects on competition and can approve unconditionally, approve subject to remedies, or prohibit.
Penalties and Enforcement
The CAK can impose fines of up to 10 per cent of the preceding year’s annual turnover, issue cease and desist orders, require structural remedies, and refer matters for criminal prosecution. The CAK has been increasingly active in enforcement across the retail, financial services, and agricultural sectors.
Compliance Programmes
A documented compliance programme can mitigate the risk of violations and demonstrate good faith. Effective programmes include competition law training, a clear policy on prohibited conduct, procedures for reviewing agreements before execution, and a whistleblowing mechanism.
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