Competition Law in Kenya: The 2026 Outlook
Merger control, dominance, buyer power and the new regional overlay, explained for businesses and investors. Three regimes can now apply to one Kenya-touching deal: the Competition Authority of Kenya, the COMESA Competition and Consumer Commission and the East African Community Competition Authority. This guide sets out when each bites, what it costs and how to stay on the right side of all three.
Why it matters now
Kenya has moved from a quiet competition regime to one of the more active in the region. The Competition Authority of Kenya (CAK), established by the Competition Act No. 12 of 2010, now combines a high volume of merger review with contested enforcement, and it does so alongside two regional merger regimes that both became stricter in late 2025.
The exposure is not abstract. In July 2024 CAK fined Sika International AG and LSF11 Skyscraper Holdco about KES 17.5 million for implementing a global merger through their Kenyan subsidiaries without approval. It fined Directline Assurance KES 85 million for abuse of buyer power against small motor repairers. Both are covered below.
The perimeter is also widening: a pending amendment bill targets digital platforms below the traditional dominance threshold (Chapter VII), COMESA’s 2025 Regulations introduced a stricter, fully suspensory regime, and the EAC’s own authority began mandatory cross-border merger review on 1 November 2025 (Chapter VI).
The Act at a glance
The Competition Act No. 12 of 2010 is the primary statute. It created CAK as the enforcement body and the Competition Tribunal as the specialist appeal forum. Its prohibitions fall into three groups, with a separate consumer protection part enforced by the same Authority.
Restrictive trade practices
Agreements, decisions and concerted practices that prevent, distort or lessen competition in Kenya.
Dominance and buyer power
Abuse of a dominant position as a seller, and abuse of superior bargaining strength as a buyer.
Merger control
A suspensory regime: a notifiable merger may not be implemented before CAK approves it.
CAK also runs a Leniency Programme for cartel conduct and applies Consolidated Administrative Remedies and Settlement Guidelines when setting penalties and settling cases (Chapter IX). Consumer protection under Part VI is covered in Chapter VIII.
Restrictive trade practices
Section 21(1) prohibits agreements between undertakings, decisions by associations of undertakings and concerted practices that have as their object or effect the prevention, distortion or lessening of competition in Kenya. The listed conduct includes:
- fixing prices or other trading conditions, directly or indirectly;
- dividing markets by allocating customers, suppliers, areas or goods;
- collusive tendering and bid rigging;
- limiting or controlling production, markets, technical development or investment.
Horizontal arrangements between competitors attract the closest scrutiny and the heaviest sanctions. Vertical restraints in distribution, franchise and supply agreements can also fall within section 21 where they have an anti-competitive object or effect, and are generally assessed on their effects.
Section 21 is a standing compliance issue, not a deal issue. Distribution networks, joint ventures, trade association meetings and industry benchmarking all carry it, every day.
Clay Odari, Lead CounselDominance and buyer power
Section 23 sets the test for dominance in a Kenyan market:
| Market share | Position under section 23 |
|---|---|
| 50% or more | Dominant |
| 40% to under 50% | Dominant unless it shows it does not have market power |
| Under 40% | Dominant only if it has market power |
Section 24 prohibits abuse of a dominant position. The familiar categories, such as excessive or predatory pricing, exclusive dealing, tying and refusal to supply, are assessed on the facts of the market.
In July 2026 CAK dismissed and closed Airtel’s complaint that Safaricom’s promotional voice tariffs (“Ofa Moto” and “Tunukiwa”), priced from KES 0.10 a minute, were predatory. As reported, CAK found the promotions kept within the 90-day limit on promotional pricing, with a three-month gap between them. For dominant firms in regulated sectors the lesson is that compliance with sector pricing rules can weigh heavily. CAK’s determination has not been published; this account is drawn from press reports.
Abuse of buyer power
Section 24A, unusual among peer regimes, prohibits abuse of buyer power by an undertaking with superior bargaining strength over its suppliers, whether or not it is dominant as a seller. Listed conduct includes delayed payment to suppliers without justification, unilateral termination or threats of termination, refusal to receive goods without justification, and transferring commercial costs and risks to suppliers.
On 3 December 2025 CAK fined Directline Assurance KES 85 million for persistently delaying payment to contracted motor repairers despite repeated reminders, ordered it to pay the arrears and required its supplier contracts to provide for interest on late payment. Any business that relies on smaller suppliers or contractors, dominant or not, should read its payment terms against section 24A.
Merger control in Kenya
Section 41 defines a merger widely: the direct or indirect acquisition or establishment of control over the whole or part of another undertaking’s business, which captures share and asset deals and full-function joint ventures. Under section 42 a merger that must be notified may not be implemented until CAK approves it.
| Test (Competition (General) Rules 2019) | When a filing is required |
|---|---|
| General | Combined Kenyan turnover or assets of at least KES 1 billion, and a target with turnover or assets above KES 500 million |
| Large acquirer | Acquirer above KES 10 billion, where the parties are in the same market or vertically integrated (unless the COMESA thresholds are met) |
| Carbon-based minerals | Value of reserves, rights and associated exploration assets above KES 10 billion |
| Exclusion band | Combined KES 500 million to KES 1 billion: apply to CAK for exclusion. Below KES 500 million: excluded |
Older CAK guidelines quoted a KES 100 million target test and a separate healthcare threshold. They have been overtaken by the binding 2019 Rules, so check any older client alert against the table above. Where the parties also meet the COMESA thresholds, a Kenyan filing is still required if two-thirds or more of their combined turnover or assets is in Kenya.
| Combined turnover or assets | Fee |
|---|---|
| KES 500 million to KES 1 billion (exclusion application) | No fee |
| Above KES 1 billion up to KES 10 billion | KES 1,000,000 |
| Above KES 10 billion up to KES 50 billion | KES 2,000,000 |
| Above KES 50 billion | KES 4,000,000 |
| Step | Time |
|---|---|
| Decision on a complete notification | 60 days |
| Request for more information | Within 30 days of notification; the 60 days then run from receipt |
| Decision after a hearing conference | 30 days after the conference |
| Application for exclusion | 14 days |
| Determination that a deal is not a merger | 10 days |
| Advisory opinion | 10 days |
Because the regime is suspensory, no integration step may be taken in Kenya before approval, even where the deal has closed elsewhere. Transaction documents should make Kenyan clearance a condition precedent, or carve the Kenyan business out of closing until it arrives.
Penalties for implementing without approval
Implementing a merger without the required approval is an offence under section 42(5), punishable by imprisonment for up to five years, a fine of up to KES 10 million, or both. Section 36(d) separately allows CAK to impose a financial penalty of up to 10% of the preceding year’s gross annual turnover in Kenya. CAK’s Consolidated Administrative Remedies and Settlement Guidelines set out how penalties are calculated, with aggravating factors (impact, duration, repetition) and mitigating ones (cooperation, a first offence).
Sika International AG’s acquisition of LSF11 Skyscraper Holdco was implemented in May 2023, including through their Kenyan subsidiaries (Sika Kenya and Master Builders Solutions Kenya), without CAK approval. CAK imposed a penalty of about KES 17.5 million before approving the merger. Commentary on the case reports that the parties raised the lapse themselves and were treated as first-time offenders. Two lessons: a Kenyan subsidiary alone can trigger a Kenyan filing, wherever the deal is signed; and cooperation reduces the penalty but does not remove it.
COMESA and the EAC
Kenya belongs to both COMESA and the East African Community, and both now run mandatory, suspensory merger regimes on top of CAK’s. A deal with a regional footprint must be tested against all three.
CAK
- Threshold
- Combined KES 1bn in Kenya and a target above KES 500m (other tests apply)
- Fee
- Up to KES 4 million
- Review
- 60 days from a complete filing
COMESA CCCC
- Threshold
- Combined USD 60m in COMESA, and at least two parties with USD 10m each
- Fee
- 0.1% of combined COMESA turnover or assets, capped at USD 300,000
- Review
- 120 days, with stop-the-clock powers
EACCA
- Threshold
- Combined USD 35m in the EAC, plus a USD 20m test for at least two parties
- In force
- 1 November 2025
- Carve-out
- Each party has two-thirds of its EAC business in one Partner State
COMESA: the 2025 Regulations
The COMESA Council of Ministers adopted the COMESA Competition and Consumer Protection Regulations 2025 on 4 December 2025, in force from 5 December 2025. The regulator is now the COMESA Competition and Consumer Commission (CCCC). The main changes:
- Thresholds: combined COMESA turnover or assets of at least USD 60 million (up from USD 50 million), with at least two parties each at USD 10 million or more.
- Digital deals: a USD 250 million transaction-value test where at least one party operates in two or more member states.
- Fees: 0.1% of combined COMESA turnover or assets, capped at USD 300,000 (0.05% of transaction value for digital deals).
- Suspensory: no implementation before clearance; gun-jumping can cost up to 10% of COMESA turnover.
- Review and appeal: 120 days with stop-the-clock powers; appeals go to the COMESA Court of Justice within 45 days.
A COMESA filing does not always end the Kenyan question: under the Competition (General) Rules 2019 a deal that meets the COMESA thresholds must still be notified to CAK where two-thirds or more of the parties’ combined turnover or assets is in Kenya.
The East African Community Competition Authority
The East African Community Competition Authority (EACCA) operates under the EAC Competition Act, 2006 (amended in 2010 and 2023). By a General Notice of 1 July 2025 it made cross-border merger notification mandatory from 1 November 2025. A merger is notifiable where the parties’ combined turnover or assets in the Community is at least USD 35 million and a USD 20 million test is met by at least two of the parties. Whether that USD 20 million applies to each party or to the two parties together is not clear from the published drafting, so check it before relying on either reading. A deal is treated as domestic, not cross-border, where each party earns two-thirds of its Community turnover or assets in a single Partner State.
EACCA describes itself as a one-stop shop: a merger notified to it need not go to national authorities. COMESA says the same of its own regime. EACCA has memoranda of understanding with CAK and, since 10 June 2025, with the CCCC, but neither allocates jurisdiction in a binding way, and Kenya’s own merger rules have not been amended to give way to EACCA. Practitioners advise that CAK may still expect a local filing and that dual COMESA and EAC filings remain a risk. As at 24 October 2026 we have found no formal clarification from CAK or EACCA. Test every regime separately and confirm the position with the authorities before relying on a single filing.
The Amendment Bill
The Competition (Amendment) Bill 2026 (National Assembly Bill No. 4 of 2026) was published in Kenya Gazette Supplement No. 17 on 19 February 2026, after a CAK consultation on an earlier draft in mid-2024.
| Date | Stage |
|---|---|
| 19 Feb 2026 | Published as National Assembly Bill No. 4 of 2026 |
| 30 Jun 2026 | Second Reading debate opened |
| 12 Aug 2026 | Report of the Departmental Committee on Finance and National Planning |
| 3 Nov 2026 (tentative) | Committee of the Whole House, per the Supplementary Order Paper of 22 October 2026 |
It is not law yet: there has been no Third Reading or assent. Its headline proposals are aimed at digital markets:
- Strategic market position: CAK could treat a digital platform as holding market power below the 40% dominance threshold, looking at data, network effects, switching costs and how far users depend on it.
- Superior bargaining position: scrutiny of commercial relationships where one side can set the terms because the other has no real alternative, such as platform and merchant, or platform and driver.
Marketplaces, fintech, digital lending and gig platforms with Kenyan users should assess their exposure under both proposed tests now, rather than after enactment. We will update this chapter when the Bill moves.
Consumer protection
Consumer protection sits in two statutes with two institutional homes, and neither Act sets out a formal mechanism for coordinating them.
| Competition Act, Part VI | Consumer Protection Act, 2012 | |
|---|---|---|
| Enforced by | Competition Authority of Kenya | Cabinet Secretary for trade, advised by the Kenya Consumers Protection Advisory Committee |
| Covers | False or misleading representations, unconscionable conduct, unsafe or defective goods (sections 55 to 70) | Consumer rights, consumer agreements and credit |
| Main route | CAK investigation and administrative action | Court action by consumers (section 84) |
The same marketing claim or standard term can attract both regimes at once, through different bodies. Clearance by one does not answer the other. Consumer-facing financial services and digital lending have become a particular focus of CAK’s Part VI work.
A compliance programme
A Kenya-specific programme should go beyond generic global antitrust training. Its core elements:
Merger protocol
- Competition counsel signs off before any deal involving a Kenyan target, subsidiary, joint venture or asset is signed or closed, wherever it is negotiated.
- A written threshold screen for CAK, COMESA and EACCA on every such deal.
- Clearance as a condition precedent, or a Kenyan carve-out from closing.
Cartel controls
- Rules for contact with competitors, trade association meetings and information exchange, with legal review before any discussion of prices, capacity or tenders.
- Document retention aligned to how far back a CAK investigation can reach.
- An escalate-at-once rule, because of the Leniency Programme: the first undertaking to report a cartel can obtain full immunity from fines; later applicants can obtain reductions of up to 50%, then up to 30%, then up to 20% for any subsequent applicant.
Dominance and buyer power
- Above 40% in any Kenyan market: a standing review of pricing, exclusivity and refusals to supply against section 24.
- Strong bargaining position over smaller suppliers: payment terms, termination rights and cost-shifting clauses reviewed against section 24A, with late-payment interest written in.
Self-reporting and settlement
- A pre-agreed framework for deciding whether and how fast to self-report a gap to CAK.
- Familiarity with section 38 settlement under CAK’s remedies and settlement guidelines: a 14-day window for a settlement proposal, a 7-day reply, a 14-day counter-proposal and 90 days of negotiation, extendable by 30 days.
Digital and platform businesses
- Track the Amendment Bill (Chapter VII) and assess exposure under its proposed digital tests now.
- Review consumer-facing disclosures and standard terms against Part VI, not only sector rules.
Deal checklist
A sequential checklist for any transaction that touches Kenya.
Map every Kenyan link
A Kenyan subsidiary, branch, revenue stream or asset can trigger a filing even if the deal is signed and closed abroad.
Test CAK’s thresholds
Combined Kenyan turnover or assets of at least KES 1 billion with a target above KES 500 million; or an acquirer above KES 10 billion where the parties are in the same or a vertically linked market. Between KES 500 million and KES 1 billion, apply for an exclusion.
Test COMESA separately
If any party operates in other COMESA states: combined USD 60 million with two parties at USD 10 million each, or the USD 250 million digital test.
Test the EAC separately
If any party operates in other EAC states: combined USD 35 million plus the USD 20 million test, subject to the two-thirds single-state carve-out.
Do not assume a one-stop shop
Record a separate threshold analysis for each regime and, where more than one is engaged, confirm the position with the authorities before relying on a single filing.
Build clearance into the documents
Make each required clearance a condition precedent, or at least a condition to any integration step in Kenya.
Prepare the filing early
Constitutional documents, accounts, the transaction agreement, market share and competitor data, and group charts, ready well before the target filing date.
Budget for every fee
CAK: from no fee to KES 4 million, depending on size. COMESA: 0.1% of combined turnover or assets, capped at USD 300,000. Add EACCA fees where it applies.
If a gap appears after closing, escalate at once
Early, cooperative self-reporting is treated as a mitigating factor, though it does not avoid a penalty.
Check consumer-facing conduct twice
Marketing claims, standard terms and safety statements against both Part VI of the Competition Act and the Consumer Protection Act.
Frequently asked
It can. If the deal gives the buyer control over a Kenyan business and the thresholds are met, it must be approved before anything is implemented in Kenya, wherever it is signed or closed. The Sika case turned on exactly that.
Under the Competition (General) Rules 2019: combined Kenyan turnover or assets of at least KES 1 billion and a target above KES 500 million, or an acquirer above KES 10 billion in the same or a vertically linked market. Deals between KES 500 million and KES 1 billion need an exclusion application. Older guidelines quoting a KES 100 million target are out of date.
Not reliably. Both regional bodies describe themselves as one-stop shops, but Kenyan law still pulls a COMESA deal back to CAK where two-thirds of the business is in Kenya, and the EAC position has not been formally settled. Test each regime separately.
Only by carving the Kenyan business out of closing until CAK approves, with no integration in Kenya in the meantime. Otherwise the deal is implemented without approval, which is an offence.
Sixty days from a complete notification. If CAK asks for more information, which it must do within 30 days, the 60 days run again from your reply. Exclusion applications take 14 days.
No. As at 24 October 2026 it awaits the Committee of the Whole House, tentatively listed for 3 November 2026. It has not had a Third Reading or assent.
Sources
Primary sources first. Press and law firm commentary is marked as such and used only where no primary text was available.
- Competition Act No. 12 of 2010, sections 21, 23, 24, 24A, 36, 41, 42 and Part VI (sections 55 to 70A)Primary
- Competition (General) Rules 2019 (L.N. 176 of 2019), Schedule, paragraph 4 (thresholds and exclusions)Primary
- Competition Authority of Kenya, merger filing feesPrimary
- Competition Authority of Kenya, mergers and acquisitions: process and timelinesPrimary
- CAK Leniency Programme GuidelinesPrimary
- CAK Consolidated Administrative Remedies and Settlement Guidelines 2023Primary
- CAK Annual Report and Financial Statements 2024/25 (July 2026)Primary
- COMESA Competition and Consumer Commission, adoption of the 2025 Regulations (8 December 2025)Primary
- COMESA Competition and Consumer Protection Regulations 2025Primary
- National Assembly, Supplementary Order Paper, 22 October 2026 (Competition (Amendment) Bill)Primary
- Consumer Protection Act No. 46 of 2012Primary
- Capital FM, Sika International fined for merger without CAK approval (July 2024)Press
- Capital FM, CAK fines Directline for abuse of buyer power (December 2025)Press
- Techweez, Airtel loses tariff fight as CAK clears Safaricom pricing (17 July 2026)Press
- CM Advocates, COMESA Competition and Consumer Protection Regulations 2025: launch in LivingstoneLaw firm
- LEX Africa, the EACCA merger notification regime (October 2025)Law firm
- Cliffe Dekker Hofmeyr, EACCA notifications: key nuances and practical risks (3 December 2025)Law firm
- ENS, Kenya: competition law in motion (Competition (Amendment) Bill 2026)Law firm
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