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Executive summary
By submitting its competition law and policy to this OECD review, Kenya takes an important step and demonstrates its dedication to implementing a modern and effective competition law and policy framework. This report describes and analyses the current competition law and policy framework in Kenya, as implemented by the Competition Authority of Kenya (CAK). The report concludes with recommendations developed by the OECD Secretariat and lead examiners, to be discussed at the Peer Review examination, which will take place during the 2025 OECD Global Forum on Competition.
Kenya has made significant progress in establishing a modern competition regime. Kenya was among the first countries in Africa to adopt a competition law in 1989 which was repealed in 2010 by the Competition Act, Cap 504 Laws of Kenya. The current Act provides the CAK (established in 2011) with a comprehensive mandate covering enforcement against anticompetitive agreements, abuse of dominance, merger control, market studies and advocacy. The CAK also serves as the national consumer protection authority.
Kenya’s competition law applies across all sectors of the economy, including state‑owned enterprises, and is complemented by concurrent jurisdiction with sector regulators in areas such as banking, energy, insurance, and telecommunications. The country’s integration into regional and continental competition frameworks (COMESA, the East African Community, and the African Continental Free Trade Area) has introduced additional layers of enforcement, raising both opportunities for co‑operation and risks of duplication and legal uncertainty.
While the institutional design of the CAK reflects a commitment to independence and accountability, with a Board of Directors and a Director-General overseeing its operations. However, the review identifies several areas for improvement. The CAK’s budget and staffing levels remain low by international and regional standards, potentially limiting its effectiveness. Furthermore, the absence of clear eligibility criteria for appointing Board members and the Director-General as well as the lack of clear dismissal rules raise concerns about potential political influence and continuity.
Enforcement activity by the CAK has been low in the last five years. While the legal framework for sanctions and investigative powers is robust, actual enforcement has been limited. The CAK has relied heavily on settlements, often with low financial penalties and without admissions of wrongdoing, which may undermine deterrence and the development of case law. The leniency and whistleblower programmes have not yet yielded results, reflecting limited awareness and perceived risks among potential applicants. Transparency is also a concern, as only summaries of decisions are published, restricting public understanding of how competition law is interpreted and applied.
Merger control is well established, with clear notification thresholds and procedures. However, the substantive analysis of mergers tends to prioritise public interest considerations over competition effects, and remedies are more often behavioural than structural. The CAK has not prohibited any mergers to date, and the number of cases subject to remedies remains low. The review notes that the CAK’s co‑operation with sector regulators in merger review is generally effective.
Advocacy and market studies are central to the CAK’s activities, and the authority has been successful in raising awareness of competition issues among public sector stakeholders. Nevertheless, the impact of market studies is constrained by challenges in information gathering and the selection of topics. The review highlights the need for the CAK to focus its limited resources on high-impact markets and to strengthen enforcement as a complement to advocacy.
Judicial review of CAK decisions is available through the Competition Tribunal and the High Court, but the lack of competition law expertise among adjudicators and the prevalence of settlements have limited the development of jurisprudence. Private enforcement is non-existent, reflecting broader challenges in developing a competition culture and the risks and costs associated with litigation.
The report concludes with a series of recommendations aimed at strengthening the CAK’s resources, independence, enforcement capacity, and co‑operation with domestic and international counterparts. They suggest possible ways forward for consideration by Kenya, with the aim of improving the country’s competition law and policy.
Key recommendations
Improving enforcement practices
- Ensure that fines serve as a deterrent by being proportionate to both the gravity of the infringement and the turnover of the fined undertakings. The Consolidated Administrative Remedies and Settlement Guidelines (“fining guidelines”) should be adjusted to ensure that the fine calculations better reflect aggravating factors.
- Ensure that funding provided to the CAK by the Government of Kenya is ringfenced and cannot be adjusted according to any fines or fee revenue raised by the CAK.
- Establish clear rules for the settlement procedure, as well as the payment of a financial penalty. In addition, clarify settlement discounts, for instance by setting maximum reduction percentages and other guiding criteria. Avoid granting excessive discounts.
- Increase the use of dawn raids, leveraging the recently established forensics laboratory
- Empower the CAK to impose sanctions for non-compliance with requests for information, as well as failure to pay fines. The CAK should not be reliant on the Office of Director of Public Prosecutions to bring injunctive action.
Institutional framework
- Implement a transparent process for selecting all members of the Board of Directors and the Director-General, introducing clear eligibility criteria to guarantee they have competition law or economics expertise to the extent possible.
- Introduce rules on staggered appointments of Board members, ensuring partial renewals of the Board of Directors.
Improving transparency and CAK performance
- Ensure the CAK has adequate resources (both financial and staffing) for its core competition enforcement functions. CAK resources should at least be at the level of comparable jurisdictions.
- Ensure that there are dedicated resources and operational structures for competition enforcement, separate from its consumer protection functions.
- Publish, including on the CAK’s official website, public versions of full decisions, subject to the protection of confidential information. Decisions should be well reasoned and subject to sound economic analysis. This includes all decisions relating to anticompetitive conduct, market studies and merger reviews.
Co‑operation
Significantly increase the amount of co‑operation between the CAK and PPRA. The authorities should develop a work plan to significantly enhance co‑operation on referring alleged bid rigging to each other and identify opportunities to collaborate on enhanced detection techniques (such as screening tools or audits of past tender procedures to identify high-risk markets).
