Kenya Competition Law In Motion And What Businesses Need To Know In 2026

On 1 September 2026, general counsel and business leaders will gather in Nairobi for the Legal 500 GC Powerlist Kenya, accompanied by a panel discussion on competition law enforcement in Kenya. This timely discussion comes as Kenya’s competition regime is quickly changing, with enforcement activity becoming more visible, regional merger control expanding and Parliament considering new powers for digital markets and commercial relationships.

The Competition Authority of Kenya (the “CAK”)’s latest annual report for the year ended 30 June 2025 records 128 merger-related applications, a 20% increase on the 107 received in the preceding year. Forty-five of those applications related to COMESA filings. The mergers approved represented investment exceeding KES 25 billion. Interventions against anti-competitive conduct, principally in the steel, retail and financial sectors, produced penalties of KES 1.44 billion.

The activity is concentrated over a consistent group of sectors. The CAK has conducted market inquiries into animal feeds and fertiliser and a study of supermarkets’ treatment of suppliers. The CAK continues to screen the bread and sugar sub-sectors as well as the foam mattress industry. Animal feeds and fertiliser lie upstream of domestic food prices, while supermarkets and delivery platforms occupy the downstream end of the same chain. Together, these priorities show a regulator focused on the cost of the household shopping basket. Undertakings operating along that chain can therefore expect continued scrutiny.

Enforcement in practice

The steel cartel investigation is the CAK’s most significant enforcement action to date. The investigation, which was initiated in 2021, resulted in penalties across 14 undertakings for price fixing and output restriction, totalling KES 338.85 million. Five firms reached settlements with the Authority, while seven appealed. Two of the appellants subsequently concluded out-of-court settlements during the appeal phase. The Competition Tribunal dismissed the remaining appeals in 2025. Beyond the record-breaking fines, the Tribunal also importantly held that a firm copied into cartel communications that neither objects nor publicly distances itself from the conduct may be treated as a participant, and that there is no need to prove actual market effects for hardcore restrictions such as price fixing. From the opening of the investigation to the first appellate outcome, the investigation took four years – the CAK’s own estimate is that cartel cases take up to three years from fact-finding to closure, before any appeal.

The prohibition on abuse of buyer power accounts for a far larger share of the CAK’s work. 69 such cases were investigated during the year, 40 of which were concluded, exceeding its cartel and abuse of dominance caseload combined.[1] Delayed payment accounted for 72% of complaints, with unilateral termination, variation of contractual terms and demands for preferential treatment comprising the majority of the remainder, and the insurance sector alone generated 47% of the caseload. While the KES 1.1 billion penalty imposed on Carrefour’s operator attracted the greatest attention, most abuse of buyer power settlements are considerably smaller.

What the OECD review found

The OECD published its peer review of the Kenyan competition law and policy in March 2026, following a fact-finding exercise conducted with the CAK. The review identifies three powers that exist on paper but have never been used. First, while a breach of the Competition Act is a criminal offence punishable by up to five years’ imprisonment, a fine of up to KES 10 million, or both, no criminal prosecution has ever been brought. The CAK has confirmed it is reluctant to pursue heavy sanctions given that public awareness of competition law remains limited. In addition, the Office of the Director of Public Prosecutions lacks the resources for these cases, and the courts may be unfamiliar with competition law. Secondly, while the leniency programme has been in place since 2014, there has not been a single application, and the Informant Reward Scheme introduced in 2021 has never produced a report. Finally, although businesses harmed by anti-competitive conduct can approach the courts directly, no private damages claim has ever been brought.

The review attributes the limited enforcement output to two principal factors:

• The first is capacity. As at April 2025 the Enforcement and Compliance Department comprised nine staff and the Mergers and Acquisitions Department seven.
• The second is the predominance of settlement. Undertakings are not required to admit wrongdoing, and settlement penalties typically fall below 1% of turnover. Additionally, parties may negotiate not to be identified in published announcements.

The above should not be construed as an indication of a permissive regime. For businesses operating in Kenya, practical exposure therefore arises mostly through administrative penalties, complaints, market inquiries and merger control rather than whistleblower reports or private damages claims.

Merger control has been the CAK’s area of most consistent activity and the part of the regulatory framework that has changed most recently.

Merger control and the regional regimes

Since 1 November 2025, a second suspensory regime has operated alongside Kenya’s domestic merger control regime with the operationalisation of the East African Community Competition Authority’s regional merger control regime, and its thresholds are low enough to capture ordinary regional expansion. Notification is required where the combined turnover or assets of the parties in the Community reach USD 35 million and at least two parties reach USD 20 million, unless each party derives two-thirds of its turnover or assets in a single Partner State. A mere five weeks later, on 5 December 2025, the COMESA Competition and Consumer Commission also rendered its regime suspensory, alongside various other procedural and substantive amendments.

Three separate filings will seldom be required, as each regime is intended to displace the others. A transaction notified to the EAC need not be notified to the national competition authorities of Partner States, Kenya included. Kenya’s own rules were amended in 2019 for the express purpose of avoiding double notification with COMESA. However, the overlap between the EAC and COMESA notifications has not yet been resolved, and for now parties could face two regional filings with differing timetables, until the two regional bodies land on an allocation mechanism.

The merger control perimeter for Kenyan businesses may widen further still to capture privatisations of government agencies and state corporations engaged in trade, if the Competition (Amendment) Bill, 2026 (the “Bill”) is enacted.

The proposed reforms

The Bill, gazetted on 19 February 2026, is now before the Departmental Committee on Finance and National Planning. The Bill builds on the earlier Competition (Amendment) Bill, 2024 and significantly expands the framework for regulating digital markets. It introduces new definitions of “digital activity”, “digital market” and “strategic market position” and would allow dominance in a digital market to be established even where an undertaking holds less than 40% market share, provided it possesses market power. The Bill also introduces a prohibition on abuse of superior bargaining position, a concept that does not require a finding of dominance or market power. The CAK’s case to Parliament is that abuse of a superior bargaining position is not fully covered by the existing provisions on abuse of dominance or buyer power, because those provisions depend on a buyer-supplier relationship. The Bill would allow intervention wherever a business is shown to create an imbalance of rights and obligations from which its counterparty cannot practically escape. The Bill would also empower the CAK to issue binding sector codes of practice.

Conclusion

The common thread running through the enforcement record, the OECD review and the proposed reforms is that Kenya’s competition regime engages with ordinary commercial conduct. The terms on which a business pays its suppliers, the conditions it attaches to a commercial relationship and the way prices move in a sector all attract regulatory attention. The Bill, if enacted, would deepen that engagement considerably, and with two suspensory regional merger regimes operating alongside the domestic regime since late 2025, the consequences of incomplete notifiability assessments are more serious than they were a year ago. These are developments that will continue to shape the compliance agenda for businesses operating in Kenya and the wider region over the course of 2026.