This section sets forth recommendations for Kenya, prepared in collaboration between the OECD Secretariat, the three Lead Examiners, and delegates of the OECD Global Forum on Competition. The recommendations reflect the discussion during the peer review examination that took place on 2 December 2025.
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11. Recommendations
Copy link to 11. RecommendationsAbstract
11.1. Priority recommendations
Copy link to 11.1. Priority recommendations11.1.1. 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. Require that liability be admitted in most enforcement cases. 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 the Director of Public Prosecutions to bring injunctive action.
11.1.2. 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.
11.1.3. 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 in a timely manner, 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.
11.1.4. Co‑operation
Significantly increase the amount of co‑operation between the CAK and the 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).
11.2. Recommendations for further improvement
Copy link to 11.2. Recommendations for further improvement11.2.1. Improving enforcement practices
Implement effective proactive cartel detection tools, such as economic filters and industry monitoring.
Enable the CAK to prioritise enforcement actions based on transparent criteria, including the discretion not to pursue certain cases or to close complaints and investigations based on its priorities and/or available resources.
Ensure that any reforms to the Competition Act to address conduct by digital platforms are limited to enhancing the CAK’s abuse of dominance enforcement activities. Adding an additional ex ante regulatory mandate without additional resourcing poses a risk to improving competition enforcement in the country. Any broadening of CAK’s mandate should be accompanied by a corresponding expansion of its staff and other resources.
Assess whether the CAK is the right body to perform reviewing mergers on public interest grounds and consider separating this responsibility from the competition review. This could be done by conducting an ex-post analysis of remedies from a competition perspective. If the CAK remains responsible for considering public interest factors, public interest should be considered narrowly, and the CAK should provide clear and detailed guidelines on how it interprets public interest.
Prioritise structural remedies over behavioural ones.
Strengthen confidentiality of whistleblower applications, including through secure platforms for encrypted submissions, and increase financial rewards to encourage applications.
Review merger notification thresholds and filing fees periodically.
Publicise the receipt of merger notifications to allow third parties with a legitimate interest in the transaction under review to have an opportunity to express their views during the review process.
Monitor the market to detect potential violations of merger review rules and impose deterrent fines where appropriate.
Promote private enforcement as part of advocacy activities with private sector stakeholders (namely legal practitioners and industry associations).
11.2.2. Institutional framework
Develop a strategy for enhancing the economic analysis in CAK investigations and decisions. This could include the creation of a dedicated Chief Economist role and/or an economic unit to support enforcement and advocacy teams across the CAK.
Consider further streamlining and clarifying merger notification requirements across all of Kenya’s regional agreements to promote consistency and prevent regulatory overlap or confusion.
Amend the Competition Act to improve the Tribunal’s capacity to meaningfully review CAK decisions. This could be done by reducing the requisite number of Tribunal members but requiring those appointed to have relevant expertise in competition law or economics.
Appoint Tribunal members and the chairperson for a full five‑year period as they are eligible to sit under the Competition Act, to enable them to develop greater experience adjudicating appeal decisions.
Provide adequate funding and opportunities for training members of the Tribunal and judges of the High Court Commercial Division. This could include through the COMESA judges training programme.
Provide adequate funding and staffing resources to ensure that the secretariat of the Tribunal is able to provide research assistance in relation to competition law and economics.
Consider developing a structured career framework for competition officials, with transparent progression criteria grounded in merit, accomplishments, and professional experience
Amend the legal framework for interim measures to specify who is empowered to issue them and the procedures for applying them.
Consider introducing a two‑phase merger review regime.
11.2.3. Co‑operation
Ensure the development and implementation of supranational competition frameworks avoid duplication of functions and do not unnecessarily increase the burden on domestic authorities and merging parties.
Ensure continued co‑operation between the CAK and sector regulators, particularly the Communications Authority of Kenya, in merger review and develop a protocol for cross-referrals for reporting alleged anticompetitive conduct.
Strengthen co‑operation with the COMESA Competition and Consumer Commission, particularly in relation to the competitive assessment in merger review.