This chapter covers the enforcement powers and procedures of the competition law in Kenya. This includes the competition authority’s powers to prioritise and open cases, conduct investigations, make enforcement decisions and issue sanctions.
OECD Peer Reviews of Competition Law and Policy: Kenya
Abstract
3.1.1. Case prioritisation
Every five years, the CAK develops a Strategic Plan that sets out the authority’s directions and priorities. It is prepared in consultation with external stakeholders, including the business community, lawyers and other government institutions. Once approved by the Board of Directors, the Strategic Plan is published on the CAK’s webpage. The current Strategic Plan, launched in December 2024, will guide the CAK in fulfilling its mandate until June 2028 (CAK, 2024[1]).
The current Strategic Plan outlines four strategic goals that support the CAK’s mission: (i) strengthened and sustained enforcement of competition and consumer protection law; (ii) evidence‑based decisions and policy advocacy; (iii) informed and engaged citizenry on competition law and consumer welfare; and (iv) strengthened institutional capacity and sustainability. For each strategic objective, the Strategic Plan identify key result areas, expected outcomes, outcome indicators and annual targets. The CAK regularly monitors the implementation of the Strategic Plan to track progress, assess the achievement of its objectives, evaluate programme outcomes and ascertain the desired impact.
In developing the Strategic Plan, the CAK takes into account the priorities of the current government, identifying areas and sectors where it can most effectively contribute to its mandate. The current Strategic Plan highlights five priority areas: agricultural transformation; micro, small and medium enterprises (MSME); housing and settlement; healthcare; digital superhighway and creative industry. These priorities guide the CAK’s ex officio actions. Nevertheless, the authority is required to investigate all complaints it receives, at least at a preliminary level, and cannot dismiss them solely on the basis of strategic priorities.
3.1.2. Case opening
The CAK may open investigations into anti-competitive practices on its own initiative, via complaints, or leniency applications.1
Proactive detection
The Competition Act explicitly indicates that the CAK may open an investigation on its own initiative,2 for instance through cartel screenings or industry monitoring (e.g. press and internet), as well as market studies. According to the CAK, the authority currently aims at enhancing its ex officio investigations and the use of proactive detection methods. For instance, the CAK has recently implemented a forensics laboratory, equipped with specialised software and digital tools, which can be used to proactively detect anti-competitive behaviours (Capital Business, 2025[2]).
Complaints
The Competition Act provides that any person, government agency or ministry may submit a complaint to the CAK.3 Complaints can be lodged by submitting written information or by filling a form developed by the CAK.4 Anonymous complaints are accepted.
When complaints are submitted using the CAK’s official form, they must include the following elements: (i) the name and contact details of the complainant (unless complaint is anonymous); (ii) the name of the alleged infringers and the sector in which they operate; (iii) the facts and any evidence supporting the alleged infringement; (iv) an indication of whether the conduct has ceased, and, if not, whether the complainant requests interim measures; and (v) the name of other government bodies and organisations that were also contacted regarding the alleged infringement.5
Upon receipt, complaints are assigned to the investigation officers, who must conduct a preliminary assessment to verify whether the CAK has jurisdiction and whether there are reasonable indications of an infringement.6 Within 14 days of receiving the complaint,7 the investigation officers must submit a report to the Director-General, proposing the opening of a formal investigation; rejecting the complaint; referring the case to the competent authority (if the CAK lacks jurisdiction); requesting further clarification or documents from the complainant; or requesting information from third parties. If the Director-General decides not to initiate a formal investigation, the complainant must be informed in writing of the reasons for this decision.8
Leniency programme for cartels
In 2014, the Competition Act was amended to include Section 89A, which establishes that the CAK may operate a leniency programme, providing for only very general elements thereof. In particular, the provision indicates that a leniency programme is the one through which (i) an undertaking voluntary discloses the existence of an agreement or practice that is prohibited under the Competition Act and (ii) co‑operates with the CAK in the investigation, being in exchange, (iii) exempted from all or part of a fine that could otherwise be imposed under the Competition Act. Section 89A (2) of the Competition Act also states that the CAK should detail the leniency programme through guidelines.
In 2017, the CAK published the “Leniency Programme Guidelines” (hereafter “Leniency Guidelines”), providing the detailed rules of leniency (CAK, 2017[3]). The Leniency Guidelines spell out that the leniency programme aims at encouraging wrongdoers to provide the CAK with evidence of horizontal agreements and proactively co‑operate in bringing successful cartel enforcement action in return of full of partial immunity.
Applications must be submitted by an undertaking but will cover its directors and employees as long as they comply with the obligation to co‑operate with the CAK.9 Undertakings that have coerced others or instigated others to operationalise the cartel are not eligible for leniency.
According to the Leniency Guidelines, there are four types of leniency applications:10
First through the door applicant, which is granted 100% reduction in penalties (immunity),
Second through the door applicant, which may be granted up to 50% reduction in penalties,
Third through the door applicant, which may be granted up to 30% reduction in penalties,
Any subsequent applicant, which may be granted up to 20% reduction in penalties.
Applications must be submitted before the CAK concludes the investigation and are accepted when (i) the CAK has no knowledge of the infringement; (ii) the CAK has knowledge of the infringement but lacks sufficient information to start an investigation; or (iii) the CAK has opened an investigation but requires additional evidence to penalise the offenders, in which case the applicant must provide new evidence.11
The conditions to qualify for immunity or for a reduction in the sanction require the applicant to:12
Provide the CAK with full, timely and truthful information about the infringement,
Full and expeditious co‑operation with the CAK,
Keep the application process confidential,
Immediately terminate its participation in the cartel, unless otherwise directed by the CAK.
The Leniency Guidelines provides that the identity of the applicant must be kept confidential throughout all stages of the investigation and even after a final decision is made.13 The Leniency Guidelines also detail the procedure to be followed during a leniency application, including initial contact, the marker request, the submission of the application, the process for the CAK to evaluate applications and grant of conditional leniency, as well as the final decision.14 Conditional leniency may be revoked in the event of a serious breach of the co‑operation obligation.15 In such cases, the CAK may decide to pursue the investigation against the undertaking in question, although it may still be eligible for a settlement process.16
According to the Leniency Guidelines, once the conditional leniency is granted, the CAK must engage with the Office of the Director of Public Prosecutions (ODPP) to forgo prosecution of the criminal aspects of the infringement.17 There is no provision regarding the effects of leniency applications on civil liability for damages.
Whistleblowing programme
In 2021, the CAK introduced a whistleblowing programme, called the Informant Reward Scheme policy (CAK, 2021[4]). It empowers the CAK to grant monetary compensation to anyone who provides information on the existence and operation of cartels.
According to the “External Guidelines on the Informant Reward Scheme Policy” (hereafter “Informant Guidelines”), the programme applies to informants who possess inside information but were not directly involved in the cartel’s decision making process (and are therefore not eligible for leniency).18 For instance, this may be the case of an employee who, under instruction from superiors, attended a meeting without any decision making powers (e.g. secretaries).19
The Informant Guidelines outline the conditions an informant must meet to be eligible for financial compensation. These include: consistently providing truthful information; submitting information that is indispensable, materially valuable, useful, reliable and relevant to the investigation; complying with instructions from the investigation officer; and, if required, testifying as a witness in court.20 The Informant Guidelines also detail procedural aspects of the programme, such as the type of information that must be submitted.21
Monetary compensation is granted at the conclusion of the investigation, once administrative fines have been collected by the CAK, provided that the authority is satisfied that the informant has co‑operated, and that the information provided was credible, relevant and authentic. The exact amount is determined by the CAK based on the material value of the information provided and must be up to 1% of the administrative penalty and below KES 1 million (approximately EUR 6 500).22
According to the Informant Guidelines, the CAK must guarantee the confidentiality of the informant’s identity during and after the investigation. A few safeguards are in place to protect confidentiality, including storing information in locked file cabinets or safes, limiting staff access to such information and assigning a pseudonym for all communications.23
3.1.3. Case investigation
When a formal investigation is opened, following the decision of the Director-General, the Head of the Enforcement and Compliance Department (guided by the Director of the Competition and Consumer Protection) assigns it to a team, generally led by a senior investigation officer, who works with an investigation officer and in some cases a junior investigation officer or an intern. The investigation team has various powers to collect evidence, such as conducting dawn raids, requesting information and taking oral statements, as described below. During the investigation, the team provides regular updates to the Director-General, the Director of Competition and Consumer Protection and the Head of the Enforcement and Compliance Department. The Corporation Secretary and Legal Services Department is also consulted throughout the process.
There is no fixed statutory deadline for concluding investigations. Nevertheless, the CAK’s Service Charter states that full investigations should be finalised within 180 days upon receipt of all requested information and co‑operation of the parties involved.24
Upon the conclusion of an investigation, if the issuance of an infringement decision is proposed to the Board of Directors, each investigated party that may be affected by the decision must be formally notified in writing. The notification must include: (i) the reasons for the proposed decision; (ii) details of any relief the CAK may consider to impose; and (iii) a statement that the party may, within the period specified in the notice, submit written representations to the CAK and indicate whether it requires to make oral representations.25 Investigated parties are granted due process rights, including access to evidence relied on by the CAK.26
After assessing investigated parties’ defence arguments (including, when applicable, oral statements), a report is submitted to the Director-General with a proposed decision for consideration by the Board of Directors. If the Director-General agrees with the proposal, it is forwarded to the Board of Directors for adjudication.
The Competition Act provides for the protection of confidential information, setting out procedural rules for the granting of confidentiality where the CAK determines that disclosure could adversely affect the competitive position of any person or is otherwise commercially sensitive. Interested parties may appeal to the Competition Tribunal against a CAK decision to deny a confidentiality request.27 The disclosure of confidential information obtained during investigations constitutes a criminal offence, subject to a fine of up to KES 500 000 (approximately EUR 3 300) and/or imprisonment for up to three years.28
Dawn raids
If deemed necessary for its investigations (whether related to anti-competitive agreements or abuse of dominance), the CAK has the power to conduct searches (dawn raids) at any premises occupied or controlled by an undertaking or other person believed to be in possession of relevant information and documents.29 In general, a prior judicial order (search warrant) must be obtained by the CAK to conduct dawn raids.30 However, a judicial order is not required in urgent cases, where obtaining a warrant would risk tampering, removal, damage or destruction of evidence. In these cases, the Director-General must authorise the search.31 In both situations, the Criminal Procedure Code must be followed.32
During dawn raids, the CAK may access any type of information needed to prove an anti-competitive behaviour. This includes IT equipment and all forms of data storage, including private devices and media used for professional purposes that are found on the premises.33 In this context, the recently implemented forensics laboratory enables the authority to extract and analyse data from computers, phones, servers and cloud storage used by investigated firms (Capital Business, 2025[2]).
The Search and Seizure Guidelines contain procedural rules, including the obligations and rights of the parties being raided in light of due process. The CAK must keep an inventory of all the items seized during the search, which must be signed by the raided parties or their legal representatives.34
Failure to co‑operate with the CAK during a dawn raid or any action obstructing the process constitutes a criminal offence, subject to a fine of up to KES 500 000 (approximately EUR 3 300) and/or imprisonment for up to three years.35
Between 2020 and 2024, the CAK conducted two dawn raids in cartel investigations, both with prior judicial authorisation. The CAK has not requested search warrants in other cases.
Requests for information
The Competition Act empowers the CAK to request individuals and legal persons, including investigated undertakings, third parties (e.g. complainants, competitors, suppliers and providers) and government authorities, to provide information, documents or any other evidence during investigations.36 Requests for information must indicate their legal basis, purpose and the consequences of non-compliance.37
Failure to provide the requested information, delays in doing so or the provision of false information constitutes a criminal offence, subject to a fine of up to KES 500 000 (approximately EUR 3 300) and/or imprisonment for up to three years.38
According to CAK staff interviewed during the OECD fact-finding mission, stakeholders do not always comply with requests for information, particularly those unfamiliar with the CAK’s work. Nevertheless, the CAK has never imposed sanctions in this regard.
Oral statements
The CAK can request defendants and third parties to provide oral statements during investigations.39
Failure to provide the oral statements, delays in doing so or the provision of false information constitutes a criminal offence, subject to a fine of up to KES 500 000 (approximately EUR 3 300) and/or imprisonment for up to three years.40
As with request for information, stakeholders do not always comply with requests to provide oral statements. Similarly, the CAK has never imposed sanctions in such cases.
3.1.4. Decision making process
Upon receiving the report prepared by the investigation team and approved by the Director-General, the Board of Directors must take a decision, having full adjudicative powers, including to make findings and impose sanctions.41
In practice, before being submitted to the full Board, each case is first discussed by the Technical Committee, which is composed of four Board members. The Director-General presents the case and the recommendations to the Technical Committee. When the Technical Committee approves the proposed course of action, the Corporation Secretary and Legal Services Department drafts the decision for submission to the full Board, which then approves the final decision. At both the Technical Committee and full Board stages, discussions may be held, and adjustments can be made. Once the final decision is reached, the Corporation Secretary and Legal Services Department communicates it both internally and externally, through the publication a notice in the gazette (see below).42
Administrative and criminal enforcement frameworks
As mentioned in Chapter 1, all competition infringements defined by the Competition Act can be enforced either administratively (through decisions by the CAK’s Board of Directors) or criminally (through court rulings following prosecution by the ODPP). Criminal and administrative sanctions are substitutes rather than complements, due to double jeopardy protections, meaning that the CAK must choose one enforcement path in each case. If the CAK decides to proceed with criminal prosecution, once the Board of Directors approves the conclusions of the investigation, the case is handled over to the ODPP to file a criminal lawsuit. In such cases, the courts have the adjudicative power to determine whether an infringement has occurred and to impose sanctions.43
Interim measures
The CAK can issue interim measures prior to the adoption of a final decision. The general criteria for granting interim measures are: (i) the CAK has reason to believe that an undertaking has engaged, is engaging, or is proposing to engage in anti-competitive behaviour; and (ii) urgent action is necessary to prevent serious, irreparable damage or to protect the public interest.44 Interim measures can be lifted if the investigated party demonstrates sufficient cause or upon conclusion of the case.45
Neither the Competition Act nor CAK’s internal regulations specify who can request interim measures (e.g. ex officio or upon request by complainants or third parties), when such measures can be requested (i.e. at which stage of the investigation) or who within the CAK has the authority to issue them (e.g. the Director-General or the Board of Directors). In practice, the Director-General issues the interim measures on behalf of the Board.
Decisions imposing interim measures can be appealed to the Competition Tribunal and subsequently to the High Court.46
At the time of writing, the CAK had issued interim measures in two competition cases (one involving concerted practices and another involving abuse of dominance). These decisions were not appealed to the Competition Tribunal, but both cases remained ongoing.
Transparency of decisions
According to the Competition Act, following CAK final decisions, the authority must publish a notice in the gazette, including the name of all undertakings involved and the nature of the conduct subject of the action or the settlement agreement.47
The transparency requirement relies on the Constitution of Kenya, which provides for a general right for citizens to access public information held by the state.48 In this vein, the Access to Information Act of 2016 establishes a duty to disclose and that non-disclosure shall be permitted only in specific circumstances, such as when it undermines the national security of Kenya, impedes the due process of law, substantially prejudices the commercial interests of anyone and infringes professional confidentiality.49
However, in practice only short summaries of CAK decisions are made public, both in the gazette and in the CAK’s website.
3.1.5. Sanctions
As mentioned above, competition infringements (i.e. anti-competitive agreements and abuse of dominance) are subject to either criminal or administrative sanctions,50 as follows:
Criminal sanctions (applicable to both undertakings and individuals): imprisonment for up to five years and/or a fine of up to KES 10 000 000 (approximately EUR 66 000)51
Administrative sanctions (applicable only to undertakings): fine of up to 10% of the undertaking’s gross annual turnover in Kenya for the immediately preceding year and/or any appropriate non-financial remedies.52
In addition, procedural infringements are subject to criminal sanctions: imprisonment for up to three years and/or a fine of up to KES 500 000 (approximately EUR 3 300).53
Only legal entities and individuals engaging in trade can be subject to administrative sanctions in Kenya, meaning that there are no individual sanctions for natural persons acting on behalf of undertakings (e.g. directors or managers).
The CAK has adopted fining guidelines, providing a methodology for calculating administrative fines (CAK, 2023[5]), based on the guidance set out in the Competition (General) Rules.54 The guidelines outline the following steps for determining fines:
First, the CAK must determine the base percentage, which is 10% of the undertaking’s or association of undertakings’ gross annual turnover in Kenya for the preceding year.55
Next, the base percentage may be increased in light of aggravating factors, including the impact of the contravention, the duration of the conduct, market coverage, recidivism and public interest concerns (e.g. effects on a specific industrial sector or region, employment, MSMEs and the ability of national industries to compete in international markets).56
Subsequently, the amount may be reduced considering mitigating factors, including co‑operation with the CAK, status as a first-time offender, public interest and justifications on efficiency and consumer benefits (e.g. rescue of a failing firm, prevention of job losses, enhancement of international or regional competitiveness, attraction of foreign direct investment and employment creation).57
After evaluating the relevant aggravating and mitigating factors, the CAK establishes the final penalty amount, which must not exceed 10% of the undertaking’s or association of undertakings’ gross annual turnover for the preceding year.58 This means that the starting point for fines and the end point of the maximum penalty is the same figure. In practice, there have never been cases where the CAK has found there to be more aggravating factors than mitigating factors, necessitating the CAK from dropping from a higher percentage back to the 10% of turnover figure.
Furthermore, in exceptional cases, the CAK may allow undertakings to pay penalties in instalments, provided the firm demonstrates that payment in a single instalment would irretrievably jeopardise its economic viability and its ability to continue operating.59
If undertakings fail to pay imposed fines, the CAK cannot directly enforce the penalties by filing an execution suit before the courts. In such cases, the CAK must refer the matter to the ODPP for further action.
The CAK may also impose non-financial remedies, including orders directing undertakings to take specific actions or any other appropriate relief.60
Despite provisions criminalising both substantive and procedural breaches of the Competition Act, no criminal enforcement of the law has ever taken place. The CAK identified a number of factors that underpinned their decision to not undertake any criminal enforcement of the Competition Act, namely:
The CAK remains hesitant to issue heavy monetary sanctions, let alone imprisonment, believing awareness of competition in Kenya remains low and that education and advocacy remain effective.
That the Office for the Director of Public Prosecutions, the body responsible for criminal enforcement in the Competition Act, lacks the resources for such cases and does not prioritise enforcement of statutes where administrative sanctions are also available. However, the CAK did not confirm they had explicitly received this guidance from the public prosecutor.
That the courts and juries in Kenya would be unfamiliar with competition law generally and would be ill-equipped to adjudicate on cases.
Settlements
The Competition Act allows the CAK to settle any case at any stage, whether during or after an investigation into anti-competitive behaviour. Settlements may include a reduced pecuniary penalty, which is determined taking into account the same elements considered when setting fines, as described above.61 Settlements may also include corrective actions to address the identified competition concerns. Parties are not necessarily required to admit a violation to settle a case.
In line with the Constitution of Kenya, the CAK must facilitate settlements to resolve matters expeditiously.62
If a settlement is reached before the CAK Board of Directors issues a final decision, the Board is responsible for approving it, based on a proposal submitted by the Director-General. If the case is already before the courts – either the Competition Tribunal or the High Court – the settlement (referred to as a consent order) is still negotiated with the CAK, without the court’s direct involvement. In such cases, once both parties agree on the terms of the settlement (including with the Board of Directors’ approval), the court must be notified and ratify the agreement.
The Competition (General) Rules and the Consolidated Administrative Remedies and Settlement Guidelines outline the process to be followed when negotiating settlements.63 Notably, if settlement negotiations collapse, the CAK must not use any information provided by the parties during the negotiations.64 In such cases, the CAK will resume the investigation or the courts will proceed with the appeal process (if the case is already before them).
3.2.1. Case prioritisation
The CAK does not have the power to reject complaints based on priority grounds. During the OECD fact-finding mission, internal CAK stakeholders mentioned that they are not currently overwhelmed with complaints. Nevertheless, a high volume of complaints can create a heavy workload, consuming substantial time and resources, thereby preventing the CAK from focussing on the most serious breaches of the competition law.
In many jurisdictions, competition authorities can decide which cases will be investigated and which cases can be dropped based on pre‑established priorities. The level of discretion enjoyed by competition authorities in setting priorities varies from one jurisdiction to another. Similarly, the criteria used by competition authorities to set priorities diverge and may include the nature of the case, its geographic impact, the relevance of the evidence, the importance of the sector affected by the infringement and the size of the market. Competition authorities often involve third parties (e.g. business and consumer groups, as well as other government agencies) when setting their priorities and make them public (OECD, 2015[6]).
3.2.2. Case opening
The CAK relies primarily on complaints to initiate cases. For instance, from 69 investigations into horizontal agreements opened between 2020 and 2023, 37 were launched following a complaint. Likewise, 56 out of 80 investigations into abuse of dominance were opened after a complaint.
The use of proactive detection tools by the CAK is still very incipient in Kenya. This seems to be attributable, at least partially, to limited resources, both material (e.g. technological devices) and human. For instance, the authority lacks a tool to monitor bids in public procurement procedures to help identify potential bid rigging in public procurement.
The OECD Recommendation concerning Effective Action against Hard Core Cartels [OECD/LEGAL/0452] recognises the importance of ex officio investigations, stating that jurisdictions should use “pro-active cartel detection tools such as analysis of public procurement data, to trigger and support cartel investigations”. Indeed, there has been a rise in the interest of competition authorities to use screens to detect cartels worldwide, considering the increasing availability of large amounts of digital data on prices and quantities, as well as the emergence of new technologies to extract and analyse data in an increasingly automated manner (OECD, 2022[7]).
Regarding the leniency programme in Kenya, the legal framework is in line with international practices, in particular the OECD Recommendation concerning Effective Action against Hard Core Cartels [OECD/LEGAL/0452].
However, the CAK has not received any leniency applications to date. For a leniency programme to function effectively, competition authorities should ensure a high risk of detection and the imposition of significant sanctions. Indeed, such programmes generally work well when the relevant competition authority has built up a strong enforcement record and cartel members perceive a genuine risk of detection, even in the absence of a leniency application. Additionally, the programme’s success depends on whether the sanctions for those cartel members that do not qualify for leniency are severe (OECD, 2023[8]). In this context, the limited enforcement track record and low penalties may explain why Kenya’s leniency programme has yet to produce results.
Furthermore, although the Leniency Guidelines state that the applicant will not be subject to criminal prosecution – this would require the CAK to request criminal immunity from the ODPP on behalf of the applicant. Given the lack of utilisation of the leniency programme and no criminal enforcement of the Competition Act, it remains unclear whether this would occur in practice. CAK stakeholders informed that leniency applications do not guarantee immunity from criminal sanctions. The lack of effective co‑operation between the CAK and the ODPP may also contribute to legal uncertainty. This ambiguity could be an additional reason for the ineffectiveness of the leniency programme in Kenya, even though in practice there has been no criminal prosecution of competition infringements to date. Other reasons raised by stakeholders interviewed by the OECD include the lack of awareness of the leniency programme among the business community and the fear of undertakings facing retaliation from other cartel members.
While the OECD Recommendation concerning Effective Action against Hard Core Cartels [OECD/LEGAL/0452] calls on adherents to exclude cartel coercers from leniency programmes, it does not recommend excluding cartel instigators, as the current Kenyan leniency programme does. As the (OECD, 2016[9]) has previously observed, preventing instigators from applying can undermine leniency programmes as:
(i) It discourages leniency applications relating to cartels that have existed for many years and in which the conspirators have taken turns as ringleader, and from enterprises that were initially the instigator but are now under new managers who have terminated involvement in the conspiracy and would prefer to seek leniency from the [authority].
(ii) It reduces uncertainty among the conspirators about which enterprise might apply for leniency.
(iii) It is difficult for the [authority] to administer because, among other reasons, it creates disputes among leniency applicants seeking to improve their place on the application roster by asserting that an earlier applicant is an ineligible instigator.
Finally, the Leniency Guidelines indicate that only a serious breach of the co‑operation obligation can justify the revocation of leniency benefits. However, they do not clarify what constitutes a serious breach, nor whether this also covers the other conditions that applicants must meet, such as providing full, timely and truthful information, maintaining confidentiality of the application and ceasing involvement in the illegal conduct. This lack of clarity may create legal uncertainty, which could discourage potential applications. On the other hand, since applicants remain eligible to settle in case of revocation, this may undermine the credibility of the leniency programme and incentivise wrongdoers to misuse this tool to their advantage.
As for the whistleblowing programme, it also aligns with the OECD Recommendation concerning Effective Action against Hard Core Cartels [OECD/LEGAL/0452], which recommends “facilitating the reporting of information on cartels by whistle-blowers who are not leniency applicants, providing appropriate safeguards protecting the anonymity of the informants”.
The CAK has never received a whistleblower application. During the OECD fact-finding mission, stakeholders indicated several possible reasons. First, there is limited awareness of the tool. Second, concerns were raised regarding whether the confidentiality of the informant’s identity can be effectively guaranteed in practice, which may discourage individuals from coming forward due to fears of job losses or professional reputational damages. Third, although the scheme provides financial incentives, the rewards are perceived as too low relative to the burden and risks involved (e.g. dismissal, blacklisting, reallocation or demotion), particularly in light of the confidentiality concerns.
In this context, additional measures could be considered to strengthen confidentiality, notably the introduction of digital whistleblowing tools, such as secure platforms for encrypted submissions, as implemented in other jurisdictions (OECD, 2023[8]). Furthermore, while financial rewards have proven effective in encouraging whistleblowers in some jurisdictions, this is typically the case when the rewards are sufficiently significant (OECD, 2023[8]). The current cap in Kenya (around EUR 6 500) appears relatively low. For example, in Peru, the reward programme offers a maximum payment of approximately EUR 100 000 (Indecopi, 2019[10]).
3.2.3. Case investigation
In Kenya, investigative and decision making functions are formally separated within the authority. However, in practice, the Corporation Secretary and Legal Services Department – who advises the Board of Directors and drafts its decisions – is deeply involved in the investigation process. As a result, the Board of Directors typically follows the proposals made by the Director-General, as further discussed below.
Although there are no statutory deadlines for concluding investigations, the CAK has established in its Service Charter a 180‑day target for completing full investigations. Nevertheless, according to the CAK, investigations generally last between 6 and 12 months, depending on the complexity of the case and the volume of evidence and information required. The OECD team also identified some investigations lasting up to two years, suggesting an inconsistency with the CAK Service Charter.
Regarding the notification of investigated parties of the charges against them and their right to present a defence, the legislation aligns with international standards, particularly the OECD Recommendation on Transparency and Procedural Fairness in Competition Law Enforcement [OECD/LEGAL/0465].65
Nonetheless, stakeholders interviewed by the OECD expressed concerns about whether the CAK consistently shares all relevant documents and provides access to the case file, potentially limiting the ability of investigated parties to fully exercise their rights of defence. According to them, in some past cases, the list of documents shared with the parties was limited, which could suggest that part of the evidence was not made accessible. However, some stakeholders noted that this could also be explained by the fact that the CAK’s conclusions were insufficiently substantiated, with decisions that do not provide sufficient details of the evidence relied upon to come to the decision. The OECD Recommendation on Transparency and Procedural Fairness in Competition Law Enforcement [OECD/LEGAL/0465] underscores the importance of “informing parties of all allegations against them and granting them access to the relevant evidence collected by or submitted to the competition authority or court, subject to the protection of confidential and privileged information”.
The rules on the protection of confidential information appear to be in line with the OECD Recommendation on Transparency and Procedural Fairness in Competition Law Enforcement [OECD/LEGAL/0465], according to which jurisdictions should have “rules, policies or guidance regarding the identification and treatment of confidential information”. The Recommendation also calls on adherents to “protect confidential and privileged information (…) by: a) ensuring that competition authorities appropriately protect against unlawful disclosure of confidential information in their possession (…)”. However, stakeholders interviewed during the OECD fact-finding mission raised concerns about the CAK’s ability to effectively protect confidential information. They also mentioned that when the CAK denies a request for confidentiality, the concerned parties often withdraw the information from the investigation.
The number of dawn raids carried out by the CAK (all within cartel investigations) is considerably low for international and regional standards (see Figure 3.1 below).
Note: Age of authority peer group refer to the same group as in Figure 2.3.
Source: OECD CompStats and the CAK.
During the OECD fact-finding mission, CAK stakeholders explained that dawn raids are only conducted when strictly necessary, given that they entail a limitation of the constitutional right to privacy. They also noted that in most cases the evidence required for investigations can be obtained through other means. Moreover, conducting dawn raids is substantially costly, especially in light of the CAK’s limited material and human resources. Nevertheless, with the recent implementation of a forensics laboratory, the CAK aims at increasing its use of dawn raids in the future.
Dawn raids are considered vital in cartel investigations worldwide, being one the most powerful tools in the fight against cartels, especially when an element of surprise is key to securing evidence and where alternative investigative methods could result in evidence being concealed, removed or destroyed (ICN, 2025[11]). According to the OECD Recommendation concerning Effective Action against Hard Core Cartels [OECD/LEGAL/0452], competition authorities should have the powers to “conduct unannounced inspections (‘dawn raids’) at business and private premises, and access and obtain all documents and information necessary to prove cartel conduct”.
Non-compliance with requests for information undermines the CAK’s investigative powers. In such cases, it is important to impose appropriate sanctions in order to enhance both specific deterrence (aimed at the individual offender) and general deterrence (aimed at the general public). The Competition Act classifies this conduct as a criminal infringement, meaning that the CAK must refer the case to the ODPP, which has the authority to initiate criminal prosecution. However, the CAK has never referred a case to the ODPP, as it is overwhelmed and prioritises other matters. In practice, the CAK has relied on issuing reminders and encouraging voluntary compliance with requests for information. Stakeholders interviewed during the OECD fact-finding mission indicated that enforcement would be more effective if such conduct were classified as an administrative infringement, which the CAK could enforce directly.
The OECD Recommendation concerning Effective Action against Hard Core Cartels [OECD/LEGAL/0452] highlights the importance of this investigation tool, recommending that competition authorities have effective powers to “request and obtain information from investigated and third parties, including other government entities” and to “impose sanctions for non-compliance with mandatory requests and obstruction of investigations”.
Likewise, the same considerations apply to offences related to non-compliance with requests to provide oral statements. According to the OECD Recommendation concerning Effective Action against Hard Core Cartels [OECD/LEGAL/0452], competition authorities should have effective powers to “obtain oral testimony from individual witnesses” and to “impose sanctions for non-compliance with mandatory requests and obstruction of investigations”.
3.2.4. Decision making process
Although the Board of Directors is formally independent in its decision making process, in most cases it follows the recommendations submitted by the Director-General. One potential reason for this could be that the Corporation Secretary and Legal Services Department serves both as the secretariat to the Board and as legal counsel to the CAK, including during investigations. In practice, the Department participates in investigations and comments on the final report prepared by the investigation team but also advises the Board and drafts its decisions.
As mentioned above, CAK decisions (both relating to anticompetitive conduct and merger reviews) are not fully published; only summaries are made available, including the name of the companies involved, the nature of the conduct and the case outcome, in line with the requirement of Section 39 of the Competition Act. During the OECD fact-finding mission, CAK staff explained that full decisions are not disclosed because they contain some confidential information. However, they acknowledged that public versions of full decisions could be made available, with all confidential information redacted. In contrast, decisions of the Competition Tribunal are published in full, suggesting that the limited disclosure of CAK decisions is not due to legal constraints in Kenya.
The Communications and External Relations Department is responsible for preparing decision summaries based on the final decisions of the Board of Directors. The summaries must be approved by the Corporation Secretary and Legal Services Department, the Director of Competition and Consumer Protection and the Director-General before publication. These summaries appear to be aimed more at serving as press releases than at informing the public about how competition law is interpreted and enforced in Kenya.
Stakeholders interviewed by the OECD during the fact-finding mission noted that there is no established timeline for the publication of summaries. According to them, in some cases several months passed before a summary was eventually made public.
The lack of transparency hinders the development of competition policy in Kenya. For instance, it prevents businesses and society from better understanding how competition law is interpreted and applied by the CAK.
The practice in Kenya does not align with the OECD Recommendation on Transparency and Procedural Fairness in Competition Law Enforcement [OECD/LEGAL/0465], which recommends that jurisdictions should “ensure that competition law enforcement is transparent and predictable, by (…) publishing the facts, legal basis and sanctions relating to decisions, including decisions to settle cases, subject to the protection of confidential information”. The Recommendation defines confidential information as “business secrets and other sensitive information, as well as any other information treated as confidential under applicable law”.66
Most jurisdictions publish their decisions while safeguarding business secrets and other confidential information. Generally, a public version of the entire decision is made available to the public.67
Further, stakeholders interviewed by the OECD indicated that while investigated parties receive a more detailed version of decisions than the summaries published on the CAK’s website, stakeholders were sceptical as to whether these are in fact full decisions. The decisions provided to parties were criticised as being very brief, with limited reasoning and economic analysis. The OECD fact-finding team was unable to verify these assertions. Although it requested a sample of decisions for analysis, it received only decision summaries slightly longer than those published on the CAK’s website (typically three to four pages). These summaries did not show any indication of detailed reasoning or economic analysis.
In practice, the CAK has pursued only administrative enforcement, with no plans to initiate criminal prosecution, which the agency considers more complex and less efficient. As noted above, the ODPP – the body in charge of criminal prosecution – is overwhelmed and has other priorities. In addition, there are concerns that the courts lack sufficient expertise in handling competition cases. Stakeholders consulted by the OECD emphasised that more enforcement against anti-competitive conduct is necessary, but no concerns were raised regarding the absence of criminal enforcement.
The conditions required for issuing an interim measure are generally in line with international practices, i.e. the likelihood of success on the merits of the case and the urgency to prevent harm (OECD, 2022[12]). However, the lack of detailed procedural rules regarding interim measures (such as who can request them, when they can be requested and who has the authority to impose them) may increase legal uncertainty. According to the CAK, interim measures can be requested by the complainant or adopted ex officio. The CAK also indicated that the Board of Directors is responsible for deciding on the imposition of interim measures, except when this power is delegated to the Director-General due to urgency. Nevertheless, the allocation of powers remains unclear, particularly given that urgency is itself one of the conditions for imposing such measures.
3.2.5. Sanctions
The legal framework governing administrative sanctions is generally in line with international practices, particularly the OECD Recommendation concerning Effective Action against Hard Core Cartels [OECD/LEGAL/0452] and the OECD Recommendation on Transparency and Procedural Fairness in Competition Law Enforcement [OECD/LEGAL/0465]. Notably, the methodology for setting fines is indeed similar to that used in most jurisdictions (OECD, 2016[13]).
Nevertheless, in practice, the application of these rules does not appear to be effective. As noted above, the OECD was unable to verify CAK’s decision numbers. Regarding sanctions in particular, only the final penalty amounts are disclosed, which prevented the OECD from assessing how fines are set in practice (for instance, the base percentage used and how aggravating and mitigating factors are considered).
In any case, based on the most recent figures provided by the CAK, the total amount of fines imposed in cartel enforcement cases (including those resulting from settlements) is significantly lower than both international, regional and peer averages, as shown in Figure 3.2 below.
Note: Age of authority peers refers to the same group as in Figure 2.3.
Source: OECD CompStats and the CAK.
These findings are consistent with the inputs received from various stakeholders interviewed by the OECD, who indicated that the fines imposed by the CAK are very low, often based on a percentage well below the maximum available (i.e. 10% of the undertaking’s gross annual turnover in Kenya for the immediately preceding year). Some stakeholders noted that most cases apply a percentage of 1% or less when setting fines. Concerns were also raised about how the guidelines are used in practice, particularly regarding the consistency of their application.
CAK staff acknowledged that sanctions were lower in the early times of enforcement, as awareness of the Competition Act was still limited, and therefore sanctions were intended to be pedagogical. According to them, the CAK has gradually increased the level of fines over time, although they recognise that there is room for improvement. They also emphasised that the primarily goal of competition enforcement is not to bankrupt companies, but rather to deter anti-competitive behaviour. Concerns were also voiced about whether imposing high fines might discourage investment.
According to the OECD Recommendation concerning Effective Action against Hard Core Cartels [OECD/LEGAL/0452], jurisdictions should “provide for effective sanctions of a kind and at a level adequate to deter firms and individuals from participating in hard core cartels”. In addition, the OECD Recommendation on Transparency and Procedural Fairness in Competition Law Enforcement [OECD/LEGAL/0465] calls for jurisdictions to “ensure that competition law enforcement in non-discriminatory, proportionate and consistent across similar cases”. Proportionate fines are indeed critical to deterring companies from breaching the law, which should not be perceived as a profitable activity. Ideally, fines should outweigh the expected gains from infringements divided by the probability of detection (Ginsburg and Wright, 2010[14]; Connor and Lande, 2012[15]). If the expected profits from infringement exceed the expected fines, rational companies may not abstain from engaging in anti-competitive conduct (OECD, 2016[13]).
Most competition authorities pursue one or more objectives through their fining policies, such as deterrence, punishment, disgorgement or compensation. While the emphasis on each goal may vary, these objectives are not mutually exclusive. A common argument faced by competition authorities is that high fines could drive companies out of the market. However, such concerns should influence fine levels only in exceptional cases. Provisions setting maximum fines as a percentage of turnover (as is the case in Kenya) already serve as a means of accounting for ability to pay. Additionally, while many jurisdictions can consider inability to pay when setting fines, to safeguard the legitimacy and credibility of competition authorities, such reductions must be granted based on specific, objective and transparent criteria. There are also alternative ways to preserve deterrence without increasing the risk of bankruptcy, such as offering extended payment deadlines or payment in instalments instead of reducing the fine amount (OECD, 2016[13]; ICN, 2008[16]) – an option that is also available under the Kenyan regime. In conclusion, the potential impact of fines on companies should not serve as a general justification for failing to impose sanctions that are sufficiently deterrent.
In cases of non-compliance with fines imposed, by the CAK, the Authority lacks direct enforcement powers, which may in practice weaken the effectiveness of its decisions. However, the OECD was unable to obtain statistics on the actual level of non-compliance and therefore could not assess whether this poses a real challenge. In any event, strengthening the CAK’s powers to enforce its own decisions would be a welcome development.
Although the legislation provides for the adoption of non-financial sanctions, CAK stakeholders indicated that these are not possible in practice. Measures such as director disqualification and bidder exclusion have been implemented in many jurisdictions and have proven to be a powerful deterrent mechanism (OECD, 2022[17]). Furthermore, administrative sanctions against individuals (e.g. directors or managers) are not available under the current Kenyan framework. Since competition infringements have not been criminally prosecuted in Kenya and individuals are not sanctioned in practice, stakeholders interviewed by the OECD noted this may reduce the overall deterrent effect of competition enforcement. As stated in the OECD Recommendation concerning Effective Action against Hard Core Cartels [OECD/LEGAL/0452], jurisdictions should “introduce a combination of sanctions (civil, administrative and/ or criminal, monetary and non-monetary) for an adequate deterrent effect in their jurisdiction” and should also “consider introducing sanctions against individuals having participated in cartels”.
Finally, as mentioned above, no sanctions have been imposed for procedural infringements, despite such offences having occurred. These are criminal offences and must be prosecuted by the ODPP. Nonetheless, the CAK has never referred cases of procedural infringements to the ODPP. This practice goes against the OECD Recommendation concerning Effective Action against Hard Core Cartels [OECD/LEGAL/0452], which recommends that jurisdictions “impose sanctions for non-compliance with mandatory requests and obstruction of investigations”.
Settlements
Settlements in Kenya share characteristics with what is referred to in most jurisdictions as commitments and in practice are a hybrid of both early termination tools. In many countries, settlements apply more often to cartels and involve situations where the competition authority and the investigated parties agree on certain substantive findings (often including an admission of liability) and procedural matters, in exchange for a quicker resolution of the case and reduced fines. By contrast, commitments are more commonly applicable for abuse of dominance and vertical anti-competitive agreements cases, where authorities accept remedies proposed by the investigated parties to address the authority’s initial concerns in an antitrust proceeding. If accepted, commitments become binding on the proposing party, but no competition infringement is formally established (OECD, 2016[18]).
In Kenya, settlements are applicable for all types of competition infringements and do not necessarily require the investigated parties to admit liability. According to the CAK, parties that do admit guilt benefit from higher fine discounts. According to the OECD Recommendation concerning Effective Action against Hard Core Cartels [OECD/LEGAL/0452], jurisdictions should “enable and incentivise early case resolution tools such as plea negotiation and settlements, which often require an admission of guilt and/or the admission of facts and/or a waiver of the right to appeal”.
The legislation states that settlements may include a financial penalty, suggesting that such a penalty is not mandatory, although in practice it is always applied in cartel cases. Moreover, settlements may involve corrective measures, but there is no clear guidance on when and how these measures should be implemented. The CAK mentioned that in a few cases, settlements included obligations for companies to introduce competition compliance programmes.
Neither the Competition (General) Rules nor the Consolidated Administrative Remedies and Settlement Guidelines provide clear rules on settlement discounts, referring only to the general methodology for setting fines. Since full CAK decisions are not published, the OECD was unable to assess how settlement discounts (or other settlement terms) are applied in practice. According to the CAK, the discounts primarily reflect the degree of co‑operation by the parties. However, stakeholders interviewed by the OECD expressed concerns about the potential for excessive discretion by the CAK when negotiating and setting the financial penalty, particularly given the lack of transparency. Many jurisdictions establish maximum reduction percentages for settlements, with clear criteria for their application, thereby ensuring proportionality across cases. Jurisdictions also typically avoid granting sanction discounts that are too generous, which could undermine incentives to apply for leniency and limit the deterrent effect of fines (OECD, 2008[19]).
Moreover, although the Competition Act requires the publication of a notice in the gazette regarding settlement agreements, including the name of all undertakings involved and the nature of the conduct in question,68 stakeholders interviewed by the OECD mentioned that in practice firms may even negotiate as part of settlements to avoid being mentioned in press announcements or the published cases.
In practice, the CAK settles most cases. According to the CAK, settlements are a desired outcome, as they expedite case resolution without litigation, saving time and resources for both the CAK and the investigated parties, while ensuring compliance with competition law. The CAK also considers this approach consistent with the Constitution of Kenya. Investigated parties agree that settlements offer a quick and predictable resolution and thus represent the best way to conclude investigations. Indeed, parties have strong incentives to settle cases, especially considering that there is no formal requirement to admit the infringement and the financial penalties involved tend to be relatively low.
The CAK’s tendency to close nearly all cases with settlements, some of which do not require recognition of any violation, hinders the development of an enforcement decision record and the establishment of case law through judicial review. In the long run, this may undermine transparency and overall compliance. In addition, the fact that settlements can be negotiated at all levels (including before courts), coupled with the substantial reductions in financial penalties offered, encourages parties to rely heavily on this tool, which may weaken the deterrent effect of the CAK’s enforcement actions and undermine its credibility.
In cases where settlements are reached after the CAK has issued a final decision, judicial approval is required (either by the Competition Tribunal or the High Court). Nevertheless, these settlements are negotiated by the CAK and, in practice, once approved by the CAK’s Board of Directors, they are typically homologated by the Judiciary (see Chapter 8).
There are no specific rules governing non-compliance with settlements. In such an instance, the CAK expects it would conduct an investigation internally and impose remedies as provided by the Competition Act, rather than refer the matter to the ODPP. To date, the CAK reports that there have been no incidents of non-compliance with settlements.
Criminal sanctions
The OECD Recommendation concerning Effective Action against Hard Core Cartels [OECD/LEGAL/0452] recommends providing for “effective sanctions of a kind and at a level adequate to deter firms and individuals from participating in hard core cartels and incentivise cartel members to defect from the cartel and co-operate with the competition agency”, including “a combination of sanctions (civil, administrative and/ or criminal, monetary and non-monetary) for an adequate deterrent effect”.
The criminalisation of competition infringements in most jurisdictions is typically limited to hard core cartels, which are considered the most egregious violations of competition law, as recognised in the OECD Recommendation [OECD/LEGAL/0452]. In some jurisdictions, criminalisation is further restricted to bid rigging conduct. Abuse of dominance is generally not criminalised. Compared to civil enforcement, criminal enforcement across the globe is far less frequent and takes place in far fewer jurisdictions (OECD, 2020[20]).
In contrast to the typically narrow ambit of criminalised competition prohibitions, all anticompetitive conduct in break of the Competition Act constitutes a criminal offence, as do procedural infringements of the law. Legislation that criminalises conduct is only effective law if it is capable of being enforced. This suggests the Competition Act currently contains a superfluous criminal enforcement regime disconnected from the reality of competition enforcement in Kenya. The (OECD, 2020[20]) has previously observed that.
Introducing statutory criminal penalties without following up with actual criminal enforcement might convey a message of weakness of the competition authority and hence decrease (rather than increase) deterrence, insofar as it might even affect the credibility of administrative fines.
Chapter 10 of this Peer Review on co‑operation explores the specific challenges relating to enforcing procedural infringements of the Competition Act.
References
[1] CAK (2024), Strategic Plan (2023-2027) - Promoting and Sustaining Enforcement for Enhanced Consumer Welfare, https://cak.go.ke/sites/default/files/downloads/2025-06/COMPETITION-AUTHORITY-STRATEGIC-PLAN-2023-2027.pdf.
[5] CAK (2023), Consolidated Administrative Remedies and Settlement Guidelines, https://cak.go.ke/arch/sites/default/files/Consolidated_Administrative_Remedies_and_Settlement_Guidelines_2023.pdf.
[4] CAK (2021), External Guidelines on the Informant Reward Scheme Policy, https://cak.go.ke/arch/sites/default/files/External Guidelines on the Informant Reward Scheme Policy (2).pdf.
[3] CAK (2017), Leniency Program Guidelines, https://www.cak.go.ke/arch/sites/default/files/guidelines/enforcement-compliance/Leniency%20Programme%20Guidelines.pdf.
[2] Capital Business (2025), CAK invests Sh45mn in forensic lab to boost probes, https://www.capitalfm.co.ke/business/2025/06/cak-invests-sh45mn-in-forensic-lab-to-boost-probes/#google_vignette.
[15] Connor, J. and R. Lande (2012), “Cartel as Rational Business Strategy: Crime Pays”, Cardozo Law Review, Vol. 34/2, pp. 427-490.
[22] European Commission (2024), Publication of Commission decisions adopted under Regulation (EC) No 1/2003, https://competition-policy.ec.europa.eu/antitrust-and-cartels/public-versions-commission-decisions_en.
[14] Ginsburg, D. and J. Wright (2010), “Antitrust Sanctions”, Competition Policy International, Vol. 6/2, pp. 3-39.
[11] ICN (2025), Anti-Cartel Enforcement Manual - Raids, https://www.internationalcompetitionnetwork.org/wp-content/uploads/2025/04/ICN-ACEM-Chapter-1.pdf.
[16] ICN (2008), Setting of Fines for Cartels in ICN Jurisdictions, https://www.internationalcompetitionnetwork.org/wp-content/uploads/2018/05/CWG_SettingFines.pdf.
[10] Indecopi (2019), Lineamientos del Programa de Recompensas, https://cdn.www.gob.pe/uploads/document/file/2131176/Lineamientos%20del%20programa%20de%20recompensas.pdf?v=1629902109.
[8] OECD (2023), “The Future of Effective Leniency Programmes: Advancing Detection and Deterrence of Cartels”, OECD Roundtables on Competition Policy Papers, No. 299, OECD Publishing, Paris, https://doi.org/10.1787/9bc9dd57-en.
[7] OECD (2022), “Data Screening Tools for Competition Investigations”, OECD Roundtables on Competition Policy Papers, No. 284, OECD Publishing, Paris, https://doi.org/10.1787/4c5bbb9d-en.
[17] OECD (2022), “Director Disqualification and Bidder Exclusion in Competition Enforcement”, OECD Roundtables on Competition Policy Papers, No. 291, OECD Publishing, Paris, https://doi.org/10.1787/fe39ea1a-en.
[12] OECD (2022), “Interim Measures in Antitrust Investigations”, OECD Roundtables on Competition Policy Papers, No. 283, OECD Publishing, Paris, https://doi.org/10.1787/5a3242e9-en.
[20] OECD (2020), “Criminalisation of Cartels and Bid Rigging Conspiracies: A Focus on Custodial Sentences”, OECD Roundtables on Competition Policy Papers, No. 246, OECD Publishing, Paris, https://doi.org/10.1787/d3c75fb3-en.
[21] OECD (2019), “Access to the Case File and Protection of Confidential Information”, OECD Roundtables on Competition Policy Papers, No. 236, OECD Publishing, Paris, https://doi.org/10.1787/91c55a68-en.
[9] OECD (2016), Colombia: Assessment of Competition Law and Policy 2016, Competition Law and Policy Reviews, OECD Publishing, Paris, https://doi.org/10.1787/6dedc241-en.
[18] OECD (2016), “Commitment Decisions in Antitrust Cases”, OECD Roundtables on Competition Policy Papers, No. 190, OECD Publishing, Paris, https://doi.org/10.1787/bf426e05-en.
[13] OECD (2016), “Sanctions in Antitrust Cases”, OECD Roundtables on Competition Policy Papers, No. 199, OECD Publishing, Paris, https://doi.org/10.1787/10c1b129-en.
[6] OECD (2015), Summary Record: Annex to the Summary Record of the 123rd meeting of the Competition Committee held on 15-19 June 2015 - Key points of the Roundtables on Changes in Institutional Design, https://one.oecd.org/document/DAF/COMP/M(2015)1/ANN9/FINAL/En/pdf.
[19] OECD (2008), “Plea Bargaining/Settlement of Cartel Cases: Key findings, summary and notes”, OECD Roundtables on Competition Policy Papers, No. 75, OECD Publishing, Paris, https://doi.org/10.1787/3338fb2f-en.
← 1. Competition Act, ss 31, 89A and Competition (General) Rules, 2019, s 34.
← 2. Competition Act, s 31(1).
← 3. Competition Act, s 31(1).
← 4. Competition Act, s 34 and Competition (General) Rules, Second Schedule, Form I.
← 5. Competition (General) Rules, Second Schedule, Form I.
← 6. Competition (General) Rules, s 34(3).
← 7. CAK Citizen’s Service Delivery Charter, https://cak.go.ke/sites/default/files/CAKCitizensServiceDeliveryCharter.pdf.
← 8. Competition Act, s 31(2).
← 9. Leniency Programme Guidelines, s 5. The Guidelines also set out rules governing applications by subsidiary and parent undertakings, as well as legal entities involved in a joint venture (Leniency Programme Guidelines, ss 7‑10).
← 10. Leniency Programme Guidelines, s 13.
← 11. Leniency Programme Guidelines, ss 11, 13(iv).
← 12. Leniency Programme Guidelines, s 12.
← 13. Leniency Programme Guidelines, s 14.
← 14. Leniency Programme Guidelines, ss 18‑31.
← 15. Leniency Programme Guidelines, s 30.
← 16. Leniency Programme Guidelines, s 31.
← 17. Leniency Programme Guidelines, s 25.
← 18. External Guidelines on the Informant Reward Scheme Policy, s 5.
← 19. External Guidelines on the Informant Reward Scheme Policy, s 6.
← 20. External Guidelines on the Informant Reward Scheme Policy, s 7.
← 21. External Guidelines on the Informant Reward Scheme Policy, s 9.
← 22. External Guidelines on the Informant Reward Scheme Policy, ss 10‑12.
← 23. External Guidelines on the Informant Reward Scheme Policy, s 8.
← 24. CAK Citizen’s Service Delivery Charter.
← 25. Competition Act, s 34 and Competition (General) Rules, s 38(a).
← 26. Competition (General) Rules, s 38(b).
← 27. Competition Act, s 20 and Competition (General) Rules, s 47.
← 28. Competition Act, ss 20(10), 91.
← 29. Competition Act, s 32 and Competition (General) Rules, s 37.
← 30. Search and Seizure Guidelines, s 7.
← 31. Search and Seizure Guidelines, ss 16, 17.
← 32. Competition (General) Rules, s 37.
← 33. Search and Seizure Guidelines, s 29.
← 34. Search and Seizure Guidelines, s 14.
← 35. Competition Act, ss 89, 91.
← 36. Competition Act, s 31(4) and Competition (General) Rules, s 36(1).
← 37. Competition (General) Rules, s 36(2).
← 38. Competition Act, ss 88, 91.
← 39. Competition Act, ss 33, 35 and Competition (General) Rules, s 39.
← 40. Competition Act, ss 88, 91.
← 41. Competition Act, s 36.
← 42. Competition Act, s 39.
← 43. Competition Act, s 92.
← 44. Competition Act, s 37 and Competition (General) Rules, s 35(1).
← 45. Competition (General) Rules, s 35(2).
← 46. Competition Act, s 40.
← 47. Competition Act, s 39.
← 48. Constitution of Kenya, 2010, s 35.
← 49. Access to Information Act, 2016, ss 4, 6.
← 50. Although Kenya’s legal system operates on a common law model, in practice the CAK has the powers to impose administrative sanctions.
← 51. Competition Act, ss 21(9), 22(6), 24(3).
← 52. Competition Act, s 36.
← 53. Competition Act, ss 20(10), 88, 89, 90, 91.
← 54. According to sections 42 and 45 of the Competition (General) Rules, the CAK must consider the following elements when determining administrative fines: the nature of contravention; co‑operation by the undertaking with the CAK; whether the undertaking is a first-time offender; whether the conduct has ceased; the effect and duration of the misconduct; the amount of commerce affected by the conduct; the profits made as a result of the conduct; pre‑meditation; and any other relevant factors.
← 55. Consolidated Administrative Remedies and Settlement Guidelines, 2023, s. 8.1.2.
← 56. Consolidated Administrative Remedies and Settlement Guidelines, 2023, s 8.1.3.
← 57. Consolidated Administrative Remedies and Settlement Guidelines, 2023, s 8.1.4.
← 58. Consolidated Administrative Remedies and Settlement Guidelines, 2023, s 8.4.
← 59. Consolidated Administrative Remedies and Settlement Guidelines, 2023, s 10.
← 60. Competition Act, s 36.
← 61. Competition (General) Rules, s 45(1) and Consolidated Administrative Remedies and Settlement Guidelines, s 107.
← 62. Consolidated Administrative Remedies and Settlement Guidelines, s 99.
← 63. Competition (General) Rules, s 41 and Consolidated Administrative Remedies and Settlement Guidelines, ss 100‑108.
← 64. Competition (General) Rules, s 41(5).
← 65. According to the OECD Recommendation on Transparency and Procedural Fairness in Competition Law Enforcement [OECD/LEGAL/0465], jurisdictions should “inform parties and offer them opportunities to engage meaningfully in the competition law enforcement process, with due regard to the effectiveness of the investigation, by: a) ensuring that parties are notified in writing as soon as feasible and legally permissible that an investigation has been opened and of its legal basis and subject matter, to the extent that this does not undermine the effectiveness of the investigation; b) explaining to the parties, as soon as reasonably possible and appropriate during the competition law enforcement process, the factual and legal basis, competition concerns, and the status of the investigation; (…) e) providing parties with meaningful opportunities at key stages to discuss with the competition authority the investigation’s facts, progress, and procedural steps, as well as relevant legal and economic reasoning; f) offering parties the opportunity to present an adequate defence before a final decision is made. This should include: i. informing parties of all allegations against them and granting them access to the relevant evidence collected by or submitted to the competition authority or court, subject to the protection of confidential and privileged information; and ii. providing parties a meaningful opportunity to present a full response to the allegations and submit evidence in support of their arguments before the key decision makers”.
← 66. While the definition of confidential information varies across jurisdictions, it typically includes business secrets and other commercially sensitive information, sensitive personal information (e.g. telephone numbers and addresses, medical or employment records), national security information and information which cannot be disclosed due to international law obligations (OECD, 2019[21]).
← 67. For instance, this is the practice of the European Commission. See (European Commission, 2024[22]).
← 68. Competition Act, s 39.