OECD Peer Reviews of Competition Law and Policy: Kenya

4. Enforcement against anticompetitive conduct

Abstract

This chapter covers Kenya’s law and practice relating to enforcement against anti-competitive agreements and abuse of dominance.

4.1. Horizontal agreements

4.1.1. Legal framework – horizontal agreements

The Competition Act prohibits all agreements, decisions and concerted practices between undertakings or associations of undertakings “which have as their object or effect the prevention, distortion or lessening of competition in trade in any goods or services in Kenya, or a part of Kenya”.1

In addition to the general prohibition, the Competition Act also includes a non-exhaustive list of specific conduct that is likely to fall foul of the law.2 These are:

1. directly or indirectly fixing purchase or selling prices,

2. dividing markets by allocation,

3. collusive tendering,

4. limits or controls on production, access, technical development or investment.

Conduct by companies within a single economic unit is exempted from the cartel law.3

There is also an additional section of the Competition Act relating to horizontal agreements formed under the auspices of trade associations.4 This section prohibits:

• unjustifiable exclusion from trade associations,

• the association directly or indirectly recommending prices, the profit margin to include in a price, or a pricing formula,

• the association directly or indirectly recommending terms of sale (including discount, credit, delivery and product and service guarantee terms) that impact pricing.

As noted in Chapter 1, parties may seek an exemption from the CAK in relation to the general prohibition on horizontal agreements and the provision specifically covering trade associations provision.

Under the CAK’s guidelines, the authority considers that all horizontal agreements involving hard core cartel conduct are by object a breach of the Competition Act.5 There are no de minimis rules in the Competition Act or relevant CAK guidelines (see Chapter 1).

There is both an administrative and criminal enforcement regime relating to cartels. Under the civil framework, the CAK may:6

• Declare that the conduct has infringed the Competition Act,

• Order the parties to stop engaging in the conduct,

• Direct the parties to reverse or otherwise remedy the effects of the conduct,

• Impose a financial penalty “of up to ten percent of the immediately preceding year's gross annual turnover in Kenya”.

As discussed in Chapter 3, parties may also enter into settlement agreements with the CAK, which may include a pecuniary penalty paid to the CAK, and/or an award of damages to the complainant. Settlements do not require the party to admit wrongdoing.7

Under the criminal framework, a person in contravention of the horizontal agreement prohibitions “shall be liable on conviction to imprisonment for a term not exceeding five years or to a fine not exceeding ten million shillings, or both”.8

The CAK does not have the power to prosecute criminal cases. It must instead refer these cases to the Office of the Director of Public Prosecutions (ODPP) which directs criminal investigations and institutes criminal proceedings. Parallel proceedings under both criminal and civil frameworks are not possible in Kenya.

4.1.2. Legal framework – bid rigging

There is no specific definition of bid rigging in the Competition Act. The non-exhaustive list of conduct likely amounting to a cartel does note that collusive tendering amounts to a breach of the law.9 In their guidelines, the CAK explains that it views four activities as collusive tendering for the purposes of the Competition Act: cover bidding, bid suppression, bid rotation and market allocation.10 The CAK also reports relying on the (OECD, 2009[1]) Bid Rigging Guidelines as part of their analysis of potential cases.11

The same sanctions regime for horizontal agreements also applies to bid rigging.

4.1.3. Enforcement practice

The Enforcement and Compliance Department is in charge of carrying out the CAK investigations into horizontal and vertical agreements (in addition to abuse of dominance investigations). As of April 2025, it had 9 staff members.

During the course of the OECD fact-finding exercise, the CAK provided several different sets of statistics regarding its enforcement practices, all of which included conflicting figures. In combination with the fact that the CAK does not publish its enforcement decisions (and may also agree to non-publication of a summary of a case as a condition for settling with a party), this means that it is not possible to report with certainty on the enforcement figures in Kenya.

In terms of investigations opened, the five most recent years of data provided show that the CAK opened an average of 6.6 investigations into cartel agreements per year. Roughly 54% of investigations were opened after a complaint, with 46% opened ex officio by the CAK.

According to the five‑year averages collated in the latest OECD CompStats data, the average number of cartel investigations opened is 11.8 for OECD jurisdictions, 5.9 in non-OECD jurisdictions, 8 in MEA jurisdictions and 3.6 in age of authority peers.

For bid rigging, the CAK opened 2.6 investigation per year on average over the last five years. Ten investigations were opened following a complaint, and three were opened ex officio by the CAK.

The CAK has not received any leniency applications or whistleblower reports, so no investigations were started using these tools for any horizontal agreement conduct.

Table  ‎4.1 summarises the best available statistics on cartels and bid rigging in Kenya.

Table ‎4.1. Horizontal agreements (cartels and bid rigging) enforcement in Kenya

	2020	2021	2022	2023	2024
Total final decisions issued	15	7	5	7	2
Final decisions finding infringement and imposing a fine (including settlements)	2	0	1	1	0
Final decisions closing an investigation after accepting commitments	0	0	0	0	0
Final decisions closing an investigation without finding infringement	13	7	4	6	2

Source: CAK.

Box ‎4.1 surveys the cases available to the OECD, noting again that these are only redacted summaries of the cases, with no original version of the decision available.

Box ‎4.1. Prominent cartel and bid rigging decision in Kenya

2020 – Energy Dealers Association and its members – CAK/EC/05/182/A

The investigation covered whether there was an agreement by the Energy Dealers Association and its members to engage in market allocation, agreement on terms of trade and sharing of commercially sensitive information. The CAK became aware of the conduct after the association sought an exemption for a mutual gas cylinder exchange agreement among its members.

The CAK found the association’s rules created a pricing formula for members. Although the CAK did not find evidence that the rules were implemented by members in practice, the object of the conduct was nonetheless to fix prices. The CAK made no findings of infringement in relation to any of the other grounds for investigation.

The trade association was required to pay a penalty of KES 408 000 (~EUR 2 700) which amounted to roughly 5% of the association’s turnover and establish a compliance programme to raise awareness of competition law among its members.

2020-2021 – Bid rigging in supply of electricity poles – CAK/EC/05/188/A

The CAK investigated a number of complaints relating to bid rigging in the supply of electrical poles. The investigations found widespread collusion including common directorships of firms allegedly competing for tenders, firms submitting bids on behalf of themselves and their competitors, and communications from the chair of the industry association setting prices via WhatsApp.

The industry association and the majority of accused firms received no penalties and were required to undergo compliance training.

In a separate decision, four firms were issued fines after settling their cases. The highest penalty was KES 410 000 (~EUR 2 750), being 3.5% of the tender value. The other three firms fined were not named in the case summary, nor was the quantum of penalty reported.

2020-2021 – Paint manufacturing sector cartel – CAK/EC/05/166/A

Through their informally established trade association, four paint manufacturers shared strategic information, agreed to common price increases and fixed a common price for delivery.

The highest penalty was issued against the largest firm in the market, Crown Paints, who were issued a KES 29.92 million (~EUR 200 000) fine. All four firms were required to give undertakings to refrain from the conduct and to put compliance programmes in place.

2021 – Steel manufacturing cartel – CAK/EC/05/200/A

The CAK investigated 14 firms in the steel manufacturing sector. Evidence gathered showed that the firms discussed and exchanged sensitive information on competitor capacity and future investment plans. The CAK also found that the firms discussed pricing, discounts, limiting importation of inputs, limiting production of outputs and standardising product specifications.

Five firms entered into early settlements. The fines across the 14 firms totalled KES 338.85 million (~EUR 2.27 million).

Source: CAK.

Under the Competition Act, there is no set time period for conducting an investigation. The CAK’s service charter commits to investigating complex complaints such as cartel cases within 180 working days. Of the four total enforcement cases that the CAK figures on investigative timeframes for, the range was from 268 business days (around 13 months) to 753 business days (around three years), with an average of 491 business days (just under two years).

There is a Memoranda of Understanding (“MoU”) between the CAK and the Public Procurement Regulatory Authority that allows procurement data to be requested in bid rigging investigations. This does not happen in practice and there has been no co‑operation between the two authorities in bid rigging investigations. This is discussed in detail in Chapter 10 on co‑operation.

4.2. Vertical agreements

4.2.1. Legal framework

The Competition Act confirms that the prohibition of anti-competitive agreements applies to agreements between “parties in a vertical relationship, being an undertaking and its suppliers or customers or both”.12 Similar to horizontal agreements, there is also a non-exhaustive list in the Competition Act of conduct which may amount to a prohibited vertical agreement. These include:

• Resale price maintenance,13 unless it is expressly stipulated that the recommended price is not binding and that any label with a price affixed also bears the words “recommended price” next to the price.14

• Tied selling and bundling.15

• Conditional discount and rebate agreements.

• Conduct involving an intellectual property right in a manner that goes beyond the limits of fair, reasonable and non-discriminatory use.16 The CAK guidelines note this could include behaviour such as exclusive licensing, territorial restrictions, undue influence over quality control and fixing prices for licensed products.17

Vertical agreements are assessed by the rule of reason, requiring the CAK to prove the existence and anticompetitive effects of the conduct.18 The CAK must also prove the undertakings engaging in the conduct are dominant in the relevant market.

4.2.2. Enforcement in practice

In the five‑year review period, the CAK opened a total of 22 cases relating to vertical agreements, 21 based on complaints and 1 opened ex officio.

Table ‎4.2 provides an overview of the CAK’s decision practice on vertical agreements over the last five years.

Table ‎4.2. Vertical agreements enforcement in Kenya

	2020	2021	2022	2023	2024
Investigations opened	4	3	5	7	3
Final decisions	0	0	5	7	2
Decisions to close a case without finding infringement	0	0	5	7	2
Decisions to close a case with commitments	0	0	0	0	0
Decisions imposing sanctions or orders (including where settlements were reached)	0	0	0	0	0

Source: CAK.

The only enforcement decision from the CAK that has ever related to vertical agreements is the Airtel v Safaricom case from 2014.19 However, this case was brought under the Competition Act’s abuse of dominance provisions and did not directly consider the prohibition on vertical agreements, as discussed in section ‎4.4.

4.3. Analysis of agreements enforcement

4.3.1. Low enforcement levels

Over the last five years, the CAK has sanctioned an average of 0.8 horizontal cartels per year and 0 relating to vertical agreements. The decline in recent years in Kenya is stark.

Low levels of enforcement can undermine the deterrent effect of competition law, as deterrence requires a sufficient perceived probability of being detected and sanctioned. External stakeholders were broadly critical of the CAK’s approach to prohibited agreements enforcement. As mentioned in Chapter 2, concerns were repeatedly raised that the CAK has not placed sufficient strategic focus on investigating cartel cases, with the CAK’s resources too focussed on trainings and workshops for staff, or advocacy activities. While stakeholders recognised the need for advocacy and skilled staff, they were of the strong view that bringing enforcement cases, particularly in cartels, is the most effective form of training for staff and the most useful advocacy tool available to the CAK.

The OECD Recommendation concerning Effective Action against Hard Core Cartels [OECD/LEGAL/0452] calls on adherent jurisdictions to “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”. However, this requires striking a balance between utilising early case resolution to ensure effective and efficient use of competition authority resources, against the potential weakening specific and general deterrence the sanctions are too low.

4.3.2. Sanctions and deterrence

The Recommendation on Fighting Bid Rigging in Public Procurement [OECD/LEGAL/0396] recommends providing for sufficiently deterrent sanctions for bid rigging. These can include criminal liability and imprisonment for individuals.

Within the CAK, the culture among staff and leadership is that the authority’s approach to sanctioning cartels is a work in progress. Since beginning operations in 2011, the CAK has moved from issuing warnings, to nominal fines and now larger fines as they build awareness of the competition law in the country. Internal stakeholders remain acutely concerned with potential negative external criticism about being overly punitive that may lead to job losses from firm closures, or by deterring foreign investment. For the CAK, the focus remains less on punishing but on converting sanctioned firms into ambassadors for increased compliance. The CAK does not require firms to admit wrongdoing. Indeed, firms may even negotiate as part of settlements to avoid being mentioned in press announcements or the published cases (noting again that the formal CAK decisions are not publicly available).

As a result, concluding cases through settlement is the default approach the CAK takes. Despite the maximum civil penalty for cartel conduct being 10% of turnover, the CAK has never issued a sanction close to this amount and reported no intention of seeking such a sanction in the short to medium term. Estimates provided by stakeholders was that settlement sanctions typically amount to less than 1% of total turnover. In the more recent cases where information is available on the quantum of sanctions in settlements, figures include:

• 5% of turnover of the industry association in the Energy Dealers Association cartel.20

• 3.5% of the tender value (rather than total firm turnover) in the electricity poles cartel.21

The CAK explained that the low fines through settlements are also driven in part by a concern that overly onerous sanctions may deter investment into Kenya, or that they may put sanctioned firms out of business (also impacting employment). Concerns about decreasing competition in a market if a firm exits due to large sanctions, must be balanced against the potential upsides of increasing competition in markets across Kenya through general deterrence of cartel conduct (Buccirossi et al., 2009[2]). Additionally, overly generous discounts on the basis of potential firm failure risks “generating distorted incentives for compliance for wrongdoers differing only in their financial situation, and of inducing firms to issue more debt to reduce their (apparent) ability to pay and, thereby, the level of the expected fines” (Buccirossi et al., 2009[2]).

Several external stakeholders noted that while the CAK’s generous approach to settling cases may have been appropriate in its earlier years of operations, after 14 years it was now time to issue substantive sanctions when appropriate. No party has ever sought leniency in Kenya, with external stakeholders explaining there was no incentive given the low risk of being investigated at all, and the generosity of settling meaning firms can pay a small sum if they are caught.

Early case resolution through settlements must be balanced against the need to adequately deter cartels and to encourage firms to apply for leniency (OECD, 2019[3]). This is particularly relevant for the Kenyan context where the CAK emphasises the need to continue raising awareness of the competition law, and where there have been no leniency applications or whistleblower disclosures. For the CAK, increasing enforcement in cartels and increasing the penalties issued should be a priority.

4.3.3. Preventing bid rigging

The Recommendation on Fighting Bid Rigging in Public Procurement [OECD/LEGAL/0396] recognises that bid rigging is among the most egregious violations of competition law that injures the public purchaser by raising prices, reducing quality, establishing output restrictions or quotas, or sharing or dividing markets (OECD, 2021[4]).

Public procurement accounts for 60% of the Kenyan Government’s annual budget, typically amounting to 10‑13% of GDP (National Treasury of Kenya, 2025[5]; Kenyan Public Procurement Regulatory Authority, 2023[6]). The Kenyan Constitution includes an article that requires the procurement system to be “fair, equitable, transparent, competitive and cost-effective”.22 Article 227 also requires the parliament to create a legislative framework that, among other factors, sanctions those that breach procurement procedures or have engaged in corrupt practices.23

An MoU exists between the CAK and the Public Procurement Regulatory Authority (“PPRA”). However, in practice there is no co‑operation to date that has resulted in any bid rigging enforcement. The minimal co‑operation to date has focussed on capacity building and trainings for procurers, and the agencies do not regularly communicate.

Despite being mandatory, only roughly 800 of the 34 000 procuring authorities in Kenya utilise the country’s eProcurement portal. Neither the CAK nor the PPRA have any capacity to conduct screening and are entirely dependent on complaints to identify bid rigging conduct.

The PPRA has never issued a sanction for any breach of the public procurement law, let alone corrupt practices such as bid rigging. The bid rigging conduct the CAK investigated and sanctioned relating to electricity pole tenders was discovered by a complaint and through monitoring news media reports.

4.4. Abuse of dominance

Sections 23 and 24 of the Competition Act provides the legal framework on abuse of dominant position in Kenya. Section 24 of the Competition Act prohibits any abuse of a dominant position by an undertaking in a market in Kenya, including through the following practices:

• Directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions,

• Limiting or restricting production, market outlets or market access, investment, distribution, technical development or technological progress through predatory or other practices,

• Applying dissimilar conditions to equivalent transactions with other trading parties,

• Making the conclusion of contracts subject to acceptance by other parties of supplementary conditions which by their nature or according to commercial usage have no connection with the subject-matter of the contracts,

• Abusing of an intellectual property (IP) right.

The list of abusive practices mentioned in the Competition Act contemplates both exploitative and exclusionary abuses. It is a non-exhaustive list of potential abusive behaviour, meaning that other practices can also constitute an abuse of dominance.24

To assess whether an undertaking has abused its dominant position, the CAK needs to first define the relevant market, then establish whether the undertaking holds a dominant position and finally determine whether it has abused that position.25

In Kenya, abuse of dominance constitutes either a criminal or an administrative infringement. Criminal sanctions include imprisonment for up to five years and/or a fine of up to KES 10 000 000 (approximately EUR 66 000).26 Administrative sanctions include a fine of up to 10% of the undertaking’s gross annual turnover in Kenya for the immediately preceding year.27

4.4.1. Market definition

Based on Section 4(1)(b) of the Competition Act, the CAK developed the Guidelines on Relevant Market Definition to guide how it applies the concept of relevant markets (CAK, 2019[7]). The Guidelines apply to vertical agreements, abuse of dominance and merger review cases.

The Guidelines clarify that while market definition is not an end in itself, it constitutes the first step in a full competition analysis, helping the CAK establish the boundaries within which competition takes place and assess the effects on competition of a conduct or transaction by calculating market shares and identifying actual or potential competitors of the undertakings involved.28

To determine relevant markets, the CAK focusses on both demand and supply substitutability. It defines relevant markets along two main dimensions: the product market (i.e. all products or services regarded as reasonably interchangeable or substitutable by consumer preferences, product characteristics, intended use, production methodologies, raw materials used and route to market) and the geographic market (i.e. the area in which the undertakings concerned are involved in the supply and demand of products or services, where competition conditions are sufficiently homogeneous).29

According to the Guidelines, the main test used by the CAK to define relevant markets is the hypothetical monopolist test (SSNIP test).30

The Guidelines also provide examples of types of evidence and information the CAK may use in the market definition process. These include, among others: product characteristics and intended use, substitution in the recent past, views of customers and competitors, consumer preferences, barriers to substitution, patterns in price changes, imports and transportation costs.31

The Guidelines also include some considerations for market definition in multi-sided markets, non-price markets, digital markets and secondary (or after) markets.32

4.4.2. Dominant position

According to the Competition Act, an undertaking is considered to hold a dominant position when:33

• It has a market share of over 50% in a relevant market,

• It has a market share of between 40% and 50% in a relevant market unless it proves that it does not have market power,

• It has a market share below 40% in a relevant market but has market power.

Depending on the availability of data and the characteristics of the market, the CAK can assess different factors to determine market shares, such as revenues (monetary sales), demand units (unit sales), output or potential capacity (to produce or sell).34

The legislation establishes a presumption of dominance for firms holding more than 50% market share. For undertakings with less than 50% market share, the CAK needs to assess whether they have market power or the ability to exercise market power.35 According to the CAK, market power is considered to exist when an undertaking has: (i) the ability to act unconstrained by, or to an appreciable extent, independently of its customers, competitors and suppliers; and/or (ii) the ability to control prices, profitably sustain prices above competitive levels or restrict output or quality below competitive levels (i.e. whether they can act unconstrained by customers, competitors and suppliers).36

Several factors are considered in this regard, including barriers to entry, countervailing power, imports, product differentiation, the stability of market shares and the ability of the undertaking to sustain price increase over time.37

4.4.3. Abusive behaviour

Abuse of dominance is assessed under the rule of reason, meaning that a behaviour will only be considered illegal if its anti-competitive effects outweigh its pro-competitive effects.

Indeed, when assessing unilateral conduct, the CAK takes into account the specific practice in question and the level of competition in the market with and without the presence of the investigated practice. In general, the CAK focusses on whether the behaviour leads to foreclosure or exclusion of rivals or results in exploitation of consumers. It can also consider whether the practice strengthens barriers to entry.38 The CAK has the burden of proving the anti-competitive effects of the unilateral conduct, while the investigated parties are entitled to provide an objective justification or efficiency defence for their conduct.39

The CAK guidelines provide more specific guidance on the assessment of different types of abuse, in particular the ones falling under the practices mentioned in the non-exhaustive list provided for in Section 24(2) of the Competition Act. For example, regarding unfair prices or trading conditions, the CAK assesses: prices charged to various customers and suppliers, the structure of costs of production of goods or services, actual costs of production of goods or services, prices and costs in a competitive or comparable market and the profitability of the dominant undertaking.40 Regarding price discrimination, the CAK considers: whether the dominant undertaking has control over prices, has the ability to and is engaged in segregating customers into different groups, and whether there is detriment to customers.41 As for tying and bundling, the CAK assesses whether the products or services in question are distinct and whether the tying or bundling is negatively affecting competition in either the tied market or tying market or both.42 Finally, while owning an IP right does not automatically confer market power, it is provided that IP owners can abuse their dominant position, for instance if they use their IP rights to prevent the development of a new product or market.43

4.4.4. Enforcement practice

The Enforcement and Compliance Department is in charge of carrying out the CAK investigations into abuse of dominance. As at April 2025, it had nine staff members.

According to CAK data, between 2020 and 2023, the CAK issued 82 decisions on abuse of dominance. All of them closed the investigations without finding an infringement (see Table ‎4.3 below). The duration of cases varies significantly, from 268 days to 753 days. The most notable abuse of dominance case dates back to 2014, when a settlement was reached with the investigated party (as discussed in the box below).

Between 2020 and 2023, the CAK started 80 investigations, 56 of them after receiving a complaint.

Table ‎4.3. Abuse of dominance enforcement in Kenya

	2020	2021	2022	2023	2024
Total final decisions issued	17	20	27	18
Final decisions finding infringement and imposing a fine (including settlements)	0	0	0	0
Final decisions closing an investigation after accepting commitments	0	0	0	0
Final decisions closing an investigation without finding infringement	17	20	27	18

Source: CAK.

Box ‎4.2. Airtel Kenya Limited v Safaricom Limited (2014)

In 2014, the CAK received a complaint from Airtel Kenya Limited against Safaricom Limited (“Safaricom”), alleging that Safaricom had abused its dominant position through exclusive dealing arrangements in the mobile money transfer service market. In particular, it was alleged that Safaricom had entered into agreements with its mobile money transfer service agents (“M-PESA”) requiring them not to offer mobile money transfer services for competing mobile money transfer service providers and therefore abused its dominant position.

In response, the CAK conducted a two‑phase investigation: first, to determine whether Safaricom was a dominant undertaking, and second, whether Safaricom had abused its dominant position.

Firstly, the CAK found that Safaricom was the dominant undertaking in the mobile money transfer service market with a market share of over 75%. Subsequently, the CAK determined that the M-PESA agent agreements included exclusivity clauses that barred agents from promoting or selling competing services, though banks and large supermarkets were exempt. This discouraged agents from investing in competing services due to fear of retaliation, despite Safaricom making minimal retail-level investments that did not justify exclusivity. As a result, competition in the mobile money transfer market was restricted, resources of the dealers of the agents were used inefficiently and socio‑economic growth was hindered, resulting in the abuse of a dominant position by limiting output.

The case was settled on the conditions that: (i) Safaricom must promptly revise M-PESA agent contracts to remove exclusivity, allowing agents to do business with other money transfer service providers; (ii) its oversight over agents must be limited to its own services; and (iii) each mobile money transfer service provider must ensure compliance with Central Bank of Kenya Regulations.

Source: CAK’s decision no. CAK/EC/05/34/A of 18 July 2014.

4.5. Analysis on abuse of dominance enforcement

4.5.1. Market definition

While the methodology set out in the Guidelines on Relevant Market Definition is generally in line with international best practices, the OECD was unable to assess in detail how these provisions are applied by the CAK, and therefore how relevant markets are defined in practice. This is because full decisions are not publicly available and were not shared with the team. Indeed, public decisions only present the conclusions on market definition, without further explaining the underlying reasoning.

During the OECD fact-finding mission, stakeholders expressed concerns regarding how the CAK defines relevant markets. They noted that market definition is often not very detailed, relying more qualitative than quantitative analysis. According to stakeholders, although the Guidelines on Relevant Market Definition identify the SNIPP test as the main tool for defining relevant markets, in practice it has been applied only on a few occasions.

CAK staff acknowledged the challenges of obtaining the information necessary to determine relevant markets. The limited effectiveness of the CAK’s powers to request information, as discussed above, contributes to these difficulties. They also noted that the challenge is particularly acute in sectors where informality is widespread, as experienced in past cases.

4.5.2. Dominant position and abusive behaviour

In general, the Kenyan legal framework on abuse of dominance aligns with international best practices. Indeed, holding a dominant position is not in itself a violation of competition law in Kenya, and in order to establish an abuse the CAK must determine that the undertaking at stake is dominant and that it has abused that position. Moreover, the list of potential unilateral conducts set out in the Competition Act is non-exhaustive, suggesting that the CAK focusses on the anti-competitive effects of the conduct rather than its form. Abuse of dominance is assessed under the rule of reason, that is, the CAK must first demonstrate the anti-competitive effects of the conduct (especially in terms of its ability to exclude competitors or affect the competitive process) and then evaluate whether there are legitimate justifications of efficiencies.

However, there appears to be a lack of clarity regarding the definition of dominance and market power. On the one hand, undertakings with a market share exceeding 50% in a relevant market are presumed to be dominant. On the other hand, undertakings with less than 50% market share “shall also be deemed dominant” if: (i) they have between 40% and 50% market share, unless they can demonstrate they do not have market power; or (ii) they have less than 40% market share but nonetheless have market power. According to these provisions, the notion of dominance refers to structural elements based on a market share threshold, while market power relates to other market conditions and dynamics, such as barriers to entry, countervailing power etc.

In practice, according to the CAK, to establish an abuse of dominance case, the agency must demonstrate dominance, which rests in the ability to exercise market power. For undertakings with more than 50% market share, dominance is presumed, meaning that it is sufficient to prove that the market share threshold is met. For undertakings below the 50% threshold, the CAK must assess whether the firm has market power, which requires an analysis of market conditions and dynamics to determine whether the firm can set prices, output, or trading terms without being effectively constrained by its customers, competitors or suppliers.

The text of the Competition Act seems to introduce an irrebuttable presumption of dominance for undertakings with over 50% market share, as neither the Act nor the CAK guidelines refer to the possibility of rebutting this presumption by demonstrating a lack of market power. By contrast, for undertakings with market share between 40% and 50%, the Act also provides for a presumption of dominance, but expressly allows them to prove they do not hold market power. Nevertheless, during the OECD fact-finding mission, CAK stakeholders indicated that both presumptions of dominance are, in practice, rebuttable, meaning that undertakings may present evidence showing they lack sufficient market power to behave independently of competitive constraints.

Therefore, while the legal framework seems to depart from international best practices regarding the definition of dominance, in practice the CAK’s assessment is generally consistent with such standards. However, the lack of clarity in the legal framework can still give rise to legal uncertainty, including due to the risk of new interpretations of existing provisions. In many jurisdictions, a market share threshold is set below which dominance is considered unlikely and above which dominance is considered likely. Market shares are typically used just as a first step to determine a dominant position (i.e. a rebuttable presumption), being complemented by a case‑by-case assessment of other market conditions and dynamics, such as the potential entry of newcomers and the growth of existing competitors, countervailing purchasing power, alternative sources of supply and entry barriers (OECD, 2021[8]).

Regarding enforcement records on abuse of dominance, although various investigations have been conducted, no infringement decisions have been issued to date. Only one can be highlighted as a landmark case, where the CAK settled with the investigated party in 2014, as mentioned above.

According to the OECD CompStats, between 2019 and 2023, the average of abuse infringement decisions was 1.5 in OECD jurisdictions, 2 in non-OECD jurisdictions, 3 in MEA jurisdictions and 0.8 in age of authority peer jurisdictions.

The OECD was unable to access full decisions of abuse of dominance cases (including non-infringement decisions), which limited the team’s ability to further assess the underlying reasons for the lack of successful enforcement. During the OECD fact-finding mission, CAK stakeholders suggested that the limited number of complaints may at least partially explain the low level of enforcement related to unilateral conduct, though they also indicated that the authority is making efforts to strengthen its ex officio actions to spot potential abuse of dominance cases. Moreover, they highlighted that proving dominance is very challenging, particularly due to difficulties in obtaining up-to-date data to establish market shares. In practice, the CAK relies on disaggregated data from the Kenya Bureau of National Statistics (with whom it has an MoU), supplemented by information from sector regulators, desk research and market participants. More efforts are necessary to compel market participants to provide data, including the use of the CAK’s powers to enforce compliance with compulsory requests for information.

References

[2] Buccirossi, P. et al. (2009), Deterrence in Competition Law, http://nbn-resolving.de/urn/resolver.pl?urn=nbn:de:bvb:19-epub-13269-7.

[7] CAK (2019), Competition Authority of Kenya Revised Guidelines on Relevant Market Definition, https://cak.go.ke/arch/sites/default/files/Guidelines%20on%20Relevant%20Market%20Definition%20(1).pdf.

[6] Kenyan Public Procurement Regulatory Authority (2023), Public Consultation/Invitation of Comments and Feedback on the Proposed Public Procurement Capacity Building Levy, https://ppra.go.ke/capacity-building-levy/ (accessed on 12 November 2025).

[5] National Treasury of Kenya (2025), The launch of the Electronic Government Procurement System, https://newsite.treasury.go.ke/launch-electronic-government-procurement-system (accessed on 12 November 2025).

[8] OECD (2021), “Economic Analysis and Evidence in Abuse Cases”, OECD Roundtables on Competition Policy Papers, No. 269, OECD Publishing, Paris, https://doi.org/10.1787/63e6d5f0-en.

[4] OECD (2021), Fighting Bid Rigging in the Health Sector in Peru: A Review of Public Procurement at EsSalud, Competition Law and Policy Reviews, OECD Publishing, Paris, https://doi.org/10.1787/13f7e8f4-en.

[3] OECD (2019), Review of the 1998 OECD Recommendation concerning Effective Action against Hard Core Cartels, OECD Publishing, Paris, https://doi.org/10.1787/58c38ceb-en.

[1] OECD (2009), Guidelines for Fighting Bid Rigging in Public Procurement, OECD Publishing, Paris, https://doi.org/10.1787/8cfeafbb-en.

Notes

← 1.  Competition Act s 21.

← 2.  Competition Act s 21(3).

← 3.  Competition Act s 21(8).

← 4.  Competition Act s 22.

← 5.  Consolidated Guidelines on Restrictive Trade Practices under the Competition Act, paras 41‑42.

← 6.  Competition Act s 36.

← 7.  Competition Act s 38.

← 8.  Competition Act ss 21(9), 22(6).

← 9.  Competition Act s 21(3)(c).

← 10.  CAK, “Consolidated Guidelines on Restrictive Trade Practices under the Competition Act”, https://cak.go.ke/arch/sites/default/files/Consolidated%20Guidelines%20on%20Restrictive%20Trade%20Practices%20.pdf.

← 11.  Note that an updated version of the OECD Bid Rigging Guidelines were released in 2025, https://doi.org/10.1787/cbe05a56-en.

← 12.  Competition Act s 21(2).

← 13.  Competition Act s 21(3)(d).

← 14.  Competition Act s 21(5).

← 15.  Competition Act s 21(3)(g).

← 16.  Competition Act s 21(3)(h).

← 17.  Consolidated Guidelines on Restrictive Trade Practices under the Competition Act, paras 41‑42.

← 18.  Consolidated Guidelines on Restrictive Trade Practices under the Competition Act, para 55.

← 19.  Airtel Kenya Limited v Safaricom Limited CAK/EC/05/34/A.

← 20.  Decision CAK/EC/05/182/A.

← 21.  Decision CAK/EC/05/188/A.

← 22.  Constitution of Kenya, Article 227(1).

← 23.  Constitution of Kenya, Article 227(2)(c)-(d).

← 24.  Competition Act, s 24(2).

← 25.  CAK Consolidated Guidelines on Restrictive Trade Practices under the Competition Act, ss 60‑62.

← 26.  Competition Act, s 24(3).

← 27.  Competition Act, s 36.

← 28.  Competition Authority of Kenya Revised Guidelines on Relevant Market Definition, ss 3, 4.

← 29.  Competition Authority of Kenya Revised Guidelines on Relevant Market Definition, ss 10‑12.

← 30.  Competition Authority of Kenya Revised Guidelines on Relevant Market Definition, s 13.

← 31.  Competition Authority of Kenya Revised Guidelines on Relevant Market Definition, ss 19‑53.

← 32.  Competition Authority of Kenya Revised Guidelines on Relevant Market Definition, ss 58‑73.

← 33.  Competition Act, ss 4(3), 23.

← 34.  CAK Consolidated Guidelines on Restrictive Trade Practices under the Competition Act, s 69.

← 35.  CAK Consolidated Guidelines on Restrictive Trade Practices under the Competition Act, s 66.

← 36.  CAK Consolidated Guidelines on Restrictive Trade Practices under the Competition Act, s 65.

← 37.  CAK Consolidated Guidelines on Restrictive Trade Practices under the Competition Act, ss 64, 66‑68.

← 38.  CAK Consolidated Guidelines on Restrictive Trade Practices under the Competition Act, ss 70‑72.

← 39.  CAK Consolidated Guidelines on Restrictive Trade Practices under the Competition Act, s 87.

← 40.  CAK Consolidated Guidelines on Restrictive Trade Practices under the Competition Act, s 78.

← 41.  CAK Consolidated Guidelines on Restrictive Trade Practices under the Competition Act, s 80.

← 42.  CAK Consolidated Guidelines on Restrictive Trade Practices under the Competition Act, s 83.

← 43.  CAK Consolidated Guidelines on Restrictive Trade Practices under the Competition Act, ss 85‑86.