This chapter covers the merger control framework in Kenya, at both the national and supranational level.
OECD Peer Reviews of Competition Law and Policy: Kenya
Abstract
Part IV of the Competition Act establishes an ex-ante and mandatory merger control regime in Kenya. The notification of a merger has suspensory effects until the decision by the CAK or the period for review expires.1 The CAK can unconditionally authorise the transaction, authorise the transaction subject to remedies or reject the transaction.2
The CAK has issued a few guidelines related to merger control. In addition to the Merger Threshold Guidelines (attached to the Competition (General) Rules), the CAK has developed the Guidelines for Market Definition (CAK, 2019[1]), the Consolidated Merger Guidelines (CAK, 2024[2]) and the Joint Venture Guidelines (CAK, 2024[3]).
The definition of a merger is provided in Section 41(1) of the Competition Act and encompasses transactions where “one or more undertakings directly or indirectly acquire or establish direct or indirect control over the whole or part of the business of another undertaking”. Section 41 of the Competition Act, Section 6 of the Competition (General) Rules, as well as the Consolidated Merger Guidelines and the Joint Venture Guidelines, provide further details on the definition of mergers for the purpose of merger review in Kenya.
The Mergers and Acquisitions Department under the Directorate of Competition and Consumer Protection is in charge of reviewing mergers. As of April 2025, it had 7 staff members. The decisions are made by the Board of Directors, based on a final report approved by the Director-General.
5.1.1. Notification system
According to the Competition Act, the CAK may, in consultation with the Cabinet Secretary and by notice in the gazette, set merger thresholds.3 In practice, thresholds were set in the Competition (General) Rules, which provide for alternative turnover- and asset-based thresholds for mandatory notifications (so-called “full notifications”):4
Mergers where the undertakings have a minimum combined local turnover or assets (whichever is higher) of KES 1 billion (around EUR 6.6 million) and the turnover or assets (whichever is higher) of the target undertaking is above KES 500 million (around EUR 3.3 million);
Mergers where the acquirer’s turnover or assets (whichever is higher) is above KES 10 billion (around EUR 66 million), the merging parties are in the same market or can be vertically integrated and the transaction does not meet the COMESA merger notification thresholds;
Mergers where the undertakings operate in the COMESA region, if the undertakings have a minimum combined local turnover or assets of KES 500 million (around EUR 3.3 million) and two‑thirds or more of their turnover or assets (whichever is higher) is generated or located in Kenya; or
Mergers between undertakings in the carbon-based mineral sector, if the value of the reserves, the rights and the associated exploration assets to be held as a result of the merger exceeds KES 10 billion (around EUR 66 million).
Based on the general provisions of the Competition Act,5 the Competition (General) Rules also establish that transactions meeting the following criteria may be excluded from notification:6
Mergers where the combined turnover or assets (whichever is higher) of the merging parties is between KES 500 million (around EUR 3.3 million) and KES 1 billion (around EUR 6.6 million) and
Mergers between undertakings in the carbon-based mineral sector, if they are engaged in prospecting, irrespective of asset value.
These mergers must also be notified to the CAK (albeit through a simplified form). The CAK will then conduct an assessment within 14 days and decide whether the transaction can be excluded from having to submit a full notification and review. This decision rests with the Director-General who has been given delegated authority by the Board. If the CAK concludes that the transaction is likely to substantially prevent or lessen competition, restrict trade or raise public interest concerns, the exclusion will not be granted and a full notification will be required. The CAK has only excluded one transaction from being able to rely on the simplified form, which occurred in 2015.
Transactions meeting the following thresholds are automatically excluded from notification and can be implemented without notifying the CAK:7
Mergers where the combined turnover or assets (whichever is higher) of the merging parties does not exceed KES 500 million (around EUR 3.3 million); or
Mergers that meet the COMESA Competition Commission (CCC) merger notification threshold and at least two‑third of the turnover or assets (whichever is higher) are not generated or located in Kenya. In such cases, the CAK must be informed in writing about the notification to the CCC.8
The CAK has call-in powers and may require parties of excluded transactions to seek approval where it is likely that the merger will substantially prevent or lessen competition, restrict trade or raise public interest concerns.9 To date, the CAK has exercised this power once, in 2015.
The Competition (General) Rules and the Merger Threshold Guidelines provide clarifications on how to determine the relevant turnover and assets, specifying that these should be calculated based on annual turnover or the value of assets in Kenya.10 In addition, there are specific provisions applicable to credit institutions and other financial entities, joint ventures, and investment funds.11
The notification thresholds were set in 2019 and have not been reviewed since then. This also included changes to avoid overlapping jurisdiction between Kenya and COMESA, as discussed below, which led to a significant reduction in the number of notifications to the CAK. Any changes to the thresholds must be decided by the Cabinet Secretary for the National Treasury and Planning, in consultation with the CAK.
Table 5.1 below presents the number of merger notifications received by the CAK in recent years:
Note: Full notifications refer to transactions meeting the thresholds for mandatory notifications, while transactions excluded from notification refer to mergers that may be excluded from notification.
Source: Data provided by the CAK.
5.1.2. Review process and timelines
Pre‑notification
Section 14 of the Competition (General) Rules allows for pre‑notification consultations with the CAK regarding the need to notify a transaction. Such consultations can also cover other aspects, including guidance on process (for instance, documents and information to be submitted) and timing.12 These consultations are indicative, meaning that CAK’s advisory opinions are non-binding.
The CAK estimates they conduct 5 to 10 pre‑notification consultations per year.
Notification
The requirements for notification are established in the Competition (General) Rules, notably the submission of the notification form with detailed information on what should be provided. This includes, for instance, the identity of the merging parties, the nature and terms of the transaction, and details of the relevant markets in which they operate. Notifications seeking exclusion from full notification require more succinct information.13
Notifying parties must pay a filing fee, which varies according to the combined turnover or value of assets:
Between KES 1 billion (around EUR 6.6 million) and KES 10 billion (around EUR 66 million): KES 1 million (around EUR 6 600),
Between KES 10 billion (around EUR 66 million) and KES 50 billion (around EUR 330 million): KES 2 million (around EUR 13 200),
Above KES 50 billion (around EUR 330 million): KES 4 million (around EUR 26 400).
Merger filing fees were set in 2019 and have remained unchanged since. Any revision must be decided by the Cabinet Secretary for the National Treasury and Planning, in consultation with the CAK. As noted in section 2.1.3, merger fees form part of the CAK’s operating budget.
Notifications seeking exclusion from full notification are not subject to any filing fees.
Timeline and procedure
As mentioned above, the Competition (General) Rules allow transactions meeting specific thresholds to apply for an exclusion from full notification. In such cases, the CAK has 14 days after receiving the simplified notification to assess the transaction and determine whether it qualifies for exclusion. If the authority concludes that the transaction raises competition or public interest concerns, it may require the parties to submit a full notification.14 According to the CAK, currently, around 50% of notified mergers qualify for the simplified procedure.
For full notifications, once a notification is received, the CAK has 30 days to analyse it and, if necessary, request further information. If this is the case, the CAK must issue a decision within 60 days of receiving the requested information. If no further information is requested, the CAK must decide within 60 days of the date on which the notification was received. Before the expiry of these time limits, the CAK may decide to conduct a hearing, in which case it must issue a decision within 30 days after the conclusion of the hearing. Depending on the complexity of the case, these deadlines may be extended by up to 60 days based on a reasoned decision by the CAK.15 According to the CAK, this extension has been used only on one occasion to date.
The CAK is not required to publicise the receipt of a merger notification or the start of a review, for instance by disclosing the name of the parties involved and their economic activities. During the merger review process, the CAK may take statements and request information from third parties (including both private and public entities).16 Third parties may submit documents or other information relevant to the transaction.17 Merging parties are given the opportunity to engage with the CAK during the investigation, including by providing oral or written submissions and meeting with the authority.18
Merger decisions must be reasoned, particularly in case of prohibition or authorisation subject to remedies.19 The CAK must notify the merging parties in writing and publish the decision in the Gazette.20 Within 30 days of publication, the merging parties may appeal to the Competition Tribunal, which must issue a decision within four months.21 Decisions of the Competition Tribunal may be appealed to the High Court within 30 days of the notification of the Competition Tribunal’s decision.22
As discussed in Chapter 3, mergers decisions are not fully published. Only short summaries are made public, both in the Gazette and on the CAK’s website. Private stakeholders interviewed by the OECD expressed concerns about whether merging parties themselves have access to full decisions, even when remedies are imposed. They also noted the absence of a standard timeline for the online publication of summaries.
Merger review in Kenya is not structured in two phases. In other words, all cases of full notification are assessed in a single phase, regardless of their complexity, and are subject to the same time limits, although in practice more complex cases take longer. According to the CAK, the average review period for full notifications over the past five years was 45 days.
5.1.3. Substantive analysis
The competition analysis begins with the definition of the relevant market (see Chapter 4), followed by the competitive assessment and the public interest assessment. Pursuant to Section 46(2) of the Competition Act, the CAK analysis must consider whether mergers:
Prevent or lessen competition, restrict trade or the provision of services, or endanger the continuity of supplies or services
Lead to the acquisition or strengthening of a dominant position
Generate public benefits that outweigh anti-competitive effects
Affect a particular industrial sector or region
Impact employment
Influence the ability of small undertakings to gain access to or to remain competitive in the market
Affect the ability of national industries to compete in international markets and
Bring benefits related to research and development, technical efficiency, increased production, efficient distribution of goods or services and access to markets
Competitive assessment
Pursuant to the Guidelines on the Substantive Assessment of Mergers, the substantive test applied by the CAK encompasses both the dominance test and the substantial lessening of competition (SLC) test.23 According to the CAK, both tests are complementary, as prevention or lessening of competition results only from mergers that are likely to create, maintain or enhance the ability of the merged undertaking, unilaterally or in co‑ordination with other market players, to exercise market power.24 The main objective of the competition assessment is to ensure that there will be strong rivalry between undertakings in the post-merger market.25
After defining the relevant market(s), the CAK first calculates the market shares and market concentration levels, including through concentration ratios (CR4) and the Herfindahl and Hirschmann Index (HHI), in order to assess its changes before and after the transaction.26 Then, the authority looks at the competitive effects of the transaction, including the ability of merging firms to exert market power, barriers to entry, potential competition and countervailing powers.27 The CAK evaluates horizontal (unilateral and co‑ordinated) and non-horizontal (including both vertical and conglomerate) effects, considering the impact of the transaction on prices, resellers, end consumers, quantity, quality and innovation.28
If the CAK identifies anti-competitive effects, the merging parties may claim efficiencies arising from the merger. In order to be accepted, efficiencies must be demonstrated by the parties, verifiable by the authority, merger-specific, passed on to consumers and sufficient to outweigh the anti-competitive effects.29 To date, efficiencies have not played a role in CAK’s decisional practice.
Parties may also raise the failing firm defence. They have the burden to prove it and demonstrate the following conditions: (i) the allegedly failing undertaking would inevitably exit the market in the near future as a result of its financial difficulties if not taken over by another undertaking; (ii) there is no less anti-competitive alternative purchase than the proposed merger; and (iii) absent the merger, the assets of the failing undertaking would inevitable exit the market.30 According to the CAK, the failing firm defence has been accepted on a few occasions.31 However, these transactions did not raise competition concerns, which means that in practice the failing firm argument was instead considered as a positive factor in the public interest assessment.
Public interest assessment
As mentioned above, the Competition Act requires the CAK to conduct a public interest test when reviewing merger. This analysis is carried out regardless of the outcome of the competition assessment.32 In other words, the CAK may find that a merger does not raise any competition concerns but does raise public interest concerns, or vice‑versa.33
The public interest assessment considers the effects of a transaction on employment; the ability of SMEs to access or remain competitive in any market; the ability of national industries to compete in international markets; and the impact on a specific industrial sector.34 The Guidelines on the Substantive Assessment of Mergers provide further detail on how each fact is assessed and the type of evidence considered during the public interest assessment.35
The Guidelines recognise that in some cases a merger may raise multiple public interest factors with conflicting or contradictory outcomes. In such situations, the CAK must evaluate whether the various issues can be reconciled and, if not, apply a balancing approach to reach a net conclusion.36
If the CAK finds that a transaction may have negative effects on the public interest, the merging parties may present justifications, demonstrating that the positive outcomes of the transaction outweigh those effects.37
Remedies and prohibitions
If competition and/or public interest concerns are identified by the CAK, it may approve the merger subject to remedies that address these concerns or prohibit the transaction if there are no effective measures to remedy the concerns raised by the merger.38 This means that the CAK may impose remedies or block the transaction on public interest grounds, even where no competition concerns are identified.
Where competition and/or public interests concerns arise during its assessment, the CAK must inform the merging parties and provide them with the opportunity to submit arguments and/or propose remedies. The CAK may also consult with other stakeholders (public and private) to gather their views on the assessment and market-test the proposed remedies.39
The Guidelines on the Substantive Assessment of Mergers set out the elements that the CAK must consider when examining remedies:40
Comprehensive impact: remedies must address all identified concerns resulting from the merger;
Acceptable risk: the risk of remedies failing to adequately address concerns must be low;
Practicality: remedies must be capable of practical implementation, monitoring and enforcement;
Appropriate duration and timing: remedies must be capable of addressing concerns over a specified period of time.
Remedies may be structural, behavioural, or a combination of both, and are determined on a case‑by-case basis, with no preference given to any particular type of remedy.41
Remedies targeting public interest concerns may include: establishing a fund to ensure that a particular industry or local sector continue to be competitive; ensuring supply of a key input or technology over a defined period of time; imposing a moratorium on job losses for a defined period of time; redeploying staff; re‑skilling and training staff for alternative employment; maintaining contracts with suppliers for a prescribed period; or placing limits on imports.42
In recent years, the CAK has imposed remedies on a few occasions, as summarised in Table 5.2 below. Most of these remedies were aimed at addressing public interest considerations rather than competition concerns. In addition, the majority of remedies were behavioural, although structural remedies were imposed in at least one case (see the Box below). To date, no merger has been prohibited.
Note: The number of merger notifications include both full notifications and transactions qualifying for exclusion.
Source: Data provided by the CAK.
Eastern Chemicals/Shreeji (2022)
In 2022, the CAK approved the proposed acquisition of 100% of the issued shares of Eastern Chemicals Industries Limited (“Eastern Chemicals”) by Shreeji enterprises (K) Limited (“Shreeji”), subject to conditions.
In terms of relevant market analysis, the CAK identified that Shreeji primarily provided transportation, warehousing and logistics services, as well as IT services, whereas Eastern Chemicals manufactured sodium silicate in various grades, in both solid and liquid forms.
Although there was no direct overlap between the parties’ activities, a cross-directorship existed between Shreeji and Shreeji Chemicals Limited (“Shreeji Chemicals”), a competing manufacturer of Eastern Chemicals in the Kenyan sodium silicate market. Specifically, a director of Shreeji also served as a director of Shreeji Chemicals.
The CAK therefore identified competition concerns related to potential strategic information sharing and co‑ordinated conduct in the event of the merger. In light of these concerns, the CAK approved the transaction subject to the condition that no cross-directorship exists at any time between Shreeji Chemicals and Eastern Chemical. The parties agreed to comply with this remedy.
The CAK also evaluated any potential public interest impacts of the proposed transaction and concluded that there were no negative outcomes in this regard.
VIVO Energy/ENGEN International (2018)
In 2018, the CAK approved the proposed acquisition by VIVO Energy Holding B.V. (“VIVO Energy”) of 100% of the shareholding in ENGEN International Holdings (Mauritius) Limited (“ENGEN International”).
According to the CAK, VIVO Energy was a Shell licensee in 16 African countries, distributing and marketing Shell-branded fuels and lubricants, as well as dealing in liquefied petroleum gas (“LPG”). ENGEN International was wholly owned by ENGEN holdings (Pty) (“ENGEN”) and served as a holding company for ENGEN’s subsidiaries operating in petroleum product importation, storage, marketing and retail across Africa.
The CAK established that the acquiring and target companies had horizontal overlaps in the relevant product markets. The competitive assessment revealed that certain local markets in the downstream retail of petroleum products raised anti-competitive concerns, particularly in markets with few competitors where the merging parties had a significant presence and where the scarcity or high cost of land made it prohibitive to set up new retail stations. The proposed transaction also raised public interest concerns related to SME competitiveness.
The CAK approved the transaction subject to the following conditions, considered sufficient to address the identified concerns: (i) divestiture of ENGEN petrol stations in the specific local markets that raised competition concerns to players not operating in those locations at the time; (ii) honouring ongoing contracts with ENGEN’s third-party operators relating to outsourced functions; and (iii) absorption of all permanent ENGEN employees into the post-transaction entity.
Source: CAK decisions.
When a merger is approved subject to remedies, the CAK must monitor their implementation by the parties. For this purpose, it may require compliance reports at specified intervals.43 Non-compliance with remedies may result in revocation of the approval44 and constitutes either an administrative or criminal infringement, as discussed below.
In the banking, energy, insurance and telecommunications sectors, both the CAK and the relevant sector regulator have concurrent jurisdiction to review mergers.45 In these cases, authorisation from both authorities is required before a transaction can be implemented. Each authority conducts its own assessment and issues an independent decision, with the power to impose remedies or prohibit the transaction.46
When assessing such mergers, the sector regulator mainly focusses on regulatory and technical aspects (such as licence conditions and compliance with regulatory requirements), while the CAK evaluates their impact on competition, although this distinction is not always easy to draw in practice.
In addition, mergers involving publicly listed companies must also be cleared by the Capital Markets Authority (CMA).47 Co‑operation is discussed in more detail in Chapter 10.
5.1.4. Sanctions
The CAK can impose an administrative fine of up to 10% of the preceding year’s annual gross turnover of the undertaking(s) in question for failure to notify transactions fulfilling mandatory notification thresholds; for implementation of a merger before the approval by the CAK or after a prohibition decision; for providing materially incorrect or misleading information during the merger review; for non-compliance with the remedies imposed by the CAK when the transaction had been approved subject to conditions.48 The determination of such fines must follow the Consolidated Administrative Remedies and Settlement Guidelines, applying the same methodology described in Chapter 3.
These practices also characterise criminal offences, subject to a fine not exceeding KES 10 million (approximately EUR 66 000) and/or imprisonment for up to 5 years.49 Like anti-competitive behaviour, prosecution can be on either an administrative or criminal basis, although in practice no criminal prosecution has been conducted.
At the time of writing, the CAK had issued six sanctions in the past five years where a notifiable transaction had been consummated without CAK’s approval. The Box below summarises an illustrative case.
In October 2023, Sika International AG (“Sika AG”) and LSF11 Skyscraper Holdco S.a.r.l (“Skyscraper Holdco”) self-reported the implementation of a merger in Kenya (namely, Sika AG’s acquisition of indirect control of Master Builders Solutions Kenya Ltd, which was controlled by Skyscraper Holdco), following the close of the global deal in May 2023. The parties acknowledged that the transaction had not been cleared by the CAK and expressed their willingness to regularise the transaction.
The CAK confirmed that the transaction met the threshold for mandatory notification and therefore constituted a violation of Section 42 of the Competition Act. Considering mitigating factors – particularly the parties’ co‑operation and self-reporting, as well as the fact that the transaction did not negatively impact competition – the CAK imposed a reduced fine of KES 17 492 795.
Subsequently, the parties formally notified the merger before the CAK, requesting exclusion from full notification and in-depth analysis, given that the Kenyan target’s turnover was below KES 500 million. In 2024, after taking into account factors such as job retention, increased consumer choice, foreign direct investment and payment of the fine, the merger was regularised and formally approved by the authority without the need for a detailed competitive review.
Source: CAK decision.
5.1.5. COMESA, EAC and AfCFTA merger control
As mentioned in Chapter 1, Kenya is a member of the Common Market for Eastern and Southern Africa and the East African Community, both having regional competition law regimes, including merger control. Moreover, Kenya is a member of the African Continental Free Trade Area, which is also introducing a continental competition law regime. As mentioned in Chapter 1, merger control is the main aspect of supranational enforcement currently taking place in the region.
COMESA
The Common Market for Eastern and Southern Africa (COMESA) is a regional economic community comprising 21 Member States,50 established in 1994 to promote regional integration through trade liberalisation and co‑ordinated economic policies. COMESA has adopted a regional competition regime, including a mandatory and non-suspensory merger control system, governed by the COMESA Competition Regulations of 2004 and enforced by the COMESA Competition and Consumer Commission (CCCC). The COMESA merger control regime has been operational since 2013. The joint competence model between the CCCC and the national competition authorities is intended to foster greater convergence and co‑operation across jurisdictions.
Transactions must be notified to the CCCC if they meet the following criteria:51
Both the acquiring firm and the target firm or either the acquiring firm or target firm operate in two or more Member States;
The combined annual turnover or combined value of assets (whichever is higher) in COMESA of all merging parties equals or exceeds USD 50 million; and
The annual turnover or value of assets (whichever is higher) in COMESA of each of at least two merging parties equals or exceeds USD 10 million, unless each of the merging parties achieves at least two‑thirds of its aggregate turnover or assets in COMESA within the same Member State.
Merging parties must notify notifiable mergers using the prescribed form within 30 days of their decision to merge,52 but transactions may be implemented before notification or approval by the CCCC is granted.53 Merging parties must also pay a filing fee of 0.1% of their combined annual turnover or value of assets (whichever is higher) in COMESA, subject to a cap of USD 200 000.54 The CCCC retains 50% of the filing fees, while the remaining 50% is distributed among the relevant national competition authorities, proportionate to the value of the turnover or assets of the merging parties in each Member State relative to their total value of their turnover or assets in COMESA.55
The CCCC applies the substantial lessening of competition (SLC) test when reviewing mergers, while also taking into account any merger-specific efficiencies and public interest considerations.56 The CCCC must notify the Member States in which any of the merging parties operate, calling upon their views on the transaction.57 It may also request assistance from the relevant national competition authorities in cases that may affect their respective jurisdictions. Such assistance may include providing information, locating and securing evidence, and facilitating voluntary compliance with requests for information from undertakings or individuals within their territory. Staff from national competition authorities may also be required to assist CCCC officials in carrying out their duties.58
The CCCC may refer the assessment of a notified transaction to a Member State’s competition authority upon request, where the Member State claims that the transaction is likely to disproportionately reduce competition to a material extent in its territory or part thereof. The CCCC must decide within 21 days whether to retain jurisdiction over the case or to refer it – either in whole or in part – to the requesting Member State. If referred, the merger (or its relevant part) will be reviewed under that Member State’s national competition law.59 When deciding on a referral, the CCCC must take into account whether the national competition authority is the most appropriate body to handle the case.60 The referral mechanism has already been used in the past, with the CCCC handing over the assessment of mergers to Member States’ competition authorities (including the CAK) on a few occasions. Referral up from a domestic competition authority to the CCCC is not possible under the current framework.
EAC
The East African Community (EAC) is a regional economic community comprising eight member states,61 established in 2000 to widen and deepen co‑operation in political, economic and social dimensions. The EAC Competition Act, 2006, introduced a regional competition regime, including the creation of a regional competition authority (EAC Competition Authority – EACCA) in 2018 and an ex-ante and mandatory regional merger control regime. While the EAC Competition Act is in force since 2014, the merger control regime will only start operating on 1 November 2025.62
Mergers falling under the following thresholds shall notify the EACCA of the merger:63
The merging parties operate in at least two EAC Partner States;
The combined turnover or assets in EAC of the merging undertakings (whichever is higher) equals to or exceeds USD 35 million; and
At least two merging parties have a combined turnover or assets of USD 20 million in EAC, unless each of the parties achieves at least two‑thirds of its aggregate turnover or assets in EAC within one and the same Partner State.
Merging parties must notify transactions using the prescribed form and pay a filing fee, which shall be shared between the EACCA and the relevant national competition authorities.64 Filing fees vary according to the aggregate value of assets or turnover (whichever is higher):65
Between USD 35 million and USD 50 million: USD 45 000
Between USD 50 million and USD 100 million: USD 70 000
Above USD 100 million: USD 100 000
Transactions meeting EAC merger notification thresholds and notified to the EACCA do not need to be notified to the EAC national competition authorities.66
The substantive test to be applied by the EACCA when reviewing mergers is the substantial lessening of competition (SLC test), although public interests considerations must also be taken into account.67 When assessing transactions, the EACCA may consult with Partner State’s competition authorities, sector regulators or any other body.68 The EACCA may also request a Partner State’s competition authority to conduct an assessment of a merger in respect of specific aspects of the transaction or the relevant market, or where the EACCA considers that the merger may have greater impact in a specific Partner State.69
AfCFTA
The African Continental Free Trade Area (AfCFTA) was launched in 2019 to create a single continental market for goods and services, facilitating free movement of capital and natural persons across the 55 countries of the African Union and 8 regional economic communities (RECs). According to Article 7(1)(c) of the AfCFTA Agreement, member states are required to enter into negotiations on competition policy.
In this regard, the AfCFTA Protocol on Competition Policy was adopted in February 2023 to regulate competition in the continental market; however, although it has not yet entered into force, and no official date for its implementation has been established. It aims at creating an integrated and unified African competition regime, including the creation of an AfCFTA Competition Authority and an ex-ante and mandatory merger control regime. According to the Competition Protocol, the following transactions with continental dimension must be notified and approved by the AfCFTA Competition Authority:70
The merger has significant effect on competition in a market of at least two State Parties that do not share the same jurisdiction of the existing regional economic communities;
Both the acquiring undertaking and target undertaking or either the acquiring undertakings or target undertakings operate, directly or indirectly, in the AfCFTA market or a substantial part thereof; and
The combined annual turnover or assets of the undertakings concerned equals to or exceeds the thresholds to be determined by a Regulation.
The competitive test is based on the substantial lessening of competition (SLC test), although public interest factors must also be taken into account.
5.2.1. Notification system
The turnover and assets-based notification thresholds are quantifiable and transparent. This was confirmed by stakeholders interviewed by the OECD, who noted that while there had previously been uncertainty regarding the respective jurisdictions of the CAK and the CCC, this has since been resolved and there is no longer overlapping jurisdiction. Moreover, basing thresholds on turnover or asset value in Kenya ensures an appropriate local nexus, in line with the OECD Recommendation on Merger Review [OECD/LEGAL/0333].
Although there has been a gradual decrease over the years (particularly due to the threshold changes aimed at avoiding overlapping jurisdiction with COMESA), the number of merger notifications in Kenya is generally higher than the average among age of authority peers, but lower than the average among OECD and MEA peers. The notification thresholds have not been reviewed for over six years. Any changes must be approved by the National Treasury. During the OECD fact-finding mission, CAK staff indicated that a revision of thresholds is being considered in the next strategic plan. Such a revision would be welcome and aligns to the OECD Recommendation on Merger Review [OECD/LEGAL/0333], which calls for jurisdictions to “consider reviewing periodically the merger notification thresholds in mandatory merger regimes”.
Note: Age of authority peers refer to the same group as in Figure 2.3.
Source: OECD CompStats and the CAK.
The provision allowing the CAK to exclude from mandatory notification transactions meeting certain thresholds is uncommon. In most countries, clear and objective criteria define whether and when a merger must be notified, and transactions deemed not to raise competition concerns are subject to expedited review. In practice transactions meeting Kenya’s potential exclusion thresholds must still be notified and are assessed by the CAK under a fast-track procedure (up to 14 days). This resembles a simplified procedure for reviewing mergers unlikely to raise competition concerns, which is a common practice in many jurisdictions and consistent with the OECD Recommendation on Merger Review [OECD/LEGAL/0333]. Nevertheless, most jurisdictions define transactions eligible for simplified procedures based on structural elements – such as absence of horizontal overlaps or vertical relationships between the merging parties, combined market shares and the Herfindahl-Hirschman Index (HHI) (OECD, 2021[4]) – rather than turnover or asset values, as in Kenya.
The fact that the CAK has call-in powers to require notification of transactions below the merger thresholds is in line with the OECD Recommendation on Merger Review [OECD/LEGAL/0333] and allows the CAK to intervene in non-notifiable mergers that could harm competition. However, in most jurisdictions the use of such powers is typically subject to conditions, such as being exercised within a given timeframe (OECD, 2022[5]).
Merger filing fees have not been adjusted in over six years. Any changes must be approved by the National Treasury. The legal framework does not allow for flexibility for future adjustments, for instance through the use of inflation indices. According to stakeholders interviewed by the OECD, previously, there was discussion about the payment of two filing fees (to both the CAK and CCC), but clarifications on the jurisdiction of each authority have resolved this issue, and currently merging parties pay only one filing fee (either to the CAK or CCC).
5.2.2. Review process and timelines
During the OECD fact-finding mission, private stakeholders indicated that the CAK is generally accessible for pre‑notification consultations, although the advice provided is often generic and may depend on additional information to be more conclusive. Pre‑notification consultations are common in many jurisdictions and align with the OECD Recommendation on Merger Review [OECD/LEGAL/0333].
The CAK has the power to request information not only from the merging parties but also from other stakeholders, which is in line with the OECD Recommendation on Merger Review [OECD/LEGAL/0333]. However, only requests for information directed to merging parties – if made within 30 days of receipt of the merger notification – impact the review timeline. In practice, this may hinder the effective assessment of transactions, especially given the lack of enforcement of procedural infringements, such as failure to provide requested information, delays in doing so or the provision of false information, as discussed in Chapter 3.
Although third parties may participate in the merger review process, the CAK is not required to publicise the receipt of a merger notification or the start of a review (for instance by disclosing the name of the parties involved and their economic activities), which may prevent third parties from becoming aware that a transaction is taking place in the first place. According to the CAK, in practice the authority is better placed to determine which stakeholders are relevant to consult. By contract, most jurisdictions, in line with the OECD Recommendation on Merger Review [OECD/LEGAL/0333], allow broader participation of third parties with legitimate interest in the merger under review, which may bring additional data and views during the investigation, helping competition authorities take more informed decisions.
CAK stakeholders interviewed by the OECD considered the current timeframe for merger assessment to be reasonable. For instance, the current average of 45 days represents an improvement compared to previous years. Private stakeholders generally agree that the 60‑day statutory timeframe for merger review is adequate. Moreover, although Kenya does not apply a two‑phase system, the existence of a simplified procedure ensures that transactions less likely to raise competition concerns are cleared more rapidly, in line with the OECD Recommendation on Merger Review [OECD/LEGAL/0333].
5.2.3. Substantive analyses
The CAK has made efforts to improve its merger review. In particular, the Guidelines on the Substantive Assessment of Mergers provide useful guidance, especially on competitive assessment, and are generally aligned with international best practices. These guidelines have been praised not only by CAK officials, but also by private stakeholders interviewed by the OECD, who noted that they enhanced predictability.
However, the way the substantive assessment is conducted in practice has been subject to criticism. Although the OECD was not able to assess in detail how the analysis is carried out, many stakeholders indicated that the CAK’s substantive analysis is not extensive. Public versions of decisions, as well as more detailed decisions shared with the OECD team, confirm that the economic analysis, especially the use of quantitative techniques, remains very limited. This contrasts with the OECD Recommendation on Merger Review [OECD/LEGAL/0333], which stresses that economic analysis should be a key part of merger review.
This may help explain the low number of mergers approved subject to competition-related remedies and the absence of merger prohibitions, as described in Table 5.2 above. In recent years, these figures have been below the average of most peer groups. For instance, according to the OECD CompStats, in 2023 the CAK approved one merger subject to remedies, matching the average of age of authority peers but lower than all other peer groups (3.4 in OECD jurisdictions, 9.7 in non-OECD jurisdictions and 32.1 in MEA jurisdictions). In 2022, the CAK approved 3 transactions subject to remedies, which was higher than age of authority peer jurisdictions (2.74), but lower than the averages of OECD jurisdictions (4.1), non-OECD jurisdictions (6.2) and MEA jurisdictions (21)The gap is particularly pronounced when only remedies targeting competition concerns are considered, since most remedies imposed by the CAK aim instead at addressing public interest considerations, as explained below.
Likewise, the CAK has never blocked a transaction, unlike many other jurisdictions. In the five years between 2019 and 2023, the averages of merger prohibitions were 0.6 in OECD jurisdictions, 0.2 in non-OECD jurisdictions, 0.6 in MEA jurisdictions and 0.1 in age of authority peer jurisdictions.
The lack of in-depth economic analysis in the CAK’s merger review process may be attributable – at least partially – to limited human resources. In particular, the Mergers and Acquisitions Department has only seven staff members, including three economists. Moreover, the CAK lacks a specialised economics unit. As noted above, the CAK also faces challenges regarding its information-gathering powers and third-party participation is limited, which may further contribute to the limited depth of its analysis.
The public interest assessment appears to be central to merger review in Kenya and even more prominent than the competitive test. This is evidenced by the fact that most remedies imposed by the CAK are justified on public interest grounds (most frequently to preserve employment or maintain supplier and distributor contract terms for a given period) rather than on competition grounds. Stakeholders interviewed by the OECD also raised this concern, noting an expansion of the role of public interest considerations in the CAK’s assessment in recent years.
Best practices from OECD Members suggests that competition authority interventions in mergers on non-competition grounds should be exceptional and limited to specific sectors and markets only (OECD, 2016[6]; 2016[7]). This is why it is often argued that non-efficiency public interests are better addressed through sector regulators or government departments, rather than via the competition system. This is because these bodies have the relevant policy expertise or are empowered to weigh up competing political and/or policy interests (OECD, 2016[6]; 2016[7]). However, it should be acknowledged that there is not total consensus on the role of public interest considerations in merger review. This perspective builds on recent discussions on the objectives of competition enforcement and institutional design have considered whether the aims of competition policy should be extended to encompass a broader range of socio‑economic, political, and environmental goals in competition enforcement. (CCSA, 2024[8]; OECD, 2023[9]).
The CAK’s adoption of the Guidelines on the Substantive Assessment of Mergers aims to more clarity regarding the public interest test, including how it should be reconciled with the competitive test. Nevertheless, although the guidelines are a welcome development, they remain too general, leaving wide room for discretion and, as a result, making the CAK’s assessment uncertain and unpredictable. Several stakeholders interviewed by the OECD raised this concern. For instance, it remains unclear how in practice the CAK addresses cases of conflict between the competitive and the public interest tests, or between different interest factors.
For instance, South Africa, which has a similar legal framework, has recently reviewed its public interest guidelines, setting out a more detailed approach that the Competition Commission may adopt in relation to each public interest factor and the type of information it may require when evaluating such factors (CCSA, 2024[8]).
5.2.4. Sanctions
The CAK’s work in detecting and sanctioning violations of merger review rules remains limited, at least in part due to constraints in human resources, as mentioned above. During the OECD fact-finding mission, CAK staff noted that they are seeking to be proactive in identifying such infringements, particularly by monitoring publicly available information (e.g. media reports).
Sanctions for breaches of merger review rules are an essential feature of an effective merger control regime. Indeed, if these infringements are not duly sanctioned, the overall credibility of the merger control regime is undermined.
5.2.5. COMESA, EAC and AfCFTA merger control
In addition to the domestic merger control regime, transactions involving companies operating in Kenya may also fall within regional and/or continental merger control regimes. At the time of writing, COMESA was the only regional economic community of which Kenya is a member that enforced merger control, although the EAC merger review system was about to enter into force, and the AfCFTA also foresees the introduction of a merger control regime.
Over the years, Kenya and COMESA have streamlined their merger control systems (particularly through amendments to Kenya’s merger thresholds), so as to ensure the exclusive jurisdiction of each authority once its respective thresholds are met. In other words, transactions that meet COMESA’s thresholds are not required to be notified to the CAK. Stakeholders interviewed by the OECD have praised this initiative, noting that the CCCC’s and the CAK’s jurisdictions are now clear and no longer overlap in merger review.
The CCCC and the CAK have also co‑operated relatively well – at least from a formal standpoint – in merger control, relying on an MoU.71 For instance, the CAK provides its views on transactions notified to the CCCC with respect to their effects on the Kenyan market. These opinions are then incorporated into the CCCC’s analysis, alongside the views of other Member States and private stakeholders. The CAK also assists the CCCC by gathering information domestically and allowing its staff to support CCC officials when needed.
Nevertheless, several stakeholders have suggested that co‑operation between the CCCC and the CAK could be strengthened. While COMESA Member States receive a share of the merger filing fees, questions remain as to whether they have sufficient incentives to engage actively in COMESA merger review. This limited involvement and lack of access to information – coupled with the CCCC’s reliance on Member States’ inputs – may constrain the CCCC’s ability to fully identify competition concerns in the transactions under review. Indeed, in practice, few transactions have been prohibited or authorised subject to remedies by the CCCC. COMESA’s assessments could therefore benefit from greater detail and depth, supported by more active and collaborative engagement from national competition authorities.
At the time of writing, the EAC merger control regime was not yet in force but was expected to commence in November 2025. While the EAC regulations specify that mergers meeting their thresholds do not need to be notified to national competition authorities, this clarification has not yet been incorporated into Kenya’s legal framework (as was done for transactions falling under COMESA’s thresholds). This may create legal uncertainty as to which jurisdictions must be notified. Moreover, six of the eight EAC Partner States are also members of COMESA, resulting in an overlap between the two regimes and requiring dual notification where both the CCCC’s and the EACCA’s thresholds are met.
Stakeholders interviewed by the OECD expressed serious concerns about these potential overlaps (both between the EAC and COMESA systems, and between the EAC and CAK regimes) and the resulting legal uncertainty and costs. In fact, parties currently lack clarity on whether dual notifications are required (e.g. to the CAK and the EACCA, or to the EACCA and the CCCC). Such duplication would not only increase financial and administrative burdens for both merging parties and authorities but also create a risk of divergent decisions.
During the OECD fact-finding mission, staff from both the CCCC and the EACCA acknowledged these challenges and indicated they were working together to address them. For example, the CCCC and the EACCA signed an MoU in June 2025,72 but its terms are too general and do not resolve jurisdictional overlaps (for instance by establishing exclusive jurisdiction for each authority or at least including a referral mechanism). CCCC staff also mentioned that COMESA is reviewing its competition regulations in light of the forthcoming EAC merger control regime. On the other hand, CAK stakeholders suggested that these issues were being handled primarily at the regional level, and that the CAK was not directly involved. The MoU signed between the EACCA and the CAK in May 2023 similarly does not provide additional clarity regarding their respective jurisdiction over merger cases.73
The potential introduction of a continental merger control regime under the AfCFTA would further exacerbate these challenges. To date, AfCFTA merger notification thresholds have not yet been established, but they could overlap with the thresholds of the CAK, CCCC and/or EACCA, potentially resulting in a triple notification requirement and parallel merger review.
References
[2] CAK (2024), Consolidated Guidelines on the Substantive Assessment of Mergers under the Competition Act, https://cak.go.ke/sites/default/files/downloads/2024-08/ConsolidatedMergerGuidelines.pdf.
[3] CAK (2024), Joint Venture Guidelines, https://cak.go.ke/sites/default/files/downloads/2024-08/JointVentureGuidelines.pdf.
[1] 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.
[8] CCSA (2024), Revised Public Interest Guidelines Relating to Merger Control, https://www.compcom.co.za/wp-content/uploads/2024/07/CC_Public-Interest-Guidelines-.pdf.
[9] OECD (2023), “Consumer Welfare Standards - Advantages and Disadvantages Compared to Alternative Standards”, OECD Roundtables on Competition Policy Papers, No. 295, OECD Publishing, Paris, https://doi.org/10.1787/3d174fdf-en.
[5] OECD (2022), “Disentangling Consummated Mergers – Experiences and Challenges”, OECD Roundtables on Competition Policy Papers, No. 277, OECD Publishing, Paris, https://doi.org/10.1787/617a75e3-en.
[4] OECD (2021), OECD Competition Trends 2021, OECD Publishing, Paris, https://doi.org/10.1787/308565fd-en.
[6] OECD (2016), Executive Summary of the Roundtable on Public Interest Considerations in Merger Control, https://one.oecd.org/document/DAF/COMP/WP3/M(2016)1/ANN5/FINAL/en/pdf.
[7] OECD (2016), “Public Interest Considerations in Merger Control”, OECD Roundtables on Competition Policy Papers, No. 187, OECD Publishing, Paris, https://doi.org/10.1787/21950340-en.
← 1. Competition Act, s 42(2).
← 2. Competition Act, s 46(1).
← 3. Competition Act, s 42(1).
← 4. Competition (General) Rules, First Schedule, Merger Threshold Guidelines, s 4.
← 5. Competition Act, s 42(1).
← 6. Competition (General) Rules, First Schedule, Merger Threshold Guidelines, s 5.
← 7. Competition (General) Rules, First Schedule, Merger Threshold Guidelines, s 6.
← 8. Competition (General) Rules, s 8.
← 9. Competition (General) Rules, s 13.
← 10. Competition (General) Rules, s 12.
← 11. Competition (General) Rules, First Schedule, Merger Threshold Guidelines, s 8.
← 12. Competition (General) Rules, First Schedule, Merger Threshold Guidelines, s 11 and Competition (General) Rules, Second Schedule, Form III, s 8.
← 13. Competition (General) Rules, s 15 and Competition (General) Rules, Second Schedule, Form III.
← 14. Competition (General) Rules, First Schedule, Merger Threshold Guidelines, s 5(2).
← 15. Competition Act, ss 44, 45.
← 16. Competition (General) Rules, s 18.
← 17. Competition Act, s 46(5).
← 18. Competition (General) Rules, s 18(d), f).
← 19. Competition Act, s 46(6)(b)(i).
← 20. Competition Act, s 46(6)(a).
← 21. Competition Act, s 48.
← 22. Competition Act, s 49.
← 23. Consolidated Guidelines on the Substantive Assessment of Mergers under the Competition Act, s 5.
← 24. Consolidated Guidelines on the Substantive Assessment of Mergers under the Competition Act, s 42.
← 25. Consolidated Guidelines on the Substantive Assessment of Mergers under the Competition Act, s 43.
← 26. Consolidated Guidelines on the Substantive Assessment of Mergers under the Competition Act, ss 58, 59.
← 27. Consolidated Guidelines on the Substantive Assessment of Mergers under the Competition Act, s 46.
← 28. Consolidated Guidelines on the Substantive Assessment of Mergers under the Competition Act, ss 44, 45.
← 29. Consolidated Guidelines on the Substantive Assessment of Mergers under the Competition Act, ss 187‑201.
← 30. Consolidated Guidelines on the Substantive Assessment of Mergers under the Competition Act, ss 202‑204.
← 31. For instance, Mobius Motors Kenya Limited/Silver Box – FZCO (2024), Style Industries Limited/Hair Manufacturing Kenya Limited (2024), Maua Agritech PLC/Kokatnur Amogasidda Murgeppa (2024) and CFAO Motors Kenya Limited/Vehicle Manufacturers Limited (2024).
← 32. Consolidated Guidelines on the Substantive Assessment of Mergers under the Competition Act, s 217.
← 33. Consolidated Guidelines on the Substantive Assessment of Mergers under the Competition Act, s 218.
← 34. Consolidated Guidelines on the Substantive Assessment of Mergers under the Competition Act, s 216.
← 35. Consolidated Guidelines on the Substantive Assessment of Mergers under the Competition Act, ss 221‑225.
← 36. Consolidated Guidelines on the Substantive Assessment of Mergers under the Competition Act, s 219.
← 37. Consolidated Guidelines on the Substantive Assessment of Mergers under the Competition Act, s 220.
← 38. Competition Act, s 42(2) and Competition (General) Rules, s 19.
← 39. Competition (General) Rules, s 19(b) and Consolidated Guidelines on the Substantive Assessment of Mergers under the Competition Act, ss 229‑230.
← 40. Consolidated Guidelines on the Substantive Assessment of Mergers under the Competition Act, s 231.
← 41. Consolidated Guidelines on the Substantive Assessment of Mergers under the Competition Act, s 246.
← 42. Consolidated Guidelines on the Substantive Assessment of Mergers under the Competition Act, s 245.
← 43. Consolidated Guidelines on the Substantive Assessment of Mergers under the Competition Act, s 19(2).
← 44. Competition Act, s 47(1)(b).
← 45. Banking Act, rev. 2024, s 9; Energy Act, rev. 2022, s 124; Insurance Act, rev. 2022, ss 22 ff., 113 ff; Kenya Information and Communications Act, rev. 2022; Kenya Information and Communications (Fair Competition and Equality of Treatment) Regulations, 2010.
← 46. This has been clarified by the Competition Tribunal in a case involving the telecommunications sector (Telcom Kenya Limited & another v Competition Authority of Kenya, Case No. CT/005/2020, decision of 24 April 2020).
← 47. Capital Markets Act, rev. 2023; Capital Markets (Take‑Overs and Mergers) Regulations, 2002.
← 48. Competition Act, ss 42(6), 47(3).
← 49. Competition Act, ss 42(5), 47(4).
← 50. Burundi, Comoros, Democratic Republic of the Congo, Djibouti, Egypt, Eritrea, Kingdom of Eswatini, Ethiopia, Kenya, Libya, Madagascar, Malawi, Mauritius, Rwanda, Seychelles, Somalia, Sudan, Tunisia, Uganda, Zambia and Zimbabwe.
← 51. COMESA Competition Regulations, art 23(3)(4)(5) and Rules on the Determination of Merger Notification Thresholds and Method of Calculation, r 4.
← 52. COMESA Competition Regulations, art 24.
← 53. COMESA Merger Assessment Guidelines, para. 5.32.
← 54. COMESA Competition Rules, s 55(5).
← 55. Rules on COMESA Revenue Sharing of Merger Filing Fees, r 8.
← 56. COMESA Competition Regulations, art 26 and COMESA Merger Assessment Guidelines, s 7.
← 57. COMESA Competition Regulations, art 26(6).
← 58. Co‑operation Framework Agreement between the COMESA Competition Commission and the Competition Authority of Kenya regarding Co‑operation in the Application and Enforcement of their Competition and Consumer Protection Laws, 2022, art 3‑6.
← 59. COMESA Competition Regulations, art 24(8)(9).
← 60. COMESA Merger Assessment Guidelines, para. 5.27.
← 61. Burundi, Democratic Republic of the Congo, Kenya, Rwanda, Somalia, South Sudan, Uganda and the United Republic of Tanzania.
← 62. Notice of Commencement of Receipt of Notification of Mergers and Acquisitions with Cross-Border Effect by the East African Community Competition Authority, of 1 July 2025.
← 63. EAC Competition Act, art 4(1), 11(1), EAC Competition (Mergers and Acquisitions) Regulations, 2025, art 3(1), 4 and EAC Competition (Thresholds for Notification of Mergers and Acquisitions to the East African Competition Authority) Notice, 2024, art 2.
← 64. The EACCA shall retain 50% of the notification fee, while the remaining 50% shall be distributed among the relevant national competition authorities in proportion to the value of the turnover or assets of the undertakings in each Partner State relative to the total value of the turnover or assets in the EAC market (Competition (Sharing of Merger and Acquisition Notification Fees) Regulation, 2025).
← 65. EAC Competition (Merger and Acquisition Notification Fees) Regulations, 2024.
← 66. Notice of Commencement of Receipt of Notification of Mergers and Acquisitions with Cross-Border Effect by the East African Community Competition Authority, of 1 July 2025.
← 67. EAC Competition Act and Article 9 of the EAC Competition (Mergers and Acquisitions) Regulations, 2025, art 12.
← 68. EAC Competition (Mergers and Acquisitions) Regulations, 2025, art 10(e).
← 69. EAC Competition (Mergers and Acquisitions) Regulations, 2025, art 13.
← 70. AfCFTA Protocol on Competition Policy, art 10.
← 71. Co‑operation Framework Agreement between the COMESA Competition Commission and the Competition Authority of Kenya regarding Co‑operation in the Application and Enforcement of their Competition and Consumer Protection Laws, 2022.
← 72. Memorandum of Understanding between the Common Market for Easter and Southern Africa (COMESA) Competition Commission and the East African Community (EAC) Competition Authority, June 2025.
← 73. Memorandum of Understanding between the East African Community Competition Authority and the Competition Authority of Kenya, May 2023.