Mukiti Advocates LLP contributed to the Kenya chapter of the 19th edition of the International Comparative Legal Guides (ICLG) – Competition Litigation Laws and Regulations 2027, published by Global Legal Group in October 2026.
The guide is a practical, cross-border resource providing insights into competition litigation laws and practices across multiple jurisdictions. The 19th edition covers 18 jurisdictions, including Australia, Brazil, the Czech Republic, Ecuador, England and Wales, France, Germany, Italy, Kenya, Malaysia, Moldova, Poland, Portugal, Slovakia, Slovenia, Sweden, Taiwan and the United States of America.
Below is a summary of the key areas addressed in the Kenya chapter.
1.1 Please identify the scope of claims that may be brought in your jurisdiction for breach of competition law.
Claims for breach of competition law in Kenya principally comprise complaints concerning restrictive trade practices (such as cartels, price-fixing, bid-rigging, exclusive dealing, retail price maintenance, predatory pricing and collective boycotts), abuse of dominance, abuse of buyer power, anti-competitive or unapproved mergers, and consumer protection infringements, together with applications for exemptions and leniency under the Competition Act, No. 12 of 2010 (Competition Act). Such claims may be brought before the Competition Authority of Kenya (CAK), the Competition Tribunal, or the courts, depending on their nature.
1.2 What is the legal basis for bringing an action for breach of competition law?
Competition law claims are primarily founded on the Competition Act, which prohibits restrictive trade practices, abuse of dominance, anti-competitive mergers, abuse of buyer power, and consumer protection infringements, supplemented by the Competition (General) Rules, 2019 and the Competition Tribunal (Procedure) Rules, 2020.
Constitutional rights, such as the right to property, economic and social rights, and consumer rights, may also found a claim where a competition law breach infringes them. The CAK’s Guidelines, including on consumer protection, buyer power, settlements, leniency, restrictive trade practices, mergers, joint ventures, and market definition, while not legally binding, inform its enforcement approach.
Appeals to the courts follow the ordinary procedural framework under the Constitution, the Fair Administrative Action Act, the Civil Procedure Act and Rules, and the Evidence Act.
Where conduct has a regional dimension, claims may also arise under the COMESA Competition Regulations, 2004 and the East African Community Competition Act, 2006.
1.3 Is the legal basis for competition law claims derived from international, national or regional law?
Competition law claims in Kenya are derived from national, regional and, to a limited extent, international law. National law forms the primary legal basis, while regional law arises from Kenya’s membership of the East African Community (EAC) and the Common Market for Eastern and Southern Africa (COMESA).
International law has limited application; however, pursuant to Articles 2(5) and 2(6) of the Constitution, general rules of international law and treaties ratified by Kenya form part of Kenyan law and may assist in the interpretation and application of competition law where applicable.
1.4 Are there specialist courts in your jurisdiction to which competition law cases are assigned?
Kenya has a specialist adjudicative body for competition matters – the Competition Tribunal, established under Part VI of the Competition Act, which hears appeals against CAK decisions under rules set out in the Competition Tribunal (Procedure) Rules, 2015. Appeals from the Tribunal lie to the High Court, Commercial Division, whose decision is final under sections 40, 49 and 53 of the Act.
While there is no specialised competition division within the High Court, competition claims may also be commenced there directly if they raise constitutional or contractual matters, following the ordinary appellate hierarchy to the Court of Appeal and, where warranted, the Supreme Court.
1.5 Who has standing to bring an action for breach of competition law and what are the available mechanisms for multiple claimants? For instance, is there a possibility of collective claims, class actions, actions by representative bodies or any other form of public interest litigation? If collective claims or class actions are permitted, are these permitted on an “opt-in” or “opt-out” basis?
The Competition Act does not expressly establish a statutory private enforcement or competition class action regime. Instead, any aggrieved person may lodge a complaint with the CAK alleging a contravention of the Competition Act. The CAK may also initiate investigations on its own motion. In practice, complaints are commonly lodged by consumers, competitors, suppliers, trade associations and other market participants, reflecting the CAK’s predominantly complaint-driven enforcement model.
Where court proceedings are instituted, representative actions may be brought under Order 1 Rule 8 of the Civil Procedure Rules, while Articles 22 and 258 of the Constitution permit proceedings to be instituted on behalf of another person, by a person acting in the interest of a group or class of persons, or in the public interest. Kenya does not, however, have an express opt-in or opt-out mechanism for competition claims.
1.6 What jurisdictional factors will determine whether a court is entitled to take on a competition law claim?
Competition claims are ordinarily determined in the first instance by the CAK, with appeals lying to the Competition Tribunal. Accordingly, parties are generally expected to exhaust the statutory dispute resolution mechanism before invoking the jurisdiction of the courts. However, the doctrine of exhaustion is not absolute, and the High Court may assume jurisdiction in exceptional circumstances, including where an exemption is granted under section 9(4) of the Fair Administrative Action Act or where the interests of justice so require.
The High Court will also exercise jurisdiction where the proceedings are brought as a constitutional petition, judicial review application (subject to the exhaustion doctrine enumerated above) or private civil claim within its original jurisdiction.
1.7 Does your jurisdiction have a reputation for attracting claimants or, on the contrary, defendant applications to seize jurisdiction, and if so, why?
Kenya has not acquired a particular reputation as either a claimant- or defendant-friendly forum for competition litigation. Jurisdiction is determined by the Competition Act and ordinary territorial and subject matter principles rather than strategic forum selection, with proceedings generally commenced based on sufficient territorial or statutory connection rather than perceived procedural advantage. Where conduct has a regional dimension, jurisdiction may instead lie with the COMESA Competition and Consumer Commission or the EAC regime.
1.8 Is the judicial process adversarial or inquisitorial?
Competition proceedings in Kenya are generally adversarial. Proceedings before the Competition Tribunal and the courts are conducted on an adversarial basis, with each party presenting its evidence and legal arguments.
1.9 Please describe the approach of the courts in your jurisdictions to hearing stand-alone infringement cases, including in respect of secret cartels, competition restrictions contained in contractual arrangements or allegations of abuse of market power.
In practice, allegations of secret cartels, restrictive contractual arrangements and abuse of market power, including stand-alone infringements, are ordinarily investigated and determined by the CAK in the first instance, with appeals lying to the Competition Tribunal.
Where such matters come before the courts, the courts are likely to approach them by reference to the substantive prohibitions in the Competition Act, while applying the ordinary principles of civil procedure and evidence.
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