Kenya is a member of the COMESA and the EAC, both of which have competition law regimes (the EAC Competition Act is, however, only partially operational). In addition, Kenya is a member of the AfCFTA, which entered into force on 30 May 2019.

Therefore, activities in Kenya should be conducted with COMESA and EAC in mind.

Local counsel are only aware of a Memorandum of Understanding between the Competition Commission of South Africa and the CAK signed on 6 October, 2016 which enables the two authorities to share information, conduct joint investigations and enforcement activities, subject to their respective national laws and regulations.

Based on our interactions, the COMESA Competition Commission keeps abreast of current business transactions in COMESA member states and has sometimes written to parties who have implemented mergers without notification based on information made public in the media or other public information channels. Please refer to the chapter relating to COMESA for additional information in relation to its regional enforcement activity.

As mentioned in response to question 19 above, the EAC Competition Authority has not commenced full operations. Therefore, local counsel do not have any comments on its level of enforcement at this time.

In respect of the COMESA competition regime, a merger would only be notifiable the COMESA Competition Commission if it met the requirements for notification under both the COMESA and CAK regime, pursuant to the provisions of the Competition General Rules. Once the merging parties have made the notification to the COMESA Competition Commission, the Competition General Rules stipulate that they only inform the CAK in writing of the notification.

As for the EAC regime, mergers are notifiable both, to the CAK and the EAC Competition Authority.

Under the COMESA competition regime, the COMESA Competition Commission is empowered to share documents and information relating to mergers with the relevant authorities of the concerned member states solely for purposes of assessing the competitive effects of the merger. Therefore, the COMESA Competition Commission has reached out to the CAK, in the past, in merger reviews involving Kenya. Additionally, there is a Cooperation Framework Agreement dated 27 April 2016 between the COMESA Competition Commission and the CAK in the Application and Enforcement of the COMESA Competition Regulations which enables cooperation between the COMESA Competition Commission and the CAK in relation to enforcement of competition law cases and merger reviews. In practice, in the course of merger notifications, local counsel have found that the COMESA Competition Commission typically requests parties to waive confidentiality to information for purposes of sharing it with the national competition regulators.

Local counsel are not aware of any announced cooperation between the CAK and the regional competition bodies. In the past, the CAK and the COMESA Competition Commission cooperated by sharing information during investigations. For instance, the CAK facilitated the COMESA Competition Commission to get evidence from local broadcasting stations on an alleged exclusive contract relating to the commercialisation of marketing and media rights of football tournaments.