Navigating Merger Control In Kenya And The East African Community

The Competition Authority of Kenya (CAK) took steps to harmonize their merger control regime with that of the COMESA. The CAK retains a residual "call-in" power. It can require notification of otherwise excluded transactions where the merger may substantially lessen competition, restrict trade, or adversely affect the public interest. This power has been exercised only once since its introduction. The Kenyan rules also clarify that turnover and asset thresholds are assessed based on Kenyan turnover or assets. They contain specific calculation rules for financial institutions, joint ventures and investment funds. The current thresholds were introduced in 2019, primarily to eliminate overlap with the COMESA merger control regime, and have not been revised since then. Similar harmonization steps have not been taken towards the EAC regime. This leaves room for conflicting jurisdiction, which in turn introduces additional complexity to deals in East Africa.