Abstract
With the coming into force of the Competition Act (2010), Kenya entered the world of modern competition policy. The 10 years that has passed since has seen a great level of activity in the competition space in Kenya, including: the staffing up of a modern competition authority; the rolling out of an ambitious advocacy campaign; the drafting of key guidance documents; the passing of a number of key amendments to plug gaps and open up new avenues for cases, and of course the pursuit of numerous cases including some related to cartels, abuse of dominance and mergers. Through all this, Kenya has become a leader in competition policy in Africa. This paper provides a critical review of many of these developments—with a particular focus on current challenges and opportunities. It also offers reflections on how competition policy may need to be different in a developing country, based on Kenya’s experience.
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Notes
Growth rate data (which are in constant prices) are taken from Kenya National Bureau of Statistics (2020). GDP data (in current $US) are from World Bank https://data.worldbank.org/country/kenya. As of 2020 Kenya is the third largest economy in sub-Saharan Africa; see, e.g., International Monetary Fund (2020).
Kenya National Bureau of Statistics Population Census of 2019 and World Bank (2020b).
Poverty rates are declining; however, they remain high: The proportion of Kenyans who live below the international poverty line was estimated to be 35.6% in 2015/2016 [Kenya National Bureau of Statistics (2018)]. Other concerns relate to the relatively low rates of capital formation of about 18% of GDP. See Gil-Alana and Mudida (2018).
World Bank (2019b).
The negotiation of the Competition Policy provisions of the Kenya-US Free Trade Agreement are expected to be based on Chapter 21 on Competition Policy of the USMCA Agreement.
For example, with the passage into law of its Federal Competition and Consumer Protection Act 2018, Nigeria is in the early days of modernizing its own competition policy apparatus.
The OECD has conducted peer reviews of competition policy for, for example, Chile (in 2004), Chinese Taipei (2006), Colombia (2009), Costa Rica (2014), Czech Republic (2008), the European Commission (2005), Greece (2018), Honduras (2011), Peru (2018), Kazakhstan (2016), Mexico (2020), Panama (2010), Romania (2014), Russia (2004), South Africa (2003), Ukraine (2016), and Viet Nam (2018). See www.oecd.org/daf/competition/. UNCTAD has conducted peer reviews of competition policy for Botswana (2018), Kenya (2005), Namibia (2015), Seychelles (2014), Tanzania (2012), Uruguay (2016), the West African Economic and Monetary Unions (WAEMU) (2020), Zambia (2012), and Zimbabwe (2012). See https://unctad.org/topic/competition-and-consumer-protection/voluntary-peer-review-of-competition-law-and-policy.
This is in no way meant to be a criticism of the peer review studies, which we believe have been enormously helpful to those countries and agencies reviewed.
Of course, with respect to Kenya, our analysis is much more current than the UNCTAD Kenya report of 2005 which preceded the adoption of the new Competition Act of 2010 and the creation of the new Competition Authority of Kenya and Competition Tribunal.
See Mudida et al. (2015).
The Competition Act’s predecessor legislation—the Restrictive Trade Practices, Monopolies and Price Control Act (1989)—did not disappear completely when the newer Act came into force. Price control provisions (for essential goods only) continue to exist under the Price Control (Essential Goods) Act (2011)—though they have been little used.
Interestingly, Section 3’s list did not include any catch-all “public interest” objectives—though these are introduced in subsequent sections, in particular with respect to mergers. This raises the question of how, and the extent to which, public interest considerations should be considered in addition to competitive effects. We return to this below.
Part III also contained provisions for exemptions for certain restrictive practices and described powers and processes for investigations.
Part VI contained the consumer protection provisions.
Drafting legislation is never easy, and there is reason to believe that legislation that needs to be coherent in its economics as well as in law might present even more serious challenges. Errors and omissions will happen, and our point here is not to be overly critical; instead, it is to put the various challenges into the public record so that others may learn from them going forward. Impressive to us is the relative speed with which Kenyan officials have responded to correct these problems. It is often extremely difficult to get competition matters before national legislatures.
This was fixed in amendments that were contained in the Finance Bill 2014.
One further drafting issue—that may or may not present challenges—has not yet been addressed: As will be discussed below, the definition of a dominant position has changed through amendments. Currently, however, the language in Sect. 4(3)—which is meant to help interpret the meaning of “dominant position in the market” and was added in 2014—does not now match the definition of dominance in Sect. 23, which was also changed in 2014’s amendments.
Specifically, Section 23—in particular in 23(2) and 23(3)—provides a wider set of conditions under which a firm can be determined to be dominant than Sect. 4(3) contemplates. As there is not an outright inconsistency between the sections, this may not be problematic.
Brusick and Evenett (2008) have argued that abuse of dominance—which may in some cases come from collusion between the state and dominant firms—is a particularly important problem in developing countries.
See, for example, Fox and Bakhoum (2019).
Case 85/76 Hoffmann—La Roche & Co. AG v. Commission [1979], ECR 461. In the abuse of dominant position section of the Canadian Competition Act, dominance is essentially defined as arising when “one or more persons substantially or completely control, throughout Canada or any area thereof, a class or species of business” (S. 79(1)(a)). Canadian case law provides another example: The Canadian Competition Tribunal has determined that substantial or complete control refers to a substantial degree of market power and also that a substantial degree of market power “confers upon an entity considerable latitude to determine or influence price or non-price dimensions of competition in a market, including the terms upon which it or others carry on business in the market” (Tervita v Canada (Commissioner of Competition), 2015 SCC 3, at paragraph 44).
Unless a firm with a “dominant position” (S. 4(3)) is not meant to be the same thing as a “dominant undertaking” (S 23): but if this is indeed the case it would seem that some explanation of the difference would be useful. Notice also that the heading of S. 23 is “Criteria for determining dominant position”—again suggesting that a firm in a dominant position is a dominant undertaking under the Act.
These changes made the section look very much like Sect. 7 of the South African competition law.
There is also a problem with the plain language of the Section that might be addressed. What is the purpose of the phrase “although not dominant” at the beginning of subsection (2)(a)? It appears to be defining something to be dominant that it has also just stated is not dominant. It appears that the subsection would be fine with that phrase eliminated.
See Mudida et al. (2015, p. 448).
The “Part” reference here is Part III—Restrictive Trade Practices.
Article 101(3) of the Treaty on the Functioning of the European Union (TFEU) also allows for both individual and block exemptions. In some cases, block exemptions apply to firms that are below some size threshold; in other cases they cover various categories of agreements. Block exemptions in Europe have been awarded to, for example, certain categories of joint research and development agreements, technology transfer agreements, specialization agreements, and some kinds of vertical agreements.
See, e.g., the advice in OECD (2015).
Including Germany, France, Japan, South Africa, and South Korea. In some cases, the provision is not so much a set of rules that are specifically aimed at buyer power; instead, it covers abuse of a superior bargaining position or the dictating of unconscionable terms.
The CAK also released its Buyer Power Guidelines in 2017 to provide some additional insight into its interpretation of this new section. The Guidelines mostly restate, in what is perhaps slightly clearer language and with some elaboration, the provisions as contained in the Act.
The Buyer Power Guidelines (2017) have a slightly longer list of acts that constitute abuses of buyer power than the Act itself, however the long list results from a helpful splitting of acts listed in the Act into more digestible parts and the apparent duplication of one of the listed acts. (In the Guidelines paragraph 23 that lists these acts, items c and k seem very similar, if not identical.).
See, e.g. Chen (2007).
The Buyer Power Guidelines (2017) are helpfully very clear on this point at paragraph 22: “It is not necessary for the buyer to have a dominant position in the market.”.
The Buyer Power Guidelines (2017) at paragraph 26: “The Authority will endeavor to remedy breaches of abuse of buyer power through administrative procedures.” Consistent with this rather gentle, compliance-oriented, approach to buyer power, Njako (2019) reports that up to the drafting of her paper, no complaints as to alleged abuses of buyer power in Kenya had resulted in a finding of liability. In a press release that was issued July 20, 2020, the CAK reported on investigations and findings into allegations of the abuse of buyer power by four retailers—largely relating to delayed payments to suppliers. Three of the four presented payment plans, which the press release indicates they are honoring. It appears that these cases were resolved without formal orders. The fourth retailer—Tusky’s—which appears to be in a weakened financial state, was ordered by the CAK to submit a debt settlement plan, which it has done (including making Ksh2.77 Billion in payments to suppliers in June 2020). Beyond a requirement to settle their debts to suppliers, there is no indication of fines or other punishments. The press release can be found here: https://www.cak.go.ke/sites/default/files/2020-07/Investigations%20into%20Abuse%20of%20Buyer%20Power%20in%20the%20Retail%20Sector.pdf (accessed July 22, 2020).
This list applies to the administrative stream in the Kenyan system. If a competition matter is taken through the criminal law channel, the prosecution is to be led by the Director of Public Prosecutions, and cases will be heard in regular courts. It is not expected that criminal processes will be invoked often in the Kenyan context.
For a valuable review of the initial activities of the CAK and the objectives that were laid out by its leadership, see Kariuki and Roberts (2016).
Source: Annual Reports of Competition Authority of Kenya.
The Kenyan data come from the 2017/2018 fiscal year; the South African data come from the 2018/2019 fiscal year.
As one more point of comparison, the relevant numbers for Tanzania are: (1) employees per $billion GDP is actually a bit higher at 0.41; but (2) the agency budget per employee is a little lower at approximately $241,000. (From the 2018/2019 fiscal year of the Tanzanian Fair Competition Commission.) It is important to remember that all of these statistics represent snapshots at a particular point in time and that a more complete comparison would have to consider not only the range of obligations that are assigned to agencies, but their levels of government support over a more extended period of time.
In addition, an exemption application from the Institute of Certified Public Accountants of Kenya to allow it to set fee guidelines was denied by the CAK. These cases are discussed briefly in various Annual Reports of the CAK.
The CAK has made the agricultural sector a key focus of its compliance and enforcement work in part because of the importance of agriculture to the Kenyan economy and the relatively weaker positions of workers and SMEs in this sector. See, e.g., Kariuki and Roberts (2016).
These figures do not include the number of mergers that were deemed excluded (32 in 2013/2014 and 106 in 2017/2018).
Conditions in terms of employment have also been added to other conditions in merger cases. For example, the Airtel-Telkom wireless merger approval (since altered in some respects by the Competition Tribunal in 2020) included limits on what the merged entity could do with its electromagnetic spectrum. The acquisition of 58% of General Motors East Africa by Isuzu Motors was approved in 2017 under conditions that it maintain employment levels and continue to provide after-sales services as per current contracts.
See S. 46(2) of the Act. It is interesting to contrast this with the South African Competition Act which more clearly lays out two tests: (1) is the merger “likely to substantially prevent or lessen competition” (Sect. 12A(1)(a)); and (2) whether or not there is a likelihood of competitive harm can or cannot the merger “be justified on substantial public interest grounds…” (Sect. 12A(1)(b)). Section 12A(1) also makes it clear that the competitive effects of the transaction must be assessed in any case.
See, e.g., Oxenham (2012, particularly pp. 215–216), Fox and Bakhoum (2019, p. 87), and the interesting descriptions of South Africa’s experience with its public interest tests in Lewis (2013, pp. 109–129). The need for authorities to take steps to enhance their legitimacy is made more generally by Gal and Fox (2015, e.g., p. 325).
Importantly, conditions that are related to employment protection are, in some cases, temporary (e.g., 24 months). This does raise the question, however, of how long those employment guarantees should bind the parties when a period is not stated.
On this merger, see Kariuki and Roberts (2016).
See, e.g. the Vivo (Shell in Kenya)-Engen merger in 2017 in which the CAK evaluated 15 local markets and concluded that there would be no competitive harm in 13, but imposed conditions in the other two. When the Tusky’s supermarket chain wanted to acquire six stores from rival Ukwala, an analysis of local markets led the CAK to approve only the acquisition of the one Ukwala property that was not in the Central Business District of Nairobi—which the CAK had determined to be a key relevant geographic market. On this case, see Kariuki and Roberts (2016).
For example, the continuation of the provision of after-sale services in the General Motors-Isuzu transaction (in 2017). Similarly, the acquisition of Gulf African Petroleum by Total Outre-Mer in 2016 was approved conditional on employment guarantees and that the merged entity continued to honour hospitality agreements at the Mombassa terminal and to offer new such agreements, on negotiated terms, to third parties.
Or if commitments were formalized, this fact was not made public to our knowledge.
There was a condition that related to maintaining employment levels for 12 months.
Jambojet is owned by Kenya Airways, the major Kenyan airline.
Kariuki and Roberts (2016).
Competition Authority of Kenya (2015).
All are described, with other examples, in Competition Authority of Kenya (2015). Some of these interventions have been recognized with awards in the International Competition Network’s Competition Advocacy Contests.
There are also guidelines related to consumer protection.
The government of Hong Kong considered that providing this kind of guidance was so important that it would not bring its new competition law into force until after a number of guidelines were produced and promulgated. See, e.g. Lin and Ross (2021).
International best practice would also involve having a government grant a considerable degree of independence to its competition authority. While it is difficult to quantify the degree of independence enjoyed in any particular case, the Kenyan government has taken a number of positive steps to reduce the forces of political or economic pressure on CAK decision-making. For example: (1) the Director-General was appointed by the Board of Directors of the CAK after an extensive search that employed a professional recruiting organization, and with the approval of Parliament; (2) the Director-General may only serve two terms; (3) Board members, selected after a competitive, open process must be vetted by Parliament and appointed by the Cabinet Secretary (the law also specifies the types of skills that Directors must have); (4) Directors and Managers are recruited after a selection process with vacancies that are announced in the press and appointments made by the Board on the recommendations of the Board’s human resources committee; and (5) the CAK uses a competitive selection process in recruiting staff, consultants, and experts. Funding levels have also provided for a fair degree of financial independence for the CAK.
S. 77 provides for a general right of appeal of Tribunal decisions to the High Court. But, interestingly, the right granted here applies only to the CAK. However, other sections provide appeal rights to other parties: in mergers (S.49(2)); in cases that involve unwarranted concentrations of economic power (S. 54(2)); and in matters that are related to restrictive trade practices and abuses of dominance (S. 40(2)).
Case No CT/001 of 2017, judgment dated April 24, 2020.
Case No CT/005/2020, judgment dated April 24, 2020.
It is also worth noting that—while the judgment in the tea matter came almost two and a half years after the appeal was filed (a delay for which the Tribunal apologized in its judgment at paragraph 114)—the time from the Appellants’ notice of motion (in January 2020) to the Tribunal judgment was only three months in the wireless case. This is a hopeful sign that the Tribunal is now properly set to function in an expeditious way.
In approving the exemption for the agreement that allowed Coca-Cola to have an exclusive agreement to have its products sold in the national stadium (in 2012), the CAK noted approvingly that some of the money that was collected by the stadium would go toward badly needed physical improvements to the facility. A similar situation existed in the exemption of an agreement between Kenya Breweries and Kenya Premier League (also 2012).
As we have noted [and see Fox and Bakhoum (2019)], it is also important that many markets in developed countries are dominated by large enterprises, which are often entrenched by virtue of their histories as state-owned entities and/or their closeness to government. In many cases then, they have not “earned” their powerful positions through innovation and efficiency, which makes their claims to high prices and profits less supportable.
Interestingly, there is now a controversial movement in developed countries (sometimes referred to as the neo-Brandeis movement) to have competition authorities adopt a broader set of objectives than just consumer welfare. See, e.g., Khan (2017) and Hovenkamp (2018). Jenny (2019) points to a middle ground that, for example, might have developed country merger reviews consider negative effects on employment when fashioning remedies—as is done in Kenya and South Africa.
For example, the filing fees for a large merger (combined turnover in excess of 50 Billion KShs or about $500 million USD) are 2 million KShs (about $20,000 USD). See: https://cak.go.ke/mergers/overview.
As was shown in Table 1 above, the fees and fines that are collected represent a significant share of the CAK’s total funding.
Retaining the fines and penalties that it imposes also has the benefit of providing the CAK with somewhat more independence (at least financial) from government. We will leave it to legal scholars (and possibly ultimately to the Kenyan courts) to determine whether this method of funding violates any principles of justice and/or protections under the Kenyan Constitution.
However, as was noted above, this Part’s application was significantly restricted by amendments in 2014.
Such practices might then be seen to be conditionally per se violations (conditional on there being dominance).
Tied selling is covered in 24(2)(d), and price discrimination is covered in 24(2)(c).
Again, see Kariuki and Roberts (2016).
For, example, through careful case selection by the CAK and/or utilizing different sections of the Act (e.g. using the more flexible agreements provisions rather than per se abuse provisions when efficiencies might be a relevant consideration.).
There is another feature of modern anti-cartel regimes that could potentially be beneficial in Kenya, but which we believe might require more institutional reform. Providing victims of price-fixing with private rights of action to recover damages has provided an additional source of deterrence for cartel conduct and restitution for victims in several countries. The most important of these private actions tend to be class actions—which are themselves greatly facilitated by legal systems that allow contingency fees for legal services. While class actions would seem to be permitted under Kenyan law, there does not yet seem to be a robust class action community, perhaps because of the unavailability of contingency fees. Gal and Fox (2015, pp. 322–323) also recommend expanding the rights and abilities for private parties in developing countries to bring proceedings to recover for harms suffered. Interestingly, there is one high-profile class action matter in the consumer protection area that is currently in the courts. It involves allegations that the Kenya Power and Lighting Company had overcharged customers and that plaintiffs’ lawyer had been compensated inappropriately by the defendant to settle the case in 2018. See, e.g., Mburu (2020).
A similar provision is contained in S. 59(2) of the Competition Act of South Africa.
Hong Kong similarly limits fines to 10% of domestic turnover—but for up to 3 years. See Lin and Ross (2021).
To be sure, there is a real concern about appearing to be anti-business and discouraging business investment; thus we do appreciate the need for caution. Setting the levels of fines in line with those of many other countries is certainly a safer path. The CAK has recently released its “Fining and Settlements Guidelines” (2020), which provides details about the Authority’s approach to setting fines. This approach involves setting a base fine (10% of affected commerce) and adjusting the fine upward or downward as the Authority considers various listed aggravating and mitigating factors. For the substantial SME sector, the guidelines sensibly suggest a flexibility to take into account the ability to pay.
As noted, Kenya is not alone in defining market power this way. The South African law has a similar definition at S. 1 (xiv).
For example, Sect. 79 (1) (c) of the Competition Act of Canada requires that, to be an abuse of dominance a “practice has had, is having or is likely to have the effect of preventing or lessening competition substantially in a market”. On the other hand, European Union law has only come to define abuse through case law, and its legislation (Article 102 of the TFEU) has its own very similar list of examples of abusive conduct (though the article says that the listed items may be violations—the Kenyan law is clearer that the listed items are examples of abuse, giving the CAK a little less room for interpretation). More recently the European Commission has been moving toward a more effects-based interpretation of its abuse provisions.
Adding a requirement that there be anticompetitive effects from the abuse of buyer power could also be considered. It would be consistent with the placement of these provisions in competition legislation, but it might be the case—as was suggested above—that these provisions are not so much meant to be addressing competition problems.
The knowledge that the CAK could compel cooperation might encourage cooperation without the exercise of those powers. It may also be the case that confidentiality agreements prohibit a firm from sharing information with anyone except to respond to a legal, binding order to provide that information.
As these situations do not involve criminal prosecutions for the same offence this is not precisely a matter of double jeopardy, in the usual sense.
See Karanja-Ng’ang’a (2017) for more on the EAC Competition Law.
See, e.g. Fox and Bakhoum (2019, ch. 6).
Gal and Fox (2015, app. 350–351) offer the view that most regional competition authorities have not realized their potential and discuss some of the obstacles that they face.
The relative lack of progress of the regional competition bodies has not stopped some of the more established competition authorities from working cooperatively with each other outside regional agreements. For example, the CAK and the Competition and Consumer Protection Commission of Zambia cooperated in the review of Toyota Tsusho’s agreement to acquire France’s CFAO in 2012. (See the CAK Annual Report for 2012/2013.) Additionally, agreements between national authorities under the auspices of the African Competition Forum have led to investigations—with CAK participation—into the cement and sugar markets. On the cement study, which involved six countries, see the CAK Annual Report for 2013/2014, pp. 30–31; on the sugar study see Chisanga et al. (2014).
The treaty that established the new African Continental Free Trade Area (AfCFTA), to which Kenya is a signatory, could further complicate this situation—though to this point the treaty does not clearly point to the creation of a competition authority. Parties to the treaty are to cooperate with respect to competition policy and further agreements with respect to competition policy are to be negotiated.
Fox and Bakhoum (2019, p. 153) offer both criticism for the past record of regional efforts (e.g. “,,, the record of past regional enforcement is slim” and a guardedly optimistic assessment of its potential (“… Africa could be en route to creating a meaningful competition competence in the newly created Continental Free Trade Agreement, or at least on a path to more economic coherence, less privilege and cronyism, and more access to markets even in the context of the current motley mix of regional bodies”.)
References
African Development Bank. (2020). African economic outlook 2020: Developing Africa’s workforce. https://www.afdb.org/en/knowledge/publications/african-economic-outlook. Accessed 17 Nov 2021.
Bhattacharjea, A. (2013). Who needs antitrust? Or, is developing country antitrust different? A historical-comparative analysis. In D. Sokol, T. Cheng, & I. Lianos (Eds.), Competition law and development (pp. 52–65). Stanford: Stanford University Press.
Brusick, P., & Evenett, S. J. (2008). Should developing countries worry about abuse of dominant power? Wisconsin Law Review, 269, 269–294.
Chisanga, B., Gathiaka, J., Nguruse, G., Onyancha, S., & Vilakazi, T. (2014, April). Competition in the regional sugar sector: the case of Kenya, South Africa, Tanzania and Zambia. Draft paper presentation at the pre-ICN conference, from https://cak.go.ke/sites/default/files/Regional%20Sugar%20Sector%20Study_0.pdf. Accessed 17 Nov 2021.
Competition Authority of Kenya (various). Annual Reports, years 2012/2013 to 2017/2018, from https://cak.go.ke/planning/annual-reports.
Competition Authority of Kenya. (2015). Assessment of regulatory impact on competition: Guidance for policy makers. Nairobi: Competition Authority of Kenya.
Chen, Z. (2007). Buyer power: Economic theory and antitrust policy. In R. O. Zerbe & J. B. Kirkwood (Eds.), Research in law and economics (Vol. 22, pp. 17–40). Bingley: Emerald Group Publishing Limited.
Daily Nation. (2020). Prepare for audit, CS Munya tells KTDA and tea factories. Retrieved November 17, 2021, from https://nation.africa/kenya/news/prepare-for-audit-munya-tells-ktda-1902996?view=htmlamp. Accessed 17 Nov 2021.
Fox, E. M. (2012). Competition, development and regional integration: In search of a competition law fit for developing countries. In J. Drexl, M. Bakhoum, E. M. Fox, M. S. Gal, & D. J. Gerber (Eds.), Competition policy and regional integration in developing countries (pp. 273–290). Northampton, MA: Edward Elgar.
Fox, E. M. (2016). Competition policy: The comparative advantage of developing countries. Law and Contemporary Problems, 79, 69–84.
Fox, E. M., & Bakhoum, M. (2019). Making markets work for Africa: Markets, development, and competition law in Sub-Saharan Africa. Oxford: Oxford University Press.
Gal, M. S., & Fox, E. M. (2015). Drafting competition law for developing jurisdictions: Learning from experience. In M. Gal, M. Bakhoum, J. Drexl, E. Fox, & D. J. Gerber (Eds.), The Economic characteristics of developing jurisdictions (pp. 296–356). Cheltenham, UK: Edward Elgar.
Gil-Alana, L. A., & Mudida, R. (2018). The growth series in Kenya: Evidence of non-linearities and factors behind the slow growth. International Journal of Finance and Economics, 23(2), 111–121.
Hovenkamp, H. (2018). Whatever did happen to the antitrust movement. Notre Dame Law Review, 94, 583–637.
International Monetary Fund. (2020). Sub-Saharan Africa regional economic outlook June 2020 Update. Washington: International Monetary Fund.
Jenny, F. (2019). Populism, fairness and competition: Should we care and what could we do? Japanese Economic Review, 70, 280–297.
Khan, L. (2017). The ideological roots of America’s market power problem. Yale Law Journal Forum, 127, 60–979.
Kamau, J. (2020, May 13). Hail beginning of the end for KTDA and tea cartels. Daily Nation. Retrieved November 17, 2021, from https://nation.africa/kenya/news/hail-beginning-of-the-end-for-ktda-and-tea-cartels-286498?view=htmlamp. Accessed 17 Nov 2021.
Karanja-Ng’ang’a, J. (2017). EAC competition law. In E. Ugirashebuja, J. E. Ruhangisa, T. Ottervanger, & A. Cuyvers (Eds.), East African community law (pp. 433–453). Leiden: Brill Nijhoff.
Kariuki, F. W., & Roberts, S. (2016). “Competition and development: Insights into building institutions from the Kenyan experience. In E. Fox, H. First, N. Charbit, & E. Ramundo (Eds.), Antitrust in emerging and developing countries (2nd ed., pp. 165–178). Concurrences Review.
Kenya. (2007), Kenya vision 2020: A globally competitive and prosperous Kenya, Ministry of Planning & National Development and Vision 2030. Nairobi: Government Printer, available at: https://www.researchictafrica.net/countries/kenya/Kenya_Vision_2030_-_2007.pdf, October.
Kenya National Bureau of Statistics. (2018). Basic report Kenya integrated household budget survey 2015/2016, Nairobi: Kenya National Bureau of Statistics.
Kenya National Bureau of Statistics (2020). Economic survey 2020. Nairobi: Kenya National Bureau of Statistics.
Lewis, D. (2013). Enforcing competition rules in South Africa: Thieves at the dinner table. Cheltenham: Edward Elgar.
Lin, P., & Ross, T. (2021). Toward a more robust competition policy regime for Hong Kong. Journal of Antitrust Enforcement, 9(1), 109–134.
Mburu, P. (2020). Consumers Revive Kenya Power Overbilling Suit. Daily Nation, July 22, 2020, 33.
Mudida, R., Wagura Ndiritu, S., & Ross, T. W. (2015). Kenya’s new competition policy regime. World Competition Law & Economics Review, 38(3), 437–462.
Muriuki, B. (2015, April 23). Why details on the flaws in the Kenya tea sector remain withheld. Retrieve July 28, 2020, from www.kenyans.co.ke/news/why-details-flaws-kenya-tea-sector-remain-withheld.
Njako, P. (2019, August). Enforcing abuse of buyer power provisions for inclusive development: lessons from Kenya and beyond (Paper presented at the 13th Annual Competition Law, Economics and Public Policy Conference, Pretoria, South Africa).
Organization for Economic Cooperation and Development (OECD). (2015). Competition and market studies in Latin America: The case of Chile, Colombia, Costa Rica, Mexico, Panama and Peru, from http://www.oecd.org/daf/competition/competition-and-market-studies-in-latin-america2015.pdf.
Organization for Economic Cooperation and Development (OECD). (2016). Executive Summary of the Roundtable on Public Interest Considerations in Merger Control, from https://one.oecd.org/document/DAF/COMP/WP3/M(2016)1/ANN5/FINAL/en/pdf. Accessed 17 Nov 2021.
Oxenham, J. (2012). Balancing public interest merger considerations before Sub-Saharan African competition jurisdictions with the quest for multi-jurisdictional merger control certainty. United States-China Law Review, 9, 211–227.
Poddar, D., & Stooke, G. (2015). Consideration of public interest factors in antitrust merger control. Competition Policy International (CompetitionPolicyInternational.com).
Roberts, S. (2004). The role for competition policy in economic development: The South African experience. Development South Africa, 21(1), 227–243.
Roberts, S. (2019). Competition law prescriptions and competitive outcomes: Insights from Southern and Eastern Africa. In D. Gerard & I. Lianos (Eds.), Reconciling efficiency and equity: A global challenge for competition policy (pp. 173–194). Cambridge: Cambridge University Press.
Sokol, D., Cheng, T., & Lianos, I. (Eds.). (2013). Competition law and development. Stanford: Stanford University Press.
United Nations Conference on Trade and Development—UNCTAD. (2010). The role of competition policy in promoting economic development: The appropriate design and effectiveness of competition law and policy, Note by the UNCTAD Secretariat, TD/RPB/CONF.7/3, from https://unctad.org/en/docs/tdrbpconf7d3_en.pdf. Accessed 17 Nov 2021.
World Bank. (2019a). World development indicators. Washington, DC: World Bank.
World Bank. (2019b). Kenya economic update: Unbundling the slack in private sector investment, April. Washington, DC: World Bank.
World Bank. (2020a). Doing business: Comparing business regulation in 190 countries. Washington, DC: World Bank.
World Bank. (2020b). Kenya economic update: Turbulent times for growth in Kenya: Policy options during the covid-19 pandemic. Washington, DC: World Bank.
Acknowledgements
The authors would like to thank the following for helpful discussions, comments and other contributions as this research developed: Antoinette Absaloms, Huldah Ateka, Eleanor Fox, Joyce Karanja Ng’ang’a, Francis Kariuki, Anne Kiunuhe, Boniface Makongo, Mugambi Mutegi, Eric Mwangi, Priscilla Njako, David Ong’olo, Stellah Onyancha, Dominic Rebelo, Edwina Warambo, and two anonymous reviewers. They are also grateful to Jennifer Ng for very capable research assistance; and to the Strathmore Business School and the Phelps Centre for the Study of Government and Business at the Sauder School of Business at the University of British Columbia for financial support.
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Mudida, R., Ross, T.W. Kenyan Competition Policy After Ten Years of the Competition Act: A Progress Report. Rev Ind Organ 60, 431–462 (2022). https://doi.org/10.1007/s11151-021-09850-x
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DOI: https://doi.org/10.1007/s11151-021-09850-x