M&A in Kenya: Navigating Competition Regulatory Clearances

Kenya's competition regulatory framework has matured significantly in recent years, with both the Competition Authority of Kenya (CAK) and the COMESA Competition Commission (CCC) actively scrutinising mergers and acquisitions that meet or exceed prescribed thresholds.

Under the Competition Act, 2010, a merger or acquisition is notifiable to the CAK where the combined turnover or assets of the merging parties exceed KES 1 billion in Kenya. The CAK has the authority to approve, conditionally approve, or prohibit notifiable mergers that raise competition concerns.

At the regional level, the COMESA Competition Regulations require that mergers involving parties with combined annual turnover or assets exceeding USD 50 million in the COMESA region (with at least two parties each achieving USD 10 million within COMESA) be notified to the CCC.

From a transaction planning perspective, it is critical to assess notification obligations at the outset of any deal. Failure to notify a notifiable merger can result in significant penalties and, in extreme cases, nullification of the transaction. Merger filings should be planned as a conditions precedent to completion, with realistic timelines factored into the transaction timetable.

Working with experienced M&A counsel who maintain strong relationships with the regulatory bodies and understand the current enforcement priorities is invaluable in ensuring smooth and expedited regulatory clearance.