This week I appeared before the Competition Tribunal to represent a client in a matter whose appeal has been pending since it was filed in June, 2025. The Tribunal has not been functional for more than a year following the expiry of the terms of the chairperson and members.
The Chief Justice published a Kenya Gazette notice on 25th September, 2026 announcing the appointment of the Chairperson and two members of the Tribunal effectively constituting the Tribunal.
But why is the Competition Tribunal so important? Section 71 of the Competition Act establishes the Tribunal mandating it to hear appeals of decisions made by the Competition Authority.
The Competition Authority is an important consumer protection actor. It promotes the creation of consumer bodies, receives and investigate complaints and impediments to competition, liaises with other regulatory bodies in matters relating to competition and consumer welfare and advises the government on matters relating to competition and consumer welfare.
Consumer protection contributes to dynamic and effective markets for businesses to grow. Consumer demand drives innovation and economic development as businesses are held to certain standards in terms of pricing and business practices in order to protect consumers. It ensures that consumers obtain accurate, unbiased information about products and services they purchase, that they are not misled or injured by harmful products in the market.
It has thus been a major affront to access to justice to not have the Tribunal sitting. Access to justice is a fundamental right guaranteed by the Constitution of Kenya. The paralysis has been costly to the economy.
Previously, the Tribunal has made very important decisions touching on the economy. For example, in 2020, the Tribunal made an important decision relating to the Telkom Kenya- Airtel attempted merger when it clarified the relationship between the Competition Authority and sector-specific regulators and the potential usurpation of roles. In 2021, the Tribunal found Majid Al Futtaim – the Carrefour franchise holder, guilty of exploiting suppliers by forcing them to accept lower prices through charging them high listing fees and rebate rates. In 2023, the Tribunal upheld a decision by the Competition Authority to fine Makini School Ltd in its controversial acquisition by two foreign firms without regulatory approval. In 2025, the Tribunal in a consequential decision for the manufacturing sector upheld a fine against Devki Group and six other steel producers for fixing prices and restricting imports.
As the Tribunal commences its sittings to hear cases, it certainly has its plate full. In addition to my client’s case, there is an appeal by Guaranty Trust Bank Ltd against a fine of Kshs 33.18 Million for alleged false and misleading representations and unconscionable conduct in its dealings, an appeal by Koko Newtworks (Kenya) Limited over an exclusive arrangement between it and Vivo Energy for the supply/distribution of bioethanol cooking fuel, another appeal by Majid Al Futtaim (Carrefour Kenya) for alleged abuse of buyer power and market practices, an appeal involving Pwani Oil Products Ltd, and another involving Directline Assurance Co. Ltd.
The pending sale by Diageo of its majority stake in East African Breweries Ltd to Japan’s Asahi Group Holdings has also raised issues that might need adjudication before the Tribunal.
While concerns over the welfare of the Kenyan consumer as consequence of actions and practices by individuals and entities deemed anti-competitive by the Competition Authority are valid and must be addressed, individuals and entities too have suffered the brunt of unfair and unjust decisions by the Competition Authority.
Hopefully, with the Tribunal now operating, justice will be seen to be done, and ultimately the consumer and the economy will benefit.
Bemih Kanyonge teaches Consumer Protection Law at MKU Parklands School of Law.
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