Kenya's Push for a Digital Markets Competition Regime Draws Expert Warning: Legislate the Cure Before Diagnosing the Disease

The Bill imports concepts from the EU's Digital Markets Act and the UK's Digital Markets, Competition and Consumers Act, including a new "superior bargaining position" doctrine that would allow liability without proof of dominance, administrative fines of up to 10% of annual turnover, and statutory categories of digital services that could become outdated as technology evolves.

Kigwiru's core argument is that Kenya risks importing an ex-ante regulatory model built for mature, concentrated digital markets in Europe onto an economy still building its digital infrastructure and attracting cloud, data centre and startup investment. She points to India, Brazil and South Korea slowing or abandoning comparable proposals over investment concerns, and flags jurisdictional overlap with COMESA and AfCFTA competition rules.

The Competition (Amendment) Bill, 2026 has been moving through Parliament on the premise that Kenya's digital markets need a dedicated regulatory regime, modelled on Europe's Digital Markets Act.

Dr. Vellah Kedogo Kigwiru, a competition lawyer and research fellow at the Technical University of Munich, used her appearance before the Departmental Committee on Finance and National Planning to challenge that premise directly.

Her point was procedural as much as substantive. While in Parliament, she argued, the Competition Authority of Kenya has not demonstrated that current law is actually failing to catch anti-competitive conduct in digital markets before creating an entirely new enforcement architecture to replace or supplement it..

Kenya's competition framework rests on the Competition Act, No. 12 of 2010, which established the Competition Authority of Kenya (CAK) and set out the existing tests for abuse of dominance and abuse of superior bargaining position

Under the current Act, abuse of superior bargaining position already exists as a concept, but it operates within a general competition framework applied case by case, rather than through a dedicated statutory regime built around named categories of digital service.

Regionally, Kenya is also bound by the COMESA Competition Regulations and is a party to the African Continental Free Trade Area (AfCFTA), both of which contain their own competition provisions applicable to cross-border commercial conduct. Kigwiru's submission specifically flags that the Bill's digital market definitions have not been reconciled with these regional instruments, raising the prospect of overlapping or conflicting jurisdiction for platforms operating across East and Southern Africa.

For technology companies, investors, the Competition Authority of Kenya, and legal and compliance teams across the digital economy, this submission reframes the Bill from a settled policy direction into a live, evidence-based question that Parliament has not yet answered. The stakes extend beyond compliance cost to Kenya's positioning as a regional digital investment hub.

The Bill embeds specific digital service categories directly into statute, and authorises fines of up to 10% of annual turnover. These are structural departures from how Kenyan competition law has operated since 2010, borrowed from jurisdictions with far larger, more concentrated digital markets than Kenya's.

Boards of technology companies, digital platforms and any business with significant Kenyan digital operations need to treat this Bill as a live governance issue rather than a future compliance line item. If enacted, the shift away from a dominance requirement means governance and legal risk committees can no longer rely on market share analysis alone to assess competition exposure. Boards should be asking management whether commercial terms with smaller suppliers, merchants or partners could be characterised as exploiting superior bargaining position under the proposed test, independent of the company's overall market standing.

Compliance functions at digital platforms, cloud providers, app marketplaces and fintech companies operating digital services should begin mapping existing commercial contracts and partner agreements against the proposed superior bargaining position standard now, rather than waiting for enactment

Kenya's Parliament is weighing whether to adopt one of the most significant departures from its existing competition framework in over a decade, built on legal concepts imported from European and UK markets that differ substantially from Kenya's own.

Dr. Kigwiru's submission does not argue against eventual digital market oversight. It argues that Parliament has not yet been shown the evidence that current law cannot handle the problem the Bill is designed to solve.

That distinction, between eventual regulation and premature regulation, is likely to determine both the shape of the final Bill and how Kenya's digital economy is perceived by the investors it has spent years attracting. Businesses and industry bodies with a stake in the outcome have a real but narrowing opportunity to influence that decision before it is settled.