The public-private divide in competition law: Reconstructing rights-based private remedies for anticompetitive harm in Kenya and the East African Community
The Mt Kenya Times 
By Jerameel Kevins Owuor Odhiambo
In Kenya, private enforcement of competition law is non-existent. The OECD’s peer review of Kenya’s competition regime states it plainly: private enforcement is non-existent, reflecting broader challenges in developing a competition culture and the risks and costs associated with litigation. Not a single private damages claim for anticompetitive harm has ever been brought before Kenyan courts. This is not a technical footnote. It is the central, damning fact of the public-private divide that leaves ordinary Kenyans, small suppliers, and downstream businesses as unpaid creditors of a system that collects fines while denying victims their rights.
This void is no accident of legal infancy. Kenya’s modern competition framework, born from the Competition Act of 2010 and operationalised through the Competition Authority of Kenya (CAK) since 2011, replaced an earlier 1989 statute. It arrived with ambitious objects: to enhance the welfare of the people of Kenya by promoting and protecting effective competition. The East African Community Competition Act of 2006 (as amended) speaks in equally lofty tones of protecting market participants’ freedom to compete across Partner States. Yet both regimes have constructed an architecture in which the public authority holds the sword, the purse, and the microphone, while private parties who actually bleed from cartels, abuse of dominance, and buyer-power predation are left to applaud from the gallery.
Consider the arithmetic of harm and the arithmetic of remedy. In the steel cartel investigation that concluded with penalties around KES 338 million against multiple manufacturers for price-fixing and output restriction, the overcharges did not vanish into thin air. They were paid by contractors, developers, and ultimately by families seeking roofs and roads. In the paints sector, CAK’s interventions generated estimated consumer savings exceeding KES 900 million. Through abuse-of-buyer-power enforcement, the Authority recovered KES 76.29 million in delayed payments owed to small and medium suppliers. These are not trivial sums. They are the visible tip of a much larger iceberg of transferred wealth. Yet the recovery of those millions flowed through administrative channels; the private parties who suffered the original injury received no automatic pathway to damages, no follow-on claim facilitated by the public finding, no statutory presumption that would turn the Authority’s victory into their restitution.
This is the public-private divide in its purest, most corrosive form. Public enforcement is treated as a sufficient proxy for justice. The CAK investigates, settles (often without admission of liability), imposes penalties up to the statutory 10 percent of turnover, and declares consumer savings. The East African Community Competition Authority gathers complaints, investigates cross-border conduct, and may impose its own sanctions. Victims, however, remain structurally sidelined. The law does not erect an explicit, rights-based private right of action with procedural teeth disclosure rights calibrated to competition cases, limitation periods that begin upon public decision rather than the hidden cartel meeting, standing rules that recognise both direct and indirect purchasers, and mechanisms for collective redress that match the diffuse nature of overcharge harm.
History offers a sobering parallel. Colonial marketing boards and post-independence parastatals once claimed to act for the “public good” while extracting surplus from producers and consumers alike. The language has modernized; the structure of insulated public power has not entirely. Today’s competition authorities are more sophisticated, better intentioned, and genuinely constrained by statute. Yet the insulation remains: the public body decides when and whether to act, controls the evidence, settles on terms that may prioritise administrative convenience or public-interest considerations over full compensation, and leaves private litigants to start from scratch in courts that still lack deep competition expertise. Settlements proliferate precisely because they are efficient for the regulator; they are often opaque or incomplete for the injured party who needs a finding of liability and a quantum of damage.
The irony is sharp. Kenya and the EAC celebrate regional integration and market opening. Cross-border cartels and abuse of dominance do not respect national borders any more than capital does. A steel price-fixing arrangement or restrictive distribution practices that affect multiple Partner States harm consumers and rivals in Nairobi, Kampala, Dar es Salaam, and Kigali simultaneously. Yet the private remedy remains fragmented or absent. The EAC Competition Act permits complaints by persons and provides for certain consumer compensation in specific contexts, but it does not construct a robust, harmonised private enforcement regime that would allow a Kenyan SME crushed by a dominant regional buyer, or a Rwandan importer overcharged by a cartel, to recover damages with the benefit of a prior public decision. Jurisdictional overlaps between national authorities, COMESA, and the EAC already create uncertainty for mergers; the same uncertainty, magnified by the absence of clear private rights, chills legitimate claims.
Data from recent CAK activity underscores the scale of the missed opportunity. In FY 2024/25 the Authority investigated 75 behavioural antitrust cases 28 coordinated cartel matters, 39 abuse-of-dominance matters, and eight association agreements while handling a surge in consumer complaints to 915, a 37 percent increase. Penalties in key sectors reached significant levels. Yet none of this activity has translated into a single reported private damages action. Leniency and informant-reward schemes have produced no applications. Criminal sanctions, though available, remain unused. The system is almost entirely administrative, almost entirely public, and therefore almost entirely one-dimensional.
A rights-based reconstruction is not a call for litigious chaos. It is a demand for completeness. Private remedies deter by multiplying the cost of infringement beyond the public fine. They compensate the actual losers rather than merely transferring wealth to the state. They generate jurisprudence that public agencies alone cannot produce, because private plaintiffs have incentives to litigate novel theories, quantify overcharges with economic precision, and test the boundaries of dominance and agreement. They also discipline the public enforcer: an Authority that knows its findings will be used in follow-on litigation has stronger incentives to produce rigorous, published decisions rather than quiet settlements.
The actors who must move are clear. Parliament must amend the Competition Act to establish an explicit private right of action for any person who has suffered loss from a prohibited practice, with provisions for follow-on claims that treat a final CAK or EAC decision as prima facie evidence of infringement, discovery rules suited to cartel opacity, and collective proceedings that allow aggregation of small claims. The Judiciary must invest in specialised training and, eventually, specialised lists so that complex economic evidence is not treated as exotic. The CAK and the EAC Competition Authority must publish reasoned decisions as a matter of routine, protect the confidentiality of leniency applicants while still enabling private claims, and advocate for the legislative changes that would make private enforcement a complement rather than a threat. Business associations and civil society must stop treating competition law as a regulatory compliance cost and start treating it as a source of enforceable private rights. Regional partners must harmonize private remedies so that a cross-border cartel does not enjoy a jurisdictional safe harbour simply because victims are dispersed.
The alternative is continuation of the present farce: an elaborate public theatre in which authorities fine, settle, and announce savings, while the private parties who paid the inflated prices, endured the delayed payments, or watched their markets foreclosed remain unpaid extras. Competition law that speaks only through the mouth of the state is incomplete. Rights that cannot be vindicated by those who hold them are not rights; they are privileges dispensed at administrative discretion. Kenya and the East African Community have built the public machinery. It is past time to reconstruct the private side not as an afterthought, but as the necessary completion of a system that claims to serve the welfare of the people. Until private remedies stand on equal footing with public power, the auction of justice will continue, and the highest bidder will remain the one who never has to compensate the victims.
The writer is a social commentator.
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