When the seller roars and the buyer whispers: Kenya’s competition law and the uneven hunt for market tyrants
The Mt Kenya Times 
By Jerameel Kevins Owuor Odhiambo
In 2023 the Competition Authority of Kenya sanctioned Majid Al Futtaim Hypermarkets Limited, trading as Carrefour, more than one billion shillings for abusing buyer power against suppliers of cooking oil and other goods. Rebates deducted without justification, listing fees extracted, contracts terminated on a whim, and commercial risks transferred downward formed the charge sheet. That single enforcement action stands as cold fact. The deeper issue it illuminates is sharper still: Kenya’s competition regime has grown muscular against the seller who raises prices but remains curiously soft-footed against the buyer who depresses them. Monopoly draws thunder. Monopsony draws polite guidelines and delayed justice. The asymmetry is not technical. It is structural, historical, and costly to the very producers who keep this country fed and employed.
Consider the twin faces of concentrated power. Monopoly is the loud giant. A firm that controls half or more of a market, or that possesses market power even below that threshold, can raise prices, restrict output, or exclude rivals. Kenyan law has long recognised this danger. Section 23 and Section 24 of the Competition Act arm the Authority to declare dominance and punish its abuse. Cartels receive even less mercy. Nine steel manufacturers were fined a combined 338.8 million shillings after investigators recovered WhatsApp messages, emails, and meeting minutes proving coordinated price increases and supply restrictions. Building costs rose. Public projects grew more expensive. Consumers paid. The Authority moved with visible force.
Monopsony, by contrast, is the quiet giant. A single powerful buyer, or a handful of them, faces many fragmented sellers. It does not need to raise the price of what it sells. It simply lowers the price of what it buys, delays payment, imposes listing fees, demands free merchandising staff, or terminates contracts without notice. The supplier, often a small manufacturer or farmer with nowhere else to sell, absorbs the loss. Section 24A, inserted and strengthened by amendments culminating in 2019, prohibits exactly this conduct. Kenya became one of the first African jurisdictions to write buyer-power abuse into statute in explicit terms. The definition is precise: the influence to obtain more favourable terms or to impose a long-term opportunity cost disproportionate to any cost borne by the buyer. Delayed payments, unilateral termination, refusal of goods, transfer of costs, and significant price reductions where alternative buyers are scarce all fall within the net.
Enforcement statistics reveal the imbalance. The Authority has handled well over ninety abuse-of-buyer-power cases since the provision took full effect. In one reporting period it investigated 114 such matters, finalized most of them, and recovered tens of millions in delayed payments for suppliers. Delayed payment alone accounted for roughly three-quarters of complaints in recent years. Beneficiaries are overwhelmingly micro, small and medium enterprises entities that constitute 98 percent of Kenyan businesses, contribute about 40 percent of GDP, and employ roughly 70 percent of the working population. These numbers are not decorative. They describe the bloodstream of the economy. When a supermarket chain or a large processor squeezes those enterprises, the injury travels far beyond the invoice.
Agriculture supplies the most vivid illustrations. Sugarcane farmers in designated catchment areas historically faced a single miller with little practical choice of buyer. State-owned mills, inefficient and repeatedly rescued by debt write-offs running into tens of billions of shillings, distorted the market further while private mills exercised local buyer power. Coffee and tea auctions display concentrated purchasing. At the Nairobi Coffee Exchange, a handful of dealers routinely command the overwhelming majority of purchases. Tea auctions at Mombasa have long shown top buyers capturing large shares of volume. Studies of agricultural traders in related markets show them capturing as much as four-fifths of total surplus while producers and final consumers share the remainder. The pattern is ancient and modern at once: colonial marketing boards once stood as official monopsonists; today’s private and hybrid structures achieve similar results without the colonial flag.
History sharpens the condemnation. The 1989 Restrictive Trade Practices, Monopolies and Price Control Act focused almost exclusively on seller-side concentration and price controls. The 2010 Competition Act modernized the framework and created an independent Authority. Only after successive retail collapses Nakumatt, Uchumi and after a 2017 retail-sector inquiry documented listing fees, delayed payments, and risk-shifting did Parliament fortify the buyer-power provisions. The law recognised the problem. Practice lagged. Abuse-of-dominance cases against sellers remain cautious; formal findings of dominance are rare even where market shares scream concentration. Buyer-power cases, while more numerous, still arrive after damage has been done, after suppliers have already financed the buyer’s working capital through unpaid invoices, after small firms have closed or survived on thinner margins.
The correlation is brutal. Where sellers hold power, consumers feel the sting immediately in higher prices. Where buyers hold power, producers feel the slow bleed of suppressed incomes, delayed cash flow, and existential uncertainty. Both injuries reduce output, stifle investment, and concentrate economic opportunity. Both erode the promise of shared prosperity that the Authority’s own vision statement proclaims. Treating them as unequal threats is not neutral policy. It is a choice that privileges the downstream aggregator over the upstream creator.
Literary irony saturates the landscape. The same regulatory eye that can detect coordinated steel pricing through private messages appears slower to detect the systematic transfer of risk from a hypermarket’s balance sheet onto a yoghurt manufacturer’s. The same statute that defines dominance with percentage thresholds defines buyer power more flexibly, recognising economic dependence even without formal dominance. Yet the energy of enforcement still tilts toward the visible price increase rather than the invisible price suppression. The giant who sells dear is hunted with drums. The giant who buys cheap is admonished with guidelines and occasional, if growing, fines.
This is not an argument against strong monopoly enforcement. Cartels and dominant sellers who exploit consumers deserve every tool the law provides. It is an argument against selective vision. Monopsony is not a lesser cousin of monopoly. It is its mirror image, equally capable of distorting allocation, extracting rents, and crushing the weak. In a country where most enterprises are small and most workers depend on them, buyer power is not a technical curiosity. It is a daily tax on enterprise and a quiet engine of inequality.
What must change is categorical. The Competition Authority must treat buyer-power investigations with the same investigative aggression and resource priority given to cartels. Sector regulators in agriculture sugar, coffee, tea must coordinate rather than operate in parallel silos that allow catchment rules and auction concentrations to persist unchallenged. Parliament should resist any dilution of Section 24A and instead demand periodic public reporting on recovery of delayed payments and the survival rates of affected suppliers. Large buyers themselves, whether retailers, processors, or insurers, must internalize that superior bargaining position is not a licence for extraction. Codes of practice are useful only when backed by credible sanctions. Courts and the Competition Tribunal have begun to give the provision teeth; they must continue.
Kenya’s markets will not become efficient by accident. They will become efficient when the law regards every form of concentrated power seller or buyer as a potential threat to the same constitutional values of equity and economic justice. The farmer who delivers cane, the processor who supplies yoghurt, the garage that repairs insured vehicles, the small manufacturer who lists goods on supermarket shelves: these are not peripheral actors. They are the productive core. When the buyer whispers and the law only half-listens, that core weakens. The time for selective hearing has ended. The time for even-handed, relentless enforcement has arrived.
The writer is a social commentator
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