KENYA Law and Practice Contributed by: Sammy Ndolo, Njeri Wagacha and Brian Muchiri, Cliffe Dekker Hofmeyr (Kieti Law LLP)
The authors have observed the National Security Council’s participation in mergers that concern enti - ties deemed vital to the security of the nation. In 2023, the National Security Council was involved in the pur - chase of a 60% stake in a telecommunications firm by the National Treasury. This action was taken because the company offered crucial services to multiple gov - ernment departments. 3. Recent Legal Developments 3.1 Significant Court Decisions or Legal Developments There have been several developments related to M&A in the last three years. COMESA Competition and Consumer Regulations, 2025 On 5 December 2025, the COMESA Competition and Consumer Protection Regulations came into effect, repealing and replacing the COMESA Competition Regulations, 2004. They introduce a myriad of chang - es including, in relation to M&A. • Notification threshold for mergers – mergers shall be notifiable where (i) the combined annual turno - ver or combined value of assets (whichever is higher) equals or exceeds USD60 million (this is an increase from USD50 million) and (ii) the annual turnover or the value of assets of at least two of the parties to the merger meets or exceeds USD10 mil - lion unless each of the parties to a merger achieves at least two-thirds of its aggregate turnover or assets within one member state. • Notification threshold for joint ventures – a pro - posed joint venture shall be notifiable if the joint venture is intended to operate in two or more member states, at least one of the parents to the joint venture operates in one or more member states and the combined annual turnover or value of assets (whichever is higher) in COMESA of all parties to the joint venture meets the prescribed thresholds. • Mergers involving digital markets – mergers involv - ing digital platforms or markets shall be notifiable where at least one of the parties to the merger has operations in at least two member states, and the
merger meets the prescribed transaction value of at least USD250 million Enactment of The Privatisation Act, 2025 The Privatisation Act, No. 18 of 2025 (Privatisation Act) came into force on 4 November 2025 and seeks to establish a clear legal framework for selling or divesting stakes in state-owned enterprises with the aim of reducing the state’s direct involvement in com - mercial activities and generating revenue. The Privatisation Act also establishes a Privatisa - tion Authority to oversee identification, valuation and implementation of privatisation programmes, sub - ject to oversight by the Cabinet and approval by the National Assembly. Amendments to the Public Finance Management Act The Public Finance Management Act, Chapter 412A of the Laws of Kenya, was amended by the Privatisation Act which introduced mandatory approvals from the Cabinet and the National Assembly with respect to the sale of shares in a government-linked corporation. These are companies in the national government or an entity of the national government is a shareholder with less than 50% of the share capital of the company. These approvals must be obtained before completion of a sale transaction. Amendments to the Banking Act The Banking Act, Chapter 488 of the Laws of Kenya was amended by the Business Laws (Amendment) Act, 2024, which introduced a phased increase in minimum core capital for banks – from KES1 billion to KES10 billion by 2029. This has prompted under - capitalised banks to raise fresh equity through rights issues, private placements, or public offerings to bolster their capital base. Mergers and acquisitions have also played a significant role, with smaller or undercapitalised banks either merging with or being acquired by larger institutions to meet the new thresh - olds. East African Community Competition Authority The East African Community Competition Authority (EACCA) commenced receipt of merger notifications pursuant to Sections 11 and 12 of the EAC Competi -
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