By Joseph Kihanya LLB,LLM
What does it mean for a regulator to protect the public? In Washington, the Federal Trade Commission under Lina Khan gave one answer. It went after the biggest firms in retail, technology, and healthcare. It did so on the strength of a new wave of legal thought, rooted in scholarship and tested in litigation.
In Nairobi, the Competition Authority of Kenya (CAK) and the Communications Authority (CA) hold wide powers too. They can sanction, block, and direct. Yet most Kenyans may be tempted to ask, where is the effect in daily life?
The FTC under Lina Khan: Enforcement Shaped by Scholarship
The starting point was Khan’s own article, Amazon’s Antitrust Paradox, published in the Yale Law Journal in 2017. It argued that focusing on price and output as the only signs of competition had blinded enforcers to structural dominance. The piece showed how Amazon, while offering low prices, built a platform that controlled data, distribution, and access. That control itself was harmful. The article became the most cited antitrust work of its generation. It also gave the FTC a blueprint once Khan became chair in 2021.
Law reviews have described her tenure as the first real test of “New Brandeis” thinking. The New Brandeis school rejects the consumer-welfare test of the Chicago School and re-centers competition law on questions of power, structure, and democracy. Under this lens, monopoly is not just about prices but about the ability to dictate terms across markets.“Khan made the invisible weight of monopoly visible.
One law review assessment notes how Khan revived merger scrutiny. In a short span, the FTC sued to block the Kroger-Albertsons supermarket merger, stopped Nvidia’s attempt to acquire Arm, and challenged Tapestry’s proposed buyout of Capri. Courts did not always side with her, but scholars stress that the act of filing and litigating changed boardroom calculations. Companies could no longer assume rubber-stamp approvals.
Another review highlights Khan’s insistence on connecting consumer protection with antitrust enforcement. She went after “dark patterns” in subscription models, attacked junk fees, banned fake reviews, and expanded the “right to repair” The FTC thus acted not just against mergers but against the daily tricks that trap consumers. This integration of antitrust with consumer law, once seen as separate silos, became a hallmark of her chairmanship.
Each of these moves drew both praise and critique. Yet in law journals the consensus is that Khan restored the FTC as a visible, activist force. Even where courts have yet to deliver final judgments, the cultural effect is felt. Firms pre-emptively adjust contracts, investors calculate litigation risk, and consumers see their regulator in action.“Even when the court has not ruled, the market already feels the .”
Kenya’s Authorities: Power without Public Impact
Kenya’s legal framework is not weak. The Competition Act, Cap 504, grants CAK authority to act against restrictive trade practices, abuse of buyer power, and consumer harm. The CA regulates licensing, frequencies, and digital services. Both can impose fines, order remedies, and issue binding directions. Appeals lie to the Competition Tribunal and the Communications and Multimedia Appeals Tribunal and ultimately the High Court. On paper, the design is strong.
In practice, the picture is uneven. The CAK has tackled high-profile matters. It ruled against Carrefour after complaints by Orchards Limited that the retailer imposed unfair rebates, returned near-expiry goods, and shifted labor costs. The Tribunal upheld CAK’s decision, and the High Court confirmed the regulator’s process was fair even before later amendments gave explicit hearing powers.
The court held that the Appellant’s practices, volume rebates, returns of near-expiry goods, and rejection of undeliverable goods, amounted to abuse of buyer power, both under international standards and the Act. The Tribunal was right not to overturn the Authority’s decision.”
This was a clear precedent on buyer power. Majid Al Futtaim Hypermarkets Limited v Competition Authority of Kenya & another [2024] KEHC 5812 (KLR)
CAK also secured a major ruling against nine steel companies, including Devki Steel Mills, for cartel conduct. Devki Steel Mills Limited v Competition Authority of Kenya [2025] KECT 1 (KLR)The case showed the Authority could target heavy industry and not just retail chains.
Yet ask any Kenyan household about food or construction prices. Few will say they dropped after these rulings. The sanctions did not translate into cheaper groceries or affordable steel rods. The legal victory remained a technical story, confined to court reports and press releases.
The CA faces similar doubts. Kenya has some of the highest data costs in Africa. Billing disputes are common. Service quality gaps remain wide between rural and urban areas. Yet CA’s actions are more visible in licensing new entrants ,interconnection disputes Geonet Communications Limited & another v Safaricom PLC & 3 others [2023] KEHC 2326 (KLR)or managing spectrum than in securing consumer relief.
This raises a deeper question: do Kenyan regulators enforce their mandate in ways that reach citizens directly? Or do they remain tied to process, while consumer welfare stays abstract?
The Gap Between Power and Experience
Comparing the two settings is not about transplanting U.S. law to Kenya. It is about showing the contrast between visible, contested enforcement and quiet, procedural rulings. Khan’s FTC made antitrust a public story again. Cases against Amazon and Meta were covered globally, with hearings, filings, and academic commentary shaping debate. Whether one agreed or not, the public could see its regulator act.
In Kenya, CAK and CA decisions matter on paper but lack that public visibility and measurable effect. This is not due to legal weakness. It is about how power is exercised. Enforcement stops at the firm level. Consumers do not see refunds, do not hear public hearings, do not track promised benefits. The gap is real.“The consumer sees the press release not the real
Three Routes to Make Enforcement Tangible
- The first is to set outcome benchmarks. Every major decision should state in plain terms what consumers should expect. If CAK blocks or clears a merger, it should publish the likely effect on prices, quality, or choice within a set period. If CA licenses a new operator, it should announce expected price reductions or coverage gains. These benchmarks must be tracked and published quarterly. Without this, rulings remain technical wins with no consumer anchor.
- The second is to require direct restitution. Fines that disappear into the Treasury do not ease household costs. When CAK finds abuse of buyer power, it should direct restitution to suppliers and require savings to flow through retail prices. When CA penalizes operators for unfair billing, refunds should be credited to consumer accounts. The FTC has done this in multiple settlements, ensuring victims see actual money returned. Kenyan regulators can replicate this and make their victories visible.
- The third is to open enforcement to public hearings over and above the courts streaming services, with binding timelines. Allow consumer associations, unions, and small business groups to present evidence in tribunal cases. Require that all major cases conclude within a set period, say one year, so outcomes stay connected to current market conditions. The FTC’s hearings, often streamed and widely reported, gave proceedings a democratic edge. Kenyan regulators could achieve the same transparency, boosting trust and visibility.Enforcement that hides in files will never win public trust.”
Conclusion
The contrast is stark. In the U.S., Khan’s FTC turned academic critique into enforcement, law-review debates into court cases, and consumer protection into daily news. In Kenya, CAK and CA possess strong mandates but often stop short of visible consumer relief.The challenge is not statutory design. It is execution. To bridge the gap, regulators must connect rulings to lived effects. Benchmarks, restitution, and open hearings are practical routes to do so. They are not abstract reforms. They are tools to make authority felt.The question lingers, if regulators hold such power, why should consumer welfare still feel like a mirage?“Consumer welfare cannot remain a promise. It must be felt.
REFERENCES
- Lina M. Khan, Amazon’s Antitrust Paradox, 126 Yale L.J. 710 (2017). https://www.yalelawjournal.org/note/amazons-antitrust-paradox
- Lina M,Khan The New Brandeis Movement: America’Antimonopoly Debate Journal of European Competition Law & Practice, 2018, Vol. 9, No. 3 https://academic.oup.com/jeclap/article/9/3/131/4915966.
- Sandeep Vaheesan, Seeds of an Antitrust Revival.2024.Democracy, a journal of ideas. https://democracyjournal.org/magazine/72/seeds-of-an-antitrust-revival/
- John Kwoka, Mergers, Merger Control, and Remedies: A Retrospective Analysis of U.S. Policy. https://direct.mit.edu/books/monograph/3084/Mergers-Merger-Control-and-RemediesA-Retrospective.
- https://www.ftc.gov/news-events/news/press-releases/2024/12/statement-ftc-victory-securing-halt-kroger-albertsons-grocery-merger.
- https://www.ftc.gov/legal-library/browse/cases-proceedings/2110015-nvidiaarm-matter.
- https://www.ftc.gov/news-events/news/press-releases/2024/04/ftc-moves-block-tapestrys-acquisition-capri