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The notice by Comesa’s Competition Commission generated confusion on whether Kenyan firms must seek double approval where cross-border deals are involved.
Even though Attorney General Githu Muigai said CAK has the final and only say on approval of mergers and deals within Kenya, corporate lawyers afraid of running afoul of Comesa’s authority have been seeking approval from the two bodies.
“The AG’s directive or opinion must be seen within its short-term context, noting also its political angle in questioning Comesa for not consulting before publishing its requirements,” said Mugambi Nandi, a partner at law firm KN Associates LLP.
Mr Nandi said the bigger picture is the pending complexity of having three regulators scrutinising deals. The Comesa Competition Commission charges $500,000 (Sh42 million) to approve a deal and parties can wait up to 120 days to get approval.
CAK does not charge a fee but has a waiting period of up to 60 days. With the EAC Competition Authority, it will take 45 days to get approval. This bureaucracy could make reduce the attractiveness of East Africa as an investment destinatio.
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