Regulators need to talk to one another about data

There was a time when merger review was a straightforward exercise. A competition regulator would simply inquire, “What assets are changing hands, and how will this deal reshape the market?”

That question made perfect sense when mergers involved factories, branches, or physical infrastructure. In today’s digital economy, the most valuable asset in many transactions is data, and Kenya’s regulatory architecture has not yet caught up with this reality.

Recent transactions make the point clear. A bank acquires a payments business. A tech company buys a digital platform. A failed airline’s corporate records are auctioned off in bankruptcy. A fintech accumulates years of transaction histories. An online marketplace observes the behaviour of millions of consumers. In each case, the physical assets are modest. This shift raises a question of who gains a competitive advantage from the way Kenya regulates personal and commercially valuable data.

It is a question that sits at the intersection of two regulatory regimes i.e., competition law and data protection law, that have historically operated in separate worlds. The digital economy has made that separation increasingly artificial. Across industries, data has become a core ingredient of competitive strategy. Banks use transaction histories to assess creditworthiness. Payment companies analyse merchant behaviour to detect fraud. Digital platforms refine recommendation systems using behavioural signals. Advertising platforms target ads using consumer profiles. Artificial intelligence companies seek vast quantities of real-world business data to train models.

Market power

Data’s economic value lies in its ability to predict, optimise, and improve decision-making. That gives it a unique economic character as an input, asset, intellectual capital and under certain conditions, it becomes a source of market power. Competition Authority of Kenya (CAK) already acknowledges in its analysis of digital platforms that firms with market power often control data advantages that can be used to exclude rivals. It highlights network effects, switching costs, vertical integration and access to customer data as factors that reinforce dominance. The issue is how much data matters to competition, who controls it and what that control enables a firm to do.

Consequently, the Competition (Amendment) Bill 2026 has acknowledged the nexus between data protection laws and competition regulation. It expands the mandate of the CAK to police data practices that create unfair market prices.

Clause 3 of the Bill introduces the concept of a strategic market position within digital markets. When the Authority evaluates whether a tech platform holds a strategic market position, it is legally required to take into account the platform's control of market prices, quality of service, or innovation independent of competitors or consumers. This implies that the platform’s data accumulation is both an economic asset and a potential barrier to entry that can stifle competition.

Clause 3 also introduces oversight to ecosystems that leverage personal data silos. If passed into law, in assessing whether an undertaking has a strategic market in a digital market, the CAK shall take into account the costs of switching for users and the ability and propensity of users to multi-home. That is, are users engaging in competing platforms able to do so in parallel without significant switching costs and inconveniences?

Clause 9 of the Bill introduces the offence of abuse of superior bargaining position, which includes unreasonable collection or processing of data of the counterparty in a transaction.

Kenya has an example of why regulators must coordinate. A bank acquiring a regional payments provider and a company whose infrastructure sits at a point where information generated by third parties flows through its systems raises obvious competitive implications. The acquirer could potentially gain visibility into transaction patterns, merchant relationships, customer behaviour, and commercially sensitive data belonging to other banks and businesses.

Data segregation

This is where CAK’s approach to data segregation and ring fencing becomes crucial. The principle is simple: acquiring an information intermediary should not automatically give the acquirer access to the competitive information of every participant using that intermediary. This is both a privacy safeguard and a competition safeguard. Imagine a payments platform used by ten banks and thousands of merchants. If Bank A acquires the platform and gains unrestricted access to data generated by Banks B and C, the acquisition has changed the competitive landscape. The deal has created an informational advantage.

The Data Protection Commissioner focuses on privacy, consent and lawful processing while CAK focuses on market structure, dominance and exclusionary conduct. In the digital economy, data is simultaneously a privacy asset and a competitive asset. A merger that complies with data protection rules may still distort competition. A data sharing arrangement that is lawful under privacy rules may still entrench market power. The two regulators are therefore looking at the same object but through different lenses. If they continue operating in silos, Kenya risks allowing market structures to form that are both privacy invasive and anti-competitive.

The solution is to make them talk to each other systematically. They must coordinate during merger reviews involving data rich firms, when assessing platform dominance, when evaluating data sharing agreements and when determining whether data access creates unfair advantages. Data is becoming the currency of competitive advantage. Firms that control it can shape markets, influence consumer behaviour and entrench dominance.

Regulators that ignore this reality risk overseeing markets where competition is an illusion and privacy is a casualty. Kenya has the opportunity to get ahead of this curve. We will achieve this only if its regulators stop working in parallel and start working together.

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The authors are Advocates of the High Court of Kenya specialising in Competition Law