A comparative view of Killer acquisition by digital Gatekeepers : EU versus Kenya and Merger Control.

Abstract: Killer acquisitions pose a significant concern in antitrust law as they threaten the existence of innovative startups, which are vital for driving growth and introducing new products and services in industries. When dominant incumbents acquire these competitor, their potential for innovation is snuffed out before it can be realised. Preserving competition is crucial for antitrust law especially in disrupting entrenched firms like digital gatekeepers. Killer acquisition refer to the incumbent firm buying out startups targets with the goal of eliminating future competition. However the current merger control system, such as in Kenya is inadequate in capturing and addressing these acquisitions, particularly in the dynamic digital ecosystem. The European Union, with its advanced infrastructure and competition policy model has made notable progress in regulating digital gatekeepers. Considering proposals for effectively capturing such acquisitions, we will examine the existing merger control system of both the EU and Kenya. Attention will be given to understanding the concept of killer acquisition, theories of harm, market definition, threshold and notification requirements, the Digital Markets Act, referral mechanisms ,cases such as Illumina/Grail and Towercast, and potential policy changes. The aim is for the Competition Authority of Kenya to learn from the EU’s approach and strengthen its merger control competition policy to effectively regulate digital gatekeepers and address the issue of killer acquisition.