Carrefour loses appeal in abuse of buyer power case

The High Court has upheld a decision that found retailer Majid Al Futtaim Hypermarkets Limited, which operates as Carrefour, guilty of abuse of buyer power.

Justice Anne Ong’ijo ruled that the conduct of the retail chain against its supplier Orchards Ltd, a producer of yoghurt (which has since folded), was exploitative.

Buyer power means the ability of a purchaser to extract more favourable terms from a supplier on whom it can also impose significant opportunity costs by, for example, delaying payments.

Orchards filed a complaint with the competition watchdog accusing Carrefour of demanding it pay listing fees and at least three different types of rebates in exchange for having its products on shelves, over and above agreed price list margins.

Orchards further claimed that in January 2019 the company’s contract was terminated unilaterally whilst the parties were in the middle of negotiations.

“The court, therefore, finds that the [Competition Authority] tribunal was correct in declining to set aside the Authority’s decision on the appellant’s abuse of buyer power,” the judge said.

Competition Authority Tribunal had in its decision, which largely affirmed earlier decisions taken by the CAK, directed the retailer to refund rebates amounting to Sh289,482 deducted from Orchard’s invoices and pay a penalty of Sh124,768 to the regulator.

Evidence tabled in court showed that Orchards and Carrefour were in a buyer-supplier commercial arrangement from 2015 to 2018 for the supply of probiotic yoghurt branded Cool Fresh Yoghurt.

The supplier said the supermarket chain required various rebates, including Sh50,000 for listing fee, 10 percent on every second delivery of supplies to new branches and 1.25 percent on all annual sales. Further, the supermarket introduced progressive rebates calculated from annual sales from the supplier.

The yoghurt producer also accused the retailer of demanding preferential treatment through demands for free merchandise, which they later sold, and being required to deploy their own staff to man the shelves at the expense of the supplier.

In a determination in February 2020, the competition watchdog agreed that Carrefour contravened the Competition Act by abusing its superior bargaining power over the yoghurt firm and other 699 suppliers who are subject to standard contract terms.

The decision was upheld by the tribunal in 2021. The retail chain was ordered to revise all its agreements with the suppliers, forcing it to appeal at the High Court.

Carrefour win

In a win for the supermarket, the court faulted the tribunal for directing Carrefour to amend contracts with the 699 other suppliers, without joining them in the case.

“In conclusion, this court upholds the decision of the tribunal save that the decision to amend all supplier agreements between the appellant and its other suppliers is set aside as there were no parties to the cause and there were no pleadings affecting them before the Authority to warrant a decision being made in relation to their contracts,” said Justice Ong’ijo.

Following the ruling, Majid Al Futtaim said that it upholds the highest standards of global best practice and standardised commercial terms with its local partners, and was grateful that the court overturned the decision to amend its supplier agreements.

“We thank the High Court and consider that this essentially upholds the validity of Majid Al Futtaim’s existing suppliers’ agreements. We remain committed to conducting our business with fairness and integrity, working collaboratively with our partners to ensure a sustainable, equitable, and mutually beneficial business environment and in accordance with Kenya’s Code of Retail, in which we were honoured to play a founding role,” the retailer said.

In a statement, the CAK’s board chairman Mr Shaka Kariuki welcomed the outcome of the court, saying it was an acknowledgement of the regulator’s critical role in the economy including facilitating a harmonious co-existence between buyers and suppliers in various sectors.

“Our message to businesses is that they should play by the rules, irrespective of status. By ensuring that our markets work efficiently, and within a level playing field, the country shall attract more investments and grant consumers a wider variety of goods and services at competitive prices,” said Mr Kariuki.

The acting director-general Dr Adano Wario said commercially oppressive contracts ultimately force suppliers, most of who are small and micro-enterprises to exit the market due to unfair business practices.

“The Authority respects the legal requirement to accord accused parties a fair hearing while ensuring that investigations strictly adhere to laid down processes and procedures. The professionalism and objectivity by our staff members during the investigations has occasioned the positive outcome in this case,” he added.

Majid Al Futtaim entered Kenya in 2016 when it opened the first Carrefour store. The retailer last year added three outlets to bring its branch count to 22.
Carrefour has gained popularity over discounts on its goods but this has come under sharp focus, with several suppliers reporting it to the competition watchdog.

Last year, CAK hit Carrefour with a Sh1.1 billion fine over the structuring of its contracts with suppliers, a decision it said it would appeal.

→ skiplagat@ke.nationmedia.com

AM Live

AM Live is NTV's morning current affairs show that sets the agenda for the day with insightful panels every weekday.


Business Redefined

Business Redefined is Kenya’s premier thought leadership platform for unpacking matters regarding economic and finance policy as well demystifying complex developments in the region’s capital markets.


A collection of our premium content. Diam curabitur vehicula A collection of our premium content. Diam curabitur vehicula

Full Episodes

A collection of our premium content. Diam curabitur vehicula A collection of our premium content. Diam curabitur vehicula

Gumzo La Sato

Gumzo La Sato is a live social issues show that aims to create awareness about issues affecting the larger society. The discussions range from Parenting, Marital bliss and struggles, Oppression, violence, and all matters of the Heart.

Health Diary

Health Diary is a weekly show that highlights different types of diseases/conditions and seeks ways to prevent, treat/manage them. The show debunks this through real life stories and also feature specialists in different fields, to offer medical advice on the same.

Letter To My Younger Self

Letter To My Younger Self is a podcast where guests get to write a letter to their younger self, from which Maxine formulates questions to ask them during the hour-long show.

Mazao Talks

Mazao looks at agriculture and agribusiness

Nation Reports

Nation Reports is a weekly podcast offers an opportunity for listeners to interact with various reporters and journey with them as they unravel the biggest most emotive stories.

One Health Lens Podcast

Discussing health matters and human stories from Kenya and across Africa. We talk big picture from people to policy, ecosystems, and everything in between. Follow us on LinkedIn: https://www.linkedin.com/company/onehealthlens

Paradise Lost

Paradise Lost peeks through the story of Louis Otieno, the times, and everything in between.



Speaking of GEN Z

Speaking of Gen Z brings you entertaining but meaningful conversations about a generation that is trying to navigate through adulthood. Join hosts Michelle, Jackie and Esther as they unravel all things Gen Z.

Sport On

Sport-On is a 30-minute sports magazine show on NTV and 3 hours on NATION FM. The show seeks to give the sports “fanatics” and “funatics” comprehensive and in-depth coverage of sports both locally and internationally.


The extent of technological growth is beyond mere acknowledgment; it has seamlessly integrated into our daily existence. A few years ago, the notion of paying electricity bills through mobile money or recharging with 'tokens' in Kenya seemed inconceivable. Online product sales were considered distant, and artificial intelligence is rapidly reshaping various facets of our lives. Amidst these technological leaps, those with a solid understanding of tech can navigate challenges, seize opportunities, and build a sustainable livelihood. Tech over Show aims to be the platform facilitating discussions among thought leaders, innovators, tech companies, and the government, addressing challenges and opportunities in Kenya's thriving tech industry.


Thamani is a business show which is dedicated to emerging issues regarding micro, small and medium size businesses.

The Politalk podcast

This is The Politalk podcast. Here we look into the ins and outs of everything Kenyan politics. We pull no punches and have no reason to sugarcoat anything that matters to Kenyans.

The Trend

A two-hour-long live show that airs on Fridays. The show focuses on what is current in the entertainment industry, controversial and popular across all media platforms targeting those aged between 25 and 35 years.

The trend podcast

The trend podcast highlights and captures the best of banter from #TTTT segment that airs every Friday on NTV. It's the TTTT EXTRA

The Wicked Edition

The Wicked Edition with Dr. King’ori seeks to address serious issues through humour and relatable wit. It is a two-part half hour show filmed in front of a live audience


A collection of our premium content. Diam curabitur vehicula A collection of our premium content. Diam curabitur vehicula


Twende is a travel show that highlights beautiful, unique, diverse locations, people, and cultures. The show offers fresh perspectives on familiar locations and memorable experiences in new ones.


This Saturday evening lifestyle show lets viewers share their stories and life experiences as openly & honestly for the purpose of shifting the culture of silence.

VIP Access

VIP ACCESS is Anyiko Owoko’s YouTube and podcast show on Music and Culture dedicated to promoting Africa’s most promising talent and creatives. This podcast grants you VIP access into timeless interviews while providing a platform for rising as well as established artists across the continent. Since launching in 2018, Anyiko has interviewed over 70 African music stars.


This weekly news show aims to have all sides of debate but not be constrained by it, listen to main voices in the contest but not allow them to hold the viewers hostage, entertain debate but allow push back with all due respect.

When death do us part

In this podcast, three widowers openly speak about the process of grief, how they found themselves exposed to the emotional turmoil of losing their wives, and how society still does not know how to deal with them.

Your World

Your World is a health, wellness and variety show. It provides a platform for audiences and experts to share their experiences on how to improve or manage health issues, across Kenya and the Africa region.