The High Court has blocked the Competition Authority of Kenya's bid to conduct a sweeping search of Foam Mattress Ltd as part of a suspected price-fixing cartel investigation.
The court said the regulator must justify why less intrusive investigative measures are inadequate before seeking broad search warrants against businesses.
It also ruled that any court-approved dawn raid must be narrowly targeted to avoid infringing constitutional rights to privacy, property and data protection.
"The orders were too wide and could have covered private phones or gadgets and not necessarily those belonging to the subject entity only. Anyone within the building, including employees and third parties would have been subject to the order,” the court said, upholding a lower court’s decision to block the search exercise.
The ruling delivered at the High Court in Kisumu is expected to shape how the competition watchdog conducts future cartel investigations by requiring investigators to lay a clear factual basis before obtaining intrusive search warrants.
While affirming that CAK investigators are legally empowered to execute search warrants, the court noted that the regulator failed to demonstrate why it could not first seek information through less intrusive statutory procedures before asking to search and seize electronic devices.
The dispute arose after CAK sought permission from the Chief Magistrate's Court in Kisumu to enter Foam Mattress's premises, search its offices and seize documents, computers, mobile phones, storage devices and other electronic records as part of investigations into alleged anti-competitive conduct.
The magistrate, in a ruling dated March 24, 2026, rejected the application, prompting the regulator to ask the High Court to revise that decision.
CAK argued that the Competition Act gives it independent authority to investigate suspected anti-competitive conduct and conduct searches through officers authorized by the regulator.
It also maintained that requesting documents first under Section 31(4) of the Act was not a mandatory prerequisite before seeking search warrants because advance notice could lead to destruction of evidence in cartel investigations.
The court agreed with the regulator on one key legal point. It held that search warrants are not reserved exclusively for officers from the Directorate of Criminal Investigations (DCI), saying Section 118 of the Criminal Procedure Code permits warrants to be executed by "a person named in the search warrant."
"The applicant is empowered to conduct investigations. The person authorized by the applicant in writing is to be named in the search warrant ... and not necessarily an investigation officer from the DCI as held by the Court below,” the court said.
However, the court found that CAK had failed to place sufficient evidence to justify bypassing the ordinary process of requesting information from the company before resorting to coercive search powers.
It noted that although the authority claimed evidence could be destroyed if notice was given, the supporting affidavit did not explain why such fears were justified.
The court described the powers under Section 32 of the Competition Act as exceptionally intrusive and warned that they should be exercised only where a clear factual basis has been established.
It said the powers "are very drastic," adding that they "can paralyse or destroy a business depending on how they are exercised" and "are open to abuse."
The court further observed that such orders could infringe constitutional rights to property and privacy as well as protections under the Data Protection Act if issued without adequate safeguards.
It also faulted the scope of the proposed warrants, saying they would have allowed investigators to seize virtually every electronic device found within the building without distinguishing between company property and personal devices belonging to employees or third parties.
“The Data Protection Act and the right to privacy under the Constitution could have been breached by such wide and sweeping orders. Nothing can be as intrusive as entering into one’s private phone! The trial court was right in declining them,” said the court.
The judge concluded that the application amounted to "a fishing expedition," saying the authority had sought permission to seize electronic gadgets first and then search through them for evidence.
Stating that the orders sought by CAK must be targeted clear and unambiguous, the court said CAK should have specified whose computers, whose electronic gadgets, whose phones that were to be subject to the court order.
It dismissed CAK's revision application and upheld the magistrate's earlier refusal to issue the warrants.
The ruling comes against the backdrop of CAK's widening investigation into alleged cartel activity in Kenya's mattress industry.
In March, the regulator carried out coordinated dawn raids on several mattress manufacturers after saying it suspected anti-competitive practices, including possible price-fixing and other conduct prohibited under the Competition Act.
The watchdog said the operation was intended to secure evidence that could otherwise be concealed or destroyed and stressed that the searches did not amount to findings of wrongdoing.
The High Court's decision does not halt CAK's investigation but establishes that future applications for search warrants must be supported by specific evidence, narrowly tailored and proportionate to the suspected infringement, balancing effective competition enforcement with constitutional protections for businesses and individuals.
