 Background on competition

 Regulation of competition in Kenya

 The Competition Authority of Kenya
 The Scope & Nature of Competition Law in Kenya
◦ Restrictive Trade Practices
◦ Mergers &Acquisitions
◦ Consumer Welfare
➢ The Competition Tribunal
➢ Career Opportunities

Vision: "A Kenyan economy with globally efficient markets and enhanced consumer welfare for shared Prosperity"

5/10/2023
Vision: "A Kenyan economy with globally efficient markets and enhanced consumer welfare for shared Prosperity"

5/10/2023
  Competition in the marketplace
means having a market where there
are multiple businesses offering
competing products and services.

Vision: "A Kenyan economy with globally efficient markets and enhanced consumer welfare for shared Prosperity"

5/10/2023
 Low prices Investments

Quality
Promotes
Products &
Innovation
Services

Vision: "A Kenyan economy with globally efficient markets and enhanced consumer welfare for shared Prosperity"

5/10/2023
 ➢ Previously the operational Act was the
Restrictive Trade Practices, Monopolies and
Price Control Act, CAP 504.

➢ The Competition Act, No. 12 of 2010, became

operational on 1st August, 2011.

Vision: "A Kenyan economy with globally efficient markets and enhanced consumer welfare for shared Prosperity"

5/10/2023
 The
Competition
Act, 2010

Competition
(General)
Rules, 2019

Consolidated
Buyer Power
Merger
Guidelines
Guidelines

Consolidated Consumer
Guidelines Protection
on Guidelines
Restrictive
Trade
Practices Consumer
Search and Fining &
Administrati
Seizure Settlement
ve
Guidelines Guidelines
Guidelines

Vision:"A Kenyan economy with globally efficient markets and enhanced consumer welfare for shared Prosperity"
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 ➢ The Competition Authority of Kenya (CAK) is a
State Corporation established under Section 7 of
the Competition Act No. 12 of 2010.

➢ CAK’S objective is to regulate competition and

promote consumer welfare in Kenya.

Vision: "A Kenyan economy with globally efficient markets and enhanced consumer welfare for shared Prosperity"

5/10/2023
 Regulation Regulation
of market of market
conduct structure

Advocacy,
Market research
and studies

Vision: "A Kenyan economy with globally efficient markets and enhanced consumer welfare for shared Prosperity"

5/10/2023
 Restrictive
Agreements, Practices
and Decisions

Restrictive Trade Abuse of Dominant

Practices Position

Abuse of Buyer Power

Vision: "A Kenyan economy with globally efficient markets and enhanced consumer welfare for shared Prosperity"

5/10/2023
  Agreements, decisions by associations of
undertakings or concerted practices by
undertakings which have as their object or
effect, prevention, distortion or lessening
competition.
 Trade associations can also engage in restrictive
trade practices.

Vision: "A Kenyan economy with globally efficient markets and enhanced consumer welfare for shared Prosperity"

5/10/2023
Vision: "A Kenyan economy with globally efficient markets and enhanced consumer welfare for shared Prosperity"

5/10/2023
 Case examples:

CAK v Paints Cartel (2019) - price fixing and

agreed determined discounts for consumers.

CAK v Outdoor Advertising Association of

Kenya (2015/2016) - Used by the Association to
fix prices through a signed Circular on revision
of billboard prices.

Vision: "A Kenyan economy with globally efficient markets and enhanced consumer welfare for shared Prosperity"

5/10/2023
 Abuse of dominance occurs when a dominant
business (or group of businesses) engages in
activity that stops or substantially reduces
competition in a market.
 A dominant undertaking is one which produces,
supplies, distributes or otherwise controls not less
than 50% of the total goods of any description
which are produced, supplied or distributed in
Kenya or any substantial part thereof or services.

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 Predatory
behaviour

Limiting Discriminatory
production be haviour
Abuse of
Dominant
Position

Refusing to
Tying/Bundli supply i.e
ng exclusive
dealing

Vision: "A Kenyan economy with globally efficient markets and enhanced consumer welfare for shared Prosperity"

5/10/2023
 Case Example:
Restrictive clause in the contract between
Safaricom Limited & its Mpesa Agents
(2013/2014)

Vision: "A Kenyan economy with globally efficient markets and enhanced consumer welfare for shared Prosperity"

5/10/2023
  Abuse of buyer power is influence exerted by an
undertaking in a position of a purchaser of a
product/service to obtain from a supplier more
favorable terms.
 In investigations on abuse of buyer power, the
Authority shall be guided by any existing
agreement, whether written or not, between a
buyer undertaking and supplier undertaking.

Vision: "A Kenyan economy with globally efficient markets and enhanced consumer welfare for shared Prosperity"

5/10/2023
 Unjustifiable delays in suppliers payments contrary to
agreed terms of payment
Unilateral termination or threats of termination of a
commercial relationship without notice
Refusal to receive or return any goods without justifiable
reason
Transfer of costs or risks to suppliers of goods or services by
requiring suppliers to fund the cost of a promotion

Demands for preferential terms unfavorable to the suppliers

Vision: "A Kenyan economy with globally efficient markets and enhanced consumer welfare for shared Prosperity"

5/10/2023
 Case Example:

Majid Al Futtaim Hypermarkets Limited found

to have abused its buyer power through the
application of rebates, the refusal to accept
delivery of goods delivered in accordance with
LPO specifications and in transfer of commercial
risk to suppliers.
Vision: "A Kenyan economy with globally efficient markets and enhanced consumer welfare for shared Prosperity"

5/10/2023
➢ A merger occurs when one or more undertakings
directly or indirectly acquire or establish direct or
indirect control over the whole or part of the business of
another undertaking.

➢ Undertakings must seek

approval from the
Authority

➢ The Authority may

approve, approve with
conditions or decline

Vision: "A Kenyan economy with globally efficient markets

and enhanced consumer welfare for shared Prosperity" 20
 Objectives of
merger control

Prevent dominance
that can be used to Broader economic
harm consumers & policy agenda
competitors

Relevant product markets

Financial health of the parties
Public interest concerns

Vision: "A Kenyan economy with globally efficient markets and enhanced consumer welfare for shared Prosperity"

5/10/2023
 Case Example:

This was a 100% acquisition by KCB Group PLC of

National Bank of Kenya Ltd (2019)

Vision: "A Kenyan economy with globally efficient markets and enhanced consumer welfare for shared Prosperity"

5/10/2023
 Case Example:

This was a 100% acquisition by Commercial Bank of

Africa Group of NIC Bank (2019)

Vision: "A Kenyan economy with globally efficient markets and enhanced consumer welfare for shared Prosperity"

5/10/2023
 ➢CAK investigates complaints relating to: false
and misleading representations, unconscionable
conduct, unsafe goods, defective goods and
unsuitable goods.

➢ Works closely with Central Bank of Kenya,

KEBS, Communications Authority, Pharmacy &
Poisons Board, Department of Weights &
Measures.

Vision: "A Kenyan economy with globally efficient markets and enhanced consumer welfare for shared Prosperity"

5/10/2023
 Case Examples:
Transparency in cost of Mobile Money Payments
and Mobile-Based Credit

Vision: "A Kenyan economy with globally efficient markets and enhanced consumer welfare for shared Prosperity"

5/10/2023
 ➢ The Authority may, on its own initiative or upon receipt of
information or complaint from any person or Government
agency or Ministry, carry out an investigation into any
conduct or proposed conduct which is in contravention of the
Act.
➢ Authority has power to:
❑ issue notice of investigations requiring undertakings to
furnish information, produce documents or appear before the
Authority
❑ enter any premises believed to be in possession of relevant
information and documents and inspect the premises, any
goods, documents and records situated therein
❑ receive in evidence any statement, document, information or
matter
Vision: "A Kenyan economy with globally efficient markets and enhanced consumer welfare for shared Prosperity"

5/10/2023
  Criminal remedies include imprisonment for a
term not exceeding five years or to a fine not
exceeding ten million shillings or both.
 Administrative remedies including financial
penalty (up to 10% on the gross annual turnover
for the preceding year).
 An undertaking may enter into a settlement
agreement with the Authority

Vision: "A Kenyan economy with globally efficient markets and enhanced consumer welfare for shared Prosperity"

5/10/2023
 Competition Tribunal is established under Section 71 of the
Act
 Composition – Chairman & minimum of 2 and maximum of 4
members
 Determines appeals & reviews decisions made by the
Authority.
 Final appeal from decisions of the Tribunal lies in the High
Court

Vision:"A Kenyan economy with globally efficient markets and

enhanced consumer welfare for shared Prosperity" 5/10/2023 28
 The opportunities are as follows:
◦ Pupilage Programme: 3 months
◦ Internship Programme: 1 year
◦ Young professionals Programme: 1 year
◦ Employment

Vision: "A Kenyan economy

with globally efficient markets
and enhanced consumer welfare
for shared Prosperity"

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 The opportunities are as follows:
◦ Merger Applications
◦ Exemption Applications
◦ Represent RTPs investigations; hearing conference
◦ Represent consumer complainants

Vision: "A Kenyan economy

with globally efficient markets
and enhanced consumer welfare
for shared Prosperity"

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 Contact e-mail: info@cak.go.ke

Vision: "A Kenyan economy with globally efficient markets and enhanced consumer welfare for shared Prosperity"