Title: ‘Selected key aspects and challenges facing competition law in

Kenya: procedural and substantive concerns, abuse of dominance in the

telecommunications sector (Airtel Ltd v Safaricom PLC) and regionalization of
competition law in Kenya’.

By; Washington Odongo Ombis.

LL.M Thesis.

Qualification : Masters in Law. International Commercial Law.

School: University of Kent Law School, Canterbury UK.

Submission date: 12th August 2019.

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ABSTRACT.
In Africa, Kenya is one of the countries which has had a progressive system of
competition law, part of the reasons for this is because competition laws in Kenya have
been in existence for more than 30 years now.

This paper will interrogate the sufficiency of the Competition Act of Kenya (CA) by
exploring the institutions governing competition law in Kenya by assessment of their:
effectiveness, efficiency and legitimacy.

Considering the above, the paper will emphasize the need for proper capacity building
in the competition tribunal of Kenya which has been dormant for 8 years since the
Competition Act of Kenya was enacted.

Furthermore, the paper will suggest best ways in which political interference can be
minimized in the operational activities of the Competition Authority of Kenya (CAK)
and therefore make autonomy more realistic.

Range of investigative powers of the CAK will be examined, by analysing to what

extent CAK can raid premises while at the same time respecting the right to property
and privacy of an individual by appreciating the only case law in Kenya on the same.

Also, competitiveness in the telecommunications sector in Kenya will be analysed by

interrogating Safaricom PLC v Airtel Ltd which are the two largest mobile service
providers and rivals in Kenya by exposing abuse of dominance issues and analysing
to what extent the CAK has aided in curbing such.

Regionally, Kenya has enacted the East African Community Competition Act (EACCA)
2006 and Common Market for Eastern and Southern Africa (COMESA) Competition
Regulations and Rules 2004, which has created jurisdictional cross-border challenges;
therefore this paper will appraise the same and the need to develop clarity.

The overall argument in this paper is that the Competition act of Kenya is not an
entirely sufficient instrument for addressing certain competition issues in Kenya and
thus it needs to be refined.

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TABLE OF CONTENTS
ABSTRACT .......................................................................................................................... ii
LIST OF ABBREVIATIONS .................................................................................................. iv
ACKNOWLEDGMENTS ....................................................................................................... vi
TABLE OF LEGISLATION .................................................................................................. vii
TABLE OF CASE LAW ...................................................................................................... viii
1. INTRODUCTION......................................................................................................................- 1 -
2. COMPETITION LAW IN KENYA . ........................................................................................- 7 -
2.1. History of Competition Law in Kenya. ......................................................................- 7 -
2.2. Legal Architecture Managing Competition Laws in Kenya.................................- 8 -
2.2.1. Domestic level. .......................................................................................................- 8 -
2.2.2. Regional Level. .....................................................................................................- 14 -
3. INSTITUTIONAL FRAMEWORK AND CRITIQUE. .........................................................- 18 -
3.1. Institutional structures. ..............................................................................................- 18 -
3.2. Rethinking the competition tribunal of Kenya (The sleeping lion). ................- 19 -
3.3. Making a case for genuine autonomy of the CAK...............................................- 27 -
3.4. Revisiting Mea v CAK Petition 99 of 2016. ............................................................- 31 -
3.4.1. Facts.............................................................................................................................- 31 -
3.4.2. Contentious issue.....................................................................................................- 32 -
3.4.3. Reflections for future implementation. ...............................................................- 34 -
4. CHALLENGES FACING COMPETITION POLICY IN KENYA......................................- 38 -
4.1. Introduction. ..................................................................................................................- 38 -
4.2. Case study of Safaricom PLC versus Airtel Networks Ltd. ..............................- 38 -
5. REGIONAL CONCERNS......................................................................................................- 45 -
5.1. Brief of Kenya’s involvement with international competition bodies. (UNCTAD
& ICN). .........................................................................................................................................- 45 -
5.2. Addressing extraterritorial operation with regard to regional and domestic
legislation conflict in competition matters. ......................................................................- 45 -
6. CONCLUSION AND RECOMMENDATIONS ...................................................................- 51 -
7. APPENDICES.........................................................................................................................- 53 -
8. BIBLIOGRAPHIES. ...............................................................................................................- 75 -

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LIST OF ABBREVIATIONS.
AG - Attorney General.

CA - Competition Act of Kenya.

CAK - Competition Authority of Kenya.

CAP - Chapter (Laws of Kenya).

CBK - Central Bank of Kenya.

Cofek - Consumer Federation of Kenya.

CoK - Constitution of Kenya.

COMESA - Common Market for Eastern and Southern Africa.

EA - East Africa.

EAC - East African Community.

EACCA - East African Community Competition Act 2006.

EACJ - East African Court of Justice.

EACCR - East African Community Competition Regulations 2010.

EMCA - Environmental Management and Co-ordination Act Kenya.

EU - European Union.

GDP - Gross Domestic Product.

GoK - Government of Kenya.

ICN - International Competition Network.

IP - Intellectual Property.

IPRs - Intellectual Property Rights.

JR - Judicial Review.

KAM - Kenya Association of Manufacturers.

KLRC - Kenya Law Reform Commission.

Kshs - Kenya Shillings. (Local currency)

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LSK - Law Society of Kenya.

MoU - Memorandum of Understanding.

NET - National Environment Tribunal of Kenya.

PS - Permanent Secretary.

RTPMPCA - Restrictive Trade Practices Monopolies and Price Control Act.

UK - United Kingdom.

UNCTAD - United Nations Conference on Trade and Development.

US - United States of America.

WTO - World Trade Organisation.

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ACKNOWLEDGMENTS.
The author is entirely grateful to his supervisor Dr. Martin Hedemann Robinson.

The author is also grateful to his parents, Mr. George Ombis (dad) and Dr. Leah Oyake
Ombis (mum) for having accorded him the opportunity to study in the University of
Kent.

May the Almighty God, bless the above abundantly.

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TABLE OF LEGISLATION.

1. COMESA Competition Rules 2004.

2. COMESA Competition Regulations 2004.
3. Companies Act Kenya 2015.
4. Competition Act Kenya 2010.
5. Competition Amendment Act Kenya 2016.
6. Competition Tribunal Rules Kenya 2017.
7. Constitution of Kenya 2010.
8. East African Community Competition Act 2006.
9. East African Community Competition Regulations 2010.
10. Restrictive Trade Practices Monopolies and Price Control Act Kenya 1989.

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TABLE OF CASE LAW.
1. Communications Commission of Kenya & 5 others v Royal Media Services
Limited & 5 others [2014] e KLR petition 14 A, 14 B & 14 C of 2014.
2. Hoffman-La Roche & Co v Commission [1979] ECR 461.
3. Law Society of Kenya v Kenya Revenue Authority & Another [2017] e KLR
Petition no. 39 of 2017
4. Mea Limited v Competition Authority of Kenya [2016] e KLR Petition 99 of
2016.
5. Okiya Omtatah Okoiti v Commissioner General, Kenya Revenue Authority & 2
others [2018] e KLR Petition 532 of 2017.
6. Ramogi & 4 others v The Cabinet Secretary Ministry of Energy & Petroleum &
7 others [2017] e KLR Constitutional reference No 531 of 2016.
7. United Brands v Commission [1978] ECR 207.

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 1. INTRODUCTION.
The historical background of Kenya is vital because her past experiences shaped
the way in which she has been functioning as a state to date and this will aid in
academically conceptualising the resultant impact of the colonial developments
and maturity of Kenya better.1 To this end, Kenya attained her full autonomy as
a state in 1963; it has been approximately 56 years to date since her
independence.2

Kenya is principally an agricultural society, because for the large part agriculture
operates and controls Kenya’s economy. 3
Besides agriculture, the other
dominating economic enterprises lie in; transport, communication, finance,
construction and tourism.4 Also, Kenya’s growth has been shaped by a number
5
of influences, notably; colonial patterns, local schemes and global funding.
Following its independence, Kenya adopted a vast number of the policies from
its colonial era.6

Similarly, Brenda Pamela May adds:

“[S]ince independence, Kenya’s economic growth is driven by a sound and

stable macroeconomic environment characterized by among other factors,
free market economic policies, increased investor confidence, fiscal and
foreign policies based on national interests and the cooperation with the
East African Community”.7

1 Charles Hornsby, Kenya A History Since Independence (I.B. Taurius, 2012) 1.

2 Elsbeth Joyce Court & Sylvester Okwunodu Ogbechie, ‘Kenya Art Worlds’ (2017) 11(1) Critical
Interventions Journal of African Art History and Visual Culture 1.
3 Neal Sobina, Culture and Customs of Kenya (Greenwood Press, 2003) 6.
4Nyaga Nathan Gitonga, ‘A study of indo Kenya Trade Relations 2000 to 2010’ (PhD thesis,

Tilak Maharashtra Viyapeeth Pune, 2015)

5 Christopher Nulty, ‘The Kenyan Development Experience: A History of Hindrances and

Limiting Factors’ (2012) 8(3) Colgate Academic Review 100.

6 ibid.
7 Brenda Pamela May, Competition Law in Kenya (Wolters Kluwer, 2017) 18.

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Furthermore, China has helped Kenya’s economy through establishing multiple
infrastructures especially through housing and construction. 8 Morever, Kenya has
consistently interacted with her neighbours through multilateral trade
agreements, such as the East Africa Community (EAC) and Common Market for
Eastern and Southern Africa (COMESA).9

Kenya’s Gross Domestic Product (GDP) growth rate averaged 5.45%, from the
periods between 2004 and 2018. 10 Moreover, in 2018 the GDP for Kenya was
6%,11 in the years before 2018 the GDP fluctuated, in this regard the previous
years percentages were: in 2017 growth was 4.9, 2016-5.9, 2015-5.7, 2014-5.4,
2013-5.9, 2012-4.6, in 2011-6.1 and 2010-8.4, 2009-3.3, 2008-0.28, 2007-6.9,
2006-5.9, 2005-5.7, 2004-4.6, 2003-2.9, 2002-0.5, 2001-4.0, in 2000-0.312 and
1999-2.2, indeed this was an increment for the period between 1999-2018.13 This
was as a result of great performance in the agricultural sector, although other
sectors such as: tourism, manufacturing and transport contributed to the same
14
but on different scales. Furthermore, according to most recent economic
statistical data from 2018, Kenya’s GDP growth expanded from 4.9 per cent in
2017 to 6.0 per cent in 2018.15 This was largely attributed to the favourable
weather conditions and steady political economy, as the previous year (2017)
was an electioneering period thus marked with low level of investments. 16

8 Prof Siringi EM, ‘Kenya – China Trade Relations: A Nexus of “Trade not Aid” Investment
Opportunities for Sustainable Development’ (2018) 6(2) Journal of Economics and Development
Studies 24.
9 Jacob W. Musila and Zelealem Yiheyis, ‘The impact of trade openness on growth: The case of

Kenya’ (2015) 37 Journal of Policy Modelling 342.

10 Trading Economics< https://tradingeconomics.com/kenya/gdp-growth-annual > accessed 5

June 2019.
11 Maggie Fick, ’Update 1 – Kenyan GDP growth at 6 percent in third quarter 2018’

<https://www.reuters.com/article/kenya-economy/update-1-kenyan-gdp-growth-at-6-percent-in-
third-quarter-2018-idUSL8N1Z019N > accessed 6 June 2019.
12 Country Economy < https://countryeconomy.com/gdp/kenya?year=2014 > accessed 6 June

2019.
13 ibid.
14 ibid.
15 Kenya National Bureau of Statistics, Quarterly Gross Domestic Product Report, Third Quarter

2018. <https://www.knbs.or.ke/download/quarterly-gross-domestic-product-report-third-quarter-
2018/ > accessed 17 May 2019.
16 ibid. See Nic Cheesman, Karuti Kanyinga, Gabrielle Lynch, Mutuma Ruteere & Justin Willis,

‘Kenya’s 2017 elections: winner – takes it all politics as usual ?’ (2019) 13(2) Journal of East
African Studies 215. See Okech Achieng Matilda, ‘The Impact of Electoral Violence on
Economic Development: A Case of Kenya’ (2018) 1(3) Journal of Political Science and
International Relations 55.

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Besides agriculture, construction, electricity and water supply also played an
important role in the increased GDP.17

Kenya consists of 45 tribes in total.18 From a cultural stance, one of the effects of
colonialism was the balkanisation of Kenya along tribal lines. 19 Basically, Kenya
is a multi-ethnic, diverse nation, comprising of distinct languages scatteredacross
different parts of the country.20 The 45 tribes are broadly classified into three
groups; Nilotic, Cushitic and Bantus.21 The local language is Kiswahili, whilst
English and Kiswahili are formal languages.22

The current population as it sits is ca.50 million.23 In 2017, the death rate was 5.7
per 1000 persons, this was a general decrease as the previous years
percentages recorded as follows: 2016-5.7, 2015-5.8, 2014-6.0, 2013-6.2, 2012-
6.5, 2011-6.8, 2010-7.3, 2009-7.8, 2008-8.4, 2007-9.0 and 2006-9.7.24 The birth
rate records shows in 2017 the crude birth rate was 30.9 per 1000 people, this
was a decrease from 1968 as it was 50.7 people per 1,000 people. 25 This paper
notes there will be another census conducted this year predicted to take place
between 24th-31st August 2019, the exercise is always conducted after every 10
years and the last one was done in 2009, its purpose is to gauge the population
growth of Kenya.26 Socially, there exists unevenness between the affluent and
the poor, also a large part of its population reside in the urban towns especially
in Nairobi, this is largely because lots of jobs and other enterprising ventures are
situated there.27

17 ibid.
18 Nulty (n 5).
19 ibid.
20 ibid.
21 May (n 7) 15.
22 CoK Article 7(1) and (2).
23 Worldometers< https://www.worldometers.info/world-population/kenya-population/ >

accessed 20 May 2019.

24 Knoema, < https://knoema.com/atlas/Kenya/Death-rate > accessed 6 June 2019.
25 Knoema

<https://knoema.com/search?query=Kenya+birth+rate&pageIndex=&scope=&term=&correct=&s
ource=Header > accessed 6 June 2019.
26 Exposeke <https://exposeke.com/census-2019-recruitment-datesnews-and-application/ >

accessed 5 June 2019. See Kenya National Bureau of Statistics <https://www.knbs.or.ke/2009-

kenya-population-and-housing-census-analytical-reports/ > accessed 5 June 2019.
27 Kenya Population Situation Analysis, <https://www.unfpa.org/sites/default/files/admin-

resource/FINALPSAREPORT_0.pdf > accessed 5 June 2019.

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Through the Constitution of Kenya (CoK) in 2010, the country was divided into 47
counties, with governors leading counties and legislative arm headed by a
senator, being distinct from the national government. 28 Previously, before the CoK
2010 was ushered in the country was divided into 8 provinces which were:
Nyanza, Coast, Nairobi, Central, Rift Valley, Western, North Eastern and
Eastern.29 One of the reasons for introduction of devolution was that it was
predicted to: increase transparency, answerability and accountability, through
each of governors as representatives of the counties, governors have general
oversight and control of the counties and this promotes their accountability also
promotes democracy, as citizens elect the governors of their respective
counties.30 Furthermore, institutional autonomy is attained by devolution this is
because each and every county manage their own resources independently of
each other (their budgetary allocation also varies accordingly); one of the
functions of governors is they also offer guidance to the county’s governance and
progress.31 Additionally, before CoK was inaugurated the national government
was the center stage for all governmental activities, what this meant was that the
government was centralised as the president being the head of executive arm
had the general oversight of the provinces but now president’s powers are
lessened as the governors manage the counties. 32 Worthwhile adding, thecurrent
county set up is contemplative of the immense ethnic demarcation of the
country.33

The legal system in Kenya is common law in nature, as from 1897 the first
common law courts were set up.34 Further to this, Sandra Joireman notes Kenya
inherited a common law system as a result of colonial influence. 35 For instance
some manifestations of common law in Kenya is evident through the procedure
adopted in all its courts which is adversarial in nature, whereby parties present

28 CoK.
29 ibid.
30 County Government Act of Kenya 2012.
31 ibid.
32 Yash Ghai, ‘Devolution: Restructuring the Kenyan State’ (2008) 2(2) Journal of East African

Studies 211. See Jeffery Steeves, ‘Devolution in Kenya: Derailed or on track?’ (2015) 53(4)
Commonwealth and Comparative Politics 457.
33 ibid.
34 Sandra Fullerton Joireman, ‘The Evolution of the Common law: Legal Development in Kenya

and India’ (2006) 44(2) Commonwealth & Comparative Politics 190.

35 ibid.

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their matter before a judge/magistrate and subsequently the judge/magistrate
decides on the outcome; also the doctrine of judicial precedent, wherein the legal
system in Kenya is hierarchical as a decision of the higher court is often adopted
by the lower courts as binding.36 Furthermore, Justice Jackton Ojwang notes that
Kenya formalised common law in its system. 37 This is evident through, s.3(1)(c)
of Judicature Act of Kenya which expressly provides:

“[T]he jurisdiction of the Supreme Court, Court of Appeal, the High Court,
the Environment and Land Court, the Employment and Labour Relations
Court and of all subordinate courts shall be exercised in conformity with-

Subject thereto and so far as those written laws do not extend or apply,
the substance of the common law, the doctrines of equity and the statutes
of general application in force in England on the 12th August 1897 and the
procedure and practice observed in courts of justice in England at that
date”.38

This shows that Kenya has consistently recognised common law years on after
her independence, therefore common law forms part and parcel of her laws, for
instance judges often rely on cases from the UK while delivering judgments. 39
Albeit Kenya did not entirely integrate the practice in UK within its system, for
instance Kenya’s constitution is codified whereas UKs remains unwritten. 40

Furthermore, the limited application of common law was stated in Nyali v Attorney
General wherein Lord Denning stated:41

“[T]he common law cannot be applied in a foreign land without

considerable qualification. Just as with an English oak, so with the English
common law. You cannot transplant it to the African continent and expect
it to retain the tough character, which it has had in England. It will flourish
indeed, but it needs careful tending…In these far-off lands people must
have a law, which they understand, and which they will respect. The

36 ibid.
37 Jackton Boma Ojwang, ‘The Unity of the Constitution and Common Law Lessons from
Kenyan Experience in Comparative Context’ (LL.D Thesis, University of Nairobi, 2015).
38 Judicature Act of Kenya, 2018 (1989).
39 ibid
40 ibid.
41[1956] 1 QB 7. See also May (n 7) 20-21.

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 common law cannot fulfil this role except with considerable
qualifications”.42

The above shows that common law could not be applied in a uniform manner in
Kenya, like in UK because of the variance in circumstances and also due to the
43
progressive development of common law in UK. Joireman adds, once
independence was attained the politics in Kenya had an influence towards its
institutional shape up and also on how the law was to be administered.44

42 ibid.
43 ibid.
44Joireman (n 34).

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 2. COMPETITION LAW IN KENYA .

2.1. History of Competition Law in Kenya.

Before Kenya obtained her independence from the UK, the country’s economic
level of production was relatively minimal, as most of the goods which were in
circulation were largely imports from the UK brought in to supplement Kenya’s
impoverished economy, Kenya’s economy was not good as she had not started
to embark on the process of self-industrialisation.45 White settlers had occupied
majority of the fertile lands and therefore Kenyans lacked economic control as
settlers sourced for the locals as labourers.46

The Price Control Act enacted on 16th October 1956, was the only statute that
addressed consumer protection and it accorded a mechanism that cushioned the
needs of British consumers.47 It did not cater for the needs of the local Kenyan
consumers instead, it prioritised the needs of the British settlers largely because
the British had established political control and authority in Kenya, therefore the
locals could not have had consumer rights which ranked in the same level as the
48
British settlers per se. The Price Control Ordinance of 1956, was later
succeeded by the Restrictive Trade Practices Monopolies and Price Control Act
(RTPMPCA) in 1988.49 It is worthwhile adding, despite there being laws in this
area in Kenya literature is still unfolding as Kenya still lacks experience in this
subject. Published works with regard to competition law in Kenya remain largely
non-existent with the only material published being Brenda Pamela May’s,
Competition Law in Kenya.50

45 Peter Muchoki Njoroge, ‘Enforcement of Competition Policy and Law in Kenya including case
studies in the areas of mergers and takeovers, prevention of possible future Abuse of
Dominance and Collusion/ Price Fixing’ <
http://siteresources.worldbank.org/INTCOMPLEGALDB/Resources/PeterNjoroge.pdf >
accessed 4 May 2019.
46 ibid.
47 ibid.
48 ibid.
49 May (n 7) 25-26. See also Promoting Competitiveness & Efficiency in Kenya The Role of

Competition Policy & Law< http://www.cuts-international.org/kenya-report.pdf > accessed 21

May 2019.
50 May (n 7).

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 2.2. Legal Architecture Managing Competition Laws in Kenya.

2.2.1. Domestic level.

a) Constitution of Kenya (CoK) 2010.

This is the paramount source of law in the Kenyan legal system and no subsidiary
laws may surpass it.51 Article 46 CoK is the provision closely associated with
competition matters as it sets out certain consumer protection rights.52
Article 46 of CoK provides:
“[C]onsumers have the right –

a) To goods and services of reasonable quality;

b) To information necessary for them to gain full benefit from goods and
services;
c) To protection of their health safety and economic interests; and
d) To compensation for loss or injury arising from defects in goods or
services.”53

Consumer protection is a vital element in competition matters because

consumers are the ultimate recipients of goods and services within the market
economy and are reliant on the market being free from anti-competitive
distortions.54 It also provides for the possibility of Kenya to engage in regional co-
operation and economic integration with her neighbouring countries in the event
of future plurilateral agreements on competition law.55

b) Restrictive Trade Practices, Monopolies and Price Control Act

(RTPMPCA) Cap 504 1st Feb 1989.

This was the first legislative source setting out some key provisions on
competition law matters in Kenya.56 It entered into force on 1st February 1989.57

Its principal aim was to:

51CoK. See also Law Society of Kenya v Kenya Revenue Authority & Another [2017] e KLR
Petition No.39 of 2017.
52 ibid.
53 ibid.
54 ibid.
55 ibid.
56 RTPMPCA.
57 ibid.

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 “[e]ncourage competition in the economy by prohibiting restrictive trade
practices, controlling monopolies, concentration of economic power and
prices and for connected purposes”.58

Furthermore, the RTPMPCA covered issues in competition law such as:

concentrations of economic power, control of mergers and take overs, price-fixing
and auctions.59 On concentration of economic power, the RTPMPCA mandated
the minister to maintain the arrangement of goods and services in Kenya and also
gave the minister the powers to ascertain where concentrations were. 60
Furthermore, the minister was accorded the powers to make orders to persons
and enterprises which have concentrated power to get rid of such. 61 On mergers
and takeovers, the provision created an offence for persons who engage in
mergers and takeovers without the ministers approval a fine of Kshs 200,000 or
imprisonment of up to 3 years jail term. 62 This provision gave the minister the
powers of approving mergers in Kenya, therefore any merger conducted without
his/her knowledge was void.63

With regard to price-fixing, the key provision was s.35(1) of RTPMPCA which
gave the minister discretion to “Fix maximum prices for sale, either wholesale or
retail which may include charges for packing and delivery of goods”. 64 This was
done in order to create a level playing field in the Kenyan market amongst
65
wholesalers and distributors and restrict them from exploiting consumers.
Selling price controlled products was limited during auctions as persons had to
obtain a licence from the commissioner before engaging in such. 66 The main
medium of redress was the restrictive trade practices tribunal set up through
s.64(1)(2).67 Some of the powers of the tribunal were, hearing appeals from
persons who were unsatisfied by the orders of the Minister as a result of engaging
in suspicious acts of concentration of economic power.68 The tribunal also heard

58 ibid.
59 ibid.
60 ibid.
61 ibid. s.23(1) & 24(1).
62 ibid. s.27(1)(b).
63 ibid.
64 ibid.
65 ibid.
66 ibid. s.39(1).
67 ibid.
68 ibid. s.25(1).

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appeals against ministers decision of disapproving a merger or takeover. 69
However, the RTPMPCA was limited in scope and failed to address the anti-
competitive challenges arising from area of intellectual property (IP).70

After twenty-one years, the legislation was superseded by the 2010 Competition
Act.71

c) Competition Act of Kenya 2010.(CA)

The Competition Act 2010 (CA) is the current principal piece of legislation
72
concerning operation of competition law in Kenya. Having succeeded the
RTPMPCA, the CA was ushered in through presidential acceptance on the 30 th
December 2010 and the legislation entered into force on the 1st of August 2011.73

The main aim of the CA is:

“[p]romoting and safeguarding competition in the national economy and

protecting consumers from unfair and misleading market product and
establishing the two dual organs which are the Competition Authority and
the Tribunal, prescribing the powers and functions of the two”.74

Consumer protection is at the forefront of the CA’s aims. 75 This is because the
main rationale shaping competition policy in Kenya is protecting consumers
against price escalation.76 Furthermore, one of the main objectives of the CAK is
to strengthen the posterity by encouraging effective competition in
Kenya.77Besides consumer protection, the CAK and the competition tribunal of
Kenya are established as main institutional bodies to oversee competition affairs
in Kenya.78 Some of the salient features of the Act include prescription of the
establishment, powers and functions of the authority, provisions on restrictive

69 ibid. s.32(1).
70Kenya Law Resource Center <http://www.kenyalawresourcecenter.org/2011/07/restrictive-or-
unfair-trade-practices.html> accessed 3 May 2019.
71 CA s 99. Which entirely repeals the RTPMPCA.
72 ibid. See also Maurits Dolmans and Henry Mostyn, The Dominance and Monopolies Review

(6th Edn, Law Business Research Ltd, 2018) 262.

73 ibid.
74 ibid. The purpose of the RTPMPCA resembles the CA.
75 ibid.
76 Promoting Competitiveness & Efficiency in Kenya The Role of Competition Policy & Law

<http://www.cuts-international.org/kenya-report.pdf> accessed 21 May 2019.

77 ibid.
78 CA.

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trade practices, the abuse of dominant position, setting out a range of
investigative powers for the CAK, extensive provisions on mergers, concentration
of economic power, institutional powers and composition of the competition
tribunal.79 S.24(1) expressly bars any behaviour of undertakings that amounts to
abuse of dominant position.80 The determinative criteria for abuse of dominance
is captured under s.24(2) which are: infringement of IP, preventing market
production through predatory pricing and other techniques, using different
benchmarks to similar bargains and engaging in unfair practices through
exploiting consumers by capping unreasonable prices. 81 As appertains to range
of investigative powers, s.31 gives the CAK the mandate either on its own or
when it receives complaints from consumers, or other entities to carry out an
investigation on issues of abuse of dominance and restrictive trade practices. 82
One of the notable differences between this Act and the RTPMPCA is that the
current framework also deals with intellectual property matters which raise
challenges for competition policy.83 This is a significant advancement compared
to the previous situation under the RTPMPCA which did not tackle IP issues.84 IP
matters in Kenya are now commonplace, because it has been recognised under
the CoK as a right and fundamental freedom under the bill of rights and by
extension in other statutes. 85 A classic example where Intellectual PropertyRights
(IPRs) pose a challenge in competition law is whereby the firms which yield large
market power more often than not are hesitant to sell their rights to their rivals,
notwithstanding the fact that some of their rivals might not be having a large
market share.86

Since the CA’s inauguration there have been a range of legislative amendments
and refinements to the Kenyan competition law regime, as set out below.87

79 ibid. See ss.7-10, 21-24, 31-40, 41-49, 50-54, 71-77.

80 ibid.
81 ibid.
82 ibid.
83 ibid.
84 ibid.
85 Rotich Jerobon, ‘Interface between Competition Law and Intellectual Property Law in Kenya’

(LL.M thesis, University of Nairobi, 2016)

86 Leva Petukauskaite, ‘The Boundaries between the protection of IPR’s and abuse of

dominance in the pharmaceutical sector under European Competition Law’ (LL.M Thesis,
Tilburg University, 2012)
87 Competition (Amendment) Act Kenya 2016.

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 d) Competition (Amendment) Act Kenya 2016.

In December 2016, the Competition (Amendment) Act 2016 was adopted and
subsequently entered into force on the 13 th January 2017.88 This legislation has
introduced some amendments to the CA.89

Salient amendments include: first, deletion of the term ‘local authority’ and its
replacement with county, this was done because of the change in the
geographical administration of Kenya after the CoK 2010 was ushered in.90

Second, expansion of the definition of undertaking to encompass: natural

persons, companies as well as trade and trust societies.91 This means that almost
every entity is under duty to give the CAK relevant particulars so that it can carry
out its role of supervising markets through inquiries in Kenya.92

Third, the acceptance of the term buyer power as a restricted commerce exercise,
this was largely introduced because of recognition of notorious buyers who
abandon suppliers by not adhering to contract stipulated terms.93

Fourth, there has been magnification of the authority’s role as they are now duty
bound to establish and come up with regulations and directives on restrictive
trade practices.94

Lastly, there are punitive sanctions imposed in the event of abrogation of a

merger due to failure to give the CAK appropriate particulars. 95 In connection to
the foregoing, the penalties for breaching this requirement are now capped at a
fine of Ksh.10,000,000 and/or imprisonment of up to five years, the general
penalty under the previous law was Kshs. 500,000 or 3 years.96 This change is

88 ibid.
89 ibid.
90 ibid.
91 Kenya Association of Manufacturers< http://kam.co.ke/competition-amendment-act-2016/ >

accessed 3 May 2019.

92 ibid.
93 ibid. See also Victor B. Nzomo, ‘Buyer Power as an Emerging Concern in the Kenyan

Economy: A Competition Law Perspective’ 4th Annual Competition Authority of Kenya Essay
Writing Competition 2017 series SSRN:< https://ssrn.com/abstract=2942673 > accessed 11
May 2019.
94 Kenya Association of Manufacturers< http://kam.co.ke/competition-amendment-act-

2016/ >accessed 3 May 2019.

95 ibid.
96 ibid.

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intended to deter fraudsters and even imposters from presenting improper
information to the authority.97

e) Competition Tribunal Rules Kenya 2017.

The rules also contain detailed provisions on the conduct of proceedings in the
tribunal, in which majority of them are borrowed from the civil procedure rules of
Kenya which is the main statute governing civil cases in Kenya.98 To this end, s.9
is most important as it provides for the jurisdiction of the tribunal to hear appeals
as well as matters for review from the CAK. 99 Furthermore, the tribunal can hear
any referrals from court with regard to competition matters. 100 In addition to this,
under s.11 the parties to the tribunal can be persons dissatisfied with the findings
of the CAK, also the tribunal can order for joinder of parties in a competition matter
involving multiple parties.101 Parties to a case can also represent themselves or
through legal counsel.102

f) Companies Act of Kenya 2015.

Without companies, competition law is a vacuum. The law concerning

corporations in Kenya has recently undergone a complete reconstruction with the
103
introduction of the voluminous Companies Act 2015. The main provisions
concerning competition matters under the Companies Act 2015 include
provisions which concern mergers under part (XXXV) namely ss.930-947.104To
expound, the sections contain prerequisites which must be adhered to by merging
entities before a merger takes place, for instance directors of merging firms must
prepare terms of scheme which contain particulars of the company and thereafter
the terms are to be published by the Registrar of Companies and gazetted
thereafter for public knowledge.105 The process is transparent because firms can
contest on a proposed merger thus the need to gazette the same for public

97 ibid.
98 Civil Procedure Rules Kenya 2010.
99 Competition Tribunal Rules Kenya 2017.
100 ibid.
101 ibid.
102 ibid.
103 Companies Act 2015 Kenya.
104 ibid.
105 ibid.

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awareness.106 Furthermore, directors are duty bound to make ready explanatory
reports on an intended merger.107

2.2.2. Regional Level.

a) East African Community Competition Act (EACCA) 2006.

On 1st of December 1967, the East African Community (EAC) was created
108
comprising of: Kenya, Uganda and Tanzania as its members. However, it
broke down in 1977 due to political indeference and was later reconstituted in
November 1999. 109 Currently its membership has doubled to six including:Kenya,
110
Uganda, Tanzania, Burundi, Rwanda and South Sudan. The key functional
aims of the EAC include: initiating strategies and plans for fronting: social, political
and economic prosperity within East Africa (EA) and also advancing continuous
collaboration and participation of its members.111

The East Africa Community Competition Act (EACCA) was assented to on 13 th

November 2006 and it aims to; “promote and protect fair competition within the
East African Community”. 112
In light of this, the Act is devoted to economic
matters in EA having border crossing effects. 113 Some of the key provisions in the
act include, first the provision for the establishment of the East AfricaCommunity
Competition Authority under s.37 which has commissioners from the member
countries serving in it, besides this s.42 provides for powers of the authority and
the authority derives its powers from the act for the purpose of enforcing
compliance.114 Some of its powers include: coming up with techniquesfor public
engagement amongst member states, in case of disputes referring the same to
the East African Court of Justice (EACJ) for its determination, conductinghearings
and fostering international integration with global competition authorities.115
Further, s.44 prescribes the jurisdiction of the EACJ, key provision

106 ibid.
107 ibid.
108 Arthur Hazlewood, ‘The End of the East African Community: What are the lessons for

Regional Integration Schemes?’ (1979) XVIII (1) Journal of Common Market Studies 40.
109 LO Wauna Oluoch, ‘Legitimacy of the East African Community’ (2009) 53 J Afr L 194.
110 East African Community <https://www.eac.int/> accessed 8 June 2019.
111 Frederick Onyango Ogola, George N. Njenga, Peter C. Mlando & Moses N. Kiggundu, ‘A

Profile of the East African Community’ (2015) 1(4) African Journal of Management 333.
112 EACCA 2006.
113 ibid.
114 ibid.
115 ibid.

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here is s.44(6) which gives the EACJ powers to handle disputes between the
authority and the competition agencies of the member countries.116

b) East Africa Community Competition Regulations (EACCR) 2010.

(In this regulation reference to authority means East African Community

Competition Authority). The EACCR, contains provisions as to mergers and
acquisitions which have significant effect in East Africa.117 To further expound on
this, s.3 of the regulations make it mandatory for entities intending to merge or
acquire, to notify the authority of a pursued merger or acquisition. 118 Further to
this, s.4 provides that there should be documents accompanying a preconceived
merger or acquisition, also if the authority is of the view that sufficient particulars
have been submitted to it by the firms intending to merge or acquire then authority
gives the intended firm an acknowledgment approving the merger or rejecting it
if not satisfied.119 S.10 is also key as it gives the authority the discretion for
determination of a merger or acquisition as follows: allow a merger subject to
conditions, disallow a merger or hold that it does not have powers to determine
such if it falls outside its scope of authority.120

c) Common Market for Eastern and Southern Africa (COMESA) Competition

Rules 2004.

COMESA distinguishes itself from the EAC through its membership quota,
because it has a wide reach as it comprises of countries from: North, Central,
South as well as EA regions.121 Currently it hosts twenty one countries from all
the mentioned regions with Kenya being among them.122

Additionally, it aims to create proper trading conditions amongst its members for
example through removing trade barriers existing between the member states.123
Saukut Rajid notes that one of its predicted aims is to come up with a standard

116 ibid.
117 East Africa Community Competition Regulations 2010.
118 ibid.
119 ibid.
120 ibid.
121 COMESA <https://www.comesa.int/comesa-members-states/ > accessed 9 June 2019.
122 ibid.
123 ibid.

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operational currency of its members to ease the cost of doing business and foster
economic unity.124

One of the salient features of the rules is that it provides for the COMESA
Competition Commission (CCC) which has powers to initiate suit on vices with
cross-border effects.125 The rules are majorly on matters of procedure including
the language to be adopted by the commission under rule 9 as English, French
and Portuguese, also the service of process is contained under rule 10 as
documents can be served to the CCC offices by post or through any other
medium.126 Rule 13 provides that the CCC should be headed by a director.127
Under rule 14 some of the roles ascribed to the director include acting as legal
counsel for the commission in court matters, employing personnel who serve in
the commission (designating staff of the department) and determining the roles
of each department.128

d) COMESA Competition Regulations 2004.

The main aim of the COMESA Competition Regulations 2004 is to:

“[p]romote and encourage competition by preventing restrictive business

practices and other restrictions that deter the efficient operations of
markets, thereby enhancing welfare of consumers in the common market
and protecting consumers against offensive conduct by market actors”.129

The regulations have a wider reach as they intend to protect consumers within
the EA and South of Africa region.130 Key provisions in this regulations include:
article 2 which expressly prohibits restrictive activities occurring in the COMESA
region, also article 6 which creates the COMESA Competition Commission
(CCC).131 Some of the functions of CCC include: facilitating cooperation amongst

124 Sawkut Rojid, ‘COMESA trade potential: a gravity approach’ (2006) 13 Applied Economics
Letters 947.
125 Slaughter and May, COMESA: A Competition Regime for the Common Market for Eastern

and Southern Africa <https://www.slaughterandmay.com/media/1992896/comesa-a-

competition-regime-for-the-common-market-for-eastern-and-southern-africa.pdf > accessed 3
May 2019.
126 ibid.
127 ibid.
128 COMESA Competition Rules 2004.
129 COMESA Competition Regulations, 2004 Article 2.
130 ibid.
131 ibid.

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competition agencies of its signatories, settling conflicts on anti-competitive vices
that occur within the COMESA region, assisting signatories to further their
domestic competition laws so as to harmonise them with its sectional policies. 132
The powers of the CCC are established under article 8 including the power to
investigate and impose sanctions on undertakings which engage in anti-
competitive vices.133

e) Bilateral engagements.

Kenya has made attempts to engage in bilateral agreements covering certain

cross-border competition matters. A classical notable one is the Kenya-South
African Memorandum of Understanding, which was done as a result of some
transgressions in the law which were affecting the two countries. 134 The Kenya-
South Africa bilateral MoU aims to: foster systematic investigation between the
countries and also to collaboratively engage the two while conducting trading
inquests as well as inform the governments while crafting their respective
competition laws.135

Kenya has also signed a bilateral agreement with Japan which aims to create
136
international cooperation between the two. Its key aim is to achieve
enforcement of competition law between Kenya and Japan through co-ordinated
efforts by exchanging information on any change of status/amendments on their
competition laws, exchanging best practices on enforcement activities and also
training is facilitated through exchange of officials.137

As demonstrated above, it is clear that competition laws in Kenya have

progressively developed over the last decades. However, the preceding chapters
will expose problems in the competition laws of Kenya.

132 ibid.
133 ibid.
134 Daniel Schwarz, ‘The Internalization of Competition Law in Africa’ (August, 2017)

<https://www.competitionpolicyinternational.com/wp-content/uploads/2017/08/Africa-Column-
August-Full.pdf > accessed 3 May 2019.
135 ibid.
136
Memorandum of Cooperation between Fair Trading Commission of Japan and Competition
Authority of Kenya <https://www.jftc.go.jp/en/int_relations/agreements_files/160609.pdf>
accessed 9 June 2019.
137 ibid.

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 3. INSTITUTIONAL FRAMEWORK AND CRITIQUE.
Institutional structures.
a) The Competition Tribunal of Kenya.
The competition tribunal of Kenya is set up under s.71 of the CA and it is
purportedly the main channel of redress. 138 Some of the roles of the competition
tribunal of Kenya as per the CA include: dealing with appeals emanating from the
CAK.139 Also, reviewing decisions on proposed mergers arising from the CAK.140

S.71(2) provides for the composition of the tribunal as follows:

“[T]he tribunal shall consist of:

(a) A chairman who shall be an advocate of not less than seven years
standing;141 and
(b) Not less than two and not more than four other members; appointed by
the Minister”.142
Additionally, the minister of finance has the duty of choosing the members of the
tribunal.143

b) The High Court of Kenya.

The High Court is established as a court of record under article 165 of the CoK.144
Furthermore, this is the only court which has original jurisdiction in both “civil and
criminal” cases in Kenya.145

138 CA.
139 ibid. s.40(1).
140 ibid. s.48.
141 ibid.
142 ibid.
143 ibid.
144 CoK.
145 ibid. See also Ramogi & 4 others v The Cabinet Secretary Ministry of Energy & Petroleum &

7 others [2017] e KLR.

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The High Court has the mandate of handling competition law cases arising in
Kenya.146 Moreover, it is the highest and the only court which can reverse a
finding of the competition tribunal of Kenya.147

c) The Competition Authority of Kenya.

Section 7 of the CA establishes the Competition Authority of Kenya (CAK).148

Some of the roles of the CAK are: effectuating compliance through its mergers
and acquisition department which predominantly aims to control the nature of
mergers in Kenya and ensure the same does not create market distortions in
Kenya, it also deals with consumer complaints.149 Additionally, the CAK engages
in competition advocacy programmes by making consumers understand who
they are through participating in public sensitisation forums, which educates the
public on their roles and majority of this takes place through organised shows with
150
relevant ministries. Additionally, it conducts research on competition matters
and it does this through its policy, research and advocacy team which aims to
carry out research on current matters as regards competition law and policy.151 It
152
also acts as the consultative arm to the GoK on competition related matters.
The composition of the authority is as follows: non-executive chairman who is a
ministerial appointee, Permanent Secretary (PS) Finance, Permanent Secretary
(PS) trade, Attorney-General (AG), director general and 5 other ministerial
appointees.153

3.2. Rethinking the competition tribunal of Kenya (The sleeping lion).

This section will demonstrate that the competition tribunal of Kenya needs to be
professionally revamped and at the same time challenge its current composition
by exposing the problems in the CA.

146 Mea Limited v Competition Authority of Kenya [Petition No. 99 of 2016] See also Gerald
Andae, ‘CAK raids fertilizer firms Mea, Yara over price fixing’ (7, March 2016) Business Daily <
https://www.businessdailyafrica.com/economy/CAK-raids-fertiliser-firms-Mea--Yara-over-price-
fixing/3946234-3107012-we9iok/index.html > accessed 5 May 2019.
147 CA s.40(2).
148 ibid.
149 ibid.
150 ibid.
151 ibid.
152 ibid. s.7.
153 ibid. s.10.

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This paper has adopted the National Environment Tribunal of Kenya (NET) as a
comparative case study since it is one of the already well established tribunals in
Kenya and as it sits in the same jurisdiction as the competition tribunal of
Kenya.154

In addition to this, the paper also selected the Canadian competition tribunal as
a case study because the Canadian tribunal is the main adjudicative organ with
regard to competition related matters.155 The Canadian competition tribunal has
experience and its members possess great diversity in various disciplines
associated with competition law as will be demonstrated in this section.156 Finally,
both Kenya and Canada are commonwealth jurisdictions thus have similarities in
their legal systems.157

In Kenya, tribunals have both favourable and unfavourable significance because

on one hand they are advantageous in that they prevent unnecessary case
backlogs in normal courts of law because they are used as an alternative channel
of redress.158 Further, due to the “principle of exhaustion of remedies” parties are
expected to move to the tribunal first before lodging a claim to the high court, this
is a credible parliamentary directive which runs through many statutes and court
decisions in Kenya, in Okiya Omtatah Okoiti v Commissioner General, Kenya
Revenue Authority & 2 others [2018] e KLR159 the court observed: “It is imperative
that where a dispute resolution mechanism exists outside courts, the same be
exhausted before the jurisdiction of the court is invoked.”160 What the court meant
was that the court should not dually serve as the initial and final port of call if there
are other channels which can be used before proceeding to court.161 This aside,

154Lawrence Juma, ‘Environmental protection in Kenya: Will the Environmental Management

and Coordination Act (1999) Make Difference (2002) 9 SC Envt L..J. 181.
155 Calvin S. Goldman Q.C, Navin Joneja, ’The Institutional Design of Canadian Competition

Law: The Evolving Role of the Commissioner’ (2010) 41 Loy.U.Chi. L.J.535.

156 Competition Tribunal Act of Canada 1986.
157 The Commonwealth <http://thecommonwealth.org/member-countries> accessed 10 June

2019.
158 ibid. See also Geoffrey Marshall, ‘The Franks Report on Administrative Tribunals and

Enquiries’ (1957) 35(4) Public Administration 347.

159 Petition 532 of 2017 e KLR.
160 ibid.
161 ibid.

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tribunals are cost effective as compared to the normal court process and this is
evident through lower filling fees for pleadings.162

On the other hand, they have potential shortcomings and the competition tribunal
163
of Kenya is not an exception to this. Joash Dache notes some of the
disadvantages include but are not limited to: unpredictability as appertains to the
mode of appointing its members, improper clarity as to whether tribunals are
government entities or autonomous and lack of information on tenure of office
holders.164

The first problem of the competition tribunal of Kenya arises from its membership
composition, because under the CA the tribunal has only one legal expert who is
“an advocate of seven years experience” 165. The CA is unclear as to who should
be members of the tribunal save for the advocate. 166 This is because the CA
creates an uncertainty as to the composition of the members, save for the
advocates qualification which is stipulated in terms of years of experience only,
which this paper notes is not a sufficient benchmark as: the level of proficiency,
academic accomplishments and even expertise of the advocate is not provided
for.167 In furtherance to this, it is perplexing that the CA does not provide for the
threshold for competency levels as to the rest of the four members of the tribunal
and also who they are.168 Therefore, as a result of this a thorough examination of
the competition tribunal of Kenya casts doubt as to the competency levels of its
members to deal with competition law affairs and it is in this regard the paper
maintains the tribunals set up needs thorough re-examination. Besides this, this
paper holds that there should be express legislative pronouncement as to the
competency levels of the other members of the tribunal. The CA should also
provide requirements past the 7 years of experience of the advocate for purposes
of creating transparency as to the credibility of its members to handle competition
law matters.

162 Joash Dache, ‘Reforming tribunals in Kenya’ (22, November 2016)

<http://www.klrc.go.ke/index.php/klrc-blog/522-reforming-tribunals-in-kenya-concept-paper-by-
joash-dache?showall=1&limitstart= > accessed 5 May 2019.
163 ibid.
164 ibid.
165 CA s.71.
166 ibid.
167 ibid.
168 ibid.

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In light of the above, the paper also notes the current composition of the
competition tribunal of Kenya has not changed as it were under the former regime
RTPMPCA, 20 years on, as initially s.64(2) of the RTPMPCA provided:

“[T]he tribunal shall consist of a chairman who shall be an advocate of not

less than seven years standing and not more than four other members
appointed by the Minister.”169

Indeed, what has been noted above makes one to question the capacity of the
competition tribunal of Kenya to regulate competitive affairs further due to the lack
of progressiveness in statute.

This paper will examine the NET before making a case for institutional
restructuring similar to the Canadian competition tribunal. 170 To this end, this
paper notes the NET is well composed because it comprises of members who
possess diverse specialty in the field of environmental law.171 Further to this, the
members must be persons eligible to serve as a judge, advocates and persons
having expertise in environmental matters.172

Given the above composition, NET is well constituted to handle environmental

affairs as it demonstrates a great capacity in its institutional framework which is
expressly endorsed by the Environment Management and Co-ordination Act of
Kenya (EMCA) 1999 as compared to the competition tribunal of Kenya’s ability to
handle competition affairs, this is because NET leaves no room for persons
173
lacking environmental credentials to serve in it. In light of this, this paper
maintains that the competition tribunal of Kenya set up should match up to the
NET considering the fact that competition affairs are extremely complex for lay
persons as well as for lawyers, because of the economics involved in competition
law and thus requires persons with expertise in economics and competition

169 RTPMPCA s.64 compared with the s.71 of the CA.

170 EMCA Kenya 1990 s.125.
171 ibid. see also Donald W. Kaniaru, ‘Environmental Courts and Tribunals: The Case of Kenya’

(2012) 29 Pace Environmental Law Review 566.

172 ibid.
173 ibid.

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affairs.174 The competition tribunal of Kenya can easily borrow from NET since
the two are housed in the same jurisdiction.175

Kenya can also borrow from Canada which has a long practice on competition
affairs.176 To this end, Thomas Ross notes, in Canada the establishment of a
competition tribunal was received with different views during the amendment
period between 1970 and 1980.177 This is because on one end there were people
who were against its establishment and noted that there was no need for
establishing the tribunal due to the similar procedural aspects as normal court
process.178 Essentially, the opponents overlooked the materiality attributed to
competition law cases, while on the other end the proponents who were for its
establishment substantively argued that competition law matters are very
complex for judges who lack experience in the field of commerce to handle such
and therefore should not be subjected to the jurisdiction of normal courts.179 This
paper echoes the same argument as the proponents for establishment.

The proponents for the establishment of the tribunal had their way and Canada
developed a competition tribunal in 1986 following the commencement of the
Canadian Competition Tribunal Act of 1986. 180 Furthermore, the paper observes
that the Canadian competition tribunal is well designed to handle competition law
affairs, because it possesses greater expertise in its set up as majority of its
members demonstrate knowledge in competition law. 181 In connection to this,
currently the Canadian tribunal is dual in structure as it comprises of judges and
persons with expertise in commerce, economics and public affairs.182 Moreover,

174 ibid.
175 ibid. See also Dr. Patricia Kameri – Mbote, ‘Towards Greater Access to justice in
Environmental Disputes in Kenya: Opportunities for Intervention’ IELRC Working paper 2005 –
1 <http://ielrc.org/content/w0501.pdf > accessed 13 June 2019. See also George Pring and
Catherine Pring, ‘Increase in environmental courts and tribunals prompts new global institute’
(2010) 3 JCT Innovation11.
176 Thomas W. Ross, ‘Introduction: The Evolution of Competition Law in Canada’ (1998) 13

Review of Industrial Organization 1. See also Christopher J. Maule and Thomas W. Ross,
‘Canada’s New Competition Policy’ (1989) 23(1) Geo Wash J Int’l & Econ 39. See also Brian
Cheffins, ‘The Development of Competition Policy, 1890 – 1940: A Re- evaluation of a
Canadian and American Tradition.’ (1989) 27(3) Osgoode Hall Law Journal 449.
177 Ross (n 176).
178 ibid.
179 ibid.
180 Isabel M. Pappe, ‘The Canadian Competition Act: A Leap Forward’ (1988) 22 Int’l L. 1071.
181 Canadian Competition Tribunal <https://www.ct-tc.gc.ca/home.asp > accessed 5 May 2019.

See also Ross (n 176).

182 ibid. See also Competition Tribunal of Canada s.3(2).

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the judicial members are five in total and chair proceedings of the tribunal with
the chair of the tribunal being justice of the federal court. 183 To expound on this,
s.3(2) of the Competition Tribunal Act of Canada provides:

“[T]he tribunal shall consist of

a) Not more than six members to be appointed from among judges of the
Federal Court by the Governor in Council on the recommendation of
Minister of Justice; and184
b) Not more than eight other members to be appointed by the Governor
in Council on the recommendation of the Minister”.185
Ross notes, “although legislation does not specify qualifications necessary for lay
members they are generally expected to be experts from the business academic
and civil service communities”.186 In light of Ross remarks, previously Canada has
impliedly recognised the economics involved in competition law.187 However, to
some extent this has come of age to date through s.3(3) of the Canadian
Competition Tribunal Act which expressly provides:

“[T]he Governor in council may establish an advisory council to advise the

minister with respect to appointments of lay members, which council is to
be composed of not more than ten members who are knowledgeable in
economics, industry, commerce or public affairs and may include without
restricting the generality to the foregoing, individuals chosen from
business communities, the legal community, consumer groups and
labour”.188

In Canada the advisory council creates a system of checks which accredits

appointment of lay members as it prevents the minister from choosing
incompetent members, as the powers of the minister to appoint lay members are
regulated and therefore this creates room for appointing professional lay
members.189 Noting this, the CA lacks this system of checks as the minister is

183 ibid.
184 Competition Tribunal Act of Canada S.3(2).
185 ibid.
186 Ross (n 176)
187 ibid.
188 Canadian Competition Tribunal Act 1986.
189 ibid.

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given the full discretion of choosing the members of the tribunal perhaps this can
be a worthy amendment to introduce in the Kenyan CA in the future.190

Borrowing from both the NET and the Canadian competition tribunal, this paper
proposes for changes as follows; the tribunal can have, first, a person nominated
by the Judicial Service Commission of Kenya to serve as a judge of the
Commercial Division of the High Court of Kenya (as competition law is a
commercial affair) and also an outstanding lawyer with knowledge in competition
affairs such as mergers, additionally lawyers and economists as well as business
persons having knowledge in consumer related affairs and international relations
considering the fact that competition affairs is nowadays transnational in nature.
191
Also, suggested persons from either the Consumer Federation of Kenya
(Cofek) since they deal with consumer related complaints or representative of
Kenya Association of Manufacturers (KAM) with applicable experience in
economy, business and trade.192

Besides the uncertainty as to the competency levels of the competition tribunal of

Kenya, its transparency issues are exposed. The tribunal fails to publish decided,
ongoing and pending cases thus jurisprudence is lacking and this showslack of
seriousness on the part of the tribunal in handling competition matters, whereas
the CAK publishes its own determination on competition matters ranging from
193
approved mergers. This paper notes that the competition tribunal of Kenya is
dormant therefore the competition tribunal of Kenya should adopt a more visible
role.194

The CA of Kenya potentially creates functional overlaps between the CAK and
the tribunal and this is demonstrated through s.9(1)(b) of the CA of Kenya which
gives the CAK the mandate to “receive and investigate complaints from legal or
natural persons and consumer bodies.” 195
To some extent, this makes the
authority to have an adjudicatory role.196 This paper advances the argument that

190 CA s.71.
191 WilliamM. Hannay, ‘Transnational Competition Law Aspects of Mergers and Acquisitions’
(2000) 20(2) Northwestern Journal of International Law & Business 287.
192 Kenya Association of Manufacturers< http://kam.co.ke/ > accessed 21 July 2019.
193 Competition Authority of Kenya < https://cak.go.ke/information-center/CAK-latest-

determinations > accessed 21 June 2019.

194 ibid.
195 CA s.9(1)(b).
196 ibid.

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the tribunal should be the only adjudicatory body handling competition matters.197
Trebilcock and Lacobucci note that in an institutional framework governing
competition laws, one of the important issues to be clearly dealt with is “which
body adjudicates contested competition proceedings?”. 198 The CA of Kenya is not
clear as to which of the two should act as the adjudicatory body for handling
disputes.199 Therefore, this paper proposes for s.9(c) of the competition tribunal
rules of Kenya 2017 to be entirely integrated into the CA as it, expressly gives the
tribunal mandate to; “determine any other matter arising under the Act” 200 soas to
clearly give the tribunal full role of adjudicating claims in the Act, perhaps this
might make the tribunal more active, in this sense the competition tribunal of
Kenya should not have restricted mandate that is predicated by the work of
CAK.201 Or rather, for purposes of avoiding potential conflict of roles between the
CAK and the competition tribunal of Kenya, paper suggests that Kenya can
borrow from Canada by expressly codifying list of matters which the tribunal can
handle in more detail because in Canada there is clarity as to the jurisdiction of
its competition tribunal, as it can handle range of matters such as: mergers, abuse
of dominance issues and other anti-competitive activities.202 The paper observes
that this will to a greater extent eliminate jurisdictional issues between the two
due to the clear delineation of roles.203

The competition tribunal of Kenya has been in existence statutorily for more than
eight years since the CA was assented to therefore its capacity to handle
204
competition matters needs to be perennially reassessed. This paper
recommends that the Judiciary of Kenya through the Chief Registrar should
undertake to properly assess and offer sound improvements as to the capacity of
the competition tribunal of Kenya on a continuous basis, despite its current
members being appointed after seven years since the inception of the CA.205 The
competition tribunal of Kenya has been inactive for seven years now, therefore it

197 ibid. s.71.

198 Michael J. Trebilcock and Edward M. Lacobucci, ‘Designing Competition Law Institutions’
(2002) 25(3) World Competition 361.
199 ibid.
200 Competition Subsidiary Legislation Kenya 2016.
201 ibid.
202 Canadian Competition Tribunal < https://www.ct-tc.gc.ca/home.asp > accessed 5 May 2019.
203 ibid.
204 RTPMPCA s.64(1)(2).
205 ibid.

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is time for it to be more transparent and actively engaged in competition affairs in
Kenya.206

In conclusion, it is a promise altogether that its members were appointed in late

2017 but again it is still inactive post their appointment with only two lawyers and
other members whose professional status remains unknown. 207 I maintain, that
the CA still needs to be realigned in this area and it is doubtful whether this current
composition can handle competition related issues as majority of its members
lack experience in this area.

3.3. Making a case for genuine autonomy of the CAK.

The autonomy issue is one which cuts across many jurisdictions and this has
been identified as a potential threat hampering activities of state owned
enterprises in Africa generally and in this regard Kenya is not foreign to this, this
is largely because of the nature of appointments in state organs are normally
politically placed.208

This paper adopted to compare CAK with the Canadian Competition Bureau
because to some extent the two have similar structures within its departments
which will be explored below and therefore Kenya will not need to reinvent the
wheel in its set up but what she will need to do is to disband the CAK board. 209
The main line of argument in this section is that as long as the board
representatives of CAK are government officials who are politically appointed
then autonomy ceases to exist.210 In addition to this, what this paper seeks to
achieve here is to have the CAK holistically internally operated without any
external government influences.211

206 ibid.
207
Citizen TV Kenya <https://citizentv.co.ke/news/competition-tribunal-members-sworn-in-
167645/ > accessed 5 May 2019.
208 Gecaga J.T., ‘The Management of Public Enterprises in Kenya: with special reference to the

Kenya Meat Commission (1977-1987) (Master of Arts, Department of Government, University of

Nairobi, 1991). Gecaga notes, “management of external agencies such as government
interference, politicians, customers, suppliers and competitors. All this affect in one way or
another enterprises autonomy.” The external agent being addressed here are politicians and
government interference.
209 Competition Bureau Canada < https://www.competitionbureau.gc.ca/eic/site/cb-

bc.nsf/eng/h_00018.html > accessed 3 June 2019.

210 CA.
211 Elijah Njagi Ireri, ‘Assessment of Problems Facing State Owned Enterprises in Kenya’ (2016)

6 (4) International Journal of Business, Humanities and Technology 40

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To this end, this paper notes that the CAK sits in a way that all of its members
are political appointees, also three of its members are influential government
officials/public office holders in other state owned enterprises and therefore, the
political line of influence towards its operational functions is in a way
inseparable.212

This is because: the Attorney General (AG), the Permanent Secretary (PS) Trade
and Permanent Secretary (PS) Finance are government representatives in other
state departments and also their representatives are. 213 To expound on this, the
AG is the main legal guru to GoK.214 The PS Finance serves in the treasury of
Kenya, which is one of the most demanding ministries in Kenya, as they are
tasked with the role of having executive control of Kenya’s finances at the County
and National level amongst many others. 215 Finally, the PS Trade who serves in
the state department of trade is mostly engaged in negotiating plurilateral trade
agreements on behalf of Kenya.216 It is in this regard, the paper maintains that
having the: AG, the PS Trade and PS Finance is uncalled for. 217 Furthermore, the
five other ministerial appointees also serve in other state departments and
different government boards and I also believe this might affect the autonomy of
218
CAK. So how can the autonomy issue be dealt with? I suggest that the
plausible way to go about this might be to entirely integrate s.19 of the CA into
s.7, such that all the members of the CAK who head their various divisions
become part and parcel of the CAK, as s.19 mandates the CAK to come up with
divisions within its set up.219 S.19(1) of the CA provides: “the authority may
establish one or more divisions as it may deem appropriate for the proper
performance of its functions under this Act.” 220 In light of this, currently the CAK
has six main branches within its set up which include: enforcement and
compliance, consumer protection, mergers and acquisition, policy and research,
corporate services and buyer power branch, all headed by different

212 CA s.10.
213 ibid.
214 State Law office Kenya <https://www.statelaw.go.ke/> accessed 3 June 2019.
215 The National Treasury < http://www.treasury.go.ke/ > accessed 3 June 2019.
216 State Department of Trade Kenya< http://www.trade.go.ke/principal-secretary > accessed 3

June 2019.
217 ibid.
218 ibid.
219 CA. s.19
220 ibid.

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 221
professionals. The enforcement and compliance team is charged with,
“investigating restrictive trade practices and abuse of dominance, evaluation of
exemption applications and ensuring compliance under the Act”. 222 The consumer
protection branch aims to, initiate competition advocacy by giving consumers
relevant information as appertains to consumer welfare. 223 The policyresearch and
advocacy is charged with undertaking research on competition related issues
domestically and internationally and offering recommendations on how best Kenya
224
can adopt international practices. Its corporate services branch has seven
departments which are: human resource and administration, whose main
objective is to enhance labour in the authority by recruiting personnel,the finance
department which manages the authorities finances through sourcing for funds,
the legal department which represents the CAK in court matters, the internal audit
which aids the CAK in achieving its objectives by monitoring its internal
operations, the procurement department which makes sure the authority has
reliable goods and services for its proper functioning, information communication
and technology and communications and external relations which assists CAK
develop external relationships with citizens through media awareness.225 Its buyer
power branch mainly interrogates matters on abuse of buyer power.226 (Appendix
1)

The Canadian Competition Bureau has a commissioner who heads the bureau,
and the following branches: Mergers, Cartels, Competition Promotion, Corporate
Services and the legal support.227 The mergers department assesses mergers
228
and investigates anti-competitive behaviour. Its Cartels and Deceptive
Marketing Practices Branch, generally deals with criminal activities that have a
negative effect towards consumers and which might distort the Canadian

221 Competition Authority of Kenya < https://cak.go.ke/> accessed 2 June 2019.

222 Competition Authority of Kenya < https://cak.go.ke/enforcement-and-compliance > accessed
19 August 2019.
223 Competition Authority of Kenya < https://cak.go.ke/what-we-do/consumer-

protection/overview > accessed 19 August 2019.

224 Competition Authority of Kenya < https://cak.go.ke/index.php/enforcement-compliance >

accessed 3 June 2019.

225 Competition Authority of Kenya < https://cak.go.ke/index.php/corporate-services > accessed

17 June 2019.
226 Competition Authority of Kenya < https://www.cak.go.ke/index.php/meet-our-senior-

management > accessed 1 August 2019.

227 Competition Bureau Canada < https://www.competitionbureau.gc.ca/eic/site/cb-

bc.nsf/eng/h_00018.html > accessed 3 June 2019.

228 ibid.

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market.229 The competition promotion branch, provides economic examination for
purposes of administration, it also sensitizes external stakeholders to implement
positive competition strategies.230 Its corporate services branch largely manages
the commissions internal operations affairs, by guiding the bureau on various
aspects such as procurement.231 Lastly, its legal support offers legal assistance
to the commissioner of the bureau through representation, it also guides the
bureau on criminal issues.232 This shows to some extent Canada has a similar
organisational structure when compared to the CAK. 233 This is because upon a
closer examination, both Canada and Kenya have the corporate services branch,
the mergers branch which have more or less similar functions. 234 Furthermore,
the enforcement and compliance branch of CAK and the cartels and deceptive
marketing branch, serve overall function of curtailing anti-competitive vices as
235
well as having a legal team. The commissioner of Canadian bureau and
director general CAK serve an overall function of heading the bureau andauthority
respectively.236

This paper proposes that the parliament of Kenya should reconsider substituting
the three government appointees with professional civilians in future if not,
reshuffle the authority to a commission.237 In this regard, this paper is of the view
that there is no need of having the: AG, PS Finance and PS Trade and their
representatives serving in the CAK.238 Elijah Ireri notes that in Kenya politics plays
a major role in the appointment of members of state owned enterprises. 239In this
regard the paper associates with Ireri’s remarks and maintains that the AG, PS
Trade and PS Finance together with their representatives are political appointees.
240
Furthermore, the other 5 ministerial appointees are political appointees also
and this is the problem as this is what causes political interference. This is one of
the reasons why this paper proposes that the Director

229 ibid.
230 ibid.
231 ibid.
232 ibid.
233 ibid.
234 ibid. See also Competition Authority of Kenya < https://cak.go.ke/> accessed 2 June 2019.
235 ibid.
236 ibid.

237 CA.
238 ibid. s.7
239 Ireri (n 211).
240 CA.

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General of the CAK together with the departmental heads of its divisions can
sufficiently manage the CAK as they are not political appointees.241

Aside from the potential lack of autonomy, another problem which the CAK may
encounter by having the board members is inconsistency in continuous
engagement, certainly this may come about due to the other responsibilities
which the members have and as a result treat membership to the CAK as
secondary to those responsibilities.242

In conclusion, this paper further proposes that the Director General of CAK being
a fulltime active member should be given the entire plate of managing the CAK
without oversight from the board and in this regard this paper recommends the
CAK board should be disbanded altogether because this might create more
transparency and accountability and potentially eliminate any doubts of external
political interference towards the operational functions of the CAK.

3.4. Revisiting Mea v CAK Petition 99 of 2016.

3.4.1. Facts.
On 27th November 2014, CAK sent out a notice to Mea Limited, a company which
blends, distributes and imports fertilizers in Kenya, that it needed to conduct a
market inquiry through its consultant, the Center for Competition, Regulation and
243
Economic Development of University of Johannesburg. Thereafter, Mea
Limited and CAK were engaged in exchange of information through oral and
written memorandum and on the 17th March 2015, the CAK issued a letter of
gratitude.244 One year later, on 7th March 2016 the competition authority officials
together with police officers visited the petitioners premises in Nairobi sealed the
premises, prohibited Mea’s employees and officials from communicating and
moving and went on to search its site. 245 Subsequently, on the 8th March 2016
there was a press report stating that the CAK fixed a raid on Mea Limited and

241 ibid.
242 ibid. See also Kiarie Mwaura, ‘The Failure of Corporate Governance in State Owned
Enterprises and the Need for Restructured Governance in Fully and Partially Privatized
Enterprises: The Case of Kenya’ , (2007) 31 Fordham International Law Journal 31. See also
Patrick Mundunga, ‘An analysis of the poor performance of state owned enterprises in Africa’
<https://www.academia.edu/8226631/An_analysis_of_the_poor_performance_of_state_owned_
enterprises_in_Africa> accessed 3 June 2019.
243 Petition Number 99 of 2016 e KLR.
244 ibid.
245 ibid.

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Yara Limited. 246
The press report stated that the raids were: “in search of
documents to help unravel alleged anti-competitive practices between the two
firms who control about 60% of the fertilizer market”.247 Mea Limited moved to the
High Court through constitutional petition for alleged infringement of its right
under the CoK article 47 as well as s.4 of the Fair Administrative Actions Act of
Kenya (see appendix 2) and challenged the procedure adopted by the CAK as
being unfair.248

3.4.2. Contentious issue.

Justice Louis Onguto pronounced himself clearly that it was not mandatory for
the CAK to get a search warrant as they carry out a raid, this paper objectively
notes that this line of thought is indeed laudable in the sense that one can rightly
argue that a raid should have an element of surprise since if persons are given
notice beforehand they might confiscate material/information which might lead
them to their fault.249 However, this paper notes Justice Onguto failed to address
the specific instances where this would apply and this needs thorough exploration
as this is the only jurisprudence on dawn raids in Kenya to date and therefore, if
any matter arises on the same this will be the first case of reference.250 One can
also correctly argue that the holding of the judge to some extent, might entitle the
CAK to unlawfully conduct a raid without obtaining a warrant any day (as per this
ruling, the limited powers of the CAK to conduct raid were not well observed) and
as a result, infringe on right to property or even privacy of the concerned
251
individuals/entities as the circumstances may be. In support of this point,
Xolani Nyali notes;

“[H]aving carried out its first dawn raid and at the back of this recent
success before the courts it remains to be seen whether the CAK will have
an increased appetite for dawn raids or whether it will opt for the softer

246 ibid.
247 ibid.
248 ibid.
249 ibid.
250 Andrea Ayemoba, ‘High Court of Kenya litigates its first competition case’ (29, September

2016) <https://africabusinesscommunities.com/news/high-court-of-kenya-litigates-its-first-
competition-case.html> accessed 4 June 2019.
251 ibid.

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 approach of leniency policies, which appear to be the favoured approach
by comparable regulators”.252

In this regard, Kenya introduced the leniency programme, as an addition to the

CA (appendix 3).253 To expound on this, the leniency program in Kenya operates
as a soft approach compliance mechanism as it is intended to expedite
enforcement activities by luring firms that have undertaken anti-competitive
ventures, to report themselves voluntarily so as to be granted total or fragmented
amnesty.254 Indeed, the leniency programmes are a worthy introduction, although
amidst this there are some shortcomings attributed to it, one being failure to
recognise vertical restraints which are competition restrictive agreements that
affect competition policies “an undertaking and its suppliers or customer or
both”.255 The other major problem attributed with the operationalisation of the
leniency program include, problems as appertains to the CA on the issue of
256
penalties. Key point of concern identified by Barnabas Andiva and Edith
Masereti is that the CAK lacks prosecutorial authority to administer penalties
under the CA, as it is only the Office of Director of Public Prosecutions of Kenya
(ODPP) which has this mandate throughout Kenya and Kenya still lacks a co-
ordinated framework of co-operation between the CAK and ODPP on prosecuting
matters under the CA.257 Hence it will be worthwhile for the CAK and ODPP to
sign a MoU to support fighting of cartels in Kenya.258 Also, there is uncertainty as
to the amount of penalty to be imposed under the act, with regard to
administrative infringements as no amount is capped. 259 Moreover, Andiva and
Masereti are of the view that the overall fine of ten million Kenya shillings imposed
under the CA is too low to make cartels to report themselves, thus there will be

252 Africa Press List < https://africapresslist.com/ar/pressreleases/the-high-court-of-kenya-has-

litigated-its-first-competition-case-09-23-2016-12-25-20 > accessed 20 August 2019.
253 Barnabas Andiva & Edith Masereti, ‘Cartel enforcement: Adoption of leniency programme in

Kenya’
<https://static1.squarespace.com/static/52246331e4b0a46e5f1b8ce5/t/56f1398222482e727503f
6af/1458649477919/Barnabas+Andiva+and+Edith+Masereti_+Cartel+Enforcement+-
+Adoption+of+Leniency+Programme+in+Kenya.pdf > accessed 18 June 2019.
254 ibid.
255 David Lekerai, ‘The leniency programme guidelines’

<http://www.ikm.co.ke/news/articles/2017/THE-LENIENCY-PROGRAMME-GUIDELINES.html >
accessed 25 June 2019.
256 Andiva & Masereti (n 253).
257 ibid.
258 ibid.
259 ibid.

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need to increase this overtime; the idea here is, the greater the fine imposed the
more it will incentivize cartels to reporting themselves and if fine is low then cartels
will not take the leniency policy seriously or rather find it useful.260

Moritz Lorenz notes; leniency programmes cannot work in isolation as there

needs to be other ways of enforcement. 261 In this regard, this paper maintains
that Kenya still needs to develop proper alternative techniques for fighting cartels
past her leniency programme.262 Overall, as noted the leniency programme in
Kenya is still a weak instrument which needs proper refinement and readjustment
altogether.263

3.4.3. Reflections for future implementation.

There are no hard and fast rules on the issues surrounding dawn raids conducted
by CAK because of the compromise to balance between fair process
(constitutional rights) vis a vis enforcement activities of the competition authorities
(public interest grounds) due to the nature of the broader issues ascribed to it as
there are no easy answers to this.264

Additionally, in Kenya there are still a lot of issues not unpacked in this area,
notwithstanding the fact that Kenya has both leniency program and search and
seizure guidelines (appendix 4), and for reasons of word count limit, I would like
to mention or rather flag them off. 265 One of the issues is as regards to private
premises, whether there is an implied authorisation of the CAK to enter the
premises without a warrant.266 Whether CAK can also conduct raid on homes of
directors of companies/officials remain unaddressed under its search and seizure
guidelines.267 Furthermore, from a financial view point, how much is the GoK
going to spend as a result of its financing to investigate on susceptive cases of

260 ibid.
261 MoritzLorenz, An Introduction to EU Competition Law (Cambridge University Press, 2013)
353.
262 ibid.
263 ibid.
264 Helene Anderson, ‘Dawn Raids under challenge A study of the European Commissions

Dawn Raid Practices in Competition Cases’. (Doctors in Law, Stockholm University, 2017).
265 Competition Authority of Kenya

<https://cak.go.ke/images/forms1/new/Search_and_Seizure_Guidelines.pdf> accessed 2 July

2019.
266 ibid.
267 ibid.

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investigative powers remains unaddressed. 268 The extent to which companies in
Kenya enjoy the right to privacy weighted vis a vis the CAKs mandate to enter
building.269 The legal framework covering dawn raids in private premises is not
provided for.270

Additionally, upon a closer examination of the search and seizure guidelines the
CAK is given the unfettered discretion to carry out a search without having to wait
for legal representative of the company involved, this can also raise key
constitutional concerns on ground of it being challenged as a breach of the
fundamental principles and rights under the CoK, more specifically right to legal
representation and fair hearing; it is a tough balance to weigh out constitutional
mandates such as respect to property against statutory responsibilities such as
enforcement activities of CAK, as in most instances constitutional rights are given
more regard as opposed to statutory mandates although subject to limitations in
some instances.271

Another pertinent issue still unaddressed is the question what should someone
do when a dawn raid is conducted? these key issues are not well addressed in
its search and seizure guidelines, which intends to mandate the CAK to conduct
dawn raids in accordance with the relevant procedural statutes namely: Criminal
Procedure Code, CoK, Evidence Act and CA.272

Some aspects on limits of powers of investigation remain minimally unobserved,

for instance on issues of self-incrimination, the question to what extent are
companies obliged not to answer queries imposed on them by the investigating
authorities such that they do not incriminate themselves is tough and the search
and seizure guidelines observes this probability although to a limited extent. 273
Issues of legal professional privilege have been slightly addressed, Kenya has
also not yet pronounced itself sufficiently on the pertinent matter of privilege
against self-incrimination for instance a vital consideration here would be how

268 ibid.
269 Anderson (n 264).
270 ibid.
271 Competition Authority of Kenya

<https://cak.go.ke/images/forms1/new/Search_and_Seizure_Guidelines.pdf> accessed 3 July

2019.
272 ibid.
273 Piet Jan Slot and Angus Johnston, An Introduction to Competition Law (Hart Publishing,

2006) 218.

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self-incrimination would interface with leniency rules, this is whether companies
would surrender their rights against self-incrimination anticipating that they would
not be fined.274

The paper notes, Kenya can borrow from Council Regulation 1/2003 which forms
one of the major blue prints for enforcement of EU competition law to address the
above issues, this is because various enforcement activities which have bearing
on a range of investigative powers procedures are well covered therein.275 In light
of this, a worthwhile introduction would be to introduce a provision in the CA
mandating the CAK to initiate investigations at the request of her East African
member states as depicted in UK which does this with EU member states.276 This
will be a worthy reform because the issue of cross-border enforcement of
cartelistic behaviour in Kenya remains unaddressed.277 In light of this, what would
prove to be an important aspect is the establishment of a framework of
cooperation for investigation between Kenya and her neighbours specifically
within the EA region as depicted in article 13 of regulation 1/2003, which grants
the authority mandate to terminate proceedings before it, because another
country is already handling it in order to eliminate cases of potential double
jeopardy and maintain res judicata.278 Also, the powers of CAK can be expanded
to give it the mandate to conduct inspections on private premises as in EU, which
did this due to there being instances where company records are hidden in the
homes of company officials.279

This paper suggests that the CAK should aim to reappraise its search and seizure
and leniency guidelines from time to time, so as to cater for the above highlighted
scenarios. Further, this paper maintains that there should always be a fair
balance between the right of property and privacy weighted against the
investigative powers of the CAK.

274 ibid. 219.

275 ibid. 344.
276 Richard Whish & David Bailey, Competition Law (9th Edition OUP, 2018) 290.
277 ibid.
278 Joanna Goyder & Albertina Albors – Llorens, Goyder’s EC Competition Law (5th Edition,

OUP 2009) 528.

279 Alison Jones and Brenda Sufrin, EU Competition Law Text, Cases and Materials (5th Edition,

OUP 2014) 952.

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Finally, Kenya still needs to improve her enforcement strategies to cater for the
above highlighted scenarios, this will be necessary in ensuring enforcement is
well achieved.

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 4. CHALLENGES FACING COMPETITION POLICY IN
KENYA.
4.1. Introduction.
This chapter will focus on the key legal challenges facing competition policy in
Kenya, with specific reference to abuse of dominance in the telecommunications
sector. This is because this is an issue which has been recurring in Kenya and
the relevant authorities who should undertake to regulate such as CAK and
Communications Authority of Kenya have not adequately done so. Furthermore,
the consumer outcry in this area has been great therefore this brings about a lot
of issues and at the same time reveals a lot of questions such as fair pricing and
anti-competitive practices as will be explored in the preceding sub-heading.

4.2. Case study of Safaricom PLC versus Airtel Networks Ltd.

Safaricom being the largest telecom service provider in Kenya began operating
in 1993 as a a private entity which subsequently in 2002 became public entity
with GoK having 60% holding .280 As per the 2017 financial year its shareholding
was as follows: Vodacom 35%, Vodafone 5%, GoK 35% and 25% freefloat.281

Airtel begun its operations in Kenya in 2000 and it operates as a subsidiary

company in Kenya as its parent company is incorporated in India, (Bharti
Airtel).282 It is the second largest mobile service after Safaricom in terms of
customer base.283

It is worthwhile pointing out that Safaricom is the dominant mobile service

284
provider in Kenya. As at April 2019, it commanded 63.3 per cent of the
telecommunications market share in Kenya.285

280 Siro Jack, ‘What is the history of Safaricom, and when did it become a public company ?’ (3
July, 2017) <https://www.quora.com/What-is-the-history-of-Safaricom-and-when-did-it-become-
a-public-company> accessed 22 July 2019.
281 Safaricom Twaweza <https://www.safaricom.co.ke/sustainabilityreport_2018/stakeholder-

engagement/shareholders/ > accessed 14 August 2019.

282
Alfa E. Sande, ‘Competitive Strategies adopted by Airtel Kenya’ (MBA thesis, University of
Nairobi, 2014).
283 ibid.
284 Stephen Agaba, ‘The future of International Commercial Law in East Africa’ (2011) 13 Eur JL

Reform 505.
285 Salaton Njau, ‘Kenya’s Safaricom loses market share for fifth straight quarter’ The East

African (Nairobi, 3 April 2019) < https://www.theeastafrican.co.ke/business/Kenya-s-Safaricom-

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As a preliminary caution, this section of the paper is alive to the idea of free
markets and that consumers are always at liberty to choose the goods or even
services which they opt to use. I have acknowledged this because one can simply
say if X Ltd has been offering me poor services or is expensive, there is nothing
stopping the consumer from moving to Y Ltd at any time; in this regard the paper
will demonstrate that it is the mobile money transfer medium of X Ltd which ties
the customers so that the argument is not futile.286

Safaricom’s mobile money transfer medium MPESA service , was introduced in

Kenya in early 2007 and over the years it has tremendously grown, in 2013 it
housed more than 15.2 million subscribers and currently it has more than 20
million Kenyan users which represents almost half of the total population of the
country.287 This has been a major win for Safaricom PLC and this has allowed it
to stay ahead of the curve as compared with its rivals who developed their mobile
money services much later in time.288 Moreover, the service has also spread out
to other countries within the EA region.289

The pertinent question to be explored in this part is whether Safaricom has used
its dominance to the detriment of the public? In light of this, it is key to point out
that being dominant in itself is not a crime but the problem is using the position of
dominance to the detriment of consumers. 290 This was enunciated in the case of
Hoffman-La Roche & Co v Commission [1979] ECR 461, wherein the court held;

“[A] dominant position enables an undertaking to prevent effective

competition being maintained on the relevant market by affording it the
power to behave to an appreciable extent independently of its competitors,
its customers and ultimately of the consumers.”291

loses-market-share-for-fifth-straight-quarter/2560-5055128-5nd74b/index.html > accessed 9

July 2019.
286 Isaac Mbiti and David N. Weil, ‘Mobile Banking The Impact of M-Pesa in Kenya’ (2016) Vol

III African Successes, Modernization and Development 247.

287 Mercy W. Buku and Michael W. Meredith, ‘Safaricom and M-PESA in Kenya: Financial

Inclusion and Financial Integrity’ (2013) 8 Wash. J.L. Tech & Arts 375.
288 ibid.
289 ibid.
290 Nelly Kanyingi,’Kenya’s Competition Regulator Disapproves Safaricom Dominance Claims’

(9, August 2018) <https://kenyanwallstreet.com/kenyas-competition-regulator-disapproves-

safaricom-dominance-claims/ > accessed 9 July 2019.
291 Ariel Ezrachi, EU Competition Law An Analytical Guide to the leading cases (Third Edition,

Hart Publishing, 2012) 77.

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In light of the above, the section will demonstrate that Safaricom has abused its
dominance in certain instances and that the CAK dealt with this leniently and this
has caused concern with a majority of customers enjoying MPESA services it
becomes difficult for them to shift to other service providers because of its wide
reach.292

To this end, the first incident wherein Safaricom abused its dominance was in
2013 when Airtel Ltd launched an accusation and thereafter an inquiry was
carried out by CAK as to Safaricom’s conduct. 293
Airtel was concerned that
Safaricom was engaging in unfair practices because Safaricom mandatorily
required its agents not to give its MPESA services to the other service provider
and if any of its agents were discovered to have done so, then the agent’s contract
would be repudiated.294 As a result of this, CAK probed the same on the suspicion
of abuse of dominance by Safaricom and CAK found that Safaricom PLC had
abused its dominant position, subsequently CAK allowed Safaricom to defend
295
itself on the same. Safaricom opted for settlement process and CAK
discontinued the hearing.296 In answer to this, Airtel Ltd lodged a Judicial Review
(JR) opposing the discontinuance of the hearing; this matter was not completely
heard, the CAK then acted leniently by engaging into a second settlement with
Safaricom urging it to expunge the restrictive trade clauses which were in its
contracts.297 In this first instance, nether was Safaricom fined for this practice nor
298
were they ordered to pay damages, this was an indicator of leniency.
Furthermore, in this first case, Safaricom openly engaged in abusive conduct by
putting unfair trading conditions this is the restrictive trade clauses exclusivity of
mobile money agents (exclusionary abuse).299

292 Communications Authority of Kenya, ‘Sector quarter sector statistics report for the financial
year 2018/2019’ (October – December 2018) < https://ca.go.ke/wp-
content/uploads/2019/03/Sector-Statistics-Report-Q2-2018-19.pdf > accessed 8 July 2019.
293 Maurits Dolmans and Henry Mostyn, The Dominance and Monopolies Review (4th Edition,

Law Business Research, 2016) 228.

294 ibid.
295 ibid.
296 ibid.
297 ibid.
298 ibid.
299 Edwin Mutai, ‘Watchdog says Safaricom not abusing dominance’ Business Daily (Nairobi, 8

August 2018) < https://www.businessdailyafrica.com/economy/Watchdog-says-Safaricom-not-

abusing-dominance/3946234-4703008-k467kez/index.html > accessed 9 July 2019.

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The second and most recurrent instance where Safaricom has been accused of
abuse of dominance is on the issue of it charging high tariffs for: the data bundles,
voice calls and even text messaging, in some instances Safaricom has been
300
tasked by answering the same before the Kenyan parliament. John
Walubengo notes that “dominant players cannot unilaterally dictate their prices or
tariffs and must do so through consultation with the regulator”.301 It is this Act
which has caused a major concern from the public as some have levelled claims
302
against it for acting unilaterally on their pricing strategies. Further to this,
through a previous inquiry conducted by the CAK, it was discovered that
Safaricom’s pricing strategies were not known; as consumers and their rivals
could not ascertain prices of mobile services and as a result of this their
competitors could not efficiently compete in the telecommunications market; it is
this lack of disclosure as to its pricing that ultimately defeats consumers rights to
information which should not be the case, as consumers should always be
informed as to increment rates offered to avoid exploitation; this paper takes the
view that transparency is necessary for fair competition to be attained.303

In furtherance to this, the paper notes the act of unfair pricing has been
recognised by the supreme court of Kenya as an uncompetitive vice; the case of
Communications Commission of Kenya & 5 others vs Royal Media Services
Limited & 5 others [2014] e KLR at paragraph 384 the court addressed itself partly
as follows;

“[F]or enhanced, competition ultimately redounds to the people’s welfare

by lowering the costs to the consumer, and improving the quality and
reliability of services to the public. This is one of the rights guaranteed in

300 ‘MPs accuse Safaricom of abusing dominance by charging higher prices’ <
https://www.youtube.com/watch?v=Q1gqX_5JNI8 > accessed 8 July 2019.
301 John Walubengo, ‘The consequences of declaring Safaricom a dominant player’ (Nairobi 28

February 2018) Daily Nation < https://www.nation.co.ke/oped/blogs/dot9/walubengo/2274560-

4323216-lcbg46/index.html > accessed 12 July 2019.
302 Mike Njoroge, ‘Airtel eats into Safaricom: Gloves off in data bundle war’ (March 4, 2019) <

https://businesstoday.co.ke/airtel-eats-safaricom-gloves-off/ > accessed 11 July 2019.

303 Eleanor M. Fox and Mor Bakhoum, Making Markets Work for Africa Markets, Development

and Competition Law in Sub-Saharan Africa (OUP, 2019) 80.

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 the Constitution (Article 46); providing for the protection and promotion of
rights of the consumer.”304

In this matter what the court meant was that a pro-competitive country always
caters for the consumers by offering the best services and at the same time not
exploiting the consumers by capping unreasonable prices in the services they
offer to their disadvantage and it is this issue which has caused consumers to cry
foul of Safaricom abusing its dominant position.305

There are times when Airtel Ltd has threatened to exit the Kenyan market due to
the dominant nature of Safaricom. 306 One of the latest uproars on unfair pricing
by Safaricom was in their data bundle war between it and Airtel. 307 To expound
on this point, there are numerous instances wherein subscribers of Safaricom
have bought data bundles and after a while they receive alerting texts, telling
them that their bundles have been depleted, and it is this concern which caused
Airtel to run a myriad of activist advertisements (#Getwhatyoupayfor) through
social media platforms, alerting consumers on the same so as to prevent their
308
overexploitation by telecom service providers. This paper suggests that a
worthwhile recommendation that CAK should consider is to cap maximum price
limits as to the amounts charged on bundle subscriptions and to make the same
known to consumers; there should be control of prices of mobile tariffs in
consideration of the economic status of the population also CAK should aim to
adequately notify consumers of the same. 309 There are various activists who have
raised concerns on overexploitation too due to unfair pricing by Safaricom, key
one to single out is Robert Alai who is of the view that telecom market in Kenya
is not evenly balanced and that competition in Kenya is indecent.310

304 Petition no. 14 of 2014 e KLR. See also, United Brands v Commission [1978] ECR 207.
Case 27/76. In this case, the act of unfair pricing was recognized as amounting to abuse of
dominance.
305 ibid.
306 Stellar Murumba, ‘Airtel threatens exit over Safaricom dominance’ Business Daily (Nairobi, 8

September 2015) < https://www.businessdailyafrica.com/corporate/Airtel-threatens-exit-over-

Safaricom--dominance-/539550-2863136-tvl40s/index.html > accessed 12 July 2019.
307 ibid.
308 Njoroge (n 302)
309 Debate on Safaricom’s dominance and Kenya Power suffocating monopoly

<https://youtu.be/G8Je3OIWwug > accessed 12 July 2019.

310 Robert Alai, ‘Safaricom feels punished and others fight for “Real competition” (4 May 2010)

<https://www.kahawatungu.com/2010/05/04/safaricom-feels-punished-and-others-fight-for-real-
competition/ > accessed 23 July 2019.

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The political dimension of competition law in Kenya was evident during the 2017
general elections when the opposition party National Super Alliance of Kenya
(NASA), incited citizens to boycott Safaricom’s products alleging that Safaricom
had intentionally colluded with the ruling party (Jubilee) and the Interim Electoral
and Boundaries Commission (IEBC) this being the body which administers
elections in Kenya, to tamper with the outcome of the elections. 311 This was a
political issue which caused Safaricom to lose revenue and caused loss of
employment; due to this uproar, a majority of populace shifted to Airtel Ltd which
is entirely privately owned, after the opposition leader raised this concern.312 The
effect of NASAs boycott on Safaricom was that it lost twenty billion Kenyan
shillings during the first week of the boycott.313 This was an eye opener depicting
increased government association with Safaricom hence raising suspicion of
bias.314

It is worthwhile adding that the key latest development surrounding this area, is
that Airtel Ltd is merging with Telkom Kenya Ltd which is another service
provider.315 This merger intends to close the market share gap, which Safaricom
has been enjoying over the years; this paper notes that this intended merger
might help to some extent; perhaps what would also be important for Airtel to
reconsider is to make proper technological innovations in order for them to match
up with Safaricom.316

Linking this to the issues discussed in chapter three particularly on autonomy of

CAK indeed this is a perfect case study showing that the GoK influences
competition affairs to a great extent and if this is allowed to happen, then
competition in Kenya will not be protected enough and as a result consumers are
the ones who are likely to lose.

311 Resist Safaricom, Bidco and Brookside Products

<https://www.youtube.com/watch?v=C9dtro3oEiU > accessed 10 May 2019.
312
ibid.

313 Charles Mwaniki, ‘Safaricom sheds Sh 20bn in week of Nasa boycott’ (Nairobi 10, November
2017) Business Daily < https://www.businessdailyafrica.com/markets/Safaricom-sheds-Sh20bn-
Nasa-boycott/539552-4180896-t6vil0z/index.html > accessed 23 July 2019.
314 ibid.
315 Ibrahim Oruko, ‘MP’s raise the red flag over Airtel, Telkom merger’ (Nairobi 4, March 2019)

Business Daily <https://www.businessdailyafrica.com/corporate/companies/red-flag-over-Airtel-

Telkom-merger/4003102-5009174-e3xaw1z/index.html > accessed 13 July 2019.
316 ibid.

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The next chapter will focus on a different issue altogether, as regards to the
regional issues affecting competition law in Kenya.

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 5. REGIONAL CONCERNS
Brief of Kenya’s involvement with international competition

bodies. (UNCTAD & ICN).

Kenya is part of the broader international competition law community by virtue of

its membership to two bodies namely: United Nations Conference on Trade and
Development (UNCTAD) and International Competition Network (ICN), to this
end, Kenya has immensely benefited through numerous works initiated by
UNCTAD especially through capacity building and training initiatives; in light of
this the first notable work of UNCTAD took place in 2005 in Nairobi when a
workshop was held for purposes of assessing Kenya’s competition laws and
317
policy through hosting training programme on investigation. Also, in 2006
UNCTAD assisted to institutionally revamp Kenya’s commission byreconstructing
its commission, worthwhile adding during 2005-2006 UNCTAD conducted
voluntary peer review amongst: Kenya, Jamaica and Tunisia solely forpurposes of
exchange of best practices.318

Kenya is part of ICN which provides a medium for addressing practical issues
concerning competition laws, further ICN makes Kenya to learn from other
jurisdictions as members share their experiences on competition law issues; it
also hosts annual conferences and workshops which provides opportunities for
its members to discuss working group projects.319

5.2. Addressing extraterritorial operation with regard to regional and

domestic legislation conflict in competition matters.

Increased level of commercial activities amongst states makes it necessary to
have regional pacts in order to address cross-border, anti-competitive
behaviour.320 Further to this, regional agreements are often perceived to be the

317 United Nations Conference on Trade and Development Capacity – building on competition
law and policy for development A consolidated report
<https://unctad.org/en/docs/ditcclp20077_en.pdf > accessed 14 July 2019.
318 ibid.
319 International Competition Network <

https://www.internationalcompetitionnetwork.org/about/ > accessed 14 July 2019.

320 Maher M. Dabbah, International and Comparative Competition Law (Cambridge University

Press, 2010) 365.

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 321
perfect remedy towards addressing cross-border competition activities.
Although, this is not entirely true as there are problems which occur as a result of
having the regional commitments, Maher Dabber identifies the key one as being
overlap in membership, which arises when states ratify numerous regional
commitments, in this case Kenya has fallen victim to this problem.322

Therefore, this section will focus on jurisdictional issues arising in the Kenya by
virtue of it having enacted the East African Community Competition Act (EACCA)
2006, the Common Market for Eastern and Southern Africa (COMESA)
Competition Rules and Regulations 2004 also by its continued operationalisation
of the CA, which recognizes cross-border competition issues; the section will also
highlight some of the problems brought forth by the EACCA and COMESA
Competition Regulations in order to appreciate the regional concern.323

Further, the most important question to be addressed here will be, how best can
the conflict be reconciled both at the domestic level and at the regional level?
Therefore, this section will also offer some of the best ways in which the same
can be remedied, some of which have been addressed by few competition law
experts in Kenya.324 Additionally, this is the most current developing issue within
the Kenyan competition landscape, predictably due to increased levels of
business activities, especially through mergers in EA which increases the
chances of engaging regionally with other countries as a result this makes
competition law to lose its domestic orientation in Kenya.325

On EACCA, Joyce Karanja notes that some of the problems that occasioned the
inauguration of the EACCA were: lack of funding from its members
(predominantly due to the lack of resources of its members), “jurisdictional
conflicts between EACCA and domestic legislations which occasioned difficulties

321 ibid.367
322 ibid.410-414.
323 Jasper Lubeto, ‘Concurrent jurisdictions debate: What role does the three competition

authorities play in the Kenyan competition market’

<https://www.academia.edu/37689136/Concurrent_jurisdictions_debate_What_roles_do_the_th
ree_competition_authorities_play_in_the_Kenyan_market > accessed 14 July 2019.
324 ibid.
325 Vellah Kedogo Kigwiru, ‘Cross – border competition enforcement in Africa: Developments,

opportunities, challenges and the way forward’ <http://www.compcom.co.za/wp-

content/uploads/2017/09/CROSS-BORDER-ENFORCEMENT-IN-AFRICA.pdf > accessed 25
July 2019.

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in enforcing cross-border activities”.326 In a similar fashion, Catherine Nansubuga
notes “jurisdictional uncertainty and overlapping memberships is a contributing
factor to the failure to operationalize EAC Competition Act”. 327 It is in this regard
that this paper notes, there still exists jurisdictional conflict between Kenya’s CA
328
and EACCA which has not been properly addressed to date. Additionally,
Karanja also points out that national governments of EAC member states have
been slow in implementing changes that would align the EACCA accordingly to
their domestic legislations and this paper notes that Kenya has still not yet
embarked on the process of initiating reforms in her CA which will prevent it from
conflicting with the EACCA on matters of extraterritoriality, perhaps it would be
worthwhile for the GoK to consider this.329

On the COMESA competition regulations, Vincent Angwenyi, has identified some

of the problems it has which limits its effective operationalisation, the jurisdictional
issue and mulitiplicity of members to other regional bodies is one of them,
Angwenyi notes Kenya has engaged in multiple memberships by the fact of it
being member of COMESA Competition Regulations and EACCA, indeed this is
the problem which promotes jurisdictional uncertainity.330

Taking for instance A and B as companies, where A is incorporated in Kenya and

B is incorporated in Tanzania and the two companies have an intention to merge.
What will currently happen in this case (since both countries have ratified the EAC
and COMESA Competition Rules and Regulations) is that A will have to give
notice to CAK since CA gives extraterritorial operation to CAK for companies
incorporated in Kenya and intend to merge with foreign companies. 331 A will also
have to give notice to EACCA of the intended merger, since it falls within the EA
jurisdiction and finally A will also have to alert CCC, since Kenya has ratified the

326 Emmanuel Ugirashebuja, John Ruhangisa, Tom Ottervanger, Armin Cuyvers, East African
Community Law Institutional, Substantive and Comparative EU Aspects (Brill Nijhoff, 2017) 435-
437.
327 Catherine Nansubuga, The Need for Developing A Successful Competition Regime in

Uganda: An Analysis of the Factors hindering the operationalization and implementation of the
East African Community Competition Act’ (LL.M Thesis, University of Cape Town, 2015).
328 ibid.
329 Ugirashebuja, Ruhangisa, Ottervanger, Cuyvers, (n 326) 437.
330 Vincent N. Angwenyi, ‘Competition Law and Regional Integration: The Common Market for

Eastern and Southern Africa’ (COMESA) (LL.M Thesis, Munich Intellectual Property Law
Center, 2013). Kenneth Kiplagat, ‘Jurisdictional Uncertainties and Integration Process in Africa:
The Need for Harmony’ (1996) 4 Tul Journal of International Comparative Law 43.
331 CA s.6.

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COMESA competition rules and regulations and both countries are parties to the
332
same rules and regulations. Certainly this makes the transaction
cumbersome.333 Moreover, Karanja notes that this situation will also bring about
time constraints, due to having to wait for the notification and approval of all the
concerned authorities and this might also deter investors from conducting their
businesses in Kenya and also within EA region. 334 Alternatively, considering B
which is situate in Tanzania, if the Fair Competition Commission (FCC) of
Tanzania approves the intended merger between the two companies and EACCA
and CCC gives notice of rejection of merger, will the transaction cease? If CAK
has also given the go ahead on the same on part of A in the sense that both
domestic competition bodies agree to a transaction but the two regional bodies
void the transaction, it is unclear whether the transaction will be completed or
not.335

Some scenarios that could be considered that might bring about confusion in this
case is what would happen in the instance, EACCA gives notice of approval of
merger and CCC declines the same whilst CAK gives notice of approval of the
merger.336 Another scenario would be if CAK accepts and the rest of the two
bodies (EACCA and CCC) declines the same. 337 Finally a scenario where CAK
declines the merger and EACCA and CCC approves the same.338 A question that
arises is will the transaction cease to be and what are the options available to
remedy this? This is the current dilemma which companies in Kenya intending to
merge with their EA counterparts are experiencing and the same needs to be
tidied up, thus the need for alignment of the existing regional commitments.339

Considering the above, Jasper Lubeto is of the view that the CA creates a
problem for lawyers intending to engage in cross-border competition activities
and Lubeto offers some insights on how best Kenya can deal with the triple
jurisdiction issue as follows.340 First, Lubeto notes an express provision can be

332 COMESA Competition Regulations 2004.

333 Ugirashebuja, Ruhangisa, Ottervanger, Cuyvers, (n 326) 437.
334 ibid.
335 Fair Competition Commission <https://competition.or.tz/ > accessed 25 July 2019.
336 ibid.
337 ibid
338 ibid
339 Lubeto (n 323)
340 ibid.

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introduced in the CA which mandates the CAK to decline exercising authority to
either the CCC or the EACCA, this is in the event where conduct falls within the
ambit of the two and not CAK.341 Secondly, Lubeto states that in a local scenario,
the CAK should handle matters which have a greater effect in Kenya even if it
falls within the common market.342 Lubeto objectively notes that before such
amendments are welcomed, lawyers will continue experiencing constraints as to
how they will treat cross-border matters.343

Besides the suggestions offered by Lubeto, this paper recommends that there
needs to have continuous co-ordinated framework of negotiation amongst the
three bodies; perhaps it would be worthwhile creating a tripartite agreement
among: CAK, EACCA and CCC to facilitate this, particularly on issues
surrounding cross-border enforcement of competition matters and even mergers
in Kenya. The reason why this paper suggests that this might be the best route
to pursue is because amendments to legislation in Kenya often takes time to be
processed due to the politics involved in lobbying of acts of parliament as
parliamentarians might not ascribe high priority to the CA unlike other legislations.
Similarly, Karanja notes no avenue has yet been created to foster negotiations of
CAK with EACCA and CCC and this in turn makes activities such as mergers to
be expensive as the three bodies have to be given notice of such and as a result
of this, this makes Kenya not to be a good investment harbour due to the
expenses incurred and time constraints in conducting cross-border mergers.344

Vellah Kedogo notes there are factors preventing development of cross-border

enforcement of competition law in Africa such as: lack of political will amongst
states and also the low economic status of most of the African states. 345 In light
of Kedogo’s remarks this section emphasizes that the GoK will need to intensively
engage with her neighbouring states for the extraterritorial concern to be
sufficiently addressed.346 Overall, what would be best for Kenya in resolving the
extraterritorial issue is to implement some of the suggestions as offered above in

341 ibid.
342 ibid.
343 ibid.
344 Ugirashebuja, Ruhangisa, Ottervanger, Cuyvers,(n 326) 437.
345 Kedogo (n 325)
346 ibid.

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order to make the harmonization process of the law a success and to ease cross-
border commercial activities.

In conclusion, for the extraterritorial concern to be a success in Kenya what will

be needed is to continuously engage CAK, CCC and EACCA through both formal
and informal means such as collaboration through MoUs and also continuos
negotiations.347

347 ibid.

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 6. CONCLUSION AND RECOMMENDATIONS
This paper has demonstrated that competition regime in Kenya has progressively
developed as discussed in chapter two. However, certain aspects of it need to be
aligned. To this end, it is worthwhile noting that the following recommendations,
first this paper is of the view that for competition laws to be successfully
developed in Kenya, certain stakeholders should be willing to continuously and
actively engage in the review process of the law, a key one worth mentioning is
the Kenya Law Reform Commission (KLRC) which assesses legislations in
Kenya.348 This paper recommends that KLRC should always aim to update/revise
the competition laws in Kenya so as to tighten various substantive and procedural
aspects of it, such as enforcement issues to mirror in some of the suggestions
proposed in this paper.

Also, various consumer related bodies such as CofeK and KAM should
collaboratively engage with the CAK, to enable CAK to achieve its overall purpose
of “creating efficient markets for consumers”. 349
Furthermore, CAK should
undertake to increase its competition advocacy reach by engaging the relevant
consumer protection bodies accordingly and on a continuous basis. The reason
why this paper advances this proposal is that this will enable protection of
consumer welfare through competition laws as the interface between the two is
inseparable. Besides engaging consumers, CAK should also create proper
awareness on producers in this area of law so as to make them aware of their
rights in the event of breach.

Moreover, this paper has also demonstrated that the GoK has an impact on
competition law both directly and indirectly to a large extent. Therefore, its input
on the same cannot be downplayed. To this end, it is worthwhile adding that the
problem in Kenya is that politics to some extent can hinder the development of
good law and it is with this regard that the paper notes that political goodwill will
be necessary to foster progress of competition law in Kenya. Therefore, the GoK
should be proactive in competition affairs in Kenya; the GoK should not be seen

348 Kenya Law Reform Commission <http://www.klrc.go.ke/> accessed 23 July 2019

349 Competition Authority of Kenya < https://cak.go.ke/ > accessed 23 July 2019.

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as a hindrance towards attaining progressive development of competition law in
Kenya as shown in chapter 4.

Chapter five has indeed demonstrated that Kenya has engaged well in
competition affairs through the regional commitments which she has enacted but
this paper has also exposed the jurisdictional issues arising in this regard. Further
to this, Kenya still needs to establish a perfect common ground in harmonising
jurisdictional conflicts and it will be necessary for her to address the issue early
in order to foster the economic activities in the country considering the expanding
nature of business activities in EA region.

There is still room for further research in other areas of competition law in Kenya,
such as: challenges facing competition policy in electricity subsector in Kenya,
prosecution of individuals under Kenyan competition laws also bilateral aspects
of Kenyan competition laws. These have not been addressed in this paper,
therefore this paper recommends increased scholarly works should develop on
various aspects of competition law in Kenya, as this will also aid in the maturity
of its domestic laws. Moreover, this will help in addressing practicalities of certain
areas which lawyers interact with on a day to day basis such as mergers. The
paper recommends, Law Society of Kenya (LSK) should create commercial
awareness to lawyers through offering continuous professional development
courses on matters of competition law, by discussing topics such asstrengthening
competition laws in Kenya.

Finally, the GoK needs to assist the CAK to achieve its purpose, so as to foster
economic prosperity of Kenya.

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 7. APPENDICES
Appendix 1. The CAKs departments.

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Appendix 2.
A) FAIR ADMINISTRATIVE ACTIONS ACT KENYA s. 4.
II —FAIR ADMINISTRATIVE ACTION
4. Administrative action to be taken expeditiously, efficiently, lawfully etc.
(1) Every person has the right to administrative action which is expeditious,
efficient, lawful, reasonable and procedurally fair.
(2) Every person has the right to be given written reasons for any
administrative action that is taken against him.
(3) Where an administrative action is likely to adversely affect the rights or
fundamental freedoms of any person, the administrator shall give the person
affected by the decision—
(a) prior and adequate notice of the nature and reasons for the
proposed administrative action;
(b) an opportunity to be heard and to make representations in that
regard;
(c) notice of a right to a review or internal appeal against an
administrative decision, where applicable;
(d) a statement of reasons pursuant to section 6;
(e) notice of the right to legal representation, where applicable;
(f) notice of the right to cross-examine or where applicable; or
(g) information, materials and evidence to be relied upon in making the
decision or taking the administrative action.
(4) The administrator shall accord the person against whom administrative
action is taken an opportunity to—
(a) attend proceedings, in person or in the company of an expert of his
choice;
(b) be heard;
(c) cross-examine persons who give adverse evidence against him;
and
(d) request for an adjournment of the proceedings, where necessary to
ensure a fair hearing.
(5) Nothing in this section, shall have the effect of limiting the right of any
person to appear or be represented by a legal representative in judicial or quasi-
judicial proceedings.
(6) Where the administrator is empowered by any written law to follow a
procedure which conforms to the principles set out in Article 47 of the Constitution,
the administrator may act in accordance with that different procedure.
.
B) CONSTITUTION OF KENYA 2010 Art 47.
47. (1) Every person has the right to administrative action that is expeditious,
efficient, lawful, reasonable and procedurally fair

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(2) If a right or fundamental freedom of a person has been or is likely to be
adversely affected by administrative action, the person has the right to be given
written reasons for the action.
(3) Parliament shall enact legislation to give effect to the rights
in clause (1) and that legislation shall—
(a) provide for the review of administrative action by a court or, if appropriate,
an independent and impartial tribunal; and (b) promote efficient administration.

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Appendix 3.

LENIENCY PROGRAM GUIDELINES

(Under Section 89A of the Competition Act No 12 of 2010)

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Glossary of terms
Conditional Leniency: This is provisional immunity granted in writing to an
applicant initially upon successful application for Leniency once the Authority is
satisfied that the applicant is providing material evidence and information that will
aid in its investigations, findings, decisions and or subsequent proceedings. The
conditional leniency requires the applicant to cooperate with the Authority as well
as to respect the other conditions specified in the Leniency Programme
Guidelines.

First through the door: The first person to qualify for conditional immunity with
regard to participation in a certain cartel, after the Authority is satisfied that the
person qualifies for Leniency and has provided sufficient evidence.

Full/Total/Permanent leniency: This succeeds the conditional leniency and is

given to an applicant upon the completion of the entire investigation process,
when a determination is issued.

Immunity: refers to total or 100% reduction in administrative financial penalty,

pursuant to section 89A of the Competition Act on an undertaking found to have
committed an offence amounting to horizontal restrictive agreements prohibited
under section 21 and 22 of the Act. In addition, the applicant will not be subject
to prosecution for the criminal aspects of the offence, subject to the concurrence
of the Director of Public Prosecution.

Marker: A formal acknowledgement by the Authority of a leniency application

intent which records the timing of the application and priority relative to other
applicants and reserves a place for an applicant for a period of twenty eight (28)
days in the queue whilst it conducts further internal investigation and attempts to
perfect its application for leniency.

A. Introduction
1. These Guidelines shall be known as the Leniency Programme
Guidelines (‘LPG’); they contain the collection of principles and conditions
adopted by the Competition Authority of Kenya (the Authority) that govern
the processing and granting of leniency to undertakings as defined in the
Act. The Guidelines have been prepared to inform parties to horizontal
agreements and practices prohibited under sections 21 and 22 and the Act,
legal practitioners, and the general public on how the Authority will handle
applications for leniency as provided for in section 89A (1) of the
Competition Act No. 12 of 2010 (hereinafter “the Act”).

2. Section 89A (1) of the Act gives the Authority the power to operate
a Leniency Programme. It states that; “ an undertaking that voluntarily

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 discloses the existence of an agreement or practice that is prohibited under
the Act and cooperates with the Authority in the investigation of the
agreement or practice, may not be subjected to all or part of a fine that could
otherwise be imposed under this Act”

3. The operative sections of the Act for the purpose of these

Guidelines are Section 21 and 22 which deal with prohibited restrictive
agreements between undertakings, decisions by association of
undertakings and practices of trade associations. However, it is restricted
to horizontal agreements, decisions by association of undertakings and
concerted practices entered into by competitors.

B. Aim of the Leniency Programme Guidelines

4. The overall objective of LPG is to improve the level of compliance with the Act.
It enhances and facilitates investigations and enforcement actions within the
economy by encouraging undertakings that have been engaging in wrong
doing to provide direct evidence and proactively cooperate in bringing
successful enforcement action in return of full or partial immunity.

C. Eligibility criteria for the Leniency Programme Guidelines

5. An undertaking or a division of an undertaking would be eligible for
leniency through the legal entity which it formed and which controls its
decision-making process. A leniency agreement will cover the applicant’s
directors and employees as long as they respect the obligation to cooperate
with the Authority.

6. The leniency applicant has not coerced others or instigated others

to operationalize the agreement. Any claim that the applicant coerced or
instigated others needs to be substantiated with irrefutable and direct
evidence. The burden of proof for any such claim will lie with the undertaking
or person alleging these grounds for disqualification.

7. If a subsidiary applies, it would be eligible for leniency in relation to

its participation in prohibited conduct but not in relation to its parent’s
participation in the prohibited conduct (as the parent undertaking is not
under the control of the subsidiary).

8. A parent undertaking of a subsidiary would be eligible for leniency

in relation to its own participation in a prohibited conduct as well as its
subsidiary’s participation in prohibited the conduct (as the subsidiary is
under the control of the parent).

9. Leniency can only be granted to one of the legal entities involved in

a joint venture. However, a joint venture constituted as a separate legal

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 entity under the joint control of two parent companies is eligible for leniency.
Nonetheless, the direct involvement of the parent companies in a prohibited
conduct would not be eligible for leniency since the joint venture does not
exercise control over its parents.

10. Generally, the involvement of the joint venture in a prohibited

conduct is not covered by one of the parent’s application because control
over the joint venture does not rest solely with the parent applicant.

D. Scope of the Leniency Programme Guidelines

11. . Applications for leniency will be accepted in the following circumstances;

i. When the Authority has no knowledge of the contravention;

or ii. When the Authority has knowledge of the
contravention but lacks sufficient information to start an
investigation; or

iii. When the Authority has commenced investigations but

requires additional evidence to penalize the offenders. In
this

case, applications may be received for as long as new

evidence can be introduced in the file.

E. Conditions, Obligations and requirements under LPG

12. The applicant will qualify for leniency provided it meets the following
conditions and requirements on a continuous basis throughout the
Authority’s investigations until determination:

i. Provide full, timely and truthful information: The applicant must

honestly provide the Authority with complete and truthful disclosure of
all evidence, information and documents in its possession or under its
control relating to any restrictive agreements, practices and decisions.
This also implies not destroying, falsifying or concealing information
nor misrepresenting any material facts of any restrictive trade practice
it is involved in.

ii. Total Cooperation: The applicant must offer full and expeditious
cooperation to the Authority concerning the reported restrictive
agreements, practices or decisions.

iii. Keep the application process confidential. The applicant must

not alert other cartel members or any third party that it has applied for
leniency.

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 iv. Must immediately stop the conduct unless otherwise directed
by the Authority.

F. Principles of the Leniency Programme Guidelines

13. The LPG strives to ensure certainty, transparency and predictability
for potential applicants. Consequently, eligible applicants who qualify for
leniency as per the conditions set in the LPG will be awarded leniency as
per the following;

i. First through the door applicant: Will be granted 100% percent

reduction in penalties, also termed as immunity, ii. Second through the
door applicant may be granted up to 50% percent reduction in penalties,
iii. Third through the door may be granted up to 30% percent reduction
in penalties, and

iv. Any subsequent applicant who approaches the Authority before

investigations are completed and provides useful information that
significantly contributes to success of the investigations may be
given up to 20% percent reduction in penalties.

14. The identity of the leniency applicant will be kept confidential

throughout all stages of the procedure. The identity of the leniency applicant
will not be disclosed to anyone outside the Authority during the investigation
or once a decision has been taken. To this end, the Authority will undertake
all necessary steps to preserve the identity of the leniency applicant.

15. Conditional leniency, which precedes permanent leniency, shall be

provisionally granted at the initial stage of the investigation pending final
determination by the Authority.

16. In order to obtain permanent leniency the applicant has the

obligation to cooperate with the Authority and fulfill any other condition or
requirement set out in the LPG. Only a serious breach of these obligations
can preclude an applicant from obtaining permanent leniency.

17. If permanent leniency is not granted, the Authority would be at

liberty to deal with the applicant as provided for in the Act. In the same breath
the Authority may consider a settlement agreement usually initiated by the
undertaking concerned.

G. Procedure to be followed in LPG

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18. First contact with the authority; where a firm is unsure whether
or not the LPG would apply to a particular conduct, it may approach the
Authority to seek clarity. This may be done through telephone or in writing.
A firm may choose to remain anonymous if it wishes to. Once a firm it is
satisfied that it can apply for leniency, it can go ahead and apply for a
marker.

19. For the purposes of Marker and Leniency application, applicants

will contact Manager Enforcement and Compliance in person or via a
designated email ([email protected]) or phone (+254 202628233
between 8.00 am and 5.00 pm Monday to Friday).

20. Marker Application; The application must contain information

substantial enough to enable the Authority to identify the conduct and its
participants in order to determine whether or not an application for leniency
has been made in respect of the same conduct. The applicant is given an
initial period of 28 days to submit relevant documentation information
either orally or in writing.

21. Marker extension; An applicant may seek an extension of its

marker after the expiry of the 28 days if due to unavoidable circumstances,
that will be reviewed on a case by case basis, it is unable to perfect its
application.

22. Initial meeting with the authority after the marker has been
perfected; The applicant should bring any information or evidence it
deems relevant and answer the questions posed by the authority in
relation to the conduct being reported or matters relating thereto. The
Authority may only have sight of and peruse all the documents brought by
the applicant but will not make copies.

23. Communication for qualification for Leniency; The Authority

must within fourteen (14) days , after the date of the first meeting make a
decision on whether or not the applicant’s case qualifies for leniency and
inform the applicant accordingly in writing within fourteen (14) days.

24. Meeting with the Authority after the applicant has qualified for
leniency; The aim of this meeting is to discuss and grant conditional
leniency to the applicant pending finalization of any further investigations
and determination by the Authority in the matter. At this stage, the
Authority would be able to make copies of all documents provided.

25. Grant of Conditional Leniency; A written agreement between the

applicant and the Authority, otherwise known as the conditional leniency
agreement, which will be granted subject to the conditions and
requirements under the LPG. The conditional leniency agreement shall

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 explicitly cover also directors and employees of the applicant undertaking.
The Authority will engage with the office of the Director of Public
Prosecution to forgo prosecution of the criminal aspects of the
contravention.

26. Confidentiality claim; Any applicant who gives or discloses any

material to the Authority, may claim confidentiality in respect of the whole
or any part of the material as per Section 20 of the Act. The applicant may
grant a waiver so that the Authority may disclose necessary information
for enabling coordination of leniency applications presented in other
jurisdictions.

27. Investigation, analysis and verification; After the granting of

conditional leniency, the Authority will move forward with its investigations
relating to the prohibited conduct. The applicant granted conditional
leniency is expected to cooperate fully and in good faith with the Authority
throughout this stage.

28. Subsequent meeting(s) with the authority; Should the Authority

wish to communicate in matter concerning the investigation to the
applicant, it is at liberty to contact the applicant through any mode of
communication it deems fit or even convene a meeting if and when needed
during the process.

29. Final meeting with the Authority; The purpose of this meeting
between the Authority and the applicant is to give the applicant a Leniency
Certificate or sign the Leniency Contract. This only happens when the
applicant has met all the conditions set out in this LPG and when the
Authority has completed its investigation.

H. Revocation of a conditional Leniency Contract

30. Only a serious breach of the cooperation obligation might result in
revocation of the conditional leniency by the Authority. Before the Authority
makes a decision to revoke the conditional leniency, it will inform the
applicant in writing and provide an opportunity to meet with the Authority and
make good the breach. While the Authority is considering revoking the
conditional leniency, it will suspend the obligation of the applicant to
cooperate. The Authority will revoke a conditional leniency in writing

31. Where conditional leniency is revoked, the Authority may decide to

pursue the matter in terms of the relevant provisions of the Act. The
undertaking involved may also initiate a settlement process as per section
38 of the Act.

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 COMPETITION AUTHORITY OF KENYA

LENIENCY APPLICATION FORM

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 PART I

INFORMATION ABOUT THE PARTIES

1. Name of the applicant

2. Registration number

3. Address:
a. Postal address of applicant
b. Physical address
c. Telephone number
d. fax number
e. email address

4. Contact person(s) in the undertaking and position(s) held

a. Postal address of applicant
b. Physical address
c. Telephone number
d. fax number
e. email address

5. Legal representative
a. Postal address of applicant
b. Physical address
c. Telephone number
d. fax number
e. email address

6. Details of the parties to the agreement(s)

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 a. Postal address of applicant
b. Physical address
c. Telephone number
d. fax number
e. email address

PART II: Details of the Conduct

7. Description of the type of infringement (e.g. price fixing, market

allocation, bid rigging)

8. Provide details of the affected market (s) in terms of the products

and geographic scope

9. During which period of time did the infringement take place

10. a. Indicate whether or not you still participate in the agreement

b. If no, provide the reasons why and when you stopped participation
in the prohibited agreement and provide the evidence necessary
to prove such.

11. Indicate other undertakings involved in the infringement (name,

legal form and address of the undertakings). Clearly identify the ring
leader(s), coercer(s), and initiator(s) of the infringement.

12. Provide the method of contact with other operators (e.g. email,
telephone, fax, etc.) to discuss issues related to the prohibited
agreement.

13. Provide the number of gatherings of those participating in the

prohibited agreement (e.g…. times all from…………to ............... ).

14. Indicate the competition authorities to which you have applied for
leniency or where you plan to apply for leniency.

PART II

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 NATURE OF THE MARKET(S)

15. For each of the main products or services covered by the conduct,
indicate:
a. any close substitutes or complementary products available
on the market in Kenya and;
b. the products supplied by the parties to the conduct.

16. Indicate the market shares (nationally and/or regionally) for each of
the parties in each of the products or services supplied in Kenya.

17. Indicate the latest estimated market shares (nationally and/or

regionally) of competing suppliers/manufacturers in Kenya that are not
part of the conduct.

18. Provide estimates of imports into Kenya, if any, in each of the

products or services affected by the agreement.

a. List the five largest customers of the parties in each affected

market in Kenya.

b. State the name, address, fax, telephone numbers of the

contact person for each of the large customers indicated above.

DECLARATION

I, the undersigned declare that, as a participant to the aforesaid prohibited

agreement, to the best of my knowledge the information given in this application
is true, correct and complete. I hereby pledge to cooperate in good faith until
conclusion of the matter.

Name:

Position:

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 Signature

Date:

Stamp

Appendix 4 .

SEARCH AND SEIZURE GUIDELINES

PREFACE
The Search and Seizure Guidelines shall provide guidance to stakeholders
to ensure that Authority’s searches or raids (also known as “dawn raids”)
are managed appropriately, effectively and in a manner consistent with the
Constitution of Kenya (“the Constitution”), the Competition Act, the
Criminal Procedure Code ("CPC”) and the Evidence Act. The objectives of
the Search and Seizure Guideline include achieving transparency in the
process of carrying out the searches, consistency in the application of the
law, and reducing exposure to litigation costs that would otherwise arise if
the searches were carried irregularly.

A. INTRODUCTION
1. The Competition Authority of Kenya (“the Authority”) is established under
Section 7 of the Competition Act No. 12 0f 2010 (Act) and is charged with,
inter alia, promoting and enforcing compliance with the Act. This is achieved
through regulating the market structure and market conduct.

2. The Search and Seizure Guidelines are not a substitute for the Act and
the Rules (subsidiary legislation) made under the Act and must therefore, be
read in conjunction with the Act and Rules. In applying these Guidelines, the
facts and circumstances of each case will be considered.

3. Section 32 of the Act provides that where the Authority deems it necessary
for its investigations, the person or persons authorized by in writing by it may
enter any premises in the occupation or under the control of a trader,

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 manufacturer, producer, commission agent, clearing and forwarding agent,
transporter or other person believed to be in possession of relevant
information and documents and inspect the premises and any goods,
documents and records situated thereon.

4. The Guidelines are applicable to all undertakings and association of

undertakings as defined by the Act.

5. This Guideline may be revised, supplemented, or replaced from time to

time in order to keep at par with dynamics in the legal and market spheres.

B. OVERVIEW OF THE LEGAL AND INSTITUTIONAL FRAMEWORK ON

SEARCHES IN KENYA

6. Article 31 (a) of the Constitution specifically provides that every individual has
the right not to have their person, home or property searched. The right can
however be limited by law and to the extent that the limitation is reasonable
and justifiable in an open and democratic society based on human dignity,
equality and freedom, taking into account relevant factors as provided by
Article 24 of the Constitution through a search warrant. Further the Authority
is empowered to carry out a search without a warrant pursuant to Section 32
of the Act.

Search with a Warrant

7. A search warrant is an order in writing, issued by a judge or judicial officer,
commanding a law enforcement officer to search a specified person or
premises which includes building, ship, aircraft, vehicle, box or receptacle for
specified property and to bring it before the judicial authority named in the
warrant.

8. A search warrant may be issued by a court of law pursuant to Section 118

of the Criminal Procedure Code.

9. A search warrant may be issued on any day (including Sunday), and may
be executed on any day (including Sunday) between the hours of sunrise and
sunset, but the court may in exceptional circumstances, by the warrant,
authorize the police officer or other person to whom it is addressed to execute
it at any hour as provided for in section 119 of the CPC.

10. The Search warrant shall bear the following form, content and duration as
provided by section 102 of the CPC shall:

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 i. be under the hand of the judge or magistrate issuing it and shall
bear the seal of the court;
ii. State the offence with which the person against whom it is issued
is charged; iii. name or otherwise describe that person;
iv. order the persons to whom it is directed to apprehend the person
against whom it is issued and bring him before the court issuing the
warrant, or before some other court having jurisdiction in the case, to
answer to the charge therein mentioned and to be further dealt with
according to law; and
v. remain in force until it is executed or until it is cancelled by the court
which issued it.

11. Once issued with a search warrant the executor can compel any owner or
resident of a building to allow the Search Officer (SO) access to conduct the
search. However, the SO must produce the search warrant to validate entry.

12. Section 120 of the CPC requires Persons in charge of closed place to allow
ingress and egress during a search. It provides that
“(1) Whenever a building or other place liable to search is
closed, a person residing in or being in charge of the
building or place shall, on demand of the police officer or
other person executing the search warrant and on
production of the warrant, allow him free ingress thereto
and egress therefrom and afford all reasonable facilities
for a search therein.

(2) If ingress into or egress from the building or other

place cannot be so obtained, the police officer or other
person executing the search warrant may proceed in the
manner prescribed by section 22 or section 23.

(3) Where a person in or about the building or place is

reasonably suspected of concealing about his person an
article for which search should be made, that person may
be searched.”

13. Further, Section 121 of the CPC provides for detention of property seized
during a Search. The Authority shall file an inventory of all the property seized
during the search within a reasonable period. The SO shall retain the property
until the conclusion of the case and reasonable care shall be taken for the
preservation of the property.

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 14. In regards to privileged information, the provisions of sections 134 of the
Evidence Act will apply. The section states;

“s134(1) No advocate shall at any time be permitted

unless with his client’s express consent, to disclose any
communication made to him in the course and for the
purpose of his employment as such advocate, by or on
behalf of his client, or to state the contents or condition of
any document with which he has become acquainted in
the course and for the purpose of his professional
employment, or to disclose any advice given by him to
his client in the course and for the purpose of such
employment:
Provided that nothing in this section shall protect from
disclosure—
(a) Any communication made in furtherance of any illegal
purpose; (b) Any fact observed by any advocate in the
course of his employment as such, showing that any
crime or fraud has been committed since the
commencement of his employment, whether the
attention of such advocate was or was not directed to the
fact by or on behalf of his client.”

Search without a warrant

15. If SO, or any other authorized person by the Authority or the court is
satisfied upon information received that he has reasonable cause to believe
that by reason of delay in obtaining a search warrant, the evidence would be
adversely tampered with, removed, damaged or destroyed, the SO or any
other authorized person may enter the premises and exercise all the powers
under Section 32 of the Act in as full and ample manner as if he were
authorized to do so by a warrant issued by a Court of Law.

16. Where a search is undertaken without a warrant, the Director General shall
issue a Search Order which shall clearly state:
a) Name and description of the person, place or thing to be searched;
and

b) The offence with which the person, place or thing being searched
is related.

Execution of Search Warrants

17. If any SO or police officer with written authorization from the Authority to
execute a search, has reason to believe that the person in or about the

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 building or place is concealing about his person an article for which search
should be made, that person may be searched.

18. If that person is a woman the search shall be made by another woman
with strict regard to decency.

19. SO or other person authorized by the Authority or the Court to conduct a

search on behalf of the Authority, may stop, search and detain any aircraft,
vessel or vehicle in or upon which there is reason to suspect has been used
or employed in the commission or to facilitate commission of an offence under
the Act.

20. No person shall be entitled to damages or compensation for loss or

damage suffered by him in respect of the detention of his aircraft, vehicle or
vessel. For these guidelines, “aircraft”, “vessel” and “vehicle”, respectively,
include everything contained in, being on or attached to an aircraft, vessel or
vehicle, as the case may be, which, in the opinion of the Authority, forms part
of the equipment of the aircraft, vessel or vehicle. The investigators may
interview representative or employee of the company being searched for
explanations on facts or documents relating to the subject matter and purpose
of the search and to record the answers.

21. Where any representative or member of staff of the undertaking gives,

pursuant to section 33(1) of the Act, statements on the spot on facts or
documents relating to the subject matter of the search at the request of the
Investigators, the explanations may be recorded in any form. A copy of any
such recording will be made available to the undertaking concerned after the
search.

Search and Seizure process

22. Where the Authority deems it necessary for its investigations, the person
or persons authorized in writing by it may enter any premises in the occupation
or under the control of a trader, manufacturer, producer, commission agent,
clearing and forwarding agent, transporter or other person believed to be in
possession of relevant information and documents and inspect the premises
and any goods, documents and records situated thereon.

23. The Authority may execute the search on any day (including Sunday)
between the hours of sunrise and sunset, but the Authority may request court
of law to authorize execution of the same at any hour.

24. The Search warrant shall remain in force until it expires.

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 25. Upon entering premises in pursuance of the powers conferred by
Competition Act, the person or persons authorized in writing shall, before
proceeding to conduct an inspection of the premises, goods, documents and
records situated thereon, serve the search warrant upon the person present
who is or who reasonably appears to be for the time being in charge of the
premises and inform of his intention to exercise his powers under this Act.

26. The Authorized persons to conduct the search (Search Officers- SO) shall
have written Authorization from the Authority to execute the search. The SO
will each provide a proof of identity.

27. The role of the SO is, at the direction of the Executing Officer, to carry out
searches in the premises for items falling within the conditions of a search
warrant. The SO is responsible for conducting his or her search in a legal and
professional manner and also for the correct completion of Item Location
Records (ILR’s) for items located during the course of such a search.

Access to Computerized Data

28. The investigators may search the Information Technology (IT)-devices,
equipment and all storage media of the undertaking or Association of
undertakings. This applies also to private devices and media that are used for
professional reasons that are found on the premises. For this purpose, the
SO may not only use any built-in (keyword) search tool, but may also make
use of their own forensic IT tools which will be cleansed at the end of the
investigation.

29. For the purpose of access, the SO shall be provided with the necessary
password, encryption code, decryption code, software or hardware or any
other means.

30. The undertaking shall be obligated to cooperate during the search and will
provide IT staff during the execution of the search warrant to explain how the
systems work and give administrator access including rights to:
a. search any data contained in or available in the IT system;
b. reproduce any record from that data;
c. seize any output from the IT system for examination and
copying; and
d. attach and, if necessary, subject to the issuance of a receipt
to that effect, remove from the premises for examination and
safekeeping anything that has a bearing on the investigation.

31. The Authority may seal and take away copies of hard drives that it could
not examine during the search. The data in the hard drives shall then be

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inspected at a later time in the presence of the undertaking and its counsel if
necessary.

32. The SO is empowered to examine the records, and any other documents
related to the business, irrespective of the medium on which they are stored.

33. The SO may seal any business premises, books or records for the period
and to the extent necessary for the execution of the warrant.

34. The SO may ask any representative or member of staff of the undertaking,
or association of undertakings, for explanations on facts or documents
relating to the subject matter of the inspection and to record the answers.
35. The SO may explain procedural matters, particularly with regard to
confidentiality, and the possible consequences of a refusal to submit to the
search process.

36. The undertaking or association of undertakings may consult an external

legal counsel during the search. The SO is however empowered to the enter
the premises, serve the search warrant or the Authority`s order and undertake
the search without waiting for the undertaking to consult its legal counsel. The
SO may, in any case, allow a reasonable time for the undertaking to obtain
legal representation Personal data of individual staff members of
undertakings (such as their names, telephone numbers, email addresses) that
may, be contained in business documents / data related to such investigations
and may therefore be copied or obtained during a search and may become
part of the Authority’s file.

37. The undertakings may claim confidentiality in respect of the whole or any
part of the material seized or disclosed during the raid pursuant to section 20
of the Act.

38. Where request for confidentiality is made on-site during the search
process, confidentiality may be granted for a period of 14 days.

39. The Authority shall keep an inventory of all the items seized during the
search which shall be counter signed by the undertakings’ authorized
representative or persons in charge and a copy of the same left with the
undertaking.

40. Items seized by the Authority shall be detained until the conclusion of the
case or the investigation, reasonable care being taken for their preservation.
However, the Authority may return items before conclusion of the

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 investigations in the event that they are not relevant for the purpose of the
investigation

41. In the course of a search, any material claimed as privileged information

(privilege against self-incrimination and attorney client privilege) shall be
evaluated separately and the parties shall agree the nature and extent of the
privileged information. The parties that decline to produce information on
grounds of privilege have the burden of establishing that the privilege applies.
If there are disagreements on privilege, the material shall be sealed and taken
before the court that issued the warrant to decide whether such materials are
privileged.

42. In the below mentioned case, investigators can be able to carry out a
search of what would otherwise be privileged documents:
a. any communication made in furtherance of any illegal
purpose; and

b. any fact observed by any advocate in the course of his

employment as such, showing that any crime or fraud has been
committed since the commencement of his employment,
whether the attention of such advocate was or was not directed
to the fact by or on behalf of his client.

List of Items Seized

43. While executing a search warrant, officers shall record a description of and
the location from where items were seized. In addition to a written record,
photographs may be used to show the location from which property was
seized.
44. Where any record, book account, document, computerized data or other
thing is seized , the SO making the seizure –

a) shall prepare a list of the record, book, account, document,

computerized data or other thing seized and shall sign the list;

b) shall as soon as practicable, serve a copy of the list of record, book,

account, document, computerized data or other thing seized to the
representative of the undertaking which have been searched, or to his
agent or servant at those premises. If the premises are unoccupied,
the SO shall post a copy of the list of the record, book, account,
document, computerized data or other thing seized conspicuously on
the premises.

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h+Masereti_+Cartel+Enforcement+-
+Adoption+of+Leniency+Programme+in+Kenya.pdf > accessed 18 June
2019.

6. Ayemoba A, ‘High Court of Kenya litigates its first competition case’ (29
September, 2016) <https://africabusinesscommunities.com/news/high-
court-of-kenya-litigates-its-first-competition-case.html > accessed 4 June
2019.

7. Ayiik G, ‘Policy Perspectives on Competition and Inclusive Growth within

East African Community’ <http://www.compcom.co.za/wp-
content/uploads/2017/09/Competion-and-inclusive-Growth-for-East-
Africa-Countries-Policy-Analysis.pdf > accessed 26 June 2019.
8. Dache J, ‘Reforming tribunals in Kenya’ (22, November 2016)
<http://www.klrc.go.ke/index.php/klrc-blog/522-reforming-tribunals-in-
kenya-concept-paper-by-joash-dache?showall=1&limitstart > accessed
5 May 2019.
9. Dini T and Pickering J ‘Resolving Concerns with the COMESA
Competition Law Regime’ (February 2016)
<https://www.americanbar.org/content/dam/aba/publishing/antitrust_sour
ce/feb16_dini_2_12f.pdf > accessed 16 July 2019.
10. Emmanuel E, ‘Addressing Anti - Competitive Trade Practices in East
Africa; The Uganda Experience’
<https://www.academia.edu/9903688/ADDRESSING_ANTI_COMPETITI
VE_TRADE_PRACTICES_IN_EAST_AFRICA_THE_UGANDA_EXPERI
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11. Gichui J, ‘ Analysis of the Concept of Effective Competition in Kenyan
Markets’
<https://www.academia.edu/8150872/John_Gichuhi_An_Analysis_of_the
_Concept_of_Effective_Competition_in_Kenyan_Markets > accessed 16
July 2019.
12. Hartzenberg T, ‘Regional integration in Africa’ SSRN:
<https://ssrn.com/abstract=1941742 > accessed 26 July 2019.
13. Jack S, ‘What is the history of Safaricom, and when did it become a
public company ?’ (3 July, 2017) <https://www.quora.com/What-is-the-
history-of-Safaricom-and-when-did-it-become-a-public-company>
accessed 22 July 2019
14. Kigwiriu V, ‘Analysis of Abuse of Buyer Power Under the Kenyan
Competition Law Regime’
<https://www.academia.edu/35647277/ANALYSIS_OF_ABUSE_OF_BU
YER_POWER_UNDER_THE_KENYAN_COMPETITION_LAW_REGIM
E > accessed 11 May 2019.
15. Laperrousaz A, ‘East Africa and Antitrust: Enforcement of EAC
Competition Act’ <http://africanantitrust.com/category/burundi/ >
accessed 28 April 2019.
16. Lekerai D, ‘The leniency programme guidelines’
<http://www.ikm.co.ke/news/articles/2017/THE-LENIENCY-
PROGRAMME-GUIDELINES.html > accessed 25 June 2019.
17. Lubeto J, ‘Concurrent jurisdictions debate: What role does the three
competition authorities play in the competition market’
<https://www.academia.edu/37689136/Concurrent_jurisdictions_debate_
What_roles_do_the_three_competition_authorities_play_in_the_Kenyan
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18. Memo A, ‘COMESA Launches Merger Review’ (8 February 2013)
<https://www.law.columbia.edu/sites/default/files/document-
library/clsbsbdl_document/files/CGSH%20Alert%20Memo%20-
%20COMESA%20Merger%20Control%20Alert.pdf > accessed 16 June
2019.

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19. Michael Tyler, Janice Hughes and Helena Renfrew,
‘Telecommunications in Kenya: Facing the challenges of an open
economy’
20. Muhwezi G, ‘EAC Competition Law could spur cross – border
investments’ (27 August 2010)
<https://muhwezi.blogspot.com/2010/08/eac-competition-law-could-spur-
cross.html > accessed 28 April 2019.
21. Muhwezi G, ‘Towards East African Community Competitions Law and
Policy: A Briefing Paper’
<https://www.academia.edu/3237848/Towards_East_African_Communit
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2019.
22. Mundunga P, ‘An analysis of the poor performance of state owned
enterprises in Africa’
<https://www.academia.edu/8226631/An_analysis_of_the_poor_perform
ance_of_state_owned_enterprises_in_Africa > accessed 3 June 2019
23. Muregwi H, ‘Effectiveness of board composition on the performance of
Zimbabwe state enterprises & parastatals’
<https://www.academia.edu/38412087/EFFECTIVENESS_OF_BOARD_
COMPOSITION_ON_THE_PERFORMANCE_OF_ZIMBABWE_STATE_
ENTERPRISES_and_PARASTATALS_SEP_S_ > accessed 21 June
2019.
24. Mwakasani H, ‘Competition Law in Tanzania’
<https://www.academia.edu/9185397/COMPETITION_LAW_IN_TANZA
NIA > accessed 5 May 2019.
25. Njoroge P, ‘Enforcement of Competition Policy and Law in Kenya
including case studies in the areas of mergers and takeovers, prevention
of possible future Abuse of Dominance and Collusion/ Price Fixing’
<http://siteresources.worldbank.org/INTCOMPLEGALDB/Resources/Pet
erNjoroge.pdf > accessed 4 July 2019.
26. Nzomo V, ‘Buyer Power as an Emerging Concern in the Kenyan
Economy: A Competition Law Perspective’ 4th Annual Competition
Authority of Kenya Essay Writing Competition 2017 series SSRN:
<https://ssrn.com/abstract=2942673 > accessed 11 May 2019.

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27. Nzomo V, ‘High Court Rules on Competition Body Powers of
Investigation into Prohibited Practices vs. Constitutional Rights to
Equality, Fair Administrative Action, Fair Hearing’ (2, November 2016)
<https://kenyantitrust.wordpress.com/tag/competition-authority/ >
accessed 20 May 2019.
28. Nzomo V, ‘Treatment of Buyer Power in Competition Law: Case of
Supermarket Retail Sector in Kenya’ (January 31, 2017). The Law
Society of Kenya Journal, Vol. 13, No. 1, 2017. Available at SSRN:
<https://ssrn.com/abstract=2952322 > accessed 11 May 2019.
29. Odhiambo W, Kamau P and Mc Cormick D, ‘Kenya’s participation in the
WTO: lessons learned’<
https://www.wto.org/english/res_e/booksp_e/casestudies_e/case20_e.ht
m > accessed 14 July 2019.
30. Ogalo V, ‘Achievements and challenges of implementation of the EAC
Common Market Protocol in Kenya, Case of Free Movement of Labour’
(July -October 2012)
<https://www.academia.edu/31485456/Achievements_and_Challenges_
of_Implementation_of_the_EAC_Common_Market_Protocol_in_Kenya >
accessed 28 April 2019.
31. Schwarz D, ‘The Internalization of Competition Law in Africa’ (August
2017) <https://www.competitionpolicyinternational.com/wp-
content/uploads/2017/08/Africa-Column-August-Full.pdf > accessed 28
May 2019.
32. Sutherland E, ‘Bribery and Corruption in telecommunications: the case of
Kenya’ (2015) 17 (3) <https://doi.org/10.1108/info-01-2015-0013 >
accessed 10 July 2019.
33. Vellah K, ‘Emerging Technological Innovations in the Legal Profession
and Its Impact on the Regulation of Market Competition: Kenyan
Perspective’ SSRN: < https://ssrn.com/abstract=3355861 > 20 July 2019.
e) THESIS.
1. Anderson H, ‘Dawn Raids under challenge A study of the European
Commissions Dawn Raid Practices in Competition Cases.’ (Doctors in
Law, Stockholm University, 2017).

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2. Angwenyi V, ‘Competition Law and Regional Integration: The Common
Market for Eastern and Southern Africa’ (COMESA) ( LL.M Thesis,
Munich Intellectual Property Law Center, 2013)
3. Bakibinga E, ‘Regulating Market Entry in the Telecommunications Sector
in an integrated East Africa: Towards Common Licensing Framework’
(LL.M Thesis, University of Oslo, 2004)
4. Chelimo C, ‘Positioning Strategies used by firms in the
telecommunications industry in Kenya’ (MBA Thesis, University of
Nairobi 2012).
5. Gecaga J.T., ‘The Management of Public Enterprises in Kenya: with
special reference to the Kenya Meat Commission (1977 – 1987) (Master
of Arts Thesis, Department of Government, University of Nairobi, 1991).
6. Gitonga N, ‘A study of indo Kenya Trade Relations 2000 to 2010’ (PhD
thesis, Tilak Maharashtra Viyapeeth Pune, 2015)
7. Jerobon R, ‘Interface between Competition Law and Intellectual Property
Law in Kenya’. (LL.M thesis, University of Nairobi, 2016).
8. Kibeh A, ‘Relationship Marketing and Customer Loyalty in Mobile
Telecommunication industry in Nairobi, Kenya’. (MBA Thesis, University
of Nairobi, 2013).
9. Kimani M, ‘Effects of Strategic Alliance on Competitive Advantage in
Airtel Kenya Limited’ (MBA Thesis, University of Nairobi, 2014).
10. Kinyua J, ‘Challenges facing state corporations in Kenya in the
implementation of Human Resource Management information systems’.
(MBA Thesis, School of Business, University of Nairobi, 2012).
11. Mutisya F, ‘Competitive Strategies Adopted by Mobile Telephony
Companies in Kenya’ (MBA Thesis, University of Nairobi, 2013).
12. Nansubuga C, ‘The Need for Developing A Successful Competition
Regime in Uganda: An Analysis of the Factors hindering the
operationalization and implementation of the East African Community
Competition Act’ (LL.M Thesis, University of Cape Town, 2015).
13. Njoroge B, ‘Competition Law and Policy in Economic Restructuring, An
Evaluation of Kenyan Experience’ (LL.M Thesis, University of Nairobi,
2003)

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14. Nyirongo R, The Role of Law in Deepening Regional Integration in
Southern Africa – A Comparative Analysis of SADC and COMESA,
(LL.M Thesis, University of Cape Town).
15. Papadopoulos A, ‘The Role of the Competition Law and Policy of the EU
in the Formation of International Agreements on Competition’ (PhD
Degree, The London School of Economics and Political Science, 2014).
16. Petukauskaite L, ‘The Boundaries between the protection of IPR’s and
abuse of dominance in the pharmaceutical sector under European
Competition Law’ (LL.M Thesis, Tilburg University, 2012)
17. Sande A, ‘Competitive Strategies Adopted by Airtel Kenya’ (MBA Thesis,
University of Nairobi, 2014).
f) NEWSPAPER ARTICLES.
1. Andae G, ‘CAK raids fertilizer firms Mea, Yara over price fixing’ (Nairobi
7 March 2016) Business Daily
<https://www.businessdailyafrica.com/economy/CAK-raids-fertiliser-
firms-Mea--Yara-over-price-fixing/3946234-3107012-we9iok/index.html >
accessed 5 May 2019.
2. Anyanzwa J, ‘East Africa Competition watchdog begins operations,
market studies ongoing’ (28 March 2018) The East African
<https://www.theeastafrican.co.ke/business/East-Africa-competition-
watchdog-operations-market-studies/2560-4361580-1rqaquz/index.html
> accessed 29 June 2019.
3. Esiara K, ‘EAC Competition law yet to be enforced’ (29 March 2014) The
East African <https://www.theeastafrican.co.ke/Rwanda/Business/EAC-
competition-law-yet-to-be-enforced/-/1433224/2262004/-/v0pi63z/-
/index.html > accessed 28 June 2019.
4. Kiplagat S, ‘Safaricom, staff face probe over Nasa claims’ (Nairobi 3
October 2017) Daily Nation <https://www.nation.co.ke/news/Safaricom-
staff--probe-Nasa-claims/1056-4123676-4m6k2y/index.html > accessed
10 July 2019.
5. Mutai E, ‘Watchdog says Safaricom not abusing dominance’ Business
Daily (Nairobi, 8 August 2018) <
https://www.businessdailyafrica.com/economy/Watchdog-says-

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 Safaricom-not-abusing-dominance/3946234-4703008-
k467kez/index.html > accessed 9 July 2019.
6. Murumba S, ‘Airtel threatens exit over Safaricom dominance’ Business
Daily (Nairobi, 8 September 2015) <
https://www.businessdailyafrica.com/corporate/Airtel-threatens-exit-over-
Safaricom--dominance-/539550-2863136-tvl40s/index.html > accessed
12 July 2019.
7. Mwaniki C, ‘Safaricom sheds Sh 20bn in week of Nasa boycott’ (Nairobi,
10 November 2017) Business Daily <
https://www.businessdailyafrica.com/markets/Safaricom-sheds-Sh20bn-
Nasa-boycott/539552-4180896-t6vil0z/index.html > accessed 23 July
2019.
8. Njau S, ‘Kenya’s Safaricom loses market share for fifth straight quarter’
The East African (Nairobi, 3 April 2019) <
https://www.theeastafrican.co.ke/business/Kenya-s-Safaricom-loses-
market-share-for-fifth-straight-quarter/2560-5055128-5nd74b/index.html >
accessed 9 July 2019.
9. Oruko I, ‘MP’s raise the red flag over Airtel, Telkom merger’ (Nairobi, 4
March 2019) Business Daily
<https://www.businessdailyafrica.com/corporate/companies/red-flag-
over-Airtel-Telkom-merger/4003102-5009174-e3xaw1z/index.html >
accessed 13 July 2019.
10. Walubengo J, ‘The consequences of declaring Safaricom a dominant
player’ (Nairobi 28 February 2018) Daily Nation <
https://www.nation.co.ke/oped/blogs/dot9/walubengo/2274560-4323216-
lcbg46/index.html > accessed 12 July 2019.

g) WEBSITES.
1. Africa Press List Africa Press List <
https://africapresslist.com/ar/pressreleases/the-high-court-of-kenya-has-
litigated-its-first-competition-case-09-23-2016-12-25-20 > accessed 20
August 2019.
2. Canadian Competition Tribunal < https://www.ct-tc.gc.ca/home.asp >
accessed 5 May 2019.

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3. Competition Authority of Kenya < https://cak.go.ke/ > accessed 23 July
2019.
4. Competition Bureau Canada <
https://www.competitionbureau.gc.ca/eic/site/cb-
bc.nsf/eng/h_00018.html > accessed 3 June 2019.
5. Country Economy <
https://countryeconomy.com/gdp/kenya?year=2014 > accessed 6 June
2019.

6. East African Community <https://www.eac.int/> accessed 8 June 2019.

7. Exposeke <https://exposeke.com/census-2019-recruitment-datesnews-
and-application/ > accessed 5 June 2019.
8. Fair Competition Commission <https://competition.or.tz/ > accessed 25
July 2019.
9. International Competition Network <
https://www.internationalcompetitionnetwork.org/about/ > accessed 14
July 2019.
10. Judiciary of Kenya <https://www.judiciary.go.ke/the-national-
environment-tribunal/ > accessed 5 May 2019.
11. Kenya Association of Manufacturers <http://kam.co.ke/ > accessed 21
July 2019.
12. Kenya Law Reform Commission <http://www.klrc.go.ke/> accessed 23
July 2019.
13. Kenya Law Resource Center <
http://www.kenyalawresourcecenter.org/2011/07/restrictive-or-unfair-
trade-practices.html > accessed 3 May 2019.
14. Kenya National Bureau of Statistics < https://www.knbs.or.ke/2009-
kenya-population-and-housing-census-analytical-reports/ > accessed 5
June 2019
15. Knoema, < https://knoema.com/atlas/Kenya/Death-rate > accessed 6
June 2019.
16. Knoema
<https://knoema.com/search?query=Kenya+birth+rate&pageIndex=&sco
pe=&term=&correct=&source=Header > accessed 6 June 2019.

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17. State Department of Trade Kenya< http://www.trade.go.ke/principal-
secretary > accessed 3 June 2019.
18. State Law office Kenya <https://www.statelaw.go.ke/> accessed 3 June
2019.
19. The National Treasury < http://www.treasury.go.ke/ > accessed 3 June
2019.
20. Trading Economics < https://tradingeconomics.com/kenya/gdp-growth-
annual > accessed 5 June 2019.
21. United Nations Conference on Trade and Development Prosperity For All
<https://unctad.org/en/Pages/aboutus.aspx > accessed 14 July 2019.
h) DOCUMENTS & REPORTS.
1. Central Bank of Kenya Annual Report and Financial Statements 2017/18
<https://www.centralbank.go.ke/uploads/cbk_annual_reports/665458124
_Annual%20Report%202917%2018%20low%20resolution.pdf >
accessed 5 June 2019.
2. Communications Authority of Kenya, ‘Sector quarter sector statistics
report for the financial year 2018/2019’ (October – December 2018) <
https://ca.go.ke/wp-content/uploads/2019/03/Sector-Statistics-Report-
Q2-2018-19.pdf > accessed 8 July 2019.
3. Kenya Law Reform Commission, ‘Report of the committee on the review
of the rationale for the establishment of tribunals in Kenya’ (20th
December, 2015) http://www.klrc.go.ke/images/reports/Tribunals-
Review-Final-KLRC.pdf accessed 7 May 2019.
4. Kenya National Bureau of Statistics, Quarterly Gross Domestic Product
Report, Third Quarter 2018. <https://www.knbs.or.ke/download/quarterly-
gross-domestic-product-report-third-quarter-2018/ > accessed 17 May
2019.
5. Kenya Population Situation Analysis,
<https://www.unfpa.org/sites/default/files/admin-
resource/FINALPSAREPORT_0.pdf > accessed 5 June 2019.
6. Memorandum of Cooperation between Fair Trading Commission of
Japan and Competition Authority of Kenya
<https://www.jftc.go.jp/en/int_relations/agreements_files/160609.pdf>
accessed 9 June 2019

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7. OECD. ‘Global Forum on Competition Regional Competition
Agreements: Benefits and Challenges Contribution from Kenya.’
<https://one.oecd.org/document/DAF/COMP/GF/WD(2018)8/en/pdf >
accessed 29 July 2019.
8. Promoting Competitiveness & Efficiency in Kenya The Role of
Competition Policy & Law < http://www.cuts-international.org/kenya-
report.pdf > accessed 21 May 2019.
9. United Nations Conference on Trade and Development Capacity –
building on competition law and policy for development A consolidated
report <https://unctad.org/en/docs/ditcclp20077_en.pdf > accessed 14
July 2019.
i) WORKING PAPERS & PAPERS.
1. Mbote P, ‘Towards Greater Access to justice in Environmental Disputes
in Kenya: Opportunities for Intervention’ IELRC Working paper 2005 – 1
< http://www.ielrc.org/content/w0501.pdf > accessed 13 June 2019.
2. Visram A ‘Review of Administrative Decisions of Government by
Administrative Courts and Tribunals’, paper presented on 12th Jan 2010
<https://www.aihja.org/images/users/1/files/kenya.en.0.pdf > accessed
28 July 2019.

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