Kenya

The Director-General. The term is for five (5) years and renewable once.

None.

Ksh. 600 million. ($5,600,000 at the prevailing $ Exchange Rate)

Ninety-nine (99).

The Board of Directors.

Yes. The telecommunication sector regulator is empowered to declare an undertaking as dominant.

No.

Yes. During merger analysis, the Authority considers the impact that a proposed transaction will have on public interest. The public interest concerns considerations including:

1. The extent to which a proposed merger would impact employment opportunities;
2. The impact on competitiveness of small and medium enterprises (SMEs);
3. The impact on particular industries/sectors; and
4. The impact on the ability of national industries to compete in international markets.

The Authority’s current 4-year Strategic Plan lapses on 30th June, 2021. The focus sectors in the Plan were: manufacturing, healthcare, construction, food security. The Authority also focused on the competitiveness of digital markets/e-commerce, and abuse of buyer power in key sub-sectors such as retail and insurance.

In the next Strategic Plan, the Authority will focus on:

1. Big data economy and platforms;
2. Bid rigging;
3. Regulation of abuse of buyer power (superior bargaining position); and
4. Consumer protection with a focus on e-commerce, online transactions and platforms.

Link:
https://cak.go.ke/sites/default/files/COMPETITION_AUTHORITY_OF_KENYA_STRATEGIC_PLAN_201718%20-202021-min.pdf

The Authority may, on its own motion or upon receipt of information or complaint, carry out an investigation into conduct which may constitute an infringement of the Competition Act (the Act). Further, the Act empowers the Authority to conduct entry and search of premises that it believes houses persons/information relevant to the investigation. The Authority also has power to take evidence in the form of, among others, statements and documents, including evidence under oath.

Upon determining that certain conduct is a contravention of the Act, the Authority may:

1. Restrain the undertaking(s) from engaging in the conduct;
2. Direct the undertaking(s) to remedy or revise the infringement or the effects thereof;
3. Impose a financial penalty of up to 10% of the undertaking’s gross turnover in Kenya in the preceding year. If the matter is referred to the Office of Director of Public Prosecution (ODPP), the individuals face up to 5 years’ imprisonment;
4. Issue interim relief orders;
5. Enter into a settlement agreement with an accused party

No.

Yes. Under the Authority’s leniency programme, an undertaking that voluntarily discloses existence of a prohibited agreement or practice and cooperates in investigations may not be subject to all or part of a fine that was otherwise applicable. The leniency programme applies to entities in a horizontal trading relationship, meaning firms which are in the same line of business. A leniency agreement covers the applicant’s directors and employees as long as they cooperate with the Authority and provide full, timely and truthful information, cooperate and keep details of the investigations confidential. More importantly, leniency applicants are required to immediately cease the anti-competitive conduct unless directed otherwise by the Authority. The first leniency applicant (first through the door) stands to be granted up to 100% penalty reduction (full immunity), while the second applicant may get up to 50% penalty reduction. The third applicant is eligible for up to 30% penalty reduction while subsequent applicants may be given up to 20% penalty reduction as long as they approach the Authority before the conclusion of the investigation and provide relevant and value-adding information that is distinct and that significantly contributes to success of the investigation.

Yes. The Act provides for criminal prosecution which is constitutionally under the Office of the Director of Public Prosecution (ODPP).

Liability is generally levelled on the undertakings/firms found to have infringed the Act. However, when matters are adjudicated through criminal proceedings, individual liability through imprisonment is applicable.

Parties can appeal against decisions of the Authority to the Competition Tribunal. Decisions made by the Competition Tribunal may be appealed to the High Court which makes a final and binding determination.

No decision by the Authority has been “overthrown”. However, the Tribunal has reviewed the determinations/conditions set by the Authority in two matters: an exemption determination regarding the East Africa Tea Traders’ Association and a merger application between Airtel Kenya and Telkom Kenya.

The Act does not set out rights to take up private actions in respect to competition law infringements.

The Act empowers the Authority to grant exemptions to parties, allowing them to participate in conduct that may be anti-competitive but with exceptional and compelling public policy benefits which outweigh the negative impact on competition. The public policy benefits envisaged in the Act include:

1. Maintaining and promotion of exports;
2. Preventing decline of an industry; and
3. Improving or preventing decline in production/ distribution of goods or provision of services.

Link: https://cak.go.ke/enforcement-and-compliance

The Authority is also mandated to exclude a certain category of decisions, practices or agreements by or between undertakings from the application of the Act. In furtherance of this, the Authority has developed Block Exemption Guidelines which are meant to allow, for a certain period of time, joint and collaborative markets penetration and sustenance initiatives by business that would otherwise be a contravention of the Act. The key considerations when making a determination shall include public (stakeholders) participation and to what the extent the envisaged cooperation will ensure availability and accessibility of goods and services available to the public, especially the vulnerable members of our society. Further, the Authority will consider if the presented collaboration is indispensable in achieving the said efficiency gains.

Yes. The Research & Policy Directorate serves as the Authority’s Economics Team. They inform the Authority’s decision-making process through research. Further, the Team conducts market studies and inquiries to determine existence of competition and consumer welfare concerns in various sectors of the economy and prompt the Authority’s enforcement intervention. Lastly, the Team conducts impact assessment on the Authority’s past decisions to determine their effect on competition and consumer welfare.

Link: https://cak.go.ke/planning/overview

Yes. Kenya operates a suspensory merger regime. The Act provides that all mergers are notifiable. However, the Authority has developed thresholds for different categories of mergers. These thresholds and applicable merger filing fees are accessible via: https://cak.go.ke/merger-filing-fees

No.

Yes. When analysing mergers, the Authority considers the impact that the proposed transaction will have on competition and public interest concerns. In 2019, the Authority approved the merger between NIC Bank and Commercial Bank of Africa, on condition that none of the 1,872 employees of the merged entities are declared redundant within a period of 12 months from the date the transaction is completed.

Link: https://cak.go.ke/information-center/CAK-latest-determinations

No. However, our rapidly evolving markets may occasion emerging concerns that may require that the Act to be enhanced through amendments.