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Competition Law & Practice in Kenya - An Overview

Written and presented by Valentine Mwende Wanyoike - Advocate

Breakdown
  • Introduction
  • Competition Act of 2010
  • Competition Authority of Kenya
  • Restrictive Trade Practices
  • Control of Mergers
  • Control of Unwarranted Concentration of Economic power
  • Consumer Welfare
  • The Competition Tribunal and the Competition Tribunal Practice Rules

WHAT IS COMPETITION?

Under the Competition Act Competition means competition in a market in Kenya and refers to the process whereby two or more persons

  • supply or attempt to supply to; or
  • acquire or attempt to acquire from,

the people in that market the same or substitutable goods or services

WHAT IS COMPETITION LAW?

  • Summary of efforts aimed at promoting competition in the sale of goods and services.
  • Targets restraints to trade and restrictive trade practices
  • Aims for
    • Free flow of goods and services
    • price of goods and services is determined by the forces of Demand and supply.
  • Synonyms and related terms
    • Restraints of trade law
    • restrictive trade practices law
    • monopolies law
    • combination acts
    • Anti-trust laws (Sharman and Clayton Acts in the US)

IMPORTANCE OF COMEPTITION

Consumers
  • Fair pricing
  • Enhances quality
  • Encourages enterprise
  • More choices for consumers
  • Better customer service and satisfaction
Economy
  • Encourages enterprise
  • Improves efficient use of resources
  • Creates jobs
  • Increases awareness and consumption
  • Decreases interference by governments which increases investments and safeguards personal freedoms

COMPETITION ACT OF KENYA 2010 (REVISED 2014, 2016, 2019)

Predecessor: The Restrictive Trade Practices, Monopolies and Price Control Act of 1988 (CAP 504)

It was deemed outdated and inadequate

Government interference Lack of autonomy – operationalized under the Minister of Finance through a commissioner as a department within the Ministry.

No harmony with other Sectoral laws.

Government still undertook a lot of price fixing

A narrow enumeration of restrictive trade practices and difficulties in implementation process

Lack of power to conduct dawn-raids

Inadequate provisions on Mergers:

  • there were no prescribed theresholds
  • no time limit for approval
  • The Minister was not required to give reasons for rejecting a merger
  • The Act covered horizontal mergers only

OBJECTIVE OF THE COMPETITION ACT KENYA

PREAMBLE

to promote and safeguard competition in the national economy;

to protect consumers from unfair and misleading market conduct;

to provide for the establishment, powers and functions of

  • the Competition Authority and
  • the Competition Tribunal

increase efficiency in the production, distribution and supply of goods and services;

promote innovation;

maximize the efficient allocation of resources;

protect consumers;

create an environment conducive for investment, both foreign and local;

capture national obligations in competition matters with respect to regional integration initiatives;

bring national competition law, policy and practice in line with best international practices; and

promote the competitiveness of national undertakings in world markets

THE COMPETITION AUTHORITY OF KENYA

CHARACTERISTICS OF THE AUTHORITY
  • established under section 7 of the Act
  • Independent and shall perform its functions and
  • exercise its powers independently and impartially without fear or favour.
  • The conduct and regulation of the business and affairs of the Authority shall

    • be as provided in the Schedule.
    • Except as provided in the Schedule, the Authority may regulate its own procedure.

FUNCTIONS AND POWERS OF THE AUTHORITY


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