I Introduction

The Kenyan competition regulatory regime is governed by the Competition Act (Act) as amended by the Competition (Amendment) Act No 49 of 2016, which amended the Act with effect from 13 January 2017. The Act’s primary purposes are to promote and safeguard competition in the national economy, protect consumers from unfair and misleading market conduct, and establish and provide for the powers and functions of the Competition Authority of Kenya (CAK) and the Competition Tribunal. The amendments that came into force in 2017 granted the CAK increased investigative powers and increased powers to issue sanctions for non-compliance.

Kenya is also subject to the following regional competition law regimes: the East African Community (EAC) Competition Act, 2006, enacted by the East African Community; and the Common Market for Eastern and Southern Africa (COMESA) Competition Commission Competition Regulations enforced by the COMESA Competition Commission.

To help market participants understand the CAK’s mandate and the factors that it will take into consideration when exercising its powers, the CAK has issued the following guidelines, the titles of which reflect their primary purpose:

    1. Balancing Public Interest Guidelines;
    2. Guidelines on the Control of Unwarranted Concentration Economic Power;
    3. Guidelines on Relevant Market Definition;
    4. Consolidated Guidelines on Substantive Assessment of Restrictive Trade Practices under the Competition Act;
    5. Consolidated Guidelines on Substantive Assessment of Mergers under the Competition Act;
    1. Guidelines on Engaging with Consumer Organisations;
    2. Guidelines on Consumer Protection;
    3. Leniency Programme Guidelines; and
    4. Public Interests Test In Merger Determinations Guidelines.

II Year in Review

The Competition Amendment Act came into force in January 2017, and a new provision has been inserted into the Act as a result of the Competition Amendment Act requiring any person to provide information to the CAK in respect of any sector inquiry it might be undertaking. As a result, persons who are not the subject of an investigation are required to provide any information requested by the CAK at their own cost. The Competition Amendment Act also introduced the concept of abuse of buyer power. Buyer power has been defined as:

influence exerted by an undertaking ... in the position of a Purchaser ... To obtain from a supplier more favourable terms, or to impose a long term opportunity cost including harm or withheld benefit which if carried out, would be significantly disproportionate to any resulting long term cost to the undertaking.

This amendment catches retailers and wholesalers, particularly retailers such as supermarkets that are likely, by the nature of their business, to have ‘buyer power’.

In addition, a new catch-all provision has been included in the amendments to the Act permitting the CAK to fine undertakings up to 10 per cent of their gross annual turnover for the preceding year where such undertakings have engaged in abuse of dominance or abuse of buyer power. This is an additional penalty to the existing sanction of a maximum fine of 10 million shillings or up to five years’ imprisonment, or both, for engaging in restrictive trade practices under the Act. The fine of up to 10 per cent of turnover is restricted to Kenyan turnover.

With respect to mergers, the Competition Amendment Act gives the CAK the ability to fine undertakings up to 10 per cent of their gross annual turnover for the preceding year or to a fine not exceeding 10 million shillings or to imprisonment for a term not exceeding five years, or to both where such undertakings have either provided materially incorrect or misleading information, or have failed to adhere to conditions imposed on a merger approval. The CAK follows up on compliance with merger conditions annually, so it is important for companies to ensure ongoing compliance.

The CAK’s latest annual report (for 2015–2016) (2015–2016 Annual Report) reveals increased enforcement by the CAK of the provisions on merger control, restrictive trade practices and consumer welfare in the country.

The CAK considered a total of 151 merger notifications compared to 148 during the 2014–2015 financial year. Out of these 151, 19 were brought forward from the previous year. All the notifications were analysed and approved within the statutory timeline of 60 days.2 In making its evaluation of mergers, the CAK’s mandate is to consider whether a proposed merger is likely to prevent or lessen competition or create or strengthen a dominant position. We have seen an increase in focus by the CAK on public interest concerns, with particular emphasis being placed on the termination of employees. The Public Interests Test In Merger Determinations Guidelines are cognisant of the need to enhance and sustain employment of both human and capital resources through supporting: measures to ensure no substantial job losses occur as a result of mergers, and that the effects on employments are mitigated in the short run; the salvaging of failing and dormant undertakings; and encouraging mergers of media undertakings that will enhance the production of local content and programmes, and support youth employment.3

A notable merger transaction determined by the CAK depicting the CAK’s evaluation of the impact of mergers on the public interest and competition is the global restructuring transaction involving the acquisition of Nairobi Bottlers Limited (NBL) by Coca Cola Beverages Limited, and the acquisition of the Keringet Brand in Kenya by The Coca Cola Company.

The first transaction involving the acquisition of NBL by Coca-Cola Beverages Limited (CCBA) for a consideration of equity in CCBA was approved unconditionally because it did not raise any competition or public interest concern, as the acquisition of a controlling stake in NBL by CCBA was not going to change the existing market share. The second transaction, which was a horizontal merger involving 100 per cent acquisition of the Keringet brand, however, was deemed likely to raise negative public interest concerns based on the fact that the merging parties could only give commitments for two years and could not provide the possible post-merger outcomes for the bottling of the Keringet brand in the Molo plant. The CAK therefore approved the transaction based on the following conditions:

  • the production of the Keringet brand shall be continued for at least three years after completion of the transaction;
  • the acquirer shall retain the current 186 employees at the Molo Plant (Keringet brand) for a period of at least two years after the completion of the transaction, and shall thereafter retain 140 employees at the plant;
  • the resultant entity shall retain 72 employees in the administration division in its Nairobi Beverages Limited and Crown Beverages Limited companies;
  • the Coca Cola Company shall continue to honour existing third-party distributor contracts with regard to the Keringet brand; and
  • the merged entity shall provide detailed annual reports on the post-merger effects on employment and future plans on employment for the next five years commencing from January 2016.4

The CAK also investigated 27 restrictive trade practices cases in the year under review compared to the 19 cases investigated in the previous year, 12 of which were concluded. Various remedies, including financial penalties and declaratory orders, were imposed on undertakings found to have infringed the Act. Three exemption applications were evaluated, and an exemption was granted in respect of one application while the other two are still ongoing.5

During the period under review (2015–2016), the CAK handled 66 consumer cases and complaints, representing a 154 per cent increase from the previous reporting period. The CAK finalised 28 consumer cases and complaints, 16 were forwarded to the relevant government agencies and 22 are still ongoing.

III Market Definition and Market Power

i Dominance

According to the Act, dominance can be attained either by way of market share or market power. Market power is defined as the power of a firm to control prices, to exclude competition or to behave, to an appreciable extent, independently of its competitors, customers or suppliers.

Section 23(1) of the Act defines a dominant undertaking as an undertaking that produces, supplies, distributes or otherwise controls not less than one-half of the total goods of any description that are produced, supplied or distributed in Kenya or any substantial part thereof; or that provides or otherwise controls not less than half of the services that are rendered in Kenya or any substantial part thereof.

Section 23(2) of the Act provides that:

notwithstanding subsection (1), an undertaking shall also be deemed to be dominant for the purposes of this Act where the undertaking–

(a) though not dominant, controls at least forty per cent but not more than fifty per cent of the market share unless it can show that it does not have market power; or

(b) controls less than forty per cent of the market share but has market power.6

Section 4(2) sets out the additional factors to be considered in determining dominance to include the importation of goods or the supply of services by persons not resident or carrying on business in Kenya; and the economic circumstances of the relevant market, including the market shares of persons supplying or acquiring goods or services in the market, the ability of those persons to expand their market shares and the potential for new entry into the market.

To provide further clarity to market participants, the CAK has published its Consolidated Guidelines on Substantive Assessment of Restrictive Trade Practices (RTP Guidelines), which detail the factors the CAK will consider when determining if an undertaking is dominant. These include:

  • a potential and actual competition;
  • b barriers to entry into the market;
  • c the degree to which countervailing market powers can impact an undertaking’s ability to exercise its power in a market;
  • d product differentiation;
  • e the stability of market shares; and
  • f the ability of an undertaking to act independently of its customers and competitors.7
ii Collective dominance or relative dominance

The Act does not provide for collective or relative dominance, but collective actions by undertakings may be captured under the prohibited restrictive trade practices. There are also specific provisions relating to the arrangements trade associations may have under the Act.

iii Market definition

Section 4(1)(c) defines the term ‘market’ as a market in Kenya or a substantial part of Kenya, and refers to the range of reasonable possibilities for substitution in supply and demand between particular kinds of goods or services and between suppliers or acquirers of those goods and services.

The Competition Authority Guidelines on Relevant Market Definition (Market Definition Guidelines) take an economics-based approach in defining the relevant market. A

market, for competition law purposes, has two dimensions: product market and geographical market.8

A product market ‘constitutes all the goods and/or services which are regarded as reasonably interchangeable or substitutable by the consumers, by reason of the products’ characteristics, their prices and their intended use’.9 On the other hand, a geographical market is ‘the area within which undertakings concerned are involved in the supply and demand of goods or services, in which the conditions of competition are sufficiently homogeneous and which can be distinguished from neighbouring areas because the conditions of competition are appreciably different in those areas’.10

The Market Definition Guidelines provide for a demand-side substitution approach and a supply-side substitution approach in defining a product market; however, demand substitutability is the key factor considered in market definition. The demand-side substitution approach seeks to identify the alternative products that consumers may turn to when there is an increase in the price of a particular product. The supply-side substitution approach seeks to identify whether undertakings would start supplying a new product were prices to rise.11

The Market Definition Guidelines give a practical example of the application of the demand-side approach in the alcoholic beverages (wines) sector to determine whether different flavours of wines belong to the same market. The question to determine would be whether consumers of flavour ‘A’ would switch to other flavours in the event of a permanent price increase of 5 to 10 per cent. All other flavours to which a sufficient number of consumers would switch, to the extent that the price increase for flavour ‘A’ would no longer be profitable owing to resulting loss of sales, would form part of the same market.

IV Abuse

i Overview

The Act does not offer a specific definition of ‘abuse’, but lists instances where abuse may be seen to have occurred. The list of instances set out is not exhaustive. The Act provides that abuse of a dominant position includes:

  1. directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;
  2. limiting or restricting production, market outlets or market access, investment, distribution, technical development or technological progress through predatory or other practices;
  3. applying dissimilar conditions to equivalent transactions with other trading parties;
  4. making the conclusion of contracts subject to acceptance by other parties of supplementary conditions that by their nature or according to commercial usage have no connection with the subject matter of the contracts; and
  5. abuse of an intellectual property right.12

We note that the Act makes reference to abuse by dominant undertakings only. Therefore, not every undertaking found to have been involved in one of the above instances will be deemed to have committed an abuse unless the undertaking is dominant in the relevant market. Conversely, the CAK has confirmed that being dominant is not illegal per se – rather, it is the abuse of a dominant position with which they are concerned. The RTP Guidelines provide that the CAK bears the burden of proof. Furthermore, the RTP Guidelines categorise abuse of dominance into two categories: exploitative and exclusionary abuses.

These provisions of the Act have not been subject to judicial interpretation, and the CAK has not published its decisions in sufficient detail to create a body of case law that would give market participants significant guidance on the interpretation of the relevant provisions. As things stand, the Act has supplied the CAK and the courts with a guideline as opposed to an exhaustive list of abuses, monopolisation, monopoly maintenance or illegal unilateral conduct. Additionally, the CAK and the courts will recognise ‘sui generis abuses’ that would be applicable under the general rules of international law as well as any treaty or convention that Kenya has ratified.13 This would include conventions and treaties against discrimination as well as unfair economic practices under international law.14

Restrictive trade practices

Under the Act, practices such as price fixing, limitations on sales and production, restrictions on advertising, the exclusion of competitors from the market and the entry into agreements that would otherwise assign distributors to specific regions are deemed to be restrictive trade practices. The CAK is increasingly focusing on enforcement against businesses and undertakings engaging in restrictive trade practices, cartel behaviour and abuse of dominance. The CAK has conducted sector-specific investigations and dawn raids, and has imposed penalties on parties found to be engaged in restrictive trade practices.

The Act makes it an offence for undertakings to engage in restrictive trade practices, providing that ‘agreements between undertakings, decisions by associations of undertakings, decisions by undertakings or concerted practices by undertakings which have as their object or effect the prevention, distortion or lessening of competition in trade in any goods or services in Kenya, or a part of Kenya, are prohibited, unless they are exempt in accordance with the provisions of Section D of this Part’.15

The restrictive trade practices provisions apply to any agreement, decision or restrictive practice that:

  1. directly or indirectly fixes purchase or selling prices or any other trading conditions;
  2. divides markets by allocating customers, suppliers, areas, or specific types of goods or services;
  3. involves collusive tendering;
  4. involves a practice of minimum resale price maintenance;
  5. limits or controls production, market outlets or access, technical development or investment;
  6. applies dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;
  7. makes the conclusion of contracts subject to acceptance by other parties of supplementary conditions that by their nature or according to commercial usage have no connection with the subject of the contracts;
  8. amounts to the use of an intellectual property right in a manner that goes beyond the limits of fair, reasonable and non-discriminatory use; or
  9. otherwise prevents, distorts or restricts competition.16

Between 2015 and 2016, the CAK investigated 27 restrictive trade practices cases compared to 19 investigated in the previous year. Twelve of the cases were finalised (compared to four in the previous year), and appropriate remedies including financial remedies and declaratory orders were imposed on undertakings found to have infringed the Act. Three exemption applications were evaluated, and an exemption was granted in respect of one application, while the other two applications are ongoing.

The types of agreements, decisions or concerted practices that may be deemed restrictive trade practices are similar to those deemed abusive by undertakings in a dominant position. The key distinction between a restrictive trade practice and an abuse of a dominant position is that the test for a restrictive trade practice looks at the object or effect of the contract, thus arguably utilising an effects-based test and not making such arrangements a per se breach of the relevant sections of the Act.

In addition, the CAK has emphasised under the RTP Guidelines that the CAK considers that the words ‘object’ and ‘effect’ are disjunctive. Hence, while the burden of proving that a restrictive trade practice has occurred falls on the CAK, the CAK need only prove one element of the test.

ii Exclusionary abuses

As noted above, the Act prohibits conduct by a dominant undertaking that directly or indirectly imposes unfair purchase or selling prices or other unfair trading conditions. It also prohibits undertakings from restricting production, market access and development through predatory practices. These prohibitions also appear in the restrictive trade practices provisions. The restrictive trade practices provisions make it clear that such practices apply to both horizontal and vertical arrangements, whereas the latter forms of agreement are generally excluded in Western jurisdictions from being considered anticompetitive by regulators.

The CAK published Exemption Guidelines for Horizontal Practices in 2012, which provide guidance regarding the grounds on which the CAK may exempt an agreement that is anticompetitive. The exclusions will be generally based on compelling public policy reasons, which include demonstrating that the agreement maintains or promotes exports or improves production, distribution of goods or services, or will produce technical or economic progress.

Predatory pricing

This offence is captured under both the provisions on abuse of a dominant position and restrictive trade practices. Both prohibit an undertaking from directly or indirectly imposing unfair purchase or selling prices, or fixing the purchase price in a manner that restricts or prevents competition.17

There is, unfortunately, scant case law on predatory pricing. One of the few cases in this regard was decided in 2012. It arose from a complaint made by Telkom Kenya Limited (Telkom) (which is the sole landline telephone services provider in Kenya) against Airtel Kenya (Airtel) and Essar Telekom Kenya (Essar) (both mobile phone providers). Telkom alleged that the off-net calling rates of Airtel and Essar were predatory as they were below cost. The CAK conducted an investigation into the matter and found that the allegations were not substantiated.18 Unfortunately, the reported decision is only a summary, and does not provide significant detail on the analysis of the facts and evidence presented.

Exclusive dealing and leveraging

In relation to other forms of exclusionary abuses such as loyalty rebates, exclusivity contracts and price tying, the Act prohibits such arrangements under various provisions. For example, Section 21(3)(g) in relation to restrictive trade practices and Section 24(2)(d) both state that if an undertaking makes the conclusion of a contract subject to acceptance by other parties of supplementary conditions that by their nature or according to commercial usage have no connection with the subject-matter of the contracts, then this will be deemed anticompetitive.

We would emphasise that if the offence is in relation to abuse then the test that must first be met is in relation to dominance, while for restrictive trade practices, the Act requires the practice to have the object or effect of reducing competition.

Refusal to deal

The Act prohibits abuse of intellectual property rights, which would arguably include the refusal to grant a licence, but this provision has yet to be tested in the Kenyan courts. The CAK instituted an investigation into Multi-choice (a leading video entertainment and internet company) regarding whether Multi-choice engaged in abuses of dominance through content exclusivity relating to vertical agreements, which are prohibited under Section 21 of the Act. Upon conclusion of the investigation, the CAK issued Multi-choice with notice of its proposed decision.19

iii Discrimination

The Act prohibits discriminatory conduct by a dominant undertaking, including any agreement or concerted practice that applies dissimilar conditions to equivalent transactions with other trading parties.20 In a case involving the Kenya Association of Travel Agents (KATA) and the International Air Transport Association (IATA), the KATA complained that the IATA was engaging in discriminatory behaviour and refusing to deal with it with regard to default insurance. The CAK investigated the matter, found the allegations to be true and issued a cease-and-desist order.21

iv Exploitative abuses

Exploitative abuses are generally prohibited under the restrictive trade practices provisions of the Act. An investigation into major oil marketers based on the allegation that such marketers were engaging in limiting or controlling production, market outlets access, technical development and investment was closed because of a lack of evidence. However, given the CAK’s recent use of dawn raids as a means of obtaining information, future investigations may be more likely to unearth evidence that could lead to prosecutions or fines.

V Remedies and Sanctions

i Sanctions

For most breaches, the Act contains two main potential sanctions: fines and prison sentences. For an abuse of dominance or an offence relating to restrictive trade practices, fines can be up to 10 million Kenyan shillings and potential imprisonment can be up to five years. As mentioned above, the CAK may also impose a financial penalty of up to 10 per cent of the immediately preceding year’s gross annual turnover in Kenya of the undertaking in question.

The CAK is further empowered, where it finds that an undertaking has violated any provisions of the Act (including abuse of dominance) after investigations, to:

  • a restrain the undertaking or undertakings from further engaging in the conduct;
  • b direct any action to be taken by the undertaking or undertakings concerned to remedy or reverse the infringement or the effects thereof;
  • c impose a financial penalty; or
  • d grant any other appropriate relief.

The Act does not set out any factors that may be considered in adjusting fines and sentences upward or downward.

ii Behavioural remedies including interim measures

The Act limits application of interim measures to instances where there is a violation of a prohibited restrictive trade practice. There is no rationale given for this limitation, and it is arguable that this could have been a drafting oversight.

The CAK is empowered to grant interim relief where it believes, on reasonable grounds, that it is necessary to act as a matter of urgency for the purpose of preventing serious and irreparable damage to any person or category of persons or protecting the public interest pending conclusion of investigation.22

iii Structural remedies

The Act provides for structural remedies only where there is an ‘unwarranted concentration of economic power’, which is defined as the existence of cross-directorship between two distinct undertakings or companies producing substantially similar goods or services and whose combined market share is more than 40 per cent.

The CAK is under an obligation to keep the structure of the production and distribution of goods and services in Kenya under review in order to determine where concentrations of economic power exist under which the detrimental impact on the economy outweighs the efficiency advantages of integration in production or distribution. This has been seen in the report produced on the sugar industry.23

Where the CAK finds that a person holds an unwarranted concentration of economic power in any sector, it may order such person to dispose of such portion of its interests in the production, distribution or supply of services as it deems necessary to remove the unwarranted concentration; however, no order should be issued that has the effect of subdividing a manufacturing facility whose degree of physical integration is such that the introduction of independent management units controlling different components reduces its efficiency and substantially raises production costs per unit of output.24 We are not aware of any case to which the CAK has applied this provision.

VI Procedure

i Investigations

Section 31 of the Act empowers the CAK to initiate investigations into any conduct or proposed conduct that is alleged to constitute or may constitute an infringement of the prohibitions relating to an abuse of dominance, on its own motion or upon receipt of information or a complaint from any person, including a government agency. During the course of 2015 and 2016, the CAK increased the number of officers among its staff who deal with investigations. So far, this appears to have led to an increase in reported cases and advisory opinions issued by the CAK.

We expect an increase in reported investigations during the course of 2018 as the CAK becomes bolder in its use of its powers to investigate and the publication of the Leniency Programme Guidelines. As recently as last year, the CAK was involved in a raid of trade associations that were considered to have undertaken cartel-like behaviour. The purpose of carrying out such an investigation is to eliminate such practices that would otherwise deny consumers full benefits that they would otherwise get in a free market.

Upon conclusion of an investigation, if the CAK proposes to make a decision that there has been an abuse of dominance, it is required to give a written notice of the proposed decision to each undertaking that may be affected by the decision. The notice should contain the following: the reasons for the proposed decision and the details of any relief that the CAK may consider imposing. The notice should further inform each undertaking that it may make written representations to the CAK and indicate whether it requires an opportunity to make oral representations.

Pursuant to the Competition Amendment Act, the CAK can now make a proposed decision and invite written and oral representations in relation to restrictive trade practices.

Unfortunately, these notices are not published, and therefore there is limited guidance for practitioners on how the CAK may view any particular commercial arrangement. This issue has been raised by stakeholders to the CAK, which is considering whether to change its position.

ii Settlement

The CAK may, at any time during and after an investigation into an alleged infringement of the prohibitions of the Act, enter into an agreement of settlement with the undertaking or undertakings concerned. The agreement may include an award of damages to the complainant and any amount proposed to be imposed as a pecuniary penalty.

iii Appeals

A person aggrieved by a determination of the CAK may appeal to the Competition Tribunal. Following the promulgation of the Competition (Tribunal) Rules and the swearing in of the members of the Tribunal in 2017, the Tribunal is now receiving such appeals. Under the provisions of the Act, an aggrieved party has to appeal to the Tribunal within 30 days of the CAK’s decision.25

iv Leniency

The Act at Section 89A states that an undertaking will qualify for a leniency programme if it voluntarily discloses the existence of an agreement or practice that violates the Act and cooperates with the CAK in the investigations. Such undertaking may not be subject to all or part of a fine that could be imposed under the Act.

The CAK has, through a Gazette Notice of 19 May 2017 publishing the Leniency Programme Guidelines, introduced a competition leniency regime that applies to restrictive trade practices. These guidelines set out the principles and conditions that shall govern the processing and granting of leniency.

VII Private Enforcement

The Act confers the power of investigation and enforcement on the CAK, and does not empower the CAK to delegate the function. Consequently, no private right of action exists at this time. A person with a grievance must file a complaint to the CAK, which will then investigate the matter.

VIII Future Developments

The CAK is expected to increase its focus on restrictive trade practices and cartels by in 2018. In mid-2016, the COMESA Competition Commission (CCC) issued draft guidelines on the enforcement of restrictive business practices and the abuse of dominance, and the CCC is expected to similarly focus on cartels in the near future.

The CAK and the CCC have signed a memorandum of understanding that provides that the two authorities will share information in respect of investigations that concern the other regulator’s jurisdiction.

There are also plans under way to make the EAC competition regime operational during the course of 2018. Once this happens, Kenya will be subject to regulation by the EAC Competition Authority in addition to the CAK and the CCC with respect to transactions that meet the relevant thresholds.

The CAK has recently drafted proposed rules and guidelines (Proposed Guidelines and Rules) to give effect to various provisions of the Act and to give guidance on the implementation of the provisions of the Act. The Proposed Guidelines and Rules include the following:

  1. the Merger Threshold Rules 2018 (Proposed Merger Threshold Rules);
  2. the Block Exemption Guidelines 2018;
  3. the Consolidated Guidelines on the Substantive Assessment of Mergers under the Competition Act 2018 (Proposed Consolidated Guidelines);
  4. the Competition General Rules 2018 (Proposed General Rules);
  5. the Completion (Abuse of Buyer Power Rules) 2018 (Proposed Abuse of Buyer Rules);
  6. the Search and Seizure Guidelines 2018 (Proposed Search and Seizure Guidelines); and
  7. the Consumer Protection Guidelines 2018 (Proposed Consumer Protection Guidelines).

These guidelines are still undergoing public participation, review and discussion, and are therefore yet to be finalised.

1 Dominic Rebelo is a partner and Edwina Warambo is a principal associate at Anjarwalla & Khanna.

2 Competition Authority of Kenya Annual Report 2015–2016 Report, page 20.

3 Competition Authority of Kenya Annual Report 2015–2016 Report, page 21.

4 Competition Authority of Kenya Annual Report 2015–2016 Report, pages 22–23.

5 Competition Authority of Kenya Annual Report 2015–2016 Report, page 26.

6 The Finance Act 2014 broadened the definition of a dominant undertaking by inserting subsection 23(2).

7 Consolidated Guidelines on Substantive Assessment of Restrictive Trade Practices under the Competition Act, page 25.

9 Guidelines for Market Definition (No. 14) paragraph 8.

10 Ibid., paragraph 9.

11 Ibid., paragraph 21.

12 Competition Act, Section 24(2)(e) Part III C.

13 This is pursuant to Article 2(5) and (6) of the Constitution of Kenya, 2010.

14 One such example is the Treaty Establishing Common Market for Eastern and Sothern Africa to advance the economic integration of Eastern and Southern Africa adopted on 5 November 1993, which Kenya ratified on 8 December 1994. The treaty sets out various principles including accountability, economic justice and popular participation in the development, recognition and observance of the rule of law.

15 Competition Act, Section 21(1) Part III A.

16 Competition Act, Section 21(3) Part III A.

17 Competition Act, Sections 21(3)(a) and 24(2)(a).

18 Competition Authority of Kenya Annual Report 2012–2013, page 49.

19 Competition Authority of Kenya Annual Report 2015–2016, page 48.

20 Competition Act, Sections 21(3)(f) and 24(2)(c).

21 Competition Authority of Kenya Annual Report 2012–2013, page 48.

22 Competition Act, Section 37(1).

23 African Competition Forum, ‘Competition in the Regional Sugar Sector: The Case of Kenya, South Africa, Tanzania and Zambia’ (2014) [26], http://unctad.org/meetings/en/Contribution/CCPB_RPP2014_Study_Sugar_ACF_en.pdf.

24 Competition Act, Section 52(4).

25 Competition Act, Section 40(1).