The Dominance and Monopolies Review: Kenya
The Kenyan competition regulatory regime is governed by the Competition Act (the Act) as amended by the Competition (Amendment) Act No. 27 of 2019, which amended the Act with effect from 31 December 2019. 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 2019 seek to clarify the abuse of buyer power under the Act and empower the CAK to investigate abuse of buyer power and issue directions and sanctions for conduct amounting to abuse of buyer power.
Kenya is also subject to the following regional competition law regimes: the East African Community (EAC) Competition Act, 2006, enacted by the EAC; 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 and the Cabinet Secretary have issued the following guidelines, the titles of which reflect their primary purpose:
- Balancing Public Interest Guidelines;
- Guidelines on the Control of Unwarranted Concentration of Economic Power;
- Guidelines on Relevant Market Definition;
- Consolidated Guidelines on Substantive Assessment of Restrictive Trade Practices under the Competition Act;
- Consolidated Guidelines on Substantive Assessment of Mergers under the Competition Act;
- Guidelines on Engaging with Consumer Organisations;
- Guidelines on Consumer Protection;
- Leniency Programme Guidelines;
- Public Interests Test In Merger Determinations Guidelines;
- Merger Threshold Guidelines;
- Block Exemption Guidelines;
- Search and Seizure Guidelines; and
- Fines and Settlement Guidelines.
Year in review
The Competition Amendment Act 2019 (the Amendment Act) came into force in December 2019 with the aim of providing clarity on the concept of abuse of buyer power. Buyer power has been defined under the Amendment Act 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 definition catches retailers and wholesalers, particularly retailers such as supermarkets that are likely, by the nature of their business, to have 'buyer power'.
The Amendment Act introduced a stand-alone provision in the Act, dealing specifically with the concept of abuse of buyer power. The new provisions include a non-exhaustive list of examples of conduct that constitutes abuse of buyer power, which include delays in paying suppliers without justifiable reason and in breach of agreed payment terms; unilateral termination or threatened termination of a commercial relationship without notice or on unreasonably short notice without an objectively justifiable reason; the refusal to receive or return any goods or part thereof without justifiable reason in breach of the agreed contractual terms; and the transfer of costs or risks to suppliers' of goods or services by imposing a requirement for the suppliers to fund the cost of a promotion of goods or services.
In addition, the Amendment Act now requires agreements between suppliers and buyers to contain provisions detailing certain terms including the terms of payment, the payment date, the interest rate payable for late payment and the mechanism for the resolution of disputes.
Lastly, the Amendment Act makes it compulsory for professional associations to apply to the CAK for an exemption from the Act if their rules contain restrictions which have the effect of preventing, distorting or lessening competition in a market. The failure to apply for an exemption is punishable on conviction by imprisonment for up to five years or a fine of up to 10 million Kenya shillings, or both. The Amendment Act also empowers the CAK to monitor the activities of a sector or undertaking likely experiencing or likely to experience incidences of abuse of buyer power and to require industries and sectors, in which instances of abuse of buyer power are likely to occur, to develop a binding code of practice. The CAK has created a separate Buyer Power Department to handle this area.
With respect to mergers, Kenya has enacted new Competition (General) Rules 2019 (the Rules), which came into force on 6 December 2019. The Rules introduced changes to the merger notification thresholds, requirements and filing fees and clarify certain procedural aspects of Kenya's competition law regime relating to merger control, restrictive trade practices (block exemptions) and consumer welfare. In summary, the key changes include:
- the value of assets (and not just turnover) to be considered in determining whether a transaction is notifiable;
- merger filing fees being revised upwards in some cases;
- relatively small transactions falling below the thresholds are now automatically excluded and do not require any merger approval or exclusion; and
- no merger application (only notification of the application to the COMESA Competition Commission) will be required by the CAK where the COMESA Competition Commission Merger Notification Thresholds are met and two-thirds or more of the merger parties' turnover or assets (whichever is higher) is generated or located outside Kenya.
The CAK in June 2019 established an online case management system (CMS) as part of its efforts to improve services and deliver on its core mandate to stakeholders. The CMS enables users to do the following: complete and submit merger applications; apply for exemptions in respect of restrictive trade practices; file complaints; request advisory opinions; apply for leniency in respect of cartel conduct; and make submissions in respect of matters handled by the CAK. While stakeholders are encouraged to use the platform, they can, however, still access these services offline.
The CAK has also increased enforcement of the provisions on merger control, restrictive trade practices and consumer welfare in the country.
The CAK continues to focus on public interest concerns in its analysis of mergers with particular emphasis being placed on the termination of employees and the impact on competitiveness of small- and medium-sized enterprises (SMEs). 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.2
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 transaction involving Gulf Energy Holdings Limited (Gulf Energy) and KenolKobil PLC. The CAK approved the merger and indicated that the merger was likely to lead to redundancies and, therefore, imposed conditions:
- preventing the parties from terminating any of the employees for a period of 24 months from the date of implementing the transaction;
- not to declare any of the target's 102 employees redundant;
- requiring that for the duration of the existing contract between Gulf Energy and the SMEs operating within the retail stations, the merged entity shall ensure that these SMEs enjoy the same benefits within the contract as provided at the signing of the contract;
- that the contracts entered into between Gulf Energy and the retail station dealers be maintained for the length of the contracts; and
- for the merged entity to provide it with annual reports regarding compliance with the conditions for a period of at least 24 months following completion of the transaction.3
In addition, the CAK conditionally approved acquisition of National Bank of Kenya Ltd by KCB group subject to the condition that 90 per cent of the merged entity's employees will be retained for a period of 18 months from the date of the closing of the merger.4
The CAK also continues to impose penalties on parties for implementation of mergers without prior approval; for example, imposing a fine of approximately 500,000 Kenya shillings on Moringa School for implementing a merger without the CAK's approval.5 The CAK also imposed a financial penalty of 1.5 million Kenya shillings on Interconsumer Products Ltd for acquiring the assets of Belsize Industries Ltd and implementing the transaction without prior merger approval.6
The CAK investigated 15 restrictive trade practices cases, 13 of which were finalised, with the rest at various stages of investigation at the close of the reporting period. During the financial year 2017/2018, 11 exemption applications were received and evaluated. Seven exemption applications were evaluated in the air transport, agriculture, retail and professional services sectors, and the CAK granted three and rejected four applications that did not meet the threshold of generating overriding benefits to the public.7
In addition, the Kenya Competition Tribunal (the Tribunal) conducted its first review application in 2020. In December 2019, the CAK conditionally approved the merger between Airtel Networks Kenya Limited (Airtel) and Telkom Kenya Limited (TKL) (Kenya's second and third largest telecommunications companies respectively in Kenya). The parties applied to the Tribunal to have the CAK's decision and conditions imposed reviewed. This is a welcome development as it is the first review that the Tribunal has had to reconsider since it was established. The parties received a successful outcome as they were each allowed (amongst other things) to retain all their spectrum and will not be prohibited from entering into further transactions in future (which were part of the restrictions imposed by the conditions). The review application has provided an opportunity to understand the limitations of the CAK's discretion in imposing conditions as well as the general nature of review proceedings at the Tribunal.8
Market definition and market power
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–
- 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
- controls less than forty per cent of the market share but has market power.9
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:
- potential and actual competition;
- barriers to entry into the market;
- the degree to which countervailing market powers can impact an undertaking's ability to exercise its power in a market;
- product differentiation;
- the stability of market shares; and
- the ability of an undertaking to act independently of its customers and competitors.10
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.11
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'.12 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'.13
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.14
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.
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:
- directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;
- limiting or restricting production, market outlets or market access, investment, distribution, technical development or technological progress through predatory or other practices;
- applying dissimilar conditions to equivalent transactions with other trading parties;
- 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
- abuse of an intellectual property right.15
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. Further, 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.16 This would include conventions and treaties against discrimination as well as unfair economic practices under international law.17
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 continues to focus 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'.18
The restrictive trade practices provisions apply to any agreement, decision or restrictive practice that:
- directly or indirectly fixes purchase or selling prices or any other trading conditions;
- divides markets by allocating customers, suppliers, areas, or specific types of goods or services;
- involves collusive tendering;
- involves a practice of minimum resale price maintenance;
- limits or controls production, market outlets or access, technical development or investment;
- applies dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;
- 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;
- 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
- otherwise prevents, distorts or restricts competition.19
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 these 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 and price-fixing
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.20
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 (which is the sole landline telephone services provider in Kenya) against 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.21 Unfortunately, the reported decision is only a summary, and does not provide significant detail on the analysis of the facts and evidence presented.
However, the CAK has ordered the abolition of pacts fixing advertising prices, with several advertising companies having been flagged for price-fixing, with the segment topping the number of restrictive trade practice investigations in the CAK's 2017/2018 Annual Report.
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 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.22
iv Exploitative abuses
Exploitative abuses are generally prohibited under the restrictive trade practices provisions of the Act.
Remedies and 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 Kenya 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:
- restrain the undertaking or undertakings from further engaging in the conduct;
- direct any action to be taken by the undertaking or undertakings concerned to remedy or reverse the infringement or the effects thereof;
- impose a financial penalty; or
- 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
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.23
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.24
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.25 We are not aware of any case to which the CAK has applied this provision.
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 2017 and 2018, the CAK continued to increase the number of officers dealing with investigations among its staff. The CAK continues to recruit for several positions in its buyer power division, having advertised positions in the division indicating its intention to focus on regulating buyer power.
We expect an increase in reported investigations during the course of 2020, as the CAK continues to be bolder in its use of its powers to investigate, and in light of the publication of the Leniency Programme Guidelines.
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.
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.
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.26
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.
The CAK has recently announced that it is offering penalty waivers to firms that self-report cartel behaviour to it and provide evidence against other members involved in cartel behaviour. The CAK also announced that companies willing to work with the authority are expected to provide direct evidence and to proactively cooperate in bringing successful enforcement action in return for full or partial immunity.
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.
The CAK is expected to continue its focus on restrictive trade practices and cartels and increase its focus on the abuse of buyer power in 2020. In mid-2016, the COMESA Competition Commission (CCC) issued draft guidelines on the enforcement of restrictive business practices and the abuse of dominance, and has begun to similarly focus on cartels and investigations into restrictive trade practices. In 2018, the CCC launched investigations into FIFA's refusal to allow Egypt's state television broadcaster to air the 2018 FIFA World Cup matches.
The CAK and the CCC 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.
The East African Competition Authority, which covers Kenya, became operational in 2018; however, its focus is currently on investigating firms and trade associations engaged in malpractices and exploitation of consumers through price-fixing. The Authority is also undertaking sector studies on the competitiveness of the regional economy; however, no cases have been decided yet. One of the challenges the Authority faces is the overlap with the existing Tanzanian and Kenyan regulators, as well as with the COMESA Competition Commission.
The Tribunal is expected to receive more review applications as entities begin to appreciate its role as it conducts its first ever review into the Telkom/Airtel merger as mentioned above.
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, p. 21.
4 https://cak.go.ke/sites/default/files/2019-09/CAK%20Decision %20on%20Proposed%20Acquisition%20of%20100%25%20of%20the %20Ordinary%20Shares%20of%20National%20Bank%20of %20Kenya%20Limited%20by%20KCB%20Group %20PLC.pdf.
7 Competition Authority of Kenya Annual Report 2017/2018, p. 27.
9 The Finance Act 2014 broadened the definition of a dominant undertaking by inserting subsection 23(2).
10 Consolidated Guidelines on Substantive Assessment of Restrictive Trade Practices under the Competition Act, p. 25.
11 Competition Authority of Kenya, 'Guidelines for Market Definition', Paragraph 7, www.cak.go.ke/images/docs/guidelines_for__market_definition1.pdf.
12 Guidelines for Market Definition (No. 14), Paragraph 8.
13 ibid., Paragraph 9.
14 ibid., Paragraph 21.
15 Competition Act, Section 24(2)(e), Part III C.
16 This is pursuant to Article 2(5) and (6) of the Constitution of Kenya, 2010.
17 One such example is the Treaty Establishing the Common Market for Eastern and Southern 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.
18 Competition Act, Section 21(1), Part III A.
19 Competition Act, Section 21(3), Part III A.
20 Competition Act, Sections 21(3)(a) and 24(2)(a).
21 Competition Authority of Kenya Annual Report 2012/2013, p. 49.
22 Competition Act, Sections 21(3)(f) and 24(2)(c).
23 Competition Act, Section 37(1).
24 African Competition Forum, 'Competition in the Regional Sugar Sector: The Case of Kenya, South Africa, Tanzania and Zambia' (2014) , http://unctad.org/meetings/en/Contribution/CCPB_RPP2014 _Study_Sugar_ACF_en.pdf.
25 Competition Act, Section 52(4).
26 Competition Act, Section 40(1).