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What Is The Mandate Of The Competition Authority Of Kenya?

Promoting and safeguarding competition in the national economy and, to protect consumers from unfair and misleading market conduct.

What Is Competition?

Competition generally is a process in which producers or distributors, of goods and services, strive freely and independently to attract customers with a view to achieving specific economic goals, e.g. sales, profits or market shares. Therefore, competition is often described as rivalry based on prices, quantities, qualities, services, among others.

What Are The Benefits Of Competition?

For enterprises, competition brings both opportunities and risks. It therefore follows that mistaken individual decisions are compensated on the market either by losses or profits/gains thereby forcing the players to exhibit high level of prudence. Competition therefore enhances efficiency, offers variety and high quality goods and services.

Why Do We Need Competition Regulation Law?

Although competition tends to result in price reductions, offers variety and better quality goods and services, it would, however, be more lucrative for the individual businesses to sell at higher prices. There is therefore an incentive for the companies to impede or eliminate competition, for example, through (a) agreements or (b) abusive practices. Policies and legislative frameworks in the form of competition policy/law are, therefore, prerequisite antidotes to such market distortions.

What Is Dominance?

The Act defines “dominant undertaking” as an undertaking which controls not less than one-half of the total goods or services of any description supplied or rendered in Kenya or any substantial part thereof.

Is Dominance Per Se Prohibited Under The Competition Act?

No, only abuse of a dominant position is prohibited. Examples of abuse of dominance are:
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 which 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.

Which Type Of Agreements/Concerted practices Are Prohibited?

Section 21 of the Act prohibits Agreements between undertakings, decisions by associations of undertakings or concerted practices which have as their object or effect the prevention, distortion or lessening of competition.

Which Practices Of Trade Associations Are Prohibited?

The following practices conducted by or on behalf of a trade association are also prohibited:

  • the unjustifiable exclusion from a trade association of a person, or
  • the making, directly or indirectly, of a recommendation by a trade association to its members its members which relates to;
    1. the prices charged or to be charged; or
      ii. the terms of sale.
    2. How To Launch Complaints Against Restrictive Trade Practices?

Any person may lodge complaint with the Authority under section 31 (1) of the Act by filling in Complaint Form available at the Authority’s website.

How To Apply For Exemption From Restrictive Trade Practice?

Any undertaking or association of undertakings may apply to the Authority to be exempted in respect of prohibited agreement, Intellectual Property Rights or trade association by filling in appropriate forms available in the Authority’s website. The application must be accompanied by such information as may be prescribed or as the Authority may reasonably require.

The Authority may grant an exemption if it is satisfied that there are exceptional and compelling reasons of public interest.

What Is Confidential Information?

Material/information is of a confidential nature if, among others:

  • is not available to the public;
  • its disclosure could adversely affect the competitive position of any person; or
  • is commercially sensitive for some other reason.

How To Claim For Confidentiality?

Any person who gives or discloses any material to the Authority may claim confidentiality, in terms of section 20 (2) of the Act by filling confidentiality claim form, in respect of the whole or any part of the material. The Confidentiality claim form is available in the Authority’s website.

In the case of oral evidence, the claim may be made orally at the time of giving the evidence and in all other cases it shall be in writing, signed by the person making the claim specifying the material and stating the reason for the claim.