Mergers & Acquisitions
The Authority is mandated to regulate market structure to ensure fair competition and protect consumers in the market. To achieve this, the Authority enforces Parts IV (Control of Mergers) and V (Control of Unwarranted Concentration of Economic Power) of the Act.
Specifically, the Authority assesses merger notifications to determine their impact on competition and area of public interest, approving transactions with or without conditions or rejecting them as necessary.
The Authority also investigates mergers implemented without the Authority’s approval imposes appropriate sanctions. Additionally, the Authority identifies and analyzes cases of unwarranted concentration of economic power to address potential market imbalances.
There are two types of notifications that the Authority receives; Mergers and Exclusions.
A merger refers to acquisition of shares, business or other assets whether inside or outside Kenya resulting in change of control of a business, part of business or an asset of a business in Kenya in any manner and includes a takeover.
An exclusion refers to mergers which do not meet the required merger threshold for mandatory notification as contained in the Merger Threshold Guidelines.
The Authority also offers advisory opinions in instances where parties are unsure of their actions.
The Authority shall acknowledge receipt of a merger application or complaints within 3 days, upon receipt of the same in the Authority’s Offices.
The Authority shall consider and make a determination on a merger proposal, within 60 days after receipt of complete information;
If the Authority requests (where necessary) further information within 30 days after receipt of merger notification, it shall make a determination within 60 days after receipt of such information; and
If the Authority requires to convene a hearing conference, it shall make a determination within 30 days after the date of the conclusion of the conference.
Upon receipt of an application and Subsequent acknowledgement, the Authority carries out preliminary review by:
Checking for completeness of information, If it is determined that the application is incomplete, it would then request for the additional information from the transacting parties. The Authority may seek for further clarification of any information submitted through meetings, phone calls, official letters, emails, conference hearing, etc. if it deems it necessary;
Determine whether the transaction is a relevant merger situation in terms of section 2 and 41 of the Act;
Determine if the transaction meets the threshold for mandatory notification as provided for in the merger Threshold Guidelines; and
Asses the nature of confidentiality sought if any, as provided for in section 20 of the Act and subsequently grant such confidentiality through a letter.
The Authority, upon receipt of complete filling would then asses the proposed transaction and subsequently generate a report with recommendations to the Board.
Upon completion of the process, the transacting parties are informed of the determination as set out in the Act.
Additionally the following timelines hold; Exclusion 14 days, Non-mergers 10 days and Advisory opinions 10 days.