Enforcement & Compliance FAQs

An agreement when used in relation to a restricted practice, includes a contract, arrangement or understanding, whether legally enforceable or not.

A concerted practice” means co-operative or coordinated conduct between firms, achieved through direct or indirect contact, that replaces their independent action, but which does not amount to an agreement.

Market power means 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.

Predatory practice means the practice or strategy of seeking to drive competitors out of business or to deter market entry.

An undertaking means any business activity intended to be carried on, or carried on, for gain or reward by a person, a partnership or a trust in the production, supply or distribution of goods or the provision of any service.

The Leniency Programme FAQs

Section 89A of the Competition Act gives the Authority the power to operate a leniency programme.

The overall aim of the leniency is to improve the level of compliance with the Act and to enhance and facilitate the Authority’s investigation and enforcement actions.

It applies to Horizontal Restrictive Trade Practices (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) prohibited under section 21 and 22 of the Competition Act unless they are exempt in accordance with the provisions of Section D of Part iii.

  • Any undertaking or a division/legal entity which controls its decision-making process
  • A subsidiary in relation to its participation in a prohibited conduct
  • A parent undertaking
  • One legal entity involved in a joint venture
  • When the Authority has no knowledge of the contravention
  • When the Authority has knowledge of the contravention but lacks sufficient evidence to commence investigations
  • When the Authority has commenced investigations but requires additional evidence
  • Provide full, timely and truthful information;
  • Offer cooperation to the Authority
  • Keep the discussions confidential
  • Immediately stop the conduct unless otherwise directed by the Authority.
  • First applicant (first through the door) will get 100% penalty reduction (full immunity)
  • Second applicant (second through the door) may get up to 50% Penalty reduction
  • Third applicant (third through the door) to get up to 30% penalty reduction
  • Other subsequent applicant may be given up to 20% penalty reduction.

Yes. When there is a breach of cooperation obligation.

Restrictive Trade Practices FAQs

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

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.

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.

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.

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.

No, only abuse of a dominant position is prohibited.

Examples of abuse of dominance are:

  1. Directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions.
  3. Limiting or restricting production, market outlets or market access, investment, distribution, technical development or technological progress through predatory or other practices.
  5. Applying dissimilar conditions to equivalent transactions with other trading parties.
  7. 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
  9. Abuse of an intellectual property right

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.

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

  1. The unjustifiable exclusion from a trade association of a person.
  3. Limiting or restricting production, market outlets or market access, investment, distribution, technical development or technological progress through predatory or other practices.
  5. 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 the terms of sale.
    3. 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.

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.

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

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

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.

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