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PART I – PRELIMINARY
| 1. |
Short title
This Act may be cited as the Competition Act, 2010.
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| 2. |
Interpretation
In this Act, unless the context otherwise requires—
“asset” includes any real or personal property, whether tangible or intangible, intellectual property, goodwill, chose in action, right, licence, cause of action or claim and any other asset having a commercial value;
“Authority” means the Competition Authority established by section 7;
“competition” and “competitor” have the respective meanings assigned in section 4;
“consumer” includes any person who purchases or offers to purchase goods or services otherwise than for the purpose of resale, but does not include a person who purchases any goods or services for the purpose of using them in the production or manufacture of any goods or articles for sale;
“consumer body” includes residents’ associations and registered consumer groups by whatever name called;
“customer” includes any person who purchases or offers to purchase goods or services;
“Director-General” means the Director-General appointed under section 12;
“dominant position in a market” has the meaning assigned in section 4 and “dominance” shall be construed accordingly;
“enterprise” means an undertaking;
“goods” includes—
| (a) |
ships, aircraft and vehicles;
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| (b) |
animals, including fish;
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| (c) |
minerals, trees and crops, whether on, under, or attached to land or not; and
|
| (d) |
gas, water and electricity;
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“intermediate goods” means goods used as inputs in manufacturing;
“licence” means a licence, permit or authority that allows the licensee to supply or acquire goods or services or to carry on any other activity;
“local authority” has the meaning assigned in the Local Government Act ( Cap. 265) and includes subsidiary undertakings controlled directly or indirectly by a local authority, whether incorporated or not;
“manufacture” includes any artificial process which transforms goods in order to add value to them for the purpose of resale and any operation of packing or repacking not linked to a form of transportation within a single enterprise;
“market” has the meaning provided for in section 4;
“member”, in connection with the Authority, means the Chairman and any other member of the Authority;
“merger” means an acquisition of shares, business or other assets, whether inside or outside Kenya, resulting in the change of control of a business, part of a business or an asset of a business in Kenya in any manner and includes a takeover;
“Minister” means the Minister for the time being responsible for finance;
“person” includes a body corporate;
“predatory practice” means the practice or strategy of seeking to drive competitors out of business or to deter market entry;
“recognized consumer body” means a consumer body recognized by the Authority for the purposes of this Act;
“sale” includes an agreement to sell or offer for sale, and an “offer for sale” shall be deemed to include the exposing of goods for sale, the furnishing of a quotation, whether verbally or in writing, and any other act or notification whatsoever by which willingness to enter into any transaction for sale is expressed;
“service” includes any rights (including interests in, and rights in relation to, real or personal property), benefits, privileges or facilities and, without limiting the generality of the foregoing, includes the rights, benefits, privileges or facilities provided, granted or conferred under any contract for or in relation to?
| (a) |
the performance of work, including work of a professional nature, whether with or without the supply of goods;
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| (b) |
the provision of, or the use or enjoyment of facilities for, amusement, entertainment, transport, broadcasting, tourism, recreation, education or instruction;
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| (e) |
the lending of money;
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| (g) |
private professional practice,
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and any right, benefit or privilege for which remuneration is payable in the form of a royalty, tribute, levy or similar charge, but does not include the performance of work or the supply of goods under a contract of employment;
“state corporation” has the meaning assigned to it in the State Corporations Act ( Cap. 446);
“supply”—
| (a) |
in relation to goods, includes supply or re-supply by way of sale, exchange, lease, hire or hire purchase; and
|
| (b) |
in relation to services, includes provide, grant or confer,
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and “supplier” shall be construed accordingly;
“substantial part of Kenya” means a part of Kenya which constitutes a district, a town council, a municipal council or a city council;
“trade” includes commerce;
“trade association” means a body or person (whether incorporated or not) which is formed for the purposes of furthering the interests of its members or persons represented by its members;
“Tribunal” means the Competition Tribunal established by section 71; and
“undertaking” means any business carried on for gain or reward by an individual, a body corporate, an unincorporated body of persons or a trust in the production, supply or distribution of goods or the provision of any service.
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| 2. |
Interpretation
In this Act, unless the context otherwise requires—
“agreement” when used in relation to a restricted practice, includes a contract, arrangement or understanding, whether legally enforceable or not;
“asset” includes any real or personal property, whether tangible or intangible, intellectual property, goodwill, chose in action, right, licence, cause of action or claim and any other asset having a commercial value;
“Authority” means the Competition Authority established by section 7;
“competition” and “competitor” have the respective meanings assigned in section 4;
“concerted practice”means co-operative or co-ordinated conduct between firms, achieved through direct or indirect contact, that replaces their independent action, but which does not amount to an agreement;
“consumer” includes any person who purchases or offers to purchase goods or services otherwise than for the purpose of resale, but does not include a person who purchases any goods or services for the purpose of using them in the production or manufacture of any goods or articles for sale;
“consumer body” includes residents’ associations and registered consumer groups by whatever name called;
“customer” includes any person who purchases or offers to purchase goods or services;
“Director-General” means the Director-General appointed under section 12;
“dominant position in a market” has the meaning assigned in section 4 and “dominance” shall be construed accordingly;
“enterprise” means an undertaking;
“goods” includes—
| (a) |
ships, aircraft and vehicles;
|
| (b) |
animals, including fish;
|
| (c) |
minerals, trees and crops, whether on, under, or attached to land or not; and
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| (d) |
gas, water and electricity;
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“intermediate goods” means goods used as inputs in manufacturing;
“licence” means a licence, permit or authority that allows the licensee to supply or acquire goods or services or to carry on any other activity;
“local authority” has the meaning assigned in the Local Government Act ( Cap. 265) and includes subsidiary undertakings controlled directly or indirectly by a local authority, whether incorporated or not;
“manufacture” includes any artificial process which transforms goods in order to add value to them for the purpose of resale and any operation of packing or repacking not linked to a form of transportation within a single enterprise;
“market” has the meaning provided for in section 4;
“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;
“member”, in connection with the Authority, means the Chairman and any other member of the Authority;
“merger” means an acquisition of shares, business or other assets, whether inside or outside Kenya, resulting in the change of control of a business, part of a business or an asset of a business in Kenya in any manner and includes a takeover;
“Minister” means the Minister for the time being responsible for finance;
“person” includes a body corporate;
“predatory practice” means the practice or strategy of seeking to drive competitors out of business or to deter market entry;
“recognized consumer body” means a consumer body recognized by the Authority for the purposes of this Act;
“sale” includes an agreement to sell or offer for sale, and an “offer for sale” shall be deemed to include the exposing of goods for sale, the furnishing of a quotation, whether verbally or in writing, and any other act or notification whatsoever by which willingness to enter into any transaction for sale is expressed;
“service” includes any rights (including interests in, and rights in relation to, real or personal property), benefits, privileges or facilities and, without limiting the generality of the foregoing, includes the rights, benefits, privileges or facilities provided, granted or conferred under any contract for or in relation to?
| (a) |
the performance of work, including work of a professional nature, whether with or without the supply of goods;
|
| (b) |
the provision of, or the use or enjoyment of facilities for, amusement, entertainment, transport, broadcasting, tourism, recreation, education or instruction;
|
| (e) |
the lending of money;
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| (g) |
private professional practice,
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and any right, benefit or privilege for which remuneration is payable in the form of a royalty, tribute, levy or similar charge, but does not include the performance of work or the supply of goods under a contract of employment;
“state corporation” has the meaning assigned to it in the State Corporations Act ( Cap. 446);
“supply”—
| (a) |
in relation to goods, includes supply or re-supply by way of sale, exchange, lease, hire or hire purchase; and
|
| (b) |
in relation to services, includes provide, grant or confer,
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and “supplier” shall be construed accordingly;
“substantial part of Kenya” means a part of Kenya which constitutes a district, a town council, a municipal council or a city council;
“trade” includes commerce;
“trade association” means a body or person (whether incorporated or not) which is formed for the purposes of furthering the interests of its members or persons represented by its members;
“Tribunal” means the Competition Tribunal established by section 71; and
“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.;
“unwarranted concentration of economic power” means 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 forty per cent.
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| 2. |
Interpretation
In this Act, unless the context otherwise requires—
“agreement” when used in relation to a restricted practice, includes a contract, arrangement or understanding, whether legally enforceable or not;
“asset” includes any real or personal property, whether tangible or intangible, intellectual property, goodwill, chose in action, right, licence, cause of action or claim and any other asset having a commercial value;
“Authority” means the Competition Authority established by section 7;
“competition” and “competitor” have the respective meanings assigned in section 4;
“concerted practice” means co-operative or co-ordinated conduct between firms, achieved through direct or indirect contact, that replaces their independent action, but which does not amount to an agreement;
“consumer” includes any person who purchases or offers to purchase goods or services otherwise than for the purpose of resale, but does not include a person who purchases any goods or services for the purpose of using them in the production or manufacture of any goods or articles for sale;
“consumer body” includes residents’ associations and registered consumer groups by whatever name called;
"County government" means the county government established by Article 76(1) of the Constitution;
“customer” includes any person who purchases or offers to purchase goods or services;
“Director-General” means the Director-General appointed under section 12;
“dominant position in a market” has the meaning assigned in section 4 and “dominance” shall be construed accordingly;
“enterprise” means an undertaking;
“goods” includes—
| (a) |
ships, aircraft and vehicles;
|
| (b) |
animals, including fish;
|
| (c) |
minerals, trees and crops, whether on, under, or attached to land or not; and
|
| (d) |
gas, water and electricity;
|
“intermediate goods” means goods used as inputs in manufacturing;
“licence” means a licence, permit or authority that allows the licensee to supply or acquire goods or services or to carry on any other activity;
“manufacture” includes any artificial process which transforms goods in order to add value to them for the purpose of resale and any operation of packing or repacking not linked to a form of transportation within a single enterprise;
“market” has the meaning provided for in section 4;
“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;
“member” , in connection with the Authority, means the Chairman and any other member of the Authority;
“merger” means an acquisition of shares, business or other assets, whether inside or outside Kenya, resulting in the change of control of a business, part of a business or an asset of a business in Kenya in any manner and includes a takeover;
“Minister” means the Minister for the time being responsible for finance;
“person” includes a body corporate;
“predatory practice” means the practice or strategy of seeking to drive competitors out of business or to deter market entry;
“recognized consumer body” means a consumer body recognized by the Authority for the purposes of this Act;
“sale” includes an agreement to sell or offer for sale, and an “offer for sale” shall be deemed to include the exposing of goods for sale, the furnishing of a quotation, whether verbally or in writing, and any other act or notification whatsoever by which willingness to enter into any transaction for sale is expressed;
“service” includes any rights (including interests in, and rights in relation to, real or personal property), benefits, privileges or facilities and, without limiting the generality of the foregoing, includes the rights, benefits, privileges or facilities provided, granted or conferred under any contract for or in relation to—
| (a) |
the performance of work, including work of a professional nature, whether with or without the supply of goods;
|
| (b) |
the provision of, or the use or enjoyment of facilities for, amusement, entertainment, transport, broadcasting, tourism, recreation, education or instruction;
|
| (e) |
the lending of money;
|
| (g) |
private professional practice,
|
and any right, benefit or privilege for which remuneration is payable in the form of a royalty, tribute, levy or similar charge, but does not include the performance of work or the supply of goods under a contract of employment;
“state corporation” has the meaning assigned to it in the State Corporations Act ( Cap. 446);
“supply” —
| (a) |
in relation to goods, includes supply or re-supply by way of sale, exchange, lease, hire or hire purchase; and
|
| (b) |
in relation to services, includes provide, grant or confer,
|
and “supplier” shall be construed accordingly;
“substantial part of Kenya” means a part of Kenya which constitutes a district, a town council, a municipal council or a city council;
“trade” includes commerce;
“trade association” means a body or person (whether incorporated or not) which is formed for the purposes of furthering the interests of its members or persons represented by its members;
“Tribunal” means the Competition Tribunal established by section 71;
“undertaking” means any business 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 provision of any service, and includes a trade association; and
“unwarranted concentration of economic power” means 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 forty per cent.
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| 2. |
Interpretation
In this Act, unless the context otherwise requires—
“agreement” when used in relation to a restricted practice, includes a contract, arrangement or understanding, whether legally enforceable or not;
“asset” includes any real or personal property, whether tangible or intangible, intellectual property, goodwill, chose in action, right, licence, cause of action or claim and any other asset having a commercial value;
“Authority” means the Competition Authority established by section 7;
"buyer power" means the influence exerted by an undertaking or group of undertakings in the position of purchaser of a product or service to—
| (a) |
obtain from a supplier more favourable terms; or
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| (b) |
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 or group of undertakings.
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“competition” and “competitor” have the respective meanings assigned in section 4;
“concerted practice” means co-operative or co-ordinated conduct between firms, achieved through direct or indirect contact, that replaces their independent action, but which does not amount to an agreement;
“consumer” includes any person who purchases or offers to purchase goods or services otherwise than for the purpose of resale, but does not include a person who purchases any goods or services for the purpose of using them in the production or manufacture of any goods or articles for sale;
“consumer body” includes residents’ associations and registered consumer groups by whatever name called;
"County government" means the county government established by Article 76(1) of the Constitution;
“customer” includes any person who purchases or offers to purchase goods or services;
“Director-General” means the Director-General appointed under section 12;
“dominant position in a market” has the meaning assigned in section 4 and “dominance” shall be construed accordingly;
“enterprise” means an undertaking;
“goods” includes—
| (a) |
ships, aircraft and vehicles;
|
| (b) |
animals, including fish;
|
| (c) |
minerals, trees and crops, whether on, under, or attached to land or not; and
|
| (d) |
gas, water and electricity;
|
“intermediate goods” means goods used as inputs in manufacturing;
“licence” means a licence, permit or authority that allows the licensee to supply or acquire goods or services or to carry on any other activity;
“manufacture” includes any artificial process which transforms goods in order to add value to them for the purpose of resale and any operation of packing or repacking not linked to a form of transportation within a single enterprise;
“market” has the meaning provided for in section 4;
“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;
“member” , in connection with the Authority, means the Chairman and any other member of the Authority;
“merger” means an acquisition of shares, business or other assets, whether inside or outside Kenya, resulting in the change of control of a business, part of a business or an asset of a business in Kenya in any manner and includes a takeover;
“Minister” means the Minister for the time being responsible for finance;
“person” includes a body corporate;
“predatory practice” means the practice or strategy of seeking to drive competitors out of business or to deter market entry;
“recognized consumer body” means a consumer body recognized by the Authority for the purposes of this Act;
“sale” includes an agreement to sell or offer for sale, and an “offer for sale” shall be deemed to include the exposing of goods for sale, the furnishing of a quotation, whether verbally or in writing, and any other act or notification whatsoever by which willingness to enter into any transaction for sale is expressed;
“service” includes any rights (including interests in, and rights in relation to, real or personal property), benefits, privileges or facilities and, without limiting the generality of the foregoing, includes the rights, benefits, privileges or facilities provided, granted or conferred under any contract for or in relation to—
| (a) |
the performance of work, including work of a professional nature, whether with or without the supply of goods;
|
| (b) |
the provision of, or the use or enjoyment of facilities for, amusement, entertainment, transport, broadcasting, tourism, recreation, education or instruction;
|
| (e) |
the lending of money;
|
| (g) |
private professional practice,
|
and any right, benefit or privilege for which remuneration is payable in the form of a royalty, tribute, levy or similar charge, but does not include the performance of work or the supply of goods under a contract of employment;
“state corporation” has the meaning assigned to it in the State Corporations Act ( Cap. 446);
“supply” —
| (a) |
in relation to goods, includes supply or re-supply by way of sale, exchange, lease, hire or hire purchase; and
|
| (b) |
in relation to services, includes provide, grant or confer,
|
and “supplier” shall be construed accordingly;
“substantial part of Kenya” means a part of Kenya which constitutes a district, a town council, a municipal council or a city council;
“trade” includes commerce;
“trade association” means a body or person (whether incorporated or not) which is formed for the purposes of furthering the interests of its members or persons represented by its members;
“Tribunal” means the Competition Tribunal established by section 71;
“undertaking” means any business 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 provision of any service, and includes a trade association; and
“unwarranted concentration of economic power” means 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 forty per cent.
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| 3. |
Objects of the Act
The object of this Act is to enhance the welfare of the people of Kenya by promoting and protecting effective competition in markets and preventing unfair and misleading market conduct throughout Kenya, in order to—
| (a) |
increase efficiency in the production, distribution and supply of goods and services;
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| (c) |
maximize the efficient allocation of resources;
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| (e) |
create an environment conducive for investment, both foreign and local;
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| (f) |
capture national obligations in competition matters with respect to regional integration initiatives;
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| (g) |
bring national competition law, policy and practice in line with best international practices; and
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| (h) |
promote the competitiveness of national undertakings in world markets.
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| 4. |
Interpretation of expressions
| (1) |
The following expressions referred to in the Act shall be interpreted in accordance with this section—
| (a) |
“competition” means competition in a market in Kenya and refers to the process whereby two or more persons—
| (i) |
supply or attempt to supply to; or |
| (ii) |
acquire or attempt to acquire from, |
the people in that market the same or substitutable goods or services;
|
| (b) |
a person is a “competitor” of another person if they are in competition with each other or would, but for an agreement to which the two persons are parties, be likely to be in competition with each other;
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| (c) |
“market” means a market in Kenya or a substantial part of Kenya and refers to the range of reasonable possibilities for substitution in supply or demand between particular kinds of goods or services and between suppliers or acquirers, or potential suppliers or acquirers, of those goods or services.
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| (2) |
In defining markets, assessing effects on competition or determining whether a person has a dominant position in a market, the following matters, in addition to other relevant matters, shall be taken into account—
| (a) |
the importation of goods or the supply of services by persons not resident or carrying on business in Kenya; and
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| (b) |
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.
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| (3) |
A person has a dominant position in a market if the person—
| (a) |
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
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| (b) |
provides or otherwise controls not less than one-half of the services that are rendered in Kenya or any substantial part thereof.
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| 4. |
Interpretation of expressions
| (1) |
The following expressions referred to in the Act shall be interpreted in accordance with this section—
| (a) |
“competition” means competition in a market in Kenya and refers to the process whereby two or more persons—
| (i) |
supply or attempt to supply to; or |
| (ii) |
acquire or attempt to acquire from, |
|
the people in that market the same or substitutable goods or services;
| (b) |
a person is a “competitor” of another person if they are in competition with each other or would, but for an agreement to which the two persons are parties, be likely to be in competition with each other;
|
| (c) |
“market” means a market in Kenya or a substantial part of Kenya and refers to the range of reasonable possibilities for substitution in supply or demand between particular kinds of goods or services and between suppliers or acquirers, or potential suppliers or acquirers, of those goods or services.
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| (2) |
In assessing effects on competition or determining whether a person has a dominant position in a market, the following matters, in addition to other relevant matters, shall be taken into account—
| (a) |
the importation of goods or the supply of services by persons not resident or carrying on business in Kenya; and
|
| (b) |
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.
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|
| (3) |
A person has a dominant position in a market if the person—
| (a) |
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
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| (b) |
provides or otherwise controls not less than one-half of the services that are rendered in Kenya or any substantial part thereof.
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| 5. |
Application
| (1) |
This Act shall apply to all persons including the Government, state corporations and local authorities in so far as they engage in trade.
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| (2) |
Where there is a conflict between the provisions of this Act and the provisions of any other written law with regard to matters concerning competition, consumer welfare and the powers or functions of the Authority under this Act, the provisions of this Act shall prevail.
|
| (3) |
If a body charged with public regulation has jurisdiction in respect of any conduct regulated in terms of this Act within a particular sector, the Authority and that body shall—
| (a) |
identify and establish procedures for management of areas of concurrent jurisdiction;
|
| (c) |
provide for the exchange of information and protection of confidential information; and
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| (d) |
ensure consistent application of the principles of this Act:
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Provided that in all matters concerning competition and consumer welfare, if there is any conflict, disharmony or inconsistency, the determinations, directives, regulations, rules, orders and decisions of the Authority shall prevail.
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| (4) |
Notwithstanding the provisions of subsection (1), the Government shall not be liable to any fine or penalty under this Act or be liable to be prosecuted for an offence against this Act.
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| (5) |
For the purposes of this section, without affecting the meaning of “trade” in other respects—
| (a) |
the sale or acquisition of a business, part of a business or an asset of a business carried on by the Government, a state corporation or a local authority constitutes engaging in trade; and
|
| (b) |
the following do not constitute engaging in trade—
| (i) |
the imposition or collection of taxes; |
| (ii) |
the grant or revocation of licences, permits and authorities; |
| (iii) |
the collection of fees for licences, permits and authorities; |
| (iv) |
internal transactions within the Government, a state corporation or a local authority. |
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| 5. |
Application
| (1) |
This Act shall apply to all persons including the Government, state corporations and local authorities in so far as they engage in trade.
|
| (2) |
Where there is a conflict between the provisions of this Act and the provisions of any other written law with regard to matters concerning competition, consumer welfare and the powers or functions of the Authority under this Act, the provisions of this Act shall prevail.
|
| (3) |
If a body charged with public regulation has jurisdiction in respect of any conduct regulated in terms of this Act within a particular sector, the Authority and that body shall—
| (a) |
identify and establish procedures for management of areas of concurrent jurisdiction;
|
| (c) |
provide for the exchange of information and protection of confidential information; and
|
| (d) |
ensure consistent application of the principles of this Act:
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Provided that in all matters concerning competition and consumer welfare, if there is any conflict, disharmony or inconsistency, the determinations, directives, regulations, rules, orders and decisions of the Authority shall prevail.
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| (4) |
Notwithstanding the provisions of subsection (1), the Government shall not be liable to any fine or penalty under this Act or be liable to be prosecuted for an offence against this Act.
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| (5) |
For the purposes of this section, without affecting the meaning of Dtl “trade” in other respects—
| (a) |
the sale or acquisition of a business, part of a business or an asset of a business carried on by the Government, a state corporation or a county government constitutes engaging in trade; and
|
| (b) |
the following do not constitute engaging in trade—
| (i) |
the imposition or collection of taxes; |
| (ii) |
the grant or revocation of licences, permits and authorities; |
| (iii) |
the collection of fees for licences, permits and authorities; |
| (iv) |
internal transactions within the Government, a state corporation or a county government. [Act No. 49 of 2016, s. 3.] |
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| 6. |
Extra-territorial operation
This Act shall apply to conduct outside Kenya by—
| (a) |
a citizen of Kenya or a person ordinarily resident in Kenya;
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| (b) |
a body corporate incorporated in Kenya or carrying on business within Kenya;
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| (c) |
any person in relation to the supply or acquisition of goods or services by that person into or within Kenya; or
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| (d) |
any person in relation to the acquisition of shares or other assets outside Kenya resulting in the change of control of a business, part of a business or an asset of a business, in Kenya.
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PART II – ESTABLISHMENT, POWERS AND FUNCTIONS OF THE
AUTHORITY
| 7. |
Establishment of the Authority
| (1) |
There is hereby established an Authority to be known as the Competition Authority.
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| (2) |
The Authority shall be independent and shall perform its functions and exercise its powers independently and impartially without fear or favour.
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| (3) |
The Authority shall be a body corporate with perpetual succession and a common seal and shall, in its corporate name, be capable of—
| (b) |
purchasing or otherwise acquiring, holding, charging and disposing of movable and immovable property;
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| (d) |
doing or performing all other things or acts necessary for the proper performance of its functions under this Act, which may lawfully be done or performed by a body corporate.
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| 8. |
Conduct of business and affairs of the Authority
| (1) |
The conduct and regulation of the business and affairs of the Authority shall be as provided in the Schedule.
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| (2) |
Except as provided in the Schedule, the Authority may regulate its own procedure.
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| 9. |
Functions of the Authority
| (1) |
The functions of the Authority shall be to—
| (a) |
promote and enforce compliance with the Act;
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| (b) |
receive and investigate complaints from legal or natural persons and consumer bodies;
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| (c) |
promote public knowledge, awareness and understanding of the obligations, rights and remedies under the Act and the duties, functions and activities of the Authority;
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| (d) |
promote the creation of consumer bodies and the establishment of good and proper standards and rules to be followed by such bodies in protecting competition and consumer welfare;
|
| (e) |
recognize consumer bodies duly registered under the appropriate national laws as the proper bodies, in their areas of operation, to represent consumers before the Authority;
|
| (f) |
make available to consumers information and guidelines relating to the obligations of persons under the Act and the rights and remedies available to consumers under the Act;
|
| (g) |
carry out inquiries, studies and research into matters relating to competition and the protection of the interests of consumers;
|
| (h) |
study government policies, procedures and programmes, legislation and proposals for legislation so as to assess their effects on competition and consumer welfare and publicise the results of such studies;
|
| (i) |
investigate impediments to competition, including entry into and exit from markets, in the economy as a whole or in particular sectors and publicise the results of such investigations;
|
| (j) |
investigate policies, procedures and programmes of regulatory authorities so as to assess their effects on competition and consumer welfare and publicise the results of such studies;
|
| (k) |
participate in deliberations and proceedings of government, government commissions, regulatory authorities and other bodies in relation to competition and consumer welfare;
|
| (l) |
make representations to government, government commissions, regulatory authorities and other bodies on matters relating to competition and consumer welfare;
|
| (m) |
liaise with regulatory bodies and other public bodies in all matters relating to competition and consumer welfare;
|
| (n) |
advise the government on matters relating to competition and consumer welfare.
|
|
| (2) |
The persons proposed to be members of the Authority under subsection (1)(f) shall be vetted and approved by Parliament through the relevant Committee of Parliament.
|
|
| 9. |
Functions of the Authority
| (1) |
The functions of the Authority shall be to—
| (a) |
promote and enforce compliance with the Act;
|
| (b) |
receive and investigate complaints from legal or natural persons and consumer bodies;
|
| (c) |
promote public knowledge, awareness and understanding of the obligations, rights and remedies under the Act and the duties, functions and activities of the Authority;
|
| (d) |
promote the creation of consumer bodies and the establishment of good and proper standards and rules to be followed by such bodies in protecting competition and consumer welfare;
|
| (e) |
recognize consumer bodies duly registered under the appropriate national laws as the proper bodies, in their areas of operation, to represent consumers before the Authority;
|
| (f) |
make available to consumers information and guidelines relating to the obligations of persons under the Act and the rights and remedies available to consumers under the Act;
|
| (g) |
carry out inquiries, studies and research into matters relating to competition and the protection of the interests of consumers;
|
| (h) |
study government policies, procedures and programmes, legislation and proposals for legislation so as to assess their effects on competition and consumer welfare and publicise the results of such studies;
|
| (i) |
investigate impediments to competition, including entry into and exit from markets, in the economy as a whole or in particular sectors and publicise the results of such investigations;
|
| (j) |
investigate policies, procedures and programmes of regulatory authorities so as to assess their effects on competition and consumer welfare and publicise the results of such studies;
|
| (k) |
participate in deliberations and proceedings of government, government commissions, regulatory authorities and other bodies in relation to competition and consumer welfare;
|
| (l) |
make representations to government, government commissions, regulatory authorities and other bodies on matters relating to competition and consumer welfare;
|
| (m) |
liaise with regulatory bodies and other public bodies in all matters relating to competition and consumer welfare;
|
| (n) |
advise the government on matters relating to competition and consumer welfare.
|
|
| (2) |
Deleted by L.N. 23/2011, Sch.
|
|
| 10. |
Members of the Authority
| (1) |
The Authority shall consist of the following members—
| (a) |
a non-executive Chairman, appointed by the Minister;
|
| (b) |
the Permanent Secretary in the Ministry for the time being responsible for finance or his representative;
|
| (c) |
the Permanent Secretary in the Ministry for the time being responsible for trade or his representative;
|
| (d) |
the Attorney-General or his representative;
|
| (e) |
the Director-General appointed under section 12; and
|
| (f) |
five other members appointed by the Minister from among persons experienced in competition and consumer welfare matters, one of whom shall be experienced in consumer welfare matters.
|
|
| (2) |
The persons proposed to be members of the Authority under subsection (1)(f) shall, before their appointment to the Authority, be vetted and approved by Parliament through the relevant Committee of Parliament.
|
|
| 10. |
Members of the Authority
| (1) |
The Authority shall consist of the following members—
| (a) |
a chairperson appointed by the President;
|
| (b) |
the Permanent Secretary in the Ministry for the time being responsible for finance or his representative;
|
| (c) |
the Permanent Secretary in the Ministry for the time being responsible for trade or his representative;
|
| (d) |
the Attorney-General or his representative;
|
| (e) |
the Director-General appointed under section 12; and
|
| (f) |
five other members appointed by the Minister from among persons experienced in competition and consumer welfare matters, one of whom shall be experienced in consumer welfare matters.
|
|
| (2) |
The persons proposed to be members of the Authority under subsection (1)(f) shall, before their appointment to the Authority, be vetted and approved by Parliament through the relevant Committee of Parliament.
|
|
| 11. |
Remuneration of members of the Authority
The members of the Authority shall be paid such remuneration, fees, allowances and disbursements for expenses as may be approved by the Minister.
|
| 12. |
Director-General
| (1) |
There shall be a Director-General of the Authority who shall be appointed by the Authority with the approval of Parliament from persons having knowledge and experience in competition matters.
|
| (2) |
The Director-General shall hold office on such terms and conditions of employment as the Authority may determine in the instrument of appointment or otherwise in writing from time to time:
|
Provided that the Director-General shall hold office for a renewable term of five years, subject to a maximum of two terms.
| (3) |
The Director-General shall be an ex officio member of the Authority but shall have no right to vote at any meeting of the Authority.
|
| (4) |
The Director-General shall be the chief executive officer of the Authority and shall, subject to the direction of the Authority, be responsible for the day to day management of the Authority.
|
|
| 13. |
Staff
| (1) |
The Authority shall employ such staff as it considers appropriate to enable it to perform its functions and exercise its powers.
|
| (2) |
The Authority may engage consultants and experts, as it considers appropriate, to assist it to perform its functions and exercise its powers.
|
| (3) |
The Authority shall establish a competitive selection procedure for the appointment of all employees, consultants and experts.
|
| (4) |
The terms and conditions on which the Authority employs staff and engages consultants and experts shall be as determined by the Authority but shall include the following—
| (a) |
an employee, consultant or expert shall, without delay, notify the Authority in writing of any conflict of interest as soon as it arises and failure to comply with this requirement, whether wilfully or inadvertently, will be a ground for immediate dismissal;
|
| (b) |
where the Authority becomes aware of a conflict of interest, whether as a result of a notification under paragraph (a) or by any other means, the Authority may direct the person not to participate in the consideration of any matter in relation to which the person has the conflict of interest and, in that case, the person shall comply with the direction.
|
|
| (5) |
Before employing or engaging any person, the Authority shall obtain from the person a written declaration of any existing conflict of interest.
|
| (6) |
Persons employed by the Authority as full-time employees shall not undertake any other paid employment.
|
| (7) |
The Authority may enter into agreements with government departments and other government authorities and agencies to share the services of particular employees, as it may consider appropriate.
|
| (8) |
The Authority shall include in its Annual Report a statement of its competitive selection procedure and its employment practices.
|
|
| 14. |
Common seal
| (1) |
The common seal of the Authority shall be kept in the custody of the Director-General or of such other person as the Authority may direct, and shall not be used except upon the order of the Authority.
|
| (2) |
The common seal of the Authority, when affixed to a document and duly authenticated, shall be judicially and officially noticed, and unless and until the contrary is proved, any necessary order or authorization by the Authority under this section shall be presumed to have been duly given.
|
| (3) |
The affixing of the common seal of the Authority shall be authenticated by the signature of the Chairman of the Authority and the Director-General:
Provided that the Authority shall, in the absence of either the Chairman or the Director-General, in any particular matter, nominate one member of the Authority to authenticate the seal of the Authority on behalf of either the Chairman or the Director-General.
|
|
| 15. |
Delegation by the Authority
| (1) |
The Authority may delegate to any of its members, either generally or otherwise as provided by the instrument of delegation, any of its powers other than—
| (a) |
duties to make decision under the Act;
|
| (b) |
power of delegation itself; and
|
| (c) |
the powers to revoke or vary delegation.
|
|
| (2) |
A delegated power shall be exercised in accordance with the instrument of delegation.
|
| (3) |
A delegation may, at any time, be revoked or varied by the Authority.
|
|
| 16. |
Protection from personal liability
| (1) |
No matter or thing done by a member of the Authority or by any officer, member of staff or agent of the Authority shall, if the matter or thing is done bona fide for executing the functions, powers or duties of the Authority, render the member, officer, employee or agent or any person acting on his directions personally liable to any action, claim or demand whatsoever.
|
| (2) |
No compensation shall be payable to any person for any loss, damage or harm directly or indirectly caused by anything done or intended to be done in good faith by the Authority or any person authorized by the Authority under this Act.
|
| (3) |
Any expenses incurred by any person in any suit or prosecution brought against him in any court in respect of any act which is done or purported to be done by him under the direction of the Authority shall, if the court holds that such act was done in good faith, be paid out of the general funds of the Authority, unless such expenses are recovered by him in such suit or prosecution.
|
|
| 17. |
Liability of the Authority for damages
The provisions of section 16 shall not relieve the Authority of the liability to pay compensation or damages to any person for any injury to him, his property or any of his interests caused by the exercise of any power conferred by this Act or by any other written law or by the failure, whether wholly or partially, of any works.
|
| 18. |
Power to hold inquiries
| (1) |
The Authority may conduct an inquiry or a sectoral study where—
| (a) |
it considers it necessary or desirable for the purpose of carrying out its functions;
|
| (b) |
upon a direction by the Minister in writing to the Authority, requiring it to conduct an inquiry or a sectoral study into a matter specified in the direction.
|
|
| (2) |
A direction by the Minister under subsection (1)(b) shall specify a period within which the Authority shall submit its report to the Minister.
|
| (3) |
In appropriate cases, after conclusion of an inquiry or a sectoral study, the Authority shall in its report to the Minister identify sectors where factors relating to unwarranted concentrations of economic power subsist and give advice regarding measures which may ameliorate such situations.
|
| (4) |
At the request of a regulatory body, or at its own instance, the Authority may conduct an inquiry into any matter affecting competition or consumer welfare and provide a report within a reasonable period.
|
| (5) |
The Authority shall give notice of an intended inquiry or sectoral study by—
| (a) |
publishing a notice in the Gazette and in at least one daily newspaper of national circulation specifying—
| (i) |
the subject matter of the intended inquiry; |
| (ii) |
inviting submissions on the subject from members of the public within a specified period; and |
| (iii) |
in the case of an inquiry conducted at the direction of the Minister, the terms of reference issued by the Minister; |
|
| (b) |
sending written notice of the inquiry, including the information in paragraph (a) to—
| (i) |
undertakings whose interests the Authority considers likely to be affected by the outcome of the inquiry; |
| (ii) |
industry and consumer organizations which the Authority considers may have an interest in the matter; |
|
|
|
| 18. |
Power to hold inquiries
| (1) |
The Authority may conduct an inquiry or a sectoral study where—
| (a) |
it considers it necessary or desirable for the purpose of carrying out its functions;
|
| (b) |
upon a direction by the Minister in writing to the Authority, requiring it to conduct an inquiry or a sectoral study into a matter specified in the direction.
|
|
| (2) |
A direction by the Minister under subsection (1)(b) shall specify a period within which the Authority shall submit its report to the Minister.
|
| (3) |
In appropriate cases, after conclusion of an inquiry or a sectoral study, the Authority shall in its report to the Minister identify sectors where factors relating to unwarranted concentrations of economic power subsist and give advice regarding measures which may ameliorate such situations.
|
| (4) |
At the request of a regulatory body, or at its own instance, the Authority may conduct an inquiry into any matter affecting competition or consumer welfare and provide a report within a reasonable period.
|
| (5) |
The Authority shall give notice of an intended inquiry or sectoral study by—
| (a) |
publishing a notice in the Gazette and in at least one daily newspaper of national circulation specifying—
| (i) |
the subject matter of the intended inquiry; |
| (ii) |
inviting submissions on the subject from members of the public within a specified period; and |
| (iii) |
in the case of an inquiry conducted at the direction of the Minister, the terms of reference issued by the Minister; |
|
| (b) |
sending written notice of the inquiry, including the information in paragraph (a) to—
| (i) |
undertakings whose interests the Authority considers likely to be affected by the outcome of the inquiry; |
| (ii) |
industry and consumer organizations which the Authority considers may have an interest in the matter; |
|
|
| (6) |
Every person, undertaking, trade association or body shall be under an obligation to provide information requested by the Authority in fulfilment of its statutory mandate for conducting an inquiry or sectoral study regulated by this section.
|
|
| 18. |
Power to hold inquiries
| (1) |
The Authority may conduct an inquiry or a sectoral study where—
| (a) |
it considers it necessary or desirable for the purpose of carrying out its functions;
|
| (b) |
upon a direction by the Minister in writing to the Authority, requiring it to conduct an inquiry or a sectoral study into a matter specified in the direction.
|
|
| (2) |
A direction by the Minister under subsection (1)(b) shall specify a period within which the Authority shall submit its report to the Minister.
|
| (3) |
In appropriate cases, after conclusion of an inquiry or a sectoral study, the Authority shall in its report to the Minister identify sectors where factors relating to unwarranted concentrations of economic power subsist and give advice regarding measures which may ameliorate such situations.
|
| (4) |
At the request of a regulatory body, or at its own instance, the Authority may conduct an inquiry into any matter affecting competition abuse of buyer power or consumer welfare and provide a report within a reasonable period.
|
| (5) |
The Authority shall give notice of an intended inquiry or sectoral study by—
| (a) |
publishing a notice in the Gazette and in at least one daily newspaper of national circulation specifying—
| (i) |
the subject matter of the intended inquiry; |
| (ii) |
inviting submissions on the subject from members of the public within a specified period; and |
| (iii) |
in the case of an inquiry conducted at the direction of the Minister, the terms of reference issued by the Minister; |
|
| (b) |
sending written notice of the inquiry, including the information in paragraph (a) to—
| (i) |
undertakings whose interests the Authority considers likely to be affected by the outcome of the inquiry; |
| (ii) |
industry and consumer organizations which the Authority considers may have an interest in the matter; |
|
|
| (6) |
Every person, undertaking, trade association or body shall be under an obligation to provide information requested by the Authority in fulfilment of its statutory mandate for conducting an inquiry or sectoral study regulated by this section.
|
|
| 19. |
Establishment of divisions of the Authority
| (1) |
The Authority may establish one or more divisions as it may deem appropriate for the proper performance of its functions under this Act.
|
| (2) |
The Authority shall appoint an employee or employees of the Authority as Directors of the divisions.
|
| (3) |
Responsibility for running the day to day activities of the Authority and the supervision and allocation of duties to its employees shall vest in the Director-General.
|
|
| 20. |
Confidentiality
| (1) |
For the purpose of this section, “material” includes any information, document or evidence relating to any matter to which this Act applies.
|
| (2) |
Any person who gives or discloses any material to the Authority, whether under compulsion of law or otherwise, may claim confidentiality in respect of the whole or any part of the material.
|
| (3) |
The provision of this section shall not be deemed to be breached where material is disclosed to persons outside the Authority any time before a claim for confidentiality is made.
|
| (4) |
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.
|
| (5) |
If the Authority is satisfied that material is of a confidential nature and—
| (a) |
its disclosure could adversely affect the competitive position of any person; or
|
| (b) |
is commercially sensitive for some other reason,
|
the Authority shall grant confidentiality for the material.
|
| (6) |
The Authority shall give notice in writing to a person making a claim for confidentiality of the Authority’s decision to grant or not grant confidentiality and, if it has not granted confidentiality, the Authority shall treat the material as confidential for a period of fourteen days after giving such notification.
|
| (7) |
If a claim for confidentiality—
| (a) |
is made in relation to material supplied to the Authority voluntarily; and
|
| (b) |
the Authority decides not to grant confidentiality in whole or in part for the material,
|
the person who supplied the material may, within the fourteen days period provided under subsection (6), withdraw the material from the Authority together with other material supplied with it.
|
| (8) |
Notwithstanding that the Authority has granted a claim for confidentiality under subsection (5), the Authority may disclose the material—
| (a) |
at any time without notice to any other person if—
| (i) |
the disclosure is made to another person who is also performing a function under this Act; |
| (ii) |
the disclosure is made with the consent of the person who gave the material; |
| (iii) |
the disclosure is authorised or required under any other law; or |
| (iv) |
the disclosure is authorised or required by a court or a tribunal constituted by law; or |
|
| (b) |
if the Authority is of the opinion that—
| (i) |
disclosure of the material would not cause detriment to the person supplying it or the person to whom it relates; or |
| (ii) |
although the disclosure of the material would cause detriment to the person supplying it or the person to whom it relates, the public benefit in disclosing it outweighs the detriment, |
|
and the Authority has given fourteen days prior written notice to that person of its intention to disclose the material pursuant to this provision.
|
| (9) |
Any person who is aggrieved by a decision of the Authority under this section not to grant a claim for confidentiality for material or to disclose confidential material may, at any time while the Authority is obliged by this section to keep the material confidential, appeal to the Tribunal against the decision and the Authority shall continue to treat the material as confidential pending determination of the appeal.
|
| (10) |
Any person who discloses confidential information otherwise than as authorised by this section, commits an offence.
|
|
PART III – RESTRICTIVE TRADE PRACTICES
A – Restrictive Agreements, Practices and Decisions
| 21. |
Restrictive trade practices
| (1) |
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 C of this Part.
|
| (2) |
Agreements, decisions and concerted practices contemplated in subsection (1), include agreements concluded between—
| (a) |
parties in a horizontal relationship, being undertakings trading in competition; or
|
| (b) |
parties in a vertical relationship, being an undertaking and its suppliers or customers or both.
|
|
| (3) |
Without prejudice to the generality of the provisions of subsection (1), that subsection applies in particular to any agreement, decision or concerted practice which—
| (a) |
directly or indirectly fixes purchase or selling prices or any other trading conditions;
|
| (b) |
divides markets by allocating customers, suppliers, areas or specific types of goods or services;
|
| (c) |
involves collusive tendering;
|
| (d) |
involves a practice of minimum resale price maintenance;
|
| (e) |
limits or controls production, market outlets or access, technical development or investment;
|
| (f) |
applies dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;
|
| (g) |
makes 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 of the contracts;
|
| (h) |
amounts to the use of an intellectual property right in a manner that goes beyond the limits of legal protection;
|
| (i) |
otherwise prevents, distorts or restricts competition.
|
|
| (4) |
Subsection (3)(d) shall not prevent a supplier or producer of goods or services from recommending a resale price to a reseller of the goods or a provider of the service, provided—
| (a) |
it is expressly stipulated by the supplier or producer to the reseller or provider that the recommended price is not binding; and
|
| (b) |
if any product, or any document or thing relating to any product or service, bears a price affixed or applied by the supplier or producer, and the words “recommended price” appear next to the price so affixed or applied.
|
|
| (5) |
An agreement or a concerted practice of the nature prohibited by subsection (1) shall be deemed to exist between two or more undertakings if—
| (a) |
any one of the undertakings owns a significant interest in the other or has at least one director or one substantial shareholder in common; and
|
| (b) |
any combination of the undertakings engages in any of the practices mentioned in subsection (3).
|
|
| (6) |
The presumption under subsection (5) may be rebutted if an undertaking or a director or shareholder concerned establishes that a reasonable basis exists to conclude that any practice in which any of the undertakings engaged was a normal commercial response to conditions prevailing in the market.
|
| (7) |
For the purposes of subsection (5), “director” includes—
| (a) |
a director of a company as defined in the Companies Act (Cap. 486);
|
| (b) |
in relation to an undertaking conducted by a society, a person responsible jointly with others for its management;
|
| (d) |
in relation to an undertaking conducted by an individual or a partnership, the owner of the undertaking or a partner of the partnership;
|
| (e) |
in relation to any other undertaking, a person responsible either individually or jointly with others for its management.
|
|
| (8) |
Subsection (1) does not apply in respect of an agreement entered into between, or a practice engaged in by—
| (a) |
a company and its wholly owned subsidiary or a wholly owned subsidiary of that subsidiary company; or
|
| (b) |
undertakings other than companies, each of which is owned or controlled by the same person or persons.
|
|
| (9) |
A person who contravenes the provisions of this section commits an offence and shall be liable on conviction to imprisonment for a term not exceeding five years or to a fine not exceeding ten million shillings, or both.
|
|
| 21. |
Restrictive trade practices
| (1) |
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.
|
| (2) |
Agreements, decisions and concerted practices contemplated in subsection (1), include agreements concluded between—
| (a) |
parties in a horizontal relationship, being undertakings trading in competition; or
|
| (b) |
parties in a vertical relationship, being an undertaking and its suppliers or customers or both.
|
|
| (3) |
Without prejudice to the generality of the provisions of subsection (1), that subsection applies in particular to any agreement, decision or concerted practice which—
| (a) |
directly or indirectly fixes purchase or selling prices or any other trading conditions;
|
| (b) |
divides markets by allocating customers, suppliers, areas or specific types of goods or services;
|
| (c) |
involves collusive tendering;
|
| (d) |
involves a practice of minimum resale price maintenance;
|
| (e) |
limits or controls production, market outlets or access, technical development or investment;
|
| (f) |
applies dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;
|
| (g) |
makes 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 of the contracts;
|
| (h) |
amounts to the use of an intellectual property right in a manner that goes beyond the limits of fair, reasonable and non-discriminatory use;
|
| (i) |
otherwise prevents, distorts or restricts competition.
|
|
| (4) |
Subsection (3)(d) shall not prevent a supplier or producer of goods or services from recommending a resale price to a reseller of the goods or a provider of the service, provided—
| (a) |
it is expressly stipulated by the supplier or producer to the reseller or provider that the recommended price is not binding; and
|
| (b) |
if any product, or any document or thing relating to any product or service, bears a price affixed or applied by the supplier or producer, and the words “recommended price” appear next to the price so affixed or applied.
|
|
| (5) |
An agreement or a concerted practice of the nature prohibited by subsection (1) shall be deemed to exist between two or more undertakings if—
| (a) |
any one of the undertakings owns a significant interest in the other or has at least one director or one substantial shareholder in common; and
|
| (b) |
any combination of the undertakings engages in any of the practices mentioned in subsection (3).
|
|
| (6) |
The presumption under subsection (5) may be rebutted if an undertaking or a director or shareholder concerned establishes that a reasonable basis exists to conclude that any practice in which any of the undertakings engaged was a normal commercial response to conditions prevailing in the market.
|
| (7) |
For the purposes of subsection (5), “director” includes—
| (a) |
a director of a company as defined in the Companies Act (Cap. 486);
|
| (b) |
in relation to an undertaking conducted by a society, a person responsible jointly with others for its management;
|
| (d) |
in relation to an undertaking conducted by an individual or a partnership, the owner of the undertaking or a partner of the partnership;
|
| (e) |
in relation to any other undertaking, a person responsible either individually or jointly with others for its management.
|
|
| (8) |
Subsection (1) does not apply in respect of an agreement entered into between, or a practice engaged in by—
| (a) |
a company and its wholly owned subsidiary or a wholly owned subsidiary of that subsidiary company; or
|
| (b) |
undertakings other than companies, each of which is owned or controlled by the same person or persons.
|
|
| (9) |
A person who contravenes the provisions of this section commits an offence and shall be liable on conviction to imprisonment for a term not exceeding five years or to a fine not exceeding ten million shillings, or both.
|
|
B – Restrictive Trade Practices Applicable to Trade Associations
| 22. |
Application to practices of trade associations
| (1) |
The following practices conducted by or on behalf of a trade association are declared to be restrictive trade practices—
| (a) |
the unjustifiable exclusion from a trade association of any person carrying on or intending to carry on in good faith the trade in relation to which the association is formed, and in determining whether an exclusion from such an association is unjustifiable, the Authority may examine, in addition to any other matters which it considers relevant, the application of any rules of that association and the reasonableness of those rules;
|
| (b) |
the making, directly or indirectly, of a recommendation by a trade association to its members or to any class of its members which relates to—
| (i) |
the prices charged or to be charged by such members or any such class of members or to the margins included in the prices or to the pricing formula used in the calculation of those prices; or |
| (ii) |
the terms of sale (including discount, credit, delivery, and product and service guarantee terms) of such members or any such class of members and which directly affects prices, profit margins included in the prices, or the pricing formula used in the calculation of prices. |
|
|
| (2) |
A recommendation by a trade association as described in subsection (1)(b) shall be deemed to be a restrictive trade practice notwithstanding that any statement in the recommendation may or may not be complied with as the members or class of members to whom the recommendation is made think fit.
|
| (3) |
A recommendation made by any person for the purpose of or having the effect, directly or indirectly, of enabling any trade association to defeat or evade the provisions of this Act shall be deemed to have been made by that trade association.
|
| (4) |
Where a specific recommendation whether express or implied is made by or on behalf of a trade association to its members or to any class of its members, concerning the action to be taken or not to be taken by them in relation to any matter affecting the trading conditions of those members, the provisions of this Act shall apply as if membership of the association constituted an agreement under which the members agreed with the association and with each other to comply with the recommendations, notwithstanding anything to the contrary in the constitution or rules of the association.
|
| (5) |
A member of a trade association who expressly notifies the association in writing that he disassociates himself entirely from an agreement made by that association or, as the case may be, that he will not take action or will refrain from action of a kind referred to in an express or implied recommendation made by that association shall not, in the absence of proof to the contrary, be deemed to be a party to that agreement or, as the case may be, a member of the association who has agreed to comply with the recommendation.
|
| (6) |
Any person who contravenes the provisions of this section commits an offence and shall be liable on conviction to imprisonment for a term not exceeding five years or to a fine not exceeding ten million shillings, or both.
|
|
C – Abuse of Dominant Position
| 23. |
Criteria for determining dominant position
| (1) |
For purposes of this section, “dominant undertaking” means an undertaking which—
| (a) |
produces, supplies, distributes or otherwise controls not less than one-half of the total goods of any description which are produced, supplied or distributed in Kenya or any substantial part thereof; or
|
| (b) |
provides or otherwise controls not less than one-half of the services which are rendered in Kenya or any substantial part thereof.
|
|
|
| 23. |
Criteria for determining dominant position
| (1) |
For purposes of this section, “dominant undertaking” means an undertaking which—
| (a) |
produces, supplies, distributes or otherwise controls not less than one-half of the total goods of any description which are produced, supplied or distributed in Kenya or any substantial part thereof; or
|
| (b) |
provides or otherwise controls not less than one-half of the services which are rendered in Kenya or any substantial part thereof.
|
|
| (2) |
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.
|
|
|
| 24. |
Abuse of dominant position
| (1) |
Any conduct which amounts to the abuse of a dominant position in a market in Kenya, or a substantial part of Kenya, is prohibited.
|
| (2) |
Without prejudice to the generality of subsection (1), abuse of a dominant position includes—
| (a) |
directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;
|
| (b) |
limiting or restricting production, market outlets or market access, investment, distribution, technical development or technological progress through predatory or other practices;
|
| (c) |
applying dissimilar conditions to equivalent transactions with other trading parties;
|
| (d) |
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
|
| (e) |
abuse of an intellectual property right.
|
|
| (3) |
Any person who contravenes the provisions of this section commits an offence and shall be liable on conviction to imprisonment for a term not exceeding five years or to a fine not exceeding ten million shillings or to both.
|
|
| 24. |
Abuse of dominant position and buyer power
| (1) |
Any conduct which amounts to the abuse of a dominant position in a market in Kenya, or a substantial part of Kenya, is prohibited.
|
| (2) |
Without prejudice to the generality of subsection (1), abuse of a dominant position includes—
| (a) |
directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;
|
| (b) |
limiting or restricting production, market outlets or market access, investment, distribution, technical development or technological progress through predatory or other practices;
|
| (c) |
applying dissimilar conditions to equivalent transactions with other trading parties;
|
| (d) |
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
|
| (e) |
abuse of an intellectual property right.
|
|
| (2A) |
Any conduct that amounts to abuse of buyer power in a market in Kenya, or a substantial part of Kenya, is prohibited.
|
| (2B) |
In determining buyer power, the Authority shall take into consideration—
| (a) |
the nature and determination of contract terms;
|
| (b) |
the payment requested for access infrastructure; and
|
| (c) |
the price paid to suppliers.
|
|
| (2C) |
The Authority, in consultation with the Cabinet Secretary and other relevant government agencies and stakeholders, shall develop rules for the better carrying out of the provisions of this section.
|
| (2D) |
For the purposes of this section, "buyer power" means the influence exerted by an undertaking or group of undertakings in the position of a purchaser of a product or service 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 or group of undertakings.
|
| (3) |
Any person who contravenes the provisions of this section commits an offence and shall be liable on conviction to imprisonment for a term not exceeding five years or to a fine not exceeding ten million shillings or to both.
|
|
| 24. |
Abuse of dominant position
| (1) |
Any conduct which amounts to the abuse of a dominant position in a market in Kenya, or a substantial part of Kenya, is prohibited.
|
| (2) |
Without prejudice to the generality of subsection (1), abuse of a dominant position includes—
| (a) |
directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;
|
| (b) |
limiting or restricting production, market outlets or market access, investment, distribution, technical development or technological progress through predatory or other practices;
|
| (c) |
applying dissimilar conditions to equivalent transactions with other trading parties;
|
| (d) |
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
|
| (e) |
abuse of an intellectual property right.
|
|
| (2A) |
Deleted by Act No. 27 of 2019, s. 4.
|
| (2B) |
Deleted by Act No. 27 of 2019, s. 4.
|
| (2C) |
Deleted by Act No. 27 of 2019, s. 4.
|
| (2D) |
Deleted by Act No. 27 of 2019, s. 4.
|
| (3) |
Any person who contravenes the provisions of this section commits an offence and shall be liable on conviction to imprisonment for a term not exceeding five years or to a fine not exceeding ten million shillings or to both.
|
|
| 24A. |
Abuse of buyer power
| (1) |
Any conduct that amounts to abuse of buyer power in a market in Kenya, or a substantial part of Kenya, is prohibited.
|
| (2) |
Where the Authority establishes that a sector or an undertaking is experiencing or is likely to experience incidences of abuse of buyer power, it may monitor the activities of the sector or undertaking and ensure compliance by imposing reporting and prudential requirements.
|
| (3) |
The Authority may require industries and sectors, in which instances of abuse of buyer power are likely to occur, to develop a binding code of practice.
|
| (4) |
In determining any complaint in relation to abuse of buyer power, the Authority shall take into account all relevant circumstances, including—
| (a) |
the nature and determination of contract terms between the concerned undertakings;
|
| (b) |
the payment requested for access to infrastructure; and
|
| (c) |
the price paid to suppliers.
|
|
| (5) |
Conduct amounting to abuse of buyer power includes—
| (a) |
delays in payment of suppliers without justifiable reason in breach of agreed terms of payment;
|
| (b) |
unilateral termination or threats of termination of a commercial relationship without notice or on an unreasonably short notice period, and without an objectively justifiable reason;
|
| (c) |
refusal to receive or return any goods or part thereof without justifiable reason in breach of the agreed contractual terms;
|
| (d) |
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 the goods or services;
|
| (e) |
transfer of commercial risks meant to be borne by the buyer to the suppliers;
|
| (f) |
demands for preferential terms unfavourable to the suppliers or demanding limitations on supplies to other buyers;
|
| (g) |
reducing prices by a small but significant amount where there is difficulty in substitutability of alternative buyers or reducing prices below competitive levels; or
|
| (h) |
bidding up prices of inputs by a buyer undertaking with the aim of excluding competitors from the market.
|
|
| (6) |
When investigating abuse of buyer power complaints, the Authority shall be guided by any existing agreement, whether written or not, between a buyer undertaking and supplier undertaking.
|
| (7) |
An agreement between a buyer undertaking and a supplier undertaking shall include—
| (c) |
the interest rate payable on late payment;
|
| (d) |
the conditions for termination and variation of the contract with reasonable notice; and
|
| (e) |
the mechanism for the resolution of disputes
|
|
| (8) |
The Authority shall publish the code of practice which shall be developed in consultation with the relevant stakeholders, relevant Government agencies and the Attorney-General.
|
| (9) |
Any person who contravenes the provisions of subsection (1) commits an offence and shall be liable on conviction to imprisonment for a term not exceeding five years or to a fine not exceeding ten million shillings or to both. [Act No. 27 of 2019, s. 5.]
|
|
D – Exemption of Certain Restrictive Practices
| 25. |
Grant of exemption for certain restrictive practices
| (1) |
Any undertaking or association of undertakings may apply to the Authority to be exempted from the provisions of Section A or B of this Part in respect of—
| (a) |
any agreement or category of agreements;
|
| (b) |
any decision or category of decisions;
|
| (c) |
any concerted practice or category of concerted practices.
|
|
| (2) |
An application for an exemption in terms of subsection (1) shall be—
| (a) |
made in the prescribed form and manner;
|
| (b) |
accompanied by such information as may be prescribed or as the Authority may reasonably require.
|
|
| (3) |
The Authority shall give notice by publishing a notice in the Gazette of an application received in terms of subsection (1)—
| (a) |
indicating the nature of the exemption sought by the applicant; and
|
| (b) |
calling upon interested persons to submit to the Authority, within thirty days of the publication of the notice, any written representations which they may wish to make in regard to the application.
|
|
|
| 26. |
Determination of application for exemption
| (1) |
After consideration of an application for exemption and any representations submitted by interested persons, the Authority shall make a determination in respect of the application, and may—
| (b) |
refuse to grant the exemption, and notify the applicant accordingly with a statement of the reasons for the refusal; or
|
| (c) |
issue a certificate of clearance stating that in its opinion, on the basis of the facts in its possession, the agreement, decision or concerted practice or the category of agreements, decisions or concerted practices does not constitute an infringement of the prohibitions contained in Section A or B of this Part.
|
|
| (2) |
The Authority may grant an exemption if it is satisfied that there are exceptional and compelling reasons of public policy as to why the agreement, decision, concerted practice or category of the same, ought to be excluded from the prohibitions contained in Section A or B of this Part.
|
| (3) |
In making a decision under subsection (2), the Authority shall take into account the extent to which the agreement, decision or concerted practice, or the category thereof contributes to, or results in, or is likely to contribute to or result in—
| (a) |
maintaining or promoting exports;
|
| (b) |
improving, or preventing decline in the production or distribution of goods or the provision of services;
|
| (c) |
promoting technical or economic progress or stability in any industry;
|
| (d) |
obtaining a benefit for the public which outweighs or would outweigh the lessening in competition that would result, or would be likely to result, from the agreement, decision or concerted practice or the category of agreements, decisions or concerted practices.
|
|
| (4) |
The Authority may grant an exemption subject to such conditions and for such period as the Authority may think fit.
|
|
| 27. |
Revocation or amendment of exemption
| (1) |
If the Authority, at any time after it has granted an exemption or issued a certificate of clearance under section 26, is satisfied that—
| (a) |
the exemption was granted or the certificate of clearance was issued on materially incorrect or misleading information;
|
| (b) |
there has been a material change of circumstances since the exemption was granted or the certificate was issued;
|
| (c) |
a condition upon which an exemption was granted has not been complied with,
|
the Authority may revoke or amend the exemption or revoke the certificate of clearance, as the case may be.
|
| (2) |
If the Authority proposes to revoke or amend an exemption or to revoke a certificate of clearance under subsection (1), it shall—
| (a) |
give notice in writing of the proposed action to the person to whom the exemption was granted or the certificate of clearance was issued, and to any other person who in the opinion of the Authority is likely to have an interest in the matter; and
|
| (b) |
call upon such persons to submit to the Authority, within thirty days of the receipt of the notice, any representations which they may wish to make in regard to the proposed action.
|
|
| (3) |
In the event of non-compliance with a condition of an exemption, and irrespective of whether the Authority revokes or amends the exemption on account of the non-compliance, the Authority may make application to the Tribunal for the imposition of a pecuniary penalty in respect of that non-compliance, either with or without any other order.
|
| (4) |
Any person who does not comply with a condition of exemption commits an offence.
|
|
| 28. |
Exemption in respect of intellectual property rights
| (1) |
The Authority may, upon application, and on such conditions as the Authority may determine, grant an exemption in relation to any agreement or practice relating to the exercise of any right or interest acquired or protected in terms of any law relating to copyright, patents, designs, trade marks, plant varieties or any other intellectual property rights.
|
| (2) |
Sections 25, 26 and 27 shall apply, mutatis mutandis, to an exemption under this section.
|
|
| 29. |
Exemption in respect of professional rules
| (1) |
A professional association whose rules contain a restriction that has the effect of preventing, distorting or lessening competition in a market may apply in writing or in the prescribed manner to the Authority for an exemption in terms of subsection (2).
|
| (2) |
The Authority may exempt all or part of the rules of a professional association from the provisions of Section A of this Part for a specified period if, having regard to internationally applied norms, any restriction contained in those rules that has the effect of preventing or substantially lessening competition in a market is reasonably required to maintain—
| (a) |
professional standards; or
|
| (b) |
the ordinary function of the profession.
|
|
| (3) |
Upon receiving an application in terms of subsection (1), the Authority shall—
| (a) |
publish a notice of the application in the Gazette;
|
| (b) |
allow interested parties thirty days from the date of that notice to make representations concerning the application; and
|
| (c) |
consult the Government agency or Ministry responsible for the administration of any law governing the profession concerning the application.
|
|
| (4) |
After considering the application and any submission or other information received in relation to the application, the Authority shall—
| (a) |
either grant an exemption or reject the application by issuing a notice in writing to the applicant;
|
| (b) |
give written reasons for its decision if it rejects the application; and
|
| (c) |
publish a notice of that decision in the Gazette.
|
|
| (5) |
If the Authority considers that any rules, either wholly or any part thereof, should no longer be exempt under this section, the Authority may revoke the exemption in respect of such rules or the relevant part of the rules, at any time after it has—
| (a) |
given notice in the Gazette of the proposed revocation;
|
| (b) |
allowed interested parties thirty days from the date of that notice to make representations concerning the exemption; and
|
| (c) |
consulted the responsible Minister referred to in subsection (3)(c).
|
|
| (6) |
The exemption of a rule or the revocation of an exemption shall take effect from such date as may be specified by the Authority.
|
| (7) |
For the purposes of this section, “professional association” means the controlling body established or registered under any law in respect of recognized professions, but does not include trade associations and industry lobby institutions or bodies whether incorporated or not.
|
|
| 29. |
Exemption in respect of professional rules
| (1) |
A professional association whose rules contain a restriction that has the effect of preventing, distorting or lessening competition in a market shall apply in writing or in the prescribed manner to the Authority for an exemption in terms of subsection (2).
|
| (2) |
The Authority may exempt all or part of the rules of a professional association from the provisions of Section A of this Part for a specified period if, having regard to internationally applied norms, any restriction contained in those rules that has the effect of preventing or substantially lessening competition in a market is reasonably required to maintain—
| (a) |
professional standards; or
|
| (b) |
the ordinary function of the profession.
|
|
| (3) |
Upon receiving an application in terms of subsection (1), the Authority shall—
| (a) |
publish a notice of the application in the Gazette;
|
| (b) |
allow interested parties thirty days from the date of that notice to make representations concerning the application; and
|
| (c) |
consult the Government agency or Ministry responsible for the administration of any law governing the profession concerning the application.
|
|
| (4) |
After considering the application and any submission or other information received in relation to the application, the Authority shall—
| (a) |
either grant an exemption or reject the application by issuing a notice in writing to the applicant;
|
| (b) |
give written reasons for its decision if it rejects the application; and
|
| (c) |
publish a notice of that decision in the Gazette.
|
|
| (5) |
If the Authority considers that any rules, either wholly or any part thereof, should no longer be exempt under this section, the Authority may revoke the exemption in respect of such rules or the relevant part of the rules, at any time after it has—
| (a) |
given notice in the Gazette of the proposed revocation;
|
| (b) |
allowed interested parties thirty days from the date of that notice to make representations concerning the exemption; and
|
| (c) |
consulted the responsible Minister referred to in subsection (3)(c).
|
|
| (6) |
The exemption of a rule or the revocation of an exemption shall take effect from such date as may be specified by the Authority.
|
| (7) |
For the purposes of this section, “professional association” means the controlling body established or registered under any law in respect of recognized professions, but does not include trade associations and industry lobby institutions or bodies whether incorporated or not.
|
|
| 29. |
Exemption in respect of professional rules
| (1) |
A professional association whose rules contain a restriction that has the effect of preventing, distorting or lessening competition in a market shall apply in writing or in the prescribed manner to the Authority for an exemption in terms of subsection (2).
|
| (2) |
The Authority may exempt all or part of the rules of a professional association from the provisions of Section A of this Part for a specified period if, having regard to internationally applied norms, any restriction contained in those rules that has the effect of preventing or substantially lessening competition in a market is reasonably required to maintain—
| (a) |
professional standards; or
|
| (b) |
the ordinary function of the profession.
|
|
| (3) |
Upon receiving an application in terms of subsection (1), the Authority shall—
| (a) |
publish a notice of the application in the Gazette;
|
| (b) |
allow interested parties thirty days from the date of that notice to make representations concerning the application; and
|
| (c) |
consult the Government agency or Ministry responsible for the
administration of any law governing the profession concerning the application.
|
|
| (4) |
After considering the application and any submission or other information received in relation to the application, the Authority shall—
| (a) |
either grant an exemption or reject the application by issuing a notice in writing to the applicant;
|
| (b) |
give written reasons for its decision if it rejects the application; and
|
| (c) |
publish a notice of that decision in the Gazette.
|
|
| (5) |
If the Authority considers that any rules, either wholly or any part thereof, should no longer be exempt under this section, the Authority may revoke the exemption in respect of such rules or the relevant part of the rules, at any time after it has—
| (a) |
given notice in the Gazette of the proposed revocation;
|
| (b) |
allowed interested parties thirty days from the date of that notice to make representations concerning the exemption; and
|
| (c) |
consulted the responsible Minister referred to in subsection (3)(c).
|
|
| (6) |
The exemption of a rule or the revocation of an exemption shall take effect from such date as may be specified by the Authority.
|
| (7) |
For the purposes of this section, “professional association” means the controlling body established or registered under any law in respect of recognized professions, but does not include trade associations and industry lobby institutions or bodies whether incorporated or not.
|
| (8) |
Any professional association—
| (a) |
whose rules contain a restriction that has the effect of preventing, distorting or lessening competition in a market in Kenya and which fails to apply for an exemption as required by sub-section (1) and (2); or
|
| (b) |
which having applied for exemption under sub-section (1) fails to comply with the Authority's decision rejecting its application,
commits an offence, and any official thereof or any person who issues guidelines or rules in contravention of that provision shall be liable, upon conviction, to imprisonment for a term not exceeding five years or to a fine not exceeding ten million shillings, or both.
|
|
|
| 30. |
Notification of grant, revocation or amendment of exemption
The Authority shall, as soon as is practicable, cause to be published in the Gazette notice of every exemption granted, and of every exemption revoked together with the reasons thereof, under any provision of this Part.
|
| 30. |
Notification of grant, revocation or amendment of exemption
| (1) |
The Authority shall, as soon as is practicable, cause to be published in the Gazette notice of every exemption granted, and of every exemption revoked together with the reasons thereof, under any provision of this Part.
|
| (2) |
The Authority may, with the approval of the Cabinet Secretary, by notice in the Gazette, exclude any category of decisions, practices or agreements by or between undertakings from the application of the provisions this Part.
|
|
E – Investigation into Prohibited Practices
| 31. |
Investigation by Authority
| (1) |
The Authority may, on its own initiative or upon receipt of information or complaint from any person or Government agency or Ministry, carry out an investigation into any conduct or proposed conduct which is alleged to constitute or may constitute an infringement of—
| (a) |
prohibitions relating to restrictive trade practices; or
|
| (b) |
prohibitions relating to abuse of dominance.
|
|
| (2) |
If the Authority, having received from any person a complaint or a request to investigate an alleged infringement referred to in subsection (1), decides not to conduct an investigation, the Authority shall inform that person in writing of the reasons for its decision.
|
| (3) |
If the Authority decides to conduct an investigation, the Authority shall give notice in writing of the proposed investigation to every undertaking the conduct of which is to be investigated, and shall in the notice—
| (a) |
indicate the subject-matter and purpose of the investigation; and
|
| (b) |
invite the undertaking concerned to submit to the Authority, within a period specified in the notice, any representations which the undertaking may wish to make to the Authority connection with any matter to be investigated
|
|
| (4) |
For the purpose of conducting an investigation, the Authority may, by notice in writing served on any person in the prescribed manner, require that person—
| (a) |
to furnish to the Authority by writing signed by that person or, in the case of a body corporate, by a director or member or other competent officer, employee or agent of the body corporate, within the time and in the manner specified in the notice, any information pertaining to any matter specified in the notice which the Authority considers relevant to the investigation;
|
| (b) |
to produce to the Authority, or to a person specified in the notice to act on the Authority behalf, any document or article, specified in the notice which relates to any matter which the Authority considers relevant to the investigation;
|
| (c) |
to appear before the Authority at a time and place specified in the notice to give evidence or to produce any document or article specified in the notice; and
|
|
| (d) |
if he possesses any records considered relevant to the investigation, to give copies of those records to the Authority or alternatively to submit the record to the authority for copying within the time and in the manner specified in the notice.
|
|
| 31. |
Investigation by Authority
| (1) |
The Authority may, on its own initiative or upon receipt of information or complaint from any person or Government agency or Ministry, carry out an investigation into any conduct or proposed conduct which is alleged to constitute or may constitute an infringement of—
| (a) |
prohibitions relating to restrictive trade practices; or
|
| (b) |
prohibitions relating to abuse of dominance.
|
|
| (2) |
If the Authority, having received from any person a complaint or a request to investigate an alleged infringement referred to in subsection (1), decides not to conduct an investigation, the Authority shall inform that person in writing of the reasons for its decision.
|
| (3) |
Deleted by L.N. 23/2011, Sch.
|
| (4) |
If the Authority decides to conduct an investigation, the Authority may, by notice in writing served on any person in the prescribed manner, require that person—
| (a) |
to furnish to the Authority by writing signed by that person or, in the case of a body corporate, by a director or member or other competent officer, employee or agent of the body corporate, within the time and in the manner specified in the notice, any information pertaining to any matter specified in the notice which the Authority considers relevant to the investigation;
|
| (b) |
to produce to the Authority, or to a person specified in the notice to act on the Authority behalf, any document or article, specified in the notice which relates to any matter which the Authority considers relevant to the investigation;
|
| (c) |
to appear before the Authority at a time and place specified in the notice to give evidence or to produce any document or article specified in the notice; and
|
| (d) |
if he possesses any records considered relevant to the investigation, to give copies of those records to the Authority or alternatively to submit the record to the authority for copying within the time and in the manner specified in the notice.
|
|
|
| 31. |
Investigation by Authority
| (1) |
The Authority may, on its own initiative or upon receipt of information or complaint from any person or Government agency or Ministry, carry out an investigation into any conduct or proposed conduct which is alleged to constitute or may constitute an infringement of—
| (a) |
prohibitions relating to restrictive trade practices;
|
| (b) |
prohibitions relating to abuse of dominance; or
|
| (c) |
prohibitions relating to abuse of buyer power.
|
|
| (2) |
If the Authority, having received from any person a complaint or a request to investigate an alleged infringement referred to in subsection (1), decides not to conduct an investigation, the Authority shall inform that person in writing of the reasons for its decision.
|
| (3) |
Deleted by L.N. 23/2011, Sch.
|
| (4) |
If the Authority decides to conduct an investigation, the Authority may, by notice in writing served on any person in the prescribed manner, require that person—
| (a) |
to furnish to the Authority by writing signed by that person or, in the case of a body corporate, by a director or member or other competent officer, employee or agent of the body corporate, within the time and in the manner specified in the notice, any information pertaining to any matter specified in the notice which the Authority considers relevant to the investigation;
|
| (b) |
to produce to the Authority, or to a person specified in the notice to act on the Authority behalf, any document or article, specified in the notice which relates to any matter which the Authority considers relevant to the investigation;
|
| (c) |
to appear before the Authority at a time and place specified in the notice to give evidence or to produce any document or article specified in the notice; and
|
| (d) |
if he possesses any records considered relevant to the investigation, to give copies of those records to the Authority or alternatively to submit the record to the authority for copying within the time and in the manner specified in the notice.
|
|
|
| 32. |
Entry and search
| (1) |
Where the Authority deems it necessary for its investigations under this Part, the person or persons authorized in writing by it may enter any premises in the occupation or under the control of a trader, manufacturer, producer, commission agent, clearing and forwarding agent, transporter or other person believed to be in possession of relevant information and documents and inspect the premises and any goods, documents and records situated thereon.
|
| (2) |
Upon entering premises in pursuance of the powers conferred by subsection (1), the person or persons authorized in writing shall, before proceeding to conduct an inspection of the premises, goods, documents and records situated thereon, inform the person present who is or who reasonably appears to be for the time being in charge of the premises of his intention to exercise his powers under this Act.
|
| (3) |
The authorized persons may use any computer system on the premises, or require assistance of any person on the premises to use that computer system, to—
| (a) |
search any data contained in or available to that computer system;
|
| (b) |
reproduce any record from that data;
|
| (c) |
seize any output from that computer for examination and copying;
|
| (d) |
attach and, if necessary, subject to the issuance of a receipt to that effect, remove from the premises for examination and safekeeping anything that has a bearing on the investigation.
|
|
| (4) |
The Authority may seek the assistance of police officers and other law enforcement agencies in its execution of the mandate conferred upon it by this section.
|
|
| 33. |
Power of Authority to take evidence
| (1) |
The Authority may receive in evidence any statement, document, information or matter that may in its opinion assist to deal effectively with an investigation conducted by it, but a statement, document, information or matter shall not be received in evidence unless it meets the requirements for admissibility in a Court of law.
|
| (2) |
The Authority may take evidence on oath or affirmation from any person attending before it, and for that purpose any member of the Authority may administer an oath or affirmation.
|
| (3) |
The Authority may permit any person appearing as a witness before it to give evidence by tendering and, if the Authority thinks fit, verifying by oath or affirmation, a written statement.
|
| (4) |
A person attending before the Authority is entitled to the same immunities and privileges as a witness before the High Court.
|
|
| 34. |
Proposed decision of Authority
| (1) |
If, upon conclusion of an investigation, the Authority proposes to make a decision that—
| (a) |
a prohibition or prohibitions under Section A of this Part have been infringed; or
|
| (b) |
a prohibition or prohibitions under Section B of this Part have been infringed,
|
it shall give written notice of its proposed decision to each undertaking which may be affected by that decision.
|
| (2) |
The notice referred to in subsection (1) shall—
| (a) |
state the reasons for the Authority’s proposed decision;
|
| (b) |
set out details of any relief that the Authority may consider to impose;
|
| (c) |
inform each undertaking that it may, in relation to the Authority’s proposed decision or any of the matters contemplated in paragraph (b), within the period specified in the notice—
| (i) |
submit written representations to the Authority; and |
| (ii) |
indicate whether it requires an opportunity to make oral representations to the Authority. |
|
|
|
| 34. |
Proposed decision of Authority
| (1) |
If, upon conclusion of an investigation, the Authority proposes to make a decision that—
| (a) |
a prohibition or prohibitions under Section A of this Part have been infringed;
|
| (b) |
a prohibition or prohibitions under Section B of this Part have been infringed; or
|
| (c) |
a prohibition or prohibitions under section C of this Part have been infringed,
|
|
it shall give written notice of its proposed decision to each undertaking which may be affected by that decision.
| (2) |
The notice referred to in subsection (1) shall—
| (a) |
state the reasons for the Authority’s proposed decision;
|
| (b) |
set out details of any relief that the Authority may consider to impose;
|
| (c) |
inform each undertaking that it may, in relation to the Authority’s proposed decision or any of the matters contemplated in paragraph (b), within the period specified in the notice—
| (i) |
submit written representations to the Authority; and |
| (ii) |
indicate whether it requires an opportunity to make oral representations to the Authority.[Act No. 49 of 2016, s. 6.] |
|
|
|
| 35. |
Hearing conference to be convened for oral representation
| (1) |
If an undertaking indicates that it requires an opportunity to make oral representations to the Authority, the Authority shall—
| (a) |
convene a conference to be held at a date, time and place determined by the Authority; and
|
| (b) |
give written notice of the date, time and place to—
| (i) |
the undertaking or undertakings concerned; |
| (ii) |
any person who had lodged a complaint with the Authority concerning the conduct which was the subject matter of the Authority’s investigation; and |
| (iii) |
any other person whose presence at the conference is considered by the Authority to be desirable. |
|
|
| (2) |
A person to whom notice has been given of a conference in terms of subsection (1) may be accompanied by any person, including an advocate, whose assistance he may require at the conference.
|
| (3) |
The proceedings at a conference shall be carried out in as informal a manner as the subject matter may permit.
|
| (4) |
The Authority shall cause such record of the conference to be kept as is sufficient to set out the matters raised by the persons participating in the conference.
|
| (5) |
The Authority may terminate the conference if it is satisfied that a reasonable opportunity has been given for the expression of the views of persons participating in the conference.
|
|
| 36. |
Action following investigation
After consideration of any written representations and of any matters raised at a conference, the Authority may take the following measures—
| (a) |
declare the conduct which is the subject matter of the Authority’s investigation, to constitute an infringement of the prohibitions contained in Section A or B of this Part;
|
| (b) |
restrain the undertaking or undertakings from engaging in that conduct;
|
| (c) |
direct any action to be taken by the undertaking or undertakings concerned to remedy or reverse the infringement or the effects thereof;
|
| (d) |
impose a financial penalty; or
|
| (e) |
grant any other appropriate relief.
|
|
| 36. |
Action following investigation
After consideration of any written representations and of any matters raised at a conference, the Authority may take the following measures—
| (a) |
declare the conduct which is the subject matter of the Authority’s investigation, to constitute an infringement of the prohibitions contained in Section A, B or C of this Part;
|
| (b) |
restrain the undertaking or undertakings from engaging in that conduct;
|
| (c) |
direct any action to be taken by the undertaking or undertakings concerned to remedy or reverse the infringement or the effects thereof;
|
| (d) |
impose a financial penalty of up to ten percent of the immediately preceding year's gross annual turnover in Kenya of the undertaking or undertakings in question; or
|
| (e) |
grant any other appropriate relief.
|
|
| 37. |
Interim relief
| (1) |
If the Authority believes, on reasonable grounds, that an undertaking has engaged, is engaging, or is proposing to engage, in conduct that constitutes or may constitute an infringement of the prohibitions contained in Section A of this Part or the prohibitions contained in Section B of this Part, and that it is necessary for the Authority to act as a matter of urgency for the purpose of—
| (a) |
preventing serious, irreparable damage to any person or category of persons; or
|
| (b) |
protecting the public interest,
|
|
the Authority may, by order in writing, direct the undertaking or undertakings to stop and desist from engaging in such conduct until the ongoing investigation is concluded.
|
| 37. |
Interim relief
| (1) |
If the Authority believes, on reasonable grounds, that an undertaking has engaged, is engaging, or is proposing to engage, in conduct that constitutes or may constitute an infringement of the prohibitions contained in section A, B, or C of this Part, and that it is necessary for the Authority to act as a matter of urgency for the purpose of—
| (a) |
preventing serious, irreparable damage to any person or category of persons; or
|
| (b) |
protecting the public interest,
|
|
the Authority may, by order in writing, direct the undertaking or undertakings to stop and desist from engaging in such conduct until the ongoing investigation is concluded.
|
| 38. |
Settlement
| (1) |
The Authority may at any time, during or after an investigation into an alleged infringement of the prohibitions contained in this Part, enter into an agreement of settlement with the undertaking or undertakings concerned.
|
| (2) |
An agreement referred to in subsection (1) may include—
| (a) |
an award of damages to the complainant;
|
| (b) |
any amount proposed to be imposed as a pecuniary penalty.
|
|
|
| 39. |
Publication of decision of Authority
| (1) |
The Authority shall cause notice to be given in the Gazette of any action taken under section 37 and of any agreement referred to in section 38.
|
| (2) |
The notice referred to in subsection (1) shall include—
| (a) |
the name of every undertaking involved; and
|
| (b) |
the nature of the conduct that is the subject of the action or the settlement agreement.
|
|
|
| 40. |
Appeals to the Tribunal
| (1) |
A person aggrieved by a determination of the Authority made under this Part shall appeal in writing to the Tribunal.
|
| (2) |
A party to an appeal under subsection (1) who is dissatisfied with the decision of the Tribunal may appeal to the High Court against that decision within thirty days after the date on which a notice of that decision has been served on him and the decision of the High Court shall be final.
|
|
| 40. |
Appeals to the Tribunal
| (1) |
A person aggrieved by a determination of the Authority made under this Part shall appeal in writing to the Tribunal within thirty days of receiving the Authority's decision.
|
| (2) |
A party to an appeal under subsection (1) who is dissatisfied with the decision of the Tribunal may appeal to the High Court against that decision within thirty days after the date on which a notice of that decision has been served on him and the decision of the High Court shall be final.
|
|
PART IV – MERGERS
| 41. |
Merger defined
| (1) |
For the purposes of this Part, a merger occurs when one or more undertakings directly or indirectly acquire or establish direct or indirect control over the whole or part of the business of another undertaking.
|
| (2) |
A merger contemplated in subsection (1) may be achieved in any manner, including—
| (a) |
the purchase or lease of shares, acquisition of an interest, or purchase of assets of the other undertaking in question;
|
| (b) |
the acquisition of a controlling interest in a section of the business of an undertaking capable of itself being operated independently whether or not the business in question is carried on by a company;
|
| (c) |
the acquisition of an undertaking under receivership by another undertaking either situated inside or outside Kenya;
|
| (d) |
acquiring by whatever means the controlling interest in a foreign undertaking that has got a controlling interest in a subsidiary in Kenya;
|
| (e) |
in the case of a conglomerate undertaking, acquiring the controlling interest of another undertaking or a section of the undertaking being acquired capable of being operated independently;
|
| (g) |
exchange of shares between or among undertakings which result in substantial change in ownership structure through whatever strategy or means adopted by the concerned undertakings; or
|
| (h) |
amalgamation, takeover or any other combination with the other undertaking.
|
|
| (3) |
A person controls an undertaking if that person—
| (a) |
beneficially owns more than one half of the issued share capital of the undertaking;
|
| (b) |
is entitled to vote a majority of the votes that may be cast at a general meeting of the undertaking, or has the ability to control the voting of a majority of those votes, either directly or through a controlled entity of that undertaking;
|
| (c) |
is able to appoint, or to veto the appointment of, a majority of the directors of the undertaking;
|
| (d) |
is a holding company, and the undertaking is a subsidiary of that company as contemplated in the Companies Act (Cap. 486);
|
| (e) |
in the case of the undertaking being a trust, has the ability to control the majority of the votes of the trustees or to appoint the majority of the trustees or to appoint or change the majority of the beneficiaries of the trust;
|
| (f) |
in the case of the undertaking being a nominee undertaking, owns the majority of the members’ interest or controls directly or has the right to control the majority of members’ votes in the nominee undertaking; or
|
|
| (g) |
has the ability to materially influence the policy of the undertaking in a manner comparable to a person who, in ordinary commercial practice, can exercise an element of control referred to in paragraphs (a) to (f).
|
|
| 41. |
Merger defined
| (1) |
For the purposes of this Part, a merger occurs when one or more undertakings directly or indirectly acquire or establish direct or indirect control over the whole or part of the business of another undertaking.
|
| (2) |
A merger contemplated in subsection (1) may be achieved in any manner, including—
| (a) |
the purchase or lease of shares, acquisition of an interest, or purchase of assets of the other undertaking in question;
|
| (b) |
the acquisition of a controlling interest in a section of the business of an undertaking capable of itself being operated independently whether or not the business in question is carried on by a company;
|
| (c) |
the acquisition of an undertaking under receivership by another undertaking either situated inside or outside Kenya;
|
| (d) |
acquiring by whatever means the controlling interest in a foreign undertaking that has got a controlling interest in a subsidiary in Kenya;
|
| (e) |
in the case of a conglomerate undertaking, acquiring the controlling interest of another undertaking or a section of the undertaking being acquired capable of being operated independently;
|
| (g) |
exchange of shares between or among undertakings which result in substantial change in ownership structure through whatever strategy or means adopted by the concerned undertakings; or
|
| (h) |
amalgamation, takeover or any other combination with the other undertaking.
|
|
| (3) |
A person controls an undertaking if that person—
| (a) |
beneficially owns more than one half of the issued share capital or business or assets of the undertaking;
|
| (b) |
is entitled to vote a majority of the votes that may be cast at a general meeting of the undertaking, or has the ability to control the voting of a majority of those votes, either directly or through a controlled entity of that undertaking;
|
| (c) |
is able to appoint, or to veto the appointment of, a majority of the directors of the undertaking;
|
| (d) |
is a holding company, and the undertaking is a subsidiary of that company as contemplated in the Companies Act (Cap. 486);
|
| (e) |
in the case of the undertaking being a trust, has the ability to control the majority of the votes of the trustees or to appoint the majority of the trustees or to appoint or change the majority of the beneficiaries of the trust;
|
| (f) |
in the case of the undertaking being a nominee undertaking, owns the majority of the members’ interest or controls directly or has the right to control the majority of members’ votes in the nominee undertaking; or
|
| (g) |
has the ability to materially influence the policy of the undertaking in a manner comparable to a person who, in ordinary commercial practice, can exercise an element of control referred to in paragraphs (a) to (f).
|
|
|
| 42. |
Control of mergers
| (1) |
The Authority may, by notice in the Gazette, declare any proposed merger to be excluded from the provisions of this Part.
|
| (2) |
No person, either individually or jointly or in concert with any other person, may implement a proposed merger to which this part applies, unless the proposed merger is—
| (a) |
approved by the Authority; and
|
| (b) |
implemented in accordance with any conditions attached to the approval.
|
|
| (3) |
No merger as described in section 41 carried out in the absence of an authorizing order by the Authority, shall have any legal effect, and no obligation imposed on the participating parties by any agreement in respect of the merger shall be enforceable in legal proceedings.
|
| (4) |
Payment of the full purchase price by the acquiring undertaking shall be deemed to be implementation of the merger in question for the purposes of this section, and payment of a maximum down payment not exceeding twenty percent of the agreed purchase price shall not constitute implementation.
|
| (5) |
Any person who contravenes the provisions of this section commits an offence and shall be liable on conviction to imprisonment for a term not exceeding five years or to a fine not exceeding ten million shillings, or both.
|
| (6) |
In addition to the penalties described in subsection (5), the Authority may impose a financial penalty in an amount not exceeding ten percent of the preceding year’s gross annual turnover in Kenya of the undertaking or undertakings in question.
|
|
| 42. |
Control of mergers
| (1) |
The Authority may, in consultation with the Cabinet Secretary and by notice in the Gazette, set the threshold for any merger excluded from the provisions of this Part.
|
| (2) |
No person, either individually or jointly or in concert with any other person, may implement a proposed merger to which this part applies, unless the proposed merger is—
| (a) |
approved by the Authority; and
|
| (b) |
implemented in accordance with any conditions attached to the approval.
|
|
| (3) |
No merger as described in section 41 carried out in the absence of an authorizing order by the Authority, shall have any legal effect, and no obligation imposed on the participating parties by any agreement in respect of the merger shall be enforceable in legal proceedings.
|
| (4) |
Payment of the full purchase price by the acquiring undertaking shall be deemed to be implementation of the merger in question for the purposes of this section, and payment of a maximum down payment not exceeding twenty percent of the agreed purchase price shall not constitute implementation.
|
| (5) |
Any person who contravenes the provisions of this section commits an offence and shall be liable on conviction to imprisonment for a term not exceeding five years or to a fine not exceeding ten million shillings, or both.
|
| (6) |
The Authority may impose a financial penalty in an amount not exceeding ten percent of the preceding year’s gross annual turnover in Kenya of the undertaking or undertakings in question.
|
|
| 43. |
Notice to be given to Authority of proposed merger
| (1) |
Where a merger is proposed, each of the undertakings involved shall notify the Authority of the proposal in writing or in the prescribed manner.
|
| (2) |
The Authority may, within thirty days of the date of receipt of the notification under subsection (1), request such further information in writing from any one or more of the undertakings concerned.
|
|
| 44. |
Period for making determination in relation to proposed merger
| (1) |
Subject to subsection (2), the Authority shall consider and make a determination in relation to a proposed merger of which it has received notification in terms of section 43—
| (a) |
within sixty days after the date on which the Authority receives that notification; or
|
| (b) |
if the Authority requests further information under section 43(2), within sixty days after the date of receipt by the Authority of such information; or
|
| (c) |
if a hearing conference is convened in accordance with section 45, within thirty days after the date of conclusion of the conference.
|
|
| (2) |
Where the Authority is of the opinion that the period referred to in paragraph (a), (b) or (c) of subsection (1) should be extended due to the complexity of the issues involved, it may, before the expiry of that period, by notice in writing to the undertakings involved extend the relevant period for a further period, not exceeding sixty days, specified in the notice.
|
|
| 45. |
Hearing conference in relation to proposed merger
| (1) |
If the Authority considers it appropriate, it may determine that a conference be held in relation to a proposed merger.
|
| (2) |
If the Authority determines that a conference is necessary, it shall, before expiry of the period referred to in paragraph (a) or (b) of subsection (1) of section 44 or subsection (2) of that section, as the case may be, give reasonable notice to the undertakings involved in writing—
| (a) |
convening the conference;
|
| (b) |
specifying the date, time and venue; and
|
| (c) |
stipulating the matters to be considered at the conference.
|
|
|
| 46. |
Determination of proposed merger
| (1) |
In making a determination in relation to a proposed merger, the Authority may either—
| (a) |
give approval for the implementation of the merger;
|
| (b) |
decline to give approval for the implementation of the merger; or
|
| (c) |
give approval for the implementation of the merger with conditions.
|
|
| (2) |
The Authority may base its determination in relation to a proposed merger on any criteria which it considers relevant to the circumstances involved in the proposed merger, including—
| (a) |
the extent to which the proposed merger would be likely to prevent or lessen competition or to restrict trade or the provision of any service or to endanger the continuity of supplies or services;
|
| (b) |
the extent to which the proposed merger would be likely to result in any undertaking, including an undertaking not involved as a party in the proposed merger, acquiring a dominant position in a market or strengthening a dominant position in a market;
|
| (c) |
the extent to which the proposed merger would be likely to result in a benefit to the public which would outweigh any detriment which would be likely to result from any undertaking, including an undertaking not involved as a party in the proposed merger, acquiring a dominant position in a market or strengthening a dominant position in a market;
|
| (d) |
the extent to which the proposed merger would be likely to affect a particular industrial sector or region;
|
| (e) |
the extent to which the proposed merger would be likely to affect employment;
|
| (f) |
the extent to which the proposed merger would be likely to affect the ability of small undertakings to gain access to or to be competitive in any market;
|
| (g) |
the extent to which the proposed merger would be likely to affect the ability of national industries to compete in international markets; and
|
| (h) |
any benefits likely to be derived from the proposed merger relating to research and development, technical efficiency, increased production, efficient distribution of goods or provision of services and access to markets.
|
|
| (3) |
For the purpose of considering a proposed merger, the Authority may refer the particulars of the proposed merger to an investigator, who may include an employee of the Authority or any other suitable person, for investigation and a report in relation to the criteria referred to in subsection (2), and shall inform the undertakings involved of such referral.
|
| (4) |
As soon as practicable after a referral in terms of subsection (3), the investigator concerned shall—
| (a) |
investigate the proposal so referred; and
|
| (b) |
before the date specified by the Authority, furnish the Authority with a report of the investigation.
|
|
| (5) |
Any person, including a person not involved as a party in the proposed merger, may voluntarily submit to an investigator or the Authority any document, affidavit, statement or other relevant information in respect of a proposed merger.
|
| (6) |
| (a) |
give notice of the determination made by the Authority in relation to a proposed merger—
| (i) |
to the parties involved in the proposed merger, in writing; and |
| (ii) |
by notice in the Gazette; and |
|
| (b) |
issue written reasons for its determination—
| (i) |
if it prohibits or conditionally approves a proposed merger; or |
| (ii) |
if it is requested to do so by any party to the merger. |
|
|
|
| 47. |
Revocation of approval of proposed merger
| (1) |
The Authority may at any time, after consideration of any representations made to it in terms of subsection (2), revoke a decision approving the implementation of a proposed merger if—
| (a) |
the decision was based on materially incorrect or misleading information for which a party to the merger is responsible; or
|
| (b) |
any condition attached to the approval of the merger that is material to the implementation is not complied with.
|
|
| (2) |
If the Authority proposes to revoke its decision under subsection (1), it shall give notice in writing of the proposed action to every undertaking involved in the merger, and to any other person who in the opinion of the Authority is likely to have an interest in the matter; and call upon such persons to submit to the Authority, within thirty days of the receipt of the notice, any representations which they may wish to make in regard to the proposed action.
|
|
| 47. |
Revocation of approval of proposed merger
| (1) |
The Authority may at any time, after consideration of any representations made to it in terms of subsection (2), revoke a decision approving the implementation of a proposed merger if—
| (a) |
the decision was based on materially incorrect or misleading information for which a party to the merger is responsible; or
|
| (b) |
any condition attached to the approval of the merger that is material to the implementation is not complied with.
|
|
| (2) |
If the Authority proposes to revoke its decision under subsection (1), it shall give notice in writing of the proposed action to every undertaking involved in the merger, and to any other person who in the opinion of the Authority is likely to have an interest in the matter; and call upon such persons to submit to the Authority, within thirty days of the receipt of the notice, any representations which they may wish to make in regard to the proposed action.
|
| (3) |
Notwithstanding subsections (1) and (2), the Authority may impose a financial penalty of upto ten percent of the preceding year's annual gross turnover.
|
| (4) |
Any person who, being a party to a merger—
| (a) |
gives materially incorrect or misleading information; or
|
| (b) |
fails to comply with any condition attached to the approval for the merger,
|
leading to a revocation of the merger under this section, commits an offence and shall be liable on conviction to a fine not exceeding ten million shillings or to imprisonment for a term not exceeding five years, or to both.
|
|
| 48. |
Review of decisions of Authority by Tribunal
| (1) |
Not later than thirty days after notice is given by the Authority in the Gazette in terms of section 46(6) of the determination made by the Authority in relation to a proposed merger, a party to the merger may apply to the Tribunal, in the form determined by the Tribunal, for review of the Authority’s decision.
|
| (2) |
Within thirty days after receiving an application under subsection (1), the Tribunal shall by notice in the Gazette give notice of the application for a review, and invite interested parties to make submissions to the Tribunal in regard to any matter to be reviewed within the time and manner stipulated in the notice.
|
| (3) |
Within four months after the date of the making of an application for a review was made, the Tribunal shall make a determination either—
| (a) |
overturning the decision of the Authority;
|
| (b) |
amending the decision of the Authority by ordering restrictions or including conditions;
|
| (c) |
confirming the decision of the Authority; or
|
| (d) |
referring the matter back to the Authority for reconsideration on specified terms.
|
|
| (4) |
| (a) |
give notice of the determination it has made in relation to the review—
| (i) |
to the Authority and to the parties involved in the proposed merger, in writing; and |
| (ii) |
by notice in the Gazette; and |
|
| (b) |
issue written reasons for that determination to the Authority and the parties involved.
|
|
| (2) |
The Tribunal may determine the procedure for a review in terms of this section.
|
|
| 48. |
Review of decisions of Authority by Tribunal
| |
