Point in Time
Act No: No. 12 of 2010
Act Title: COMPETITION
[ Date of commencement:1st August, 2011. ]
[ Date of assent:30th December, 2010. ]
Arrangement of Sections
PART I – PRELIMINARY
1.
Short title

This Act may be cited as the Competition Act, 2010.

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;

(b)

promote innovation;

(c)

maximize the efficient allocation of resources;

(d)

protect consumers;

(e)

create an environment conducive for investment, both foreign and local;

(f)

capture national obligations in competition matters with respect to regional integration initiatives;

(g)

bring national competition law, policy and practice in line with best international practices; and

(h)

promote the competitiveness of national undertakings in world markets.

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;

(b)

a body corporate incorporated in Kenya or carrying on business within Kenya;

(c)

any person in relation to the supply or acquisition of goods or services by that person into or within Kenya; or

(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.

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.

(2)

The Authority shall be independent and shall perform its functions and exercise its powers independently and impartially without fear or favour.

(3)

The Authority shall be a body corporate with perpetual succession and a common seal and shall, in its corporate name, be capable of—

(a)

suing and being sued;

(b)

purchasing or otherwise acquiring, holding, charging and disposing of movable and immovable property;

(c)

borrowing money; and

(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.

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.

(2)

Except as provided in the Schedule, the Authority may regulate its own procedure.

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.

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

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

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—

(a)

grant the exemption;

(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.

E – Investigation into Prohibited Practices

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.

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.

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.

PART IV – MERGERS
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)

The Authority shall—

(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.
49.
Compliance with other laws and appeals
(1)

Approval of a proposed merger granted by the Authority, or by the Tribunal upon a review, under this Part shall not relieve an undertaking from complying with any other applicable laws.

(2)

A party to an appeal under this Part 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 V – CONTROL OF UNWARRANTED CONCENTRATION OF ECONOMIC POWER
50.
Identifying unwarranted concentration of economic power
(1)

The Authority shall keep the structure of production and distribution of goods and services in Kenya under review to determine where concentrations of economic power exist whose detrimental impact on the economy out-weighs the efficiency advantages, if any, of integration in production or distribution.

(2)

The Authority shall investigate any economic sector which it has reason to believe may feature one or more factors relating to unwarranted concentrations of economic power, and for that purpose, the Authority may require any participant in that sector to grant it or any person authorized in writing by it access to records relating to patterns of ownership, market structure and percentages of sales.

(3)

The Authority may require any person possessing the records referred to in subsection (2) to provide it with copies of the records.

(4)

For the purpose of this Part, an unwarranted concentration of economic power shall be deemed to be prejudicial to the public interest if, having regard to the economic conditions prevailing in the country and to all other factors which are relevant in the particular circumstances, the effect thereof is or would be to—

(a)

unreasonably increase the cost relating to the production, supply, or distribution of goods or the provision of any service; or

(b)

unreasonably increase—

(i) the price at which goods are sold; or
(ii) the profits derived from the production, supply or distribution of goods or from the performance of any service; or
(c)

lessen, distort, prevent or limit competition in the production, supply or distribution of any goods (including their sale or purchase) or the provision of any service;

(d)

result in a deterioration in the quality of any goods or in the performance of any service; or

(e)

result in an inadequacy in the production, supply or distribution of any goods or services.

51.
Hearing conference
(1)

If any undertaking in the economic sector under investigation so requests, or the Authority considers it appropriate, it may determine that a hearing be held in relation to a proposed determination regarding unwarranted concentration of economic power.

(2)

If the Authority determines that a hearing should be held, it shall give reasonable notice in writing to the undertaking or undertakings involved—

(a)

convening the hearing;

(b)

specifying the date, time and place for the holding thereof; and

(c)

stipulating the matters to be considered thereat.

(3)

Where a hearing is contemplated or held, the Authority’s determination as to whether or not an unwarranted concentration of economic power exists shall be kept in abeyance pending conclusion of the hearing.

(4)

A hearing shall not be deemed inconclusive due to the mere fact of non-cooperation by concerned undertakings.

52.
Orders to dispose of interests
(1)

After completion of its investigation, the Authority may make an order directing any person whom it deems to hold an unwarranted concentration of economic power in any sector to dispose of such portion of his interests in production, distribution or the supply of services as it deems necessary to remove the unwarranted concentration.

(2)

In addition to subsection (1), the Authority may order, separately or together with the order to dispose of interests made under that subsection, the person in question to observe such other conditions as may be deemed necessary to remove the unwarranted concentration.

(3)

A disposal of interest pursuant to an order made under subsection (1) may be accompanied by sale of all or part of a person’s beneficial interest in an enterprise, or by the sale of one or more units in a group or chain of manufacturers or distributors or suppliers of services controlled by the person.

(4)

No order shall be issued under this section which would have the effect of subdividing a manufacturing facility whose degree of physical integration is such that the introduction of independent management units controlling different components reduces its efficiency and substantially raises production costs per unit of output.

(5)

An order made under this section shall allow sufficient time, to be determined by the Authority, for orderly disposal of interests or to comply with any conditions imposed by the Authority so as not to cause undue loss of value to the person to whom the order is addressed.

53.
Appeals from the Authority’s order
(1)

A person aggrieved by an order of the Authority made under this Part may appeal to the Tribunal in the prescribed form.

(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 is served on him and the decision of the High Court shall be final.

54.
Offences and penalties
(1)

Every person who, whether as principal or agent and whether by himself or his agent—

(a)

having lodged no appeal within the time allocated for appeals against an order of the Authority made under the provisions of this Part, contravenes or fails to comply with such order;

(b)

after the Tribunal has pronounced its decision on the appeal, contravenes or fails to comply with any portion of an order of the Authority made under this Part which is confirmed by the Tribunal or as modified by the Tribunal,

commits an offence.

(2)

A party to an appeal under this Part who is dissatisfied with the decision of the Tribunal may appeal to the High Court against that decision within thirty days after the date of service of the decision on him, and the decision of the High Court shall be final.

(3)

Any person who is convicted of an offence under this Part shall be liable to imprisonment for a term not exceeding five years, or to a fine not exceeding ten million shillings, or both.

PART VI – CONSUMER WELFARE
55.
False or misleading representations

A person commits an offence when, in trade in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services, he—

(a)

falsely represents that—

(i) goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use;
(ii) services are of a particular standard, quality, value or grade;
(iii) goods are new;
(iv) a particular person has agreed to acquire goods or services;
(v) goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have;
(vi) the product has a sponsorship, approval or affiliation it does not have;
(b)

makes a false or misleading representation—

(i) with respect to the price of goods or services;
(ii) concerning the availability of facilities for the repair of goods or of spare parts for goods;
(iii) concerning the place of origin of goods;
(iv) concerning the need for any goods or services; or
(v) concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy.
56.
Unconscionable conduct
(1)

It shall be an offence for a person, in trade in connection with the supply or possible supply of goods or services to another person, to engage in conduct that is, in all the circumstances, unconscionable.

(2)

Without limiting the matters to which the Authority may have regard for the purpose of determining whether a person has contravened subsection (1) in connection with the supply or possible supply of goods or services to another person (in this subsection referred to as “the consumer”), the Authority may have regard to—

(a)

the relative strengths of the bargaining positions of the person and the consumer;

(b)

whether, as a result of conduct engaged in by the person, the consumer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the person;

(c)

whether the consumer was able to understand any documents relating to the supply or possible supply of the goods or services;

(d)

whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the consumer or a person acting on behalf of the consumer by the person acting on behalf of the person in relation to the supply or possible supply of the goods or services; and

(e)

the amount for which, and the circumstances under which, the consumer could have acquired identical or equivalent goods or services from another supplier.

(3)

A person shall not, in the provision of banking, micro-finance and insurance and other services, impose unilateral charges and fees, by whatever name called or described, if the charges and the fees in question had not been brought to the attention of the consumer prior to their imposition or prior to the provision of the service.

(4)

A consumer shall be entitled to be informed by a service provider of all charges and fees, by whatever name called or described, intended to be imposed for the provision of a service.

(5)

A person shall not be deemed to engage in unconscionable conduct under this section in connection with the supply or possible supply of goods or services to a person by reason only that the person institutes legal proceedings in relation to that supply or possible supply or refers a dispute or claim in relation to that supply or possible supply to arbitration.

(6)

For the purpose of determining whether a person has contravened subsection (1) in connection with the supply or possible supply of goods or services to a person—

(a)

the Authority shall not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention; and

(b)

the Authority may have regard to conduct engaged in, or circumstances existing, before the commencement of this Act.

(7)

A reference in this section to goods or services is a reference to goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption.

(8)

A reference in this section to the supply or possible supply of goods does not include a reference to the supply or possible supply of goods for the purpose of re-supply or for the purpose of using them up or transforming them in trade.

57.
Unconscionable conduct in business transactions
(1)

It shall be an offence for a person in trade in connection with—

(a)

the supply or possible supply of goods or services to another person; or

(b)

the acquisition or possible acquisition of goods or services from another person,

to engage in conduct that is, in all the circumstances, unconscionable.

(2)

Without limiting the matters to which the Authority may have regard for the purpose of determining whether a person, being a supplier, has contravened subsection (1) in connection with the supply or possible supply of goods or services to a business consumer, the Authority may have regard to—

(a)

the relative strengths of the bargaining positions of the supplier and the business consumer;

(b)

whether, as a result of conduct engaged in by the supplier, the business consumer was required to comply with conditions which were not reasonably necessary for the protection of the legitimate interests of the supplier;

(c)

whether the business consumer was able to understand any documents relating to the supply or possible supply of the goods or services;

(d)

whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the business consumer or a person acting on behalf of the business consumer by the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the goods or services;

(e)

the amount for which, and the circumstances under which, the business consumer could have acquired identical or equivalent goods or services from a person other than the supplier;

(f)

the extent to which the supplier’s conduct towards the business consumer was consistent with the supplier’s conduct in similar transactions between the supplier and other like business consumers;

(g)

the requirements of any applicable industry code;

(h)

the requirements of any other industry code, if the business consumer acted on the reasonable belief that the supplier would comply with that code;

(i)

the extent to which the supplier unreasonably failed to disclose to the business consumer—

(i) any intended conduct of the supplier that might affect the interests of the business consumer; and
(ii) any risks to the business consumer arising from the supplier’s intended conduct (being risks that the supplier should have foreseen that would not be apparent to the business consumer);
(j)

the extent to which the supplier was willing to negotiate the terms and conditions of any contract for supply of the goods or services with the business consumer; and

(k)

the extent to which the supplier and the business consumer acted in good faith.

58.
Warning notice to public
(1)

The Authority shall publish a notice containing one or both of the following—

(a)

a statement that goods of a kind specified in the notice are under investigation to determine whether the goods will or may cause injury to any person;

(b)

a warning of possible risks involved in the use of goods of a kind specified in the notice.

(2)

Where an investigation referred to in subsection (1) has been completed, the Authority shall, as soon as practicable, by notice in writing published in at least one national daily newspaper, announce the results of the investigation, indicating whether, and if so, what action is proposed to be taken in relation to the goods under this Act.

(3)

The Authority may delegate to the relevant specialized agencies of the Government its functions as envisaged by this section.

59.
Product safety standards and unsafe goods
(1)

It shall be an offence for a person, in trade, to supply goods that are intended to be used, or are of a kind likely to be used, by a consumer if the goods are of a kind—

(a)

in respect of which there is a prescribed consumer product safety standard and which do not comply with that standard;

(b)

in respect of which there is in force a notice under this section declaring the goods to be unsafe goods; or

(c)

in respect of which there is in force a notice under this section imposing a permanent ban on the goods.

(2)

Where—

(a)

the supply of goods by a person constitutes a contravention of this section by reason that the goods do not comply with a prescribed consumer product safety standard;

(b)

a person suffers loss or damage by reason of a defect in, or a dangerous characteristic of, the goods or by reason of not having particular information in relation to the goods; and

(c)

the person would not have suffered the loss or damage if the goods had complied with that standard,

the person shall be deemed for the purposes of this Act to have suffered the loss or damage by the supplying of the goods.

(3)

Where—

(a)

the supply of goods by a person constitutes a contravention of this section by reason that there is in force a notice under this section declaring the goods to be unsafe goods or imposing a permanent ban on the goods; and

(b)

a person suffers loss or damage by reason of a defect in, or a dangerous characteristic of, the goods or by reason of not having particular information as to a characteristic of the goods,

the person shall be deemed for the purposes of this Act to have suffered the loss or damage by the supplying of the goods.

60.
Product information standards
(1)

It shall be an offence, in trade, for a person to supply goods that are intended to be used, or are of a kind likely to be used, by a consumer, being goods of a kind in respect of which a consumer product information standard has been prescribed, unless the person has complied with that standard in relation to those goods.

(2)

The Authority may, by regulations in respect of goods of a particular kind, prescribe a consumer product information standard consisting of such requirements as to—

(a)

the disclosure of information relating to the performance, composition, contents, methods of manufacture or processing, design, construction, finish or packaging of the goods; and

(b)

the form and manner in which that information is to be disclosed on or with the goods,

as are reasonably necessary to give persons using the goods information as to the quantity, quality, nature or value of the goods.

(3)

Subsection (1) shall not apply to goods that are intended to be used outside Kenya.

(4)

If there is applied to goods—

(a)

a statement that the goods are for export only; or

(b)

a statement indicating by the use of words authorised by the regulations to be used for the purposes of this section that the goods are intended to be used outside Kenya,

it shall be presumed for the purposes of this section, unless the contrary is established, that the goods are intended to be so used.

(5)

For the purposes of subsection (4), a statement shall be deemed to be applied to goods if—

(a)

the statement is woven in, impressed on, worked into or annexed or affixed to the goods; or

(b)

the statement is applied to a covering, label, reel or thing in or with which the goods are supplied.

(6)

A reference in subsection (5) to a covering includes a reference to a stopper, glass, bottle, vessel, box, capsule, case, frame or wrapper and a reference in that paragraph to a label includes a reference to a band or ticket.

(7)

A person shall be deemed, for the purposes of this Act, to have suffered the loss or damage by the supplying of the goods where—