Competition Act

Section 1. Short title Section This Act may be cited as the Competition Act.

Section 2. Interpretation Section obtain from a supplier more favourable terms; or

Section 3. Objects of the Act Section increase efficiency in the production, distribution and supply of goods and services;

Section 4. Interpretation of expressions Section 4(1)(a) supply or attempt to supply to; or Section 4(1)(a)(i) supply or attempt to supply to; or Section 4(1)(a)(ii) acquire or attempt to acquire from, the people in that market the same or substitutable goods or services; Section 4(1)(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; Section 4(1)(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. Section 4(2)(a) the importation of goods or the supply of services by persons not resident or carrying on business in Kenya; and Section 4(2)(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...

Section 5. Application Section 5(1) This Act shall apply to all persons including the Government, state corporations and local authorities in so far as they engage in trade. Section 5(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. Section 5(3)(a) identify and establish procedures for management of areas of concurrent jurisdiction; Section 5(3)(b) promote co-operation; Section 5(3)(c) provide for the exchange of information and protection of confidential information; and Section 5(3)(d) ensure consistent application of the principles of this Act: Section 5(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. Section 5(5)(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 Section 5(5)(...

Section 6. Extra-territorial operation Section a citizen of Kenya or a person ordinarily resident in Kenya;

Section 7. Establishment of the Authority Section 7(1) There is hereby established an Authority to be known as the Competition Authority. Section 7(2) The Authority shall be independent and shall perform its functions and exercise its powers independently and impartially without fear or favour. Section 7(3)(a) suing and being sued; Section 7(3)(b) purchasing or otherwise acquiring, holding, charging and disposing of movable and immovable property; Section 7(3)(c) borrowing money; and Section 7(3)(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.

Section 8. Conduct of business and affairs of the Authority Section 8(1) The conduct and regulation of the business and affairs of the Authority shall be as provided in the Schedule. Section 8(2) Except as provided in the Schedule, the Authority may regulate its own procedure.

Section 9. Functions of the Authority Section 9(1)(a) promote and enforce compliance with the Act; Section 9(1)(b) receive and investigate complaints from legal or natural persons and consumer bodies; Section 9(1)(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; Section 9(1)(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; Section 9(1)(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; Section 9(1)(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; Section 9(1)(g) carry out inquiries, studies and research into matters relating to competition and the protection of the interests of consumers; Section 9(1)(h) study government policies, procedures and programmes, legislation and proposals...

Section 10. Members of the Authority Section 10(1)(a) a Chairperson appointed by the President; Section 10(1)(b) the Principal Secretary in the Ministry for the time being responsible for finance or his representative; Section 10(1)(c) the Principal Secretary in the Ministry for the time being responsible for trade or his representative; Section 10(1)(d) the Attorney-General or his representative; Section 10(1)(e) the Director-General appointed under section 12 ; and Section 10(1)(f) five other members appointed by the Cabinet Secretary from among persons experienced in competition and consumer welfare matters, one of whom shall be experienced in consumer welfare matters. Section 10(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. [Act No. 18 of 2018 , Sch.]

Section 11. Remuneration of members of the Authority Section The members of the Authority shall be paid such remuneration, fees, allowances and disbursements for expenses as may be approved by the Cabinet Secretary.

Section 12. Director-General Section 12(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. Section 12(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. Section 12(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. Section 12(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.

Section 13. Staff Section 13(1) The Authority shall employ such staff as it considers appropriate to enable it to perform its functions and exercise its powers. Section 13(2) The Authority may engage consultants and experts, as it considers appropriate, to assist it to perform its functions and exercise its powers. Section 13(3) The Authority shall establish a competitive selection procedure for the appointment of all employees, consultants and experts. Section 13(4)(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; Section 13(4)(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. Section 13(5) Before employing or engaging any person, the Authority shall obtain from the pe...

Section 14. Common seal Section 14(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. Section 14(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. Section 14(3) The affixing of the common seal of the Authority shall be authenticated by the signature of the Chairperson of the Authority and the Director-General: Provided that the Authority shall, in the absence of either the Chairperson 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 Chairperson or the Director-General.

Section 15. Delegation by the Authority Section 15(1)(a) duties to make decision under the Act; Section 15(1)(b) power of delegation itself; and Section 15(1)(c) the powers to revoke or vary delegation. Section 15(2) A delegated power shall be exercised in accordance with the instrument of delegation. Section 15(3) A delegation may, at any time, be revoked or varied by the Authority.

Section 16. Protection from personal liability Section 16(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. Section 16(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. Section 16(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.

Section 17. Liability of the Authority for damages Section 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.

Section 18. Power to hold inquiries Section 18(1)(a) it considers it necessary or desirable for the purpose of carrying out its functions; Section 18(1)(b) upon a direction by the Cabinet Secretary in writing to the Authority, requiring it to conduct an inquiry or a sectoral study into a matter specified in the direction. Section 18(2) A direction by the Cabinet Secretary under subsection (1)(b) shall specify a period within which the Authority shall submit its report to the Cabinet Secretary. Section 18(3) In appropriate cases, after conclusion of an inquiry or a sectoral study, the Authority shall in its report to the Cabinet Secretary identify sectors where factors relating to unwarranted concentrations of economic power subsist and give advice regarding measures which may ameliorate such situations. Section 18(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. Section 18(5)(a) the subject matter of the intended inquiry; Section 18(5)(a)(i) the subject matter of the intended inquiry; Section 18(5)(a)(ii)...

Section 19. Establishment of divisions of the Authority Section 19(1) The Authority may establish one or more divisions as it may deem appropriate for the proper performance of its functions under this Act. Section 19(2) The Authority shall appoint an employee or employees of the Authority as Directors of the divisions. Section 19(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.

Section 20. Confidentiality Section 20(1) For the purpose of this section, "material" includes any information, document or evidence relating to any matter to which this Act applies. Section 20(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. Section 20(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. Section 20(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. Section 20(5)(a) its disclosure could adversely affect the competitive position of any person; or Section 20(5)(b) is commercially sensitive for some other reason, the Authority shall grant confidentiality for the material. Section 20(6) The Authority shall give notice in writing to a person making a claim for confidentiality of the Authority’s decision to grant...

Section 21. Restrictive trade practices Section 21(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. Section 21(2)(a) parties in a horizontal relationship, being undertakings trading in competition; or Section 21(2)(b) parties in a vertical relationship, being an undertaking and its suppliers or customers or both. Section 21(3)(a) directly or indirectly fixes purchase or selling prices or any other trading conditions; Section 21(3)(b) divides markets by allocating customers, suppliers, areas or specific types of goods or services; Section 21(3)(c) involves collusive tendering; Section 21(3)(d) involves a practice of minimum resale price maintenance; Section 21(3)(e) limits or controls production, market outlets or access, technical development or investment; Section 21(3)(f) applies dissimilar conditions to equivalent transactions with ot...

Section 22. Application to practices of trade associations Section 22(1)(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; Section 22(1)(b) 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 Section 22(1)(b)(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 Section 22(1)(b)(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 i...

Section 23. Criteria for determining dominant position Section 23(1)(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 Section 23(1)(b) provides or otherwise controls not less than one-half of the services which are rendered in Kenya or any substantial part thereof. Section 23(2)(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 Section 23(2)(b) controls less than forty per cent of the market share but has market power.

Section 24. Abuse of dominant position Section 24(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. Section 24(2)(a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions; Section 24(2)(b) limiting or restricting production, market outlets or market access, investment, distribution, technical development or technological progress through predatory or other practices; Section 24(2)(c) applying dissimilar conditions to equivalent transactions with other trading parties; Section 24(2)(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 Section 24(2)(e) abuse of an intellectual property right. Section 24(2A) Deleted by ActNo. 27 of 2019, s. 4. Section 24(2B) Deleted by ActNo. 27 of 2019, s. 4. Section 24(2C) Deleted by ActNo. 27 of 2019, s. 4. Section 24(2D) Deleted by ActNo. 27 of 2019, s. 4. Section 24(3) Any person who contravenes the provisions of this section commits an offence and...

Section 25. Grant of exemption for certain restrictive practices Section 25(1)(a) any agreement or category of agreements; Section 25(1)(b) any decision or category of decisions; Section 25(1)(c) any concerted practice or category of concerted practices. Section 25(2)(a) made in the prescribed form and manner; Section 25(2)(b) accompanied by such information as may be prescribed or as the Authority may reasonably require. Section 25(3)(a) indicating the nature of the exemption sought by the applicant; and Section 25(3)(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.

Section 26. Determination of application for exemption Section 26(1)(a) grant the exemption; Section 26(1)(b) refuse to grant the exemption, and notify the applicant accordingly with a statement of the reasons for the refusal; or Section 26(1)(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. Section 26(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. Section 26(3)(a) maintaining or promoting exports; Section 26(3)(b) improving, or preventing decline in the production or distribution of goods or the provision of services; Section 26(3)(c) promoting technical or economic progress or stability in any industry; Section 26(3)(d) obtaining a benefit for the public which outweighs or woul...

Section 27. Revocation or amendment of exemption Section 27(1)(a) the exemption was granted or the certificate of clearance was issued on materially incorrect or misleading information; Section 27(1)(b) there has been a material change of circumstances since the exemption was granted or the certificate was issued; Section 27(1)(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. Section 27(2)(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 Section 27(2)(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. Section 27(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 applicatio...

Section 28. Exemption in respect of intellectual property rights Section 28(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. Section 28(2) Sections 25 , 26 and 27 shall apply, mutatis mutandis , to an exemption under this section.

Section 29. Exemption in respect of professional rules Section 29(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). Section 29(2)(a) professional standards; or Section 29(2)(b) the ordinary function of the profession. Section 29(3)(a) publish a notice of the application in the Gazette ; Section 29(3)(b) allow interested parties thirty days from the date of that notice to make representations concerning the application; and Section 29(3)(c) consult the Government agency or Ministry responsible for the administration of any law governing the profession concerning the application. Section 29(4)(a) either grant an exemption or reject the application by issuing a notice in writing to the applicant; Section 29(4)(b) give written reasons for its decision if it rejects the application; and Section 29(4)(c) publish a notice of that decision in the Gazette . Section 29(5)(a) given notice in the Gazette of the proposed revocation; Section 29(5)(b) allowed interested parties thirty days...

Section 30. Notification of grant, revocation or amendment of exemption Section 30(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. Section 30(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. [Act No. 16 of 2014 , s. 36.]

Section 31. Investigation by Authority Section 31(1)(a) prohibitions relating to restrictive trade practices; Section 31(1)(b) prohibitions relating to abuse of dominance; or Section 31(1)(c) prohibitions relating to abuse of buyer power. Section 31(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. Section 31(3) Deleted by L.N. 23/2011, Sch. Section 31(4)(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; Section 31(4)(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 i...

Section 32. Entry and search Section 32(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. Section 32(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. Section 32(3)(a) search any data contained in or available to that computer system; Section 32(3)(b) reproduce any record from that data; Section 32(3)(c) seize any output from that computer for examination and copying; Section 32(3)(d) attach and, if necessary, subject to the issuance o...

Section 33. Power of Authority to take evidence Section 33(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. Section 33(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. Section 33(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. Section 33(4) A person attending before the Authority is entitled to the same immunities and privileges as a witness before the High Court.

Section 34. Proposed decision of Authority Section 34(1)(a) a prohibition or prohibitions under Section A of this Part have been infringed; Section 34(1)(b) a prohibition or prohibitions under Section B of this Part have been infringed; or Section 34(1)(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. Section 34(2)(a) state the reasons for the Authority’s proposed decision; Section 34(2)(b) set out details of any relief that the Authority may consider to impose; Section 34(2)(c) submit written representations to the Authority; and Section 34(2)(c)(i) submit written representations to the Authority; and Section 34(2)(c)(ii) indicate whether it requires an opportunity to make oral representations to the Authority.

Section 35. Hearing conference to be convened for oral representation Section 35(1)(a) convene a conference to be held at a date, time and place determined by the Authority; and Section 35(1)(b) the undertaking or undertakings concerned; Section 35(1)(b)(i) the undertaking or undertakings concerned; Section 35(1)(b)(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 Section 35(1)(b)(iii) any other person whose presence at the conference is considered by the Authority to be desirable. Section 35(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. Section 35(3) The proceedings at a conference shall be carried out in as informal a manner as the subject matter may permit. Section 35(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. Section 35(5) The Authority may terminate the conference if it is satisfied that a reasonable opportunity...

Section 36. Action following investigation Section 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;

Section 37. Interim relief Section 37(1)(a) preventing serious, irreparable damage to any person or category of persons; or Section 37(1)(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.

Section 38. Settlement Section 38(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. Section 38(2)(a) an award of damages to the complainant; Section 38(2)(b) any amount proposed to be imposed as a pecuniary penalty.

Section 39. Publication of decision of Authority Section 39(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 . Section 39(2)(a) the name of every undertaking involved; and Section 39(2)(b) the nature of the conduct that is the subject of the action or the settlement agreement.

Section 40. Appeals to the Tribunal Section 40(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. Section 40(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. [Act No. 16 of 2014 , s. 37.]

Section 24A. Abuse of buyer power Section 24A(1) Any conduct that amounts to abuse of buyer power in a market in Kenya, or a substantial part of Kenya, is prohibited. Section 24A(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. Section 24A(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. Section 24A(4)(a) the nature and determination of contract terms between the concerned undertakings; Section 24A(4)(b) the payment requested for access to infrastructure; and Section 24A(4)(c) the price paid to suppliers. Section 24A(5)(a) delays in payment of suppliers without justifiable reason in breach of agreed terms of payment; Section 24A(5)(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; Section 24A(5)(c) refusal to receive o...

Section 41. Merger defined Section 41(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. Section 41(2)(a) the purchase or lease of shares, acquisition of an interest, or purchase of assets of the other undertaking in question; Section 41(2)(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; Section 41(2)(c) the acquisition of an undertaking under receivership by another undertaking either situated inside or outside Kenya; Section 41(2)(d) acquiring by whatever means the controlling interest in a foreign undertaking that has got a controlling interest in a subsidiary in Kenya; Section 41(2)(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; Section 41(2)(f) vertical integration; Section 41(2)(g) exchange of shares between or among...

Section 42. Control of mergers Section 42(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. Section 42(2)(a) approved by the Authority; and Section 42(2)(b) implemented in accordance with any conditions attached to the approval. Section 42(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. Section 42(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. Section 42(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. Section 42(6) Th...

Section 43. Notice to be given to Authority of proposed merger Section 43(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. Section 43(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.

Section 44. Period for making determination in relation to proposed merger Section 44(1)(a) within sixty days after the date on which the Authority receives that notification; or Section 44(1)(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 Section 44(1)(c) if a hearing conference is convened in accordance with section 45 , within thirty days after the date of conclusion of the conference. Section 44(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.

Section 45. Hearing conference in relation to proposed merger Section 45(1) If the Authority considers it appropriate, it may determine that a conference be held in relation to a proposed merger. Section 45(2)(a) convening the conference; Section 45(2)(b) specifying the date, time and venue; and Section 45(2)(c) stipulating the matters to be considered at the conference.

Section 46. Determination of proposed merger Section 46(1)(a) give approval for the implementation of the merger; Section 46(1)(b) decline to give approval for the implementation of the merger; or Section 46(1)(c) give approval for the implementation of the merger with conditions. Section 46(2)(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; Section 46(2)(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; Section 46(2)(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; Section 46(2)(d) the extent to which the proposed merger would be likely...

Section 47. Revocation of approval of proposed merger Section 47(1)(a) the decision was based on materially incorrect or misleading information for which a party to the merger is responsible; or Section 47(1)(b) any condition attached to the approval of the merger that is material to the implementation is not complied with. Section 47(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. Section 47(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. Section 47(4)(a) gives materially incorrect or misleading information; or Section 47(4)(b) fails to comply with any condition attached to the approval for the merger, leading to a revocation of the merger under this section, commit...

Section 48. Review of decisions of Authority by Tribunal Section 48(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. Section 48(1A) Upon receipt of a written decision from the Authority as contemplated under section 46 (6), a party may file an appeal to that decision to the Tribunal. Section 48(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. Section 48(3)(a) overturning the decision of the Authority; Section 48(3)(b) amending the decision of the Authority by ordering restrictions or including conditions; Section 48(3)(c) confirming the decision of the Authority; or Section 48(3)(d) referring the matter back to the Authority for reconsideration on spec...

Section 49. Compliance with other laws and appeals Section 49(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. Section 49(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.