The Competition Tribunal (Procedure) Rules

Section 1. Citation Section These Rules shall be cited as the Competition Tribunal (Procedure) Rules.

Section 2. Interpretation Section In these Regulations, unless the context otherwise requires— "Act" means the Competition Act (Cap. 504); "appellant" means a person who has filed an appeal under the Act; "authorized representative" means an advocate, or an agent as defined under the Civil Procedure Act ( Cap. 21 ); "Authority" means the Competition Authority of Kenya established under section 7 of the Act; "Chairperson" means the Chairperson of the Tribunal appointed under section 71(2)(a) of the Act; "confidentiality ring" means an arrangement set up in accordance with a direction by the Tribunal under which documents are treated as confidential and disclosed only on such terms as the Tribunal deems fit; "electronic" includes a compact disc, memory stick, digital versatile disk, email or any other unalterable electronic media; "pleading" includes a petition or summons, a statement in writing of the claim or demand of any appellant and of the response of any respondent thereto and of the reply of the appellant to any response or counter claim of a respondent; "Registry" means the registry of the Competition Tribunal; "Respondent" means the Authority and any other party required to...

Section 3. Language of the Tribunal Section 3(1) The proceedings of the Tribunal shall be conducted in English or Kiswahili. Section 3(2) No appeal, application, document or other papers contained in any other language other than English shall be accepted by the Tribunal unless the same is accompanied by a translation thereof in English attested by a translator and counter signed by the party concerned.

Section 4. Office hours Section The official working hours of the Tribunal shall be Monday to Friday from 8.00 am to 5.00 p.m. excluding public holidays, but the Tribunal may sit on such other times as it may determine.

Section 5. Sittings of the Tribunal Section The seat of the Tribunal shall be at its headquarters in Nairobi but the Tribunal may sit at such places as the Tribunal may, by special order direct.

Section 6. Filing of documents Section Parties shall file with the Tribunal all documents both in print and electronic form.

Section 7. Governing principles Section The Tribunal shall be guided by the principles set out in Article 159(2) of the Constitution.

Section 8. Case Management Section 8(1)(a) encouraging the parties to co-operate with each other in the conduct of the proceedings; Section 8(1)(b) identifying and concentrating on the main issues as early as possible; Section 8(1)(c) employing suitable and appropriate technology in the conduct of the business of the Tribunal; Section 8(1)(d) adopting procedures that are most effective and appropriate for the case; Section 8(1)(e) ensuring that hearing is conducted within defined time-limits and without undue delay; and Section 8(1)(f) encouraging and facilitating the use of alternative dispute resolution mechanisms if the Tribunal considers it appropriate. Section 8(2) The Tribunal shall manage its operations in a manner that promotes good governance, transparency and accountability to ensure access to justice for all.

Section 9. Jurisdiction of the Tribunal Section matters referred to it for review of the Authority's decision under section 48 (1) of the Act;

Section 10. Decisions and orders Section 10(1)(a) confirm the decision of the Authority; Section 10(1)(b) modify the decision of the Authority by ordering restrictions or including conditions in whole or in part; Section 10(1)(c) set aside, reverse or vacate in whole or in part, the decision or the effect of any decision which is the subject matter of proceedings before it; Section 10(1)(d) refer the matter back to the Authority for reconsideration on specified terms in accordance with section 75 of the Act; Section 10(1)(e) make an appropriate order as to costs; or Section 10(1)(f) grant any other appropriate relief which the Tribunal would have the power to grant under the Act. Section 10(2)(a) the urgency of the matter; Section 10(2)(b) the effect on the party making the request if the relief sought is not granted; Section 10(2)(c) the effect on competition if the relief is granted; and Section 10(2)(d) the furnishing and adequacy of any offer of any undertaking as to damages. Section 10(3) A matter referred back to the Authority by the Tribunal may be subject to the Tribunal's further order, direction or final decision. Section 10(4) Subject to sub rules (1) and (3), an order o...

Section 11. Parties before the Tribunal Section person or persons aggrieved by a decision of the Authority;

Section 12. Representation Section A party may appear before the Tribunal in person or through an authorized representative.

Section 43. Registry as secretariat Section the establishment and maintenance of a register in which all pleadings and supporting documents and all orders and decisions of the Tribunal are to be registered;

Section 44. Perusal of documents Section A party to any proceedings before the Tribunal may, on an application made by it or on its behalf, addressed to the Secretary, be allowed to inspect or obtain copies of pleadings and other documents or records in the proceedings on payment of fees specified in the Rules provided the documents have not been declared confidential.

Section 45. Order or judgment of Tribunal Section 45(1) Every judgment of the Tribunal shall be signed and dated by the Chairperson and Members who formed the quorum: Provided that the Chairperson or a member who dissents with the final decision, shall record the reasons and duly sign and date the judgement. Section 45(2) Orders shall be signed and sealed by the Secretary.

Section 46. Rectification of errors Section Clerical or arithmetical mistakes in judgments, orders or errors arising therein from any accidental slip or omission, may, at any time, be corrected by the Tribunal, either on its own motion or on the application of any of the parties.

Section 47. Indemnity for members Section The members of the Tribunal shall not be personally liable to any action or other proceedings, for or in respect of any act done or omitted to be done without negligence and in good faith in the exercise or purported exercise of any of the functions conferred by or under the Act and these Rules.

Section 48. Fees Section 48(1) There must be paid to the Tribunal such filing and other fees, including fees for service by the Tribunal of any notice or process, as prescribed in the Second Schedule. Section 48(2) The Tribunal may, if it considers it to be in the interest of justice, and for reasons to be recorded, waive or postpone all or any of the fees payable to the Tribunal.

Section 13. Review under section 48 of the Act Section 13(1) An application under section 48 of the Act for review of the decision of the Authority shall be in Form CT3 as prescribed in the First Schedule accompanied by an affidavit. Section 13(2) Within thirty days upon receipt of the application under sub rule (1) the Tribunal shall give notice in the Gazette of the application of a review and invite interested parties to make submission to the Tribunal in regard to any matter to be reviewed within the time and manner stipulated in the notice.

Section 14. Applications generally Section All applications made before the Tribunal shall be made in Form CT3 as prescribed in the First Schedule accompanied by an affidavit.

Section 15. Appeal process for all other appeals Section 15(1) Any person aggrieved by the decision of the Authority as envisaged under this Rule, shall file a Notice of Appeal and Memorandum of Appeal in Form CT4 and Form CT5 respectively as prescribed in the First Schedule setting out concisely the grounds upon which the person is appealing against within thirty days from the date of receipt or notification of the decision of the Authority. Section 15(2) Pursuant to sub rule (1), the appellant shall file the Notice of Appeal within fourteen days upon receipt or notification of the decision of the Authority. Section 15(3)(a) details of the decision to which the proceedings relate; Section 15(3)(b) to what extent (if any) the appellant contends that the disputed decision was based on an error of fact or was wrong in law; Section 15(3)(b)(i) to what extent (if any) the appellant contends that the disputed decision was based on an error of fact or was wrong in law; Section 15(3)(b)(ii) to what extent (if any) the appellant is appealing against the Authority's exercise of its discretion in making the disputed decision; Section 15(3)(b)(iii) a succinct presentation of the arguments sup...

Section 16. Memorandum of Appeal Section 16(1)(a) an affidavit; Section 16(1)(b) a copy of the decision appealed against; Section 16(1)(c) a list and copies of documents in support of the appeal; and Section 16(1)(d) proceedings, if any, or any materials, reports or documents upon which the Authority based its decision. Section 16(2) Upon filing the Memorandum of Appeal and all accompanying documents, the appellant shall serve the Respondents within fourteen days. Section 16(3) Any party served with the Memorandum of Appeal shall respond by filing a replying affidavit within fourteen days of service. Section 16(4) Any party served with the Memorandum of Appeal or notification of the decision, may file a Cross-Appeal in Form CT6 as prescribed in the First Schedule within fourteen days from the date of service. Section 16(5) The Cross-Appeal shall be accompanied by the documents as set out in sub-rule (1). Section 16(6) A Memorandum of Appeal or applications, counters, rejoinders, supplementary pleadings or other documents, as the case may be, shall be filed in seven bound copies and an additional electronic copy.

Section 17. Joinder of parties Section 17(1) Any person enjoined in the proceedings may, with the leave of the Tribunal, file an appropriate affidavit. Section 17(2)(a) a concise statement of the matters in issue in the proceedings which affect the party; Section 17(2)(b) a succinct presentation of the facts and arguments supporting the claim; Section 17(2)(c) the relief sought by the party; Section 17(2)(d) a schedule listing all the documents annexed to the affidavit; Section 17(2)(e) a statement identifying the evidence (whether witness statements or other documents annexed to the affidavit) the substance of which, so far as the party is aware, was not before the Authority at the time of making the decision; and Section 17(2)(f) as far as practicable, a copy of every document (or part of a document) on which the enjoined party relies on, including the written statements of witnesses of fact and expert witnesses, if any.

Section 18. Close of Pleadings Section Fourteen days after the filing of the replying affidavit by the Respondent or the affidavit by the enjoined party, no further pleadings shall be filed without leave of the Tribunal upon such terms as it deems fit.

Section 19. Amendments Section 19(1) All amendments of pleadings shall only be filed with the leave of the Tribunal. Section 19(2) Where the Tribunal grants leave under sub rule (1) it may do so on such terms as it deems fit, and may give any further or consequential directions it considers necessary. Section 19(3)(a) involves a substantial change or addition to the Appellant's case; Section 19(3)(b) is based on matters of law or fact which have come to the knowledge of the parties since the appeal or application was made; or Section 19(3)(c) for any other reason could not practicably have been included in the Memorandum of Appeal.

Section 20. Extension of time Section The Tribunal may extend the time limit set out under these Rules if it is satisfied that the circumstances are exceptional.

Section 21. Service Section 21(1) When a Memorandum of Appeal has been filed, a notice of appearance shall be issued to the Respondent ordering the Respondent to appear within the time specified. Section 21(2) The notice of appearance to be issued shall be in Form CT1 as prescribed in the First Schedule and shall specify the time limit thereto within fourteen days, within which the Respondent shall file a reply. Section 21(3) The notice of appearance, except where the Tribunal is to effect service, shall be collected for service within three days of the filing of the Memorandum of the Appeal. Section 21(4) The Appellant shall serve a copy of the notice of appearance together with the Memorandum of Appeal on the Respondent within fourteen days of collection. Section 21(5) Service of the notice of appearance and the Memorandum of Appeal shall, unless being effected by electronic means, be delivered to the Respondent in person or on the Respondent's Authorized Representative, or the Respondent's last known address indicated in the proceedings before the Authority. Section 21(6) Where in any appeal, after reasonable attempts have been made to serve the Respondent and the Respondent can...

Section 22. Quorum of the Tribunal Section The quorum of the Tribunal shall be as stipulated under section 71 (4) of the Act.

Section 23. Case management conference Section 23(1)(a) the Tribunal shall set down the Appeal for pre-trial conference and directions; and Section 23(1)(b) all parties shall be notified of the time and place for the taking of the directions as to the hearing of the appeals. Section 23(2)(a) to determine the parties involved; Section 23(2)(b) whether there is need to publish the Appeal or Application for review; Section 23(2)(c) to identify the contested and non-contested issues; Section 23(2)(d) to make an order for security for costs; Section 23(2)(e) whether to proceed by affidavit or viva voce ; Section 23(2)(f) to create a schedule of events and a timetable for the proceedings; Section 23(2)(g) to consider consolidation; Section 23(2)(h) to make a referral order for Alternative Dispute Resolution; Section 23(2)(i) to set the Appeal or Application down for hearing; Section 23(2)(j) that the parties file a rejoinder or other additional pleadings or particulars; Section 23(2)(k) requiring clarification of any matter in dispute or additional information in relation to any such matter; Section 23(2)(l) for the appointment and instruction of experts, whether by the Tribunal or by th...

Section 24. Fast-track procedure Section 24(1) The Tribunal may, at any time, either of its own initiative or on the application of a party, make an order that particular proceedings be, or cease to be, subject to the fast- track procedure. Section 24(2)(a) the main substantive hearing is to be fixed to commence as soon as practicable and in any event within six months of an order of the Tribunal stating that the particular proceedings are to be subject to the fast-track procedure; and Section 24(2)(b) the amount of recoverable costs is to be capped at a level to be determined by the Tribunal. Section 24(3)(a) the time estimate for the main substantive hearing; Section 24(3)(b) the complexity and novelty of the issues involved; Section 24(3)(c) whether any additional claims have been or will be made; Section 24(3)(d) the number of witnesses involved (including expert witnesses, if any); Section 24(3)(e) the scale and nature of the documentary evidence involved; Section 24(3)(f) whether any disclosure is required and, if so, the likely extent of such disclosure; and Section 24(3)(g) the nature of the remedy being sought and, in respect of any claim for damages, the amount of any dam...

Section 25. Disclosure Section 25(1) A party discloses a document by stating that the document exists or has existed. Section 25(2)(a) a brief description of what documents exist or may have existed, that are or may be relevant to the matters in issue in the case; Section 25(2)(b) a description of where and with whom those documents are or may be located; Section 25(2)(c) in the case of electronic documents, a description of how those documents are stored; and Section 25(2)(d) directions which are to be sought regarding disclosure. Section 25(3) At a subsequent case management conference, the Tribunal shall decide, having regard to the governing principles, the need to limit disclosure and what is necessary to deal with the case justly. Section 25(4) The Tribunal may at any point give directions as to how disclosure is to be made. Section 25(5) A party's duty to disclose documents is limited to documents which are or have been in its control. Section 25(6)(a) the document is or was in its physical possession; Section 25(6)(b) it has or has had a right to possession of the document; or Section 25(6)(c) it has or has had a right to inspect or take copies of the document.

Section 26. Matters under certificate of urgency Section Where a Memorandum of Appeal is accompanied by a Notice of Motion under a certificate of urgency, the Chairperson or a member of the Tribunal shall convene a meeting as soon as is reasonably practicable to give directions as to the hearing of the application.

Section 27. Power to strike out Section 27(1)(a) considers that it has no jurisdiction to hear or determine the appeal or an application; Section 27(1)(b) considers that the Memorandum of Appeal or application, or part of it, discloses no valid ground; Section 27(1)(c) considers that the appellant or applicant does not have (or represent those who have) a sufficient interest in the decision in respect of which the appeal or application is made; Section 27(1)(d) instituted vexatious proceedings, whether against the same person or different persons; or Section 27(1)(d)(i) instituted vexatious proceedings, whether against the same person or different persons; or Section 27(1)(d)(ii) made vexatious applications in any proceedings; or Section 27(1)(d)(iii) failed to comply with any rule, practice direction, or order or direction of the Tribunal. Section 27(2) When the Tribunal strikes out an appeal or an application it may make any consequential order it considers appropriate.

Section 28. Summoning or citing of witnesses Section 28(1)(a) attend as a witness before the Tribunal, at the time and place set out in the summons or citation; and Section 28(1)(b) answer any questions or produce any documents or other material in the possession or under the control of that person which relate to any matter in question in the proceedings. Section 28(2)(a) upon which facts the witness is to be questioned; Section 28(2)(b) the documents or material required to be produced. Section 28(3)(a) that person has been given at least seven days' notice of the hearing or such time as the Tribunal may direct; and Section 28(3)(b) recoverable expenses are provided for, in respect of attendance of the witness in proceedings before the Tribunal. Section 28(4) Where a party applies to the Tribunal under Rule 28 (1), the costs of appearance shall be borne by the requesting party. Section 28(5) The Tribunal may direct a party to serve on its behalf a summons issued under this Rule.

Section 29. Failure to comply with directions Section 29(1)(a) the requirements of the direction be waived; Section 29(1)(b) the failure be remedied; Section 29(1)(c) the party be debarred from taking part in the proceedings unless the party is granted leave by the Tribunal; Section 29(1)(d) the party or the authorized representative be subject to an order for any costs the Tribunal deems fit. Section 29(2) Before making an order under sub rule (1) (c) or (d), the Tribunal shall give the party (or the authorized representative) the opportunity to make submissions as to why the order should not be made.

Section 30. Withdrawal of the appeal or application Section 30(1) The appellant may withdraw its appeal or application only with the leave of the Tribunal. Section 30(2) A party who wishes to withdraw an appeal or application under sub rule (1) shall serve a notice to withdraw to the respondent and other interested parties. Section 30(3)(a) do so on such terms as it deems fit; Section 30(3)(b) publish notice of the withdrawal on the Kenya gazette or a newspaper of national circulation. Section 30(4)(a) any interim order of the Tribunal, other than an order made in respect of costs, immediately ceases to have effect; and Section 30(4)(b) no fresh appeal may be brought by the appellant in relation to the decision which was the subject of the appeal without the leave of the Tribunal.

Section 31. Security for costs Section 31(1) A Respondent may seek security for its costs of the proceedings. Section 31(2) A request for security for costs shall be supported by affidavit evidence. Section 31(3)(a) determine the amount of security; and Section 31(3)(b) direct the manner in which, and the time within which, the security must be given. Section 31(4)(a) is resident out of the jurisdiction; Section 31(4)(a)(i) is resident out of the jurisdiction; Section 31(4)(a)(ii) is a company or other body (whether incorporated in or outside Kenya) and there is reason to believe that it will be unable to pay the respondent costs if ordered to do so; Section 31(4)(a)(iii) has changed its address since the commencement of proceedings, with a view to evading the consequences of the litigation; Section 31(4)(a)(iv) failed to give its address or gave an incorrect address; or Section 31(4)(a)(v) has been authorized to act as the class representative in collective proceedings and there is reason to believe that the appellant or applicant will be unable to pay the respondents costs if ordered to do so. Section 31(4)(b) any other written law permits the Tribunal to require security for cos...

Section 32. Conduct of hearings Section 32(1) The hearings before the Tribunal shall be conducted in the manner prescribed under the Act and these Rules. Section 32(2) Notice of the day fixed for hearing of the appeal or application shall be served on the Respondent or on the authorized representative in Form CT8 as prescribed in the First Schedule.

Section 33. Adjournment of hearings Section The Tribunal may, if sufficient cause is shown at any stage of the proceedings, adjourn the hearing for such time or date as it may consider appropriate provided that in any case, the Tribunal may grant adjournment on such reasonable terms.

Section 34.Ex-partehearings Section If a party to the proceedings does not appear on the day fixed for hearing, the Tribunal, upon proof of service, may continue with the proceedings in the absence of the party.

Section 35. Right to begin Section During the hearing, except as otherwise directed by the Tribunal, the appellant or applicant shall have the right to begin.

Section 36. Expert evidence Section If a party in the proceedings wishes to rely upon expert evidence it shall serve with its application before the Tribunal that evidence, attaching either the statement of expert evidence on which it wishes to rely upon or a detailed explanation of the nature of the expert evidence that it wishes to adduce.

Section 37. Confidentiality Section 37(1)(a) be made in Form CT9 as prescribed in the First Schedule indicating the relevant words, figures or passages for which confidentiality is claimed; and Section 37(1)(b) be supported in each case by specific reasons, and, if so directed by the Tribunal, the person making the request shall supply a non-confidential version of the relevant document. Section 37(2) In the event of a dispute as to whether confidential treatment should be accorded, the Tribunal shall decide the matter after hearing the parties and having regard to the need to exclude the information. Section 37(3) The Tribunal may direct that documents or parts of a document, containing confidential information are disclosed within a confidentiality ring.

Section 38. Submissions at close of the hearing Section At the conclusion of the hearing, the parties may make submissions as the Tribunal may direct.

Section 39. Practice and procedure Section Notwithstanding the provisions of these Rules, the Tribunal has powers to grant any relief or give directions on how matters may proceed before it.

Section 40. Costs Section 40(1) The Tribunal may, at any stage of the proceedings, make any order it may deem fit in relation to the payment of costs by one party to another in respect of the whole or part of the proceedings including an order for security for costs. Section 40(2) The Tribunal may direct any party against whom an order for costs is made to pay such costs to any other party in a lump sum or such proportion of the costs as may be just. Section 40(3)(a) assess the costs at the time of making the order; or Section 40(3)(b) direct that the costs be assessed on conclusion of the matter. Section 40(4) Any costs required by an order under this rule to be assessed must be assessed by the Secretary. Section 40(5) The Tribunal may direct that witness expenses be paid to any witness or expert.

Section 41. Injunctions generally Section 41(1) The Tribunal may by order, whether interim or final, grant an injunction in all cases in which it appears to be just and convenient to do so. Section 41(2) Any such order may be made either unconditionally or on such terms and conditions as the Tribunal deems just.

Section 42. Conservatory Order Section 42(1) A conservatory order may be made at any time, before proceedings are commenced. Section 42(2)(a) the matter is urgent; or Section 42(2)(b) it is otherwise necessary to do so in the interests of justice. Section 42(3) Where it grants a conservatory order before proceedings are commenced, the Tribunal may give directions on the hearing of the appeal or application.