Competition Authority of Kenya
Kenya
Abstract Shape Background
Competition Authority of Kenya

Competition Authority of Kenya

Kenya

From the Enforcer: Kenya

Address: PO Box 36265-00200, Nairobi, Kenya
Tel: +254 20 2628233
Direct line: +254 20 2779000
Email: [email protected]
Web: www.cak.go.ke

Contacts

Francis W Kariuki
Francis W Kariuki
Director General
Tel: +254 20 2628233
Email: [email protected]

Adano Wario
Adano Wario Roba
Director, Planning, Research and Quality Assurance
Tel: +254 20 2779130
Email: [email protected]

Ninette Mwarania
Manager, Planning, Policy and Research
Tel: +254 20 2779130
Email: [email protected]

Questions and answers

How long is the head of agency’s term of office?

The head of the Competition Authority of Kenya (‘the Authority’) is the Director-General, appointed by the board of directors with the approval of Parliament. He or she holds office for a renewable term of five years, subject to a maximum of two terms.

When is he or she due for reappointment?

The Director-General is serving his second five-year term.

Which posts within the organisation are political appointments?

None. All the posts are filled competitively, through a transparent recruitment process, guided by the Authority’s Recruitment Policy.

What is the agency’s annual budget?

The Authority’s annual budget is US$5.5 million.

How many staff are employed by the agency?

The establishment provides for a total of 99 members of staff. Currently, there are 74 employees.

To whom does the head of the agency report?

The head of the agency reports to the board of directors.

Do any industry-specific regulators have competition powers?

Yes. However, the Authority is mandated to regulate all sectors of the economy, and has primary jurisdiction over all competition matters in the country. An example of a sector-specific regulator with competition powers is the Communications Authority of Kenya.

If so, how do these relate to your role?

The Competition Act No. 12 of 2010 (‘the Act’) provides for the interaction between the Authority and the sector regulators. The Authority has entered into agreements with sector-specific regulators in order to manage concurrent jurisdictions, prudence resources utilization and ensures consistent decisions. Further, Section 5 (2) of the Act stipulates that where there is a conflict between the provisions of the Act and any other written law, with regard to the competition and consumer welfare matters, the provisions of the Act will prevail.

Do politicians have any right to overrule or disregard the decisions of the authority?

No.

Does the law allow non-competition aims to be considered when taking decisions?

Yes. The Act provides for this in the area of mergers. The public interest test in merger analysis includes the extent that the proposed merger is likely to affect:

A particular industrial sector or region;

Employment creation and retention; and

The ability for Small and Micro Enterprises (SMEs) to have access to or to be competitive in any market.

The Act also provides for the granting of exemption to certain indispensable restrictive practices aimed at increasing exports, enhancing efficiency in production and maintaining quality of services only under exceptional and compelling reasons of public policy. 

Which body hears appeals against the agency’s decisions? Is there any form of judicial review beyond that mentioned above? If so, which body conducts this?

The Competition Tribunal is established under Part VII of the Act with the mandate of adjudicating appeals resulting from the Authority’s determinations/decisions. Any party who is dissatisfied with the decision of the Competition Tribunal may appeal to the High Court of Kenya against that decision, and the decision of the High Court shall be final.

Has the Authority ever blocked a proposed merger?

No.

Has the Authority ever imposed conditions on a proposed merger?

Yes, it has. In the financial year 2019–2020, 9% of the mergers were approved with conditions. Whereas in the financial year 2020-2021, 12% of the mergers were approved with conditions.

Has the Authority conducted a Phase II investigation in any of its merger filings?

No. The Authority has only one phase of merger analysis, which has statutory timelines of 60 days. However, the law allows where there are complex issues involved, the Authority 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.

Has the Authority ever pursued a company based outside your jurisdiction for a cartel offence?

No.

Do you operate a leniency programme? Whom should potential applicants contact?

The Leniency Programme was initiated through amendment of the Act in 2016, introducing Section 89a. For the purposes of Marker and Leniency application, applicants will contact the Manager Enforcement and Compliance in person or via a designated email ([email protected]) as provided for in the leniency programme guidelines, which are accessible at:

(https://www.cak.go.ke/sites/default/files/guidelines/enforcement-compliance/LeniencyProgrammeGuidelines.pdf).

Is there a criminal enforcement track? If so, who is responsible for it?

Yes, through the Office of the Director of Public Prosecution (ODPP).

Are there any plans to reform the Competition Law?

Yes.

When did the last review of the law occur?

December 2019, review was made to sections 18, 24, 29, 31 of the Act;

(http://kenyalaw.org/kl/fileadmin/pdfdownloads/AmendmentActs/2019/TheCompetition_Amendment_Act_2019.pdf).

Do you have a separate economics team? If so please give details.

Yes, we do. The Planning and Research Department supports the Authority in economic analysis. The team is headed by a Director as a Chief Economist.

Has the Authority conducted a dawn raid?

Yes. The Authority has conducted two dawn raids in 2016 and 2018.

Has the Authority imposed penalties on officers or directors of companies for offences committed by the company?

No. Penalties have not been imposed for individual liability; rather, they are imposed on the undertakings (firms or associations).

The fines on the other hand are only imposed by the courts upon conviction of the accused parties.

What are the pre-merger notification thresholds, if any, for the buyer and seller involved in a merger?

The Authority has merger threshold guidelines provided in the Competition (General) Rules, 2019; as set out in Table 1 below.

Table 1: Merger Threshold Guidelines

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These threshold guidelines also determine the merger filing fees paid by the parties to the transaction. Notably, if a transaction meets the thresholds for notification to the COMESA Competition Commission (CCC), the transaction is notified to CCC and the Authority reviews it in collaboration with the CCC. For more details on Merger Threshold Guidelines refer to: https://www.cak.go.ke/sites/default/files/2020-03/TheCompetitionGeneralRules2019.pdf

Are there any restrictions on minority investments?

No.

Does the Authority conduct criminal investigations and prosecutions for cartel activity? If not, is there another authority in the country that does?

Yes, the Authority conducts criminal investigations. The law however, provides for criminal and administrative sanctions. At the end of an investigation the parties are informed of the finding of the investigation and made aware of the remedies under the Act. In the event the parties don’t pursue the matter administratively, the investigations report is forwarded for prosecution to the Office of the Director of Public Prosecutions (ODPP).

Kenya: from the enforcer's competition economists

Address: PO Box 36265-00200, Nairobi, Kenya
Tel: +254 20 2628233
Direct line: +254 20 2779000
Email: [email protected]
Web: www.cak.go.ke

Contacts

Francis W Kariuki
Francis W Kariuki
Director General
Tel: +254 20 2628233
Email: [email protected]

Adano Wario
Adano Wario Roba
Director, Planning, Research and Quality Assurance
Tel: +254 20 2779130
Email: [email protected]

Overview

The Competition Authority of Kenya (‘the Authority’) is a statutory body established by the Competition Act No. 12 of 2010 (‘the Act’). The Authority’s mandate is to promote and safeguard competition in Kenya and protect consumers from unfair and misleading market conduct. The functions of the Authority are, inter alia, to:

  • promote and enforce compliance with the Act;
  • receive and investigate complaints from legal or natural persons and consumer bodies;
  • promote public knowledge, awareness and understanding of the obligations, rights and remedies under the Act and the duties, functions and activities of the Authority;
  • 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;
  • recognise consumer bodies duly registered under the appropriate national laws as the proper bodies, in their areas of operation, to represent consumers before the Authority;
  • 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;
  • carry out inquiries, studies and research into matters relating to competition and the protection of the interests of consumers;
  • study government policies, procedures and programmes, legislation and proposals for legislation so as to assess their effects on competition and consumer welfare and publicise the results of such studies;
  • investigate impediments to competition, including entry into and exit from markets, in the economy as a whole or in particular sectors and publicise the results of such investigations;
  • investigate policies, procedures and programmes of regulatory authorities so as to assess their effects on competition and consumer welfare and publicise the results of such studies;
  • participate in deliberations and proceedings of government, government commissions, regulatory authorities and other bodies in relation to competition and consumer welfare;
  • make representations to government, government commissions, regulatory authorities and other bodies on matters relating to competition and consumer welfare;
  • liaise with regulatory bodies and other public bodies in all matters relating to competition and consumer welfare; and
  • advise the government on matters relating to competition and consumer welfare.

Questions and answers

How many economists do you employ?

The Authority has a total of 17 Economists in-post as at the October, 2021.

Do you have a separate economics unit?

While economists are placed within all the technical departments, the Planning and Research Directorate serves as the main economics unit that carries out economic analysis on the cases.

Do you have a Chief Economist?

Yes. The director of Planning, Research and Quality Assurance is the Chief Economist.

To whom does the chief economist report?

Reports to the Director-General.

Does the chief economist has the power to hire his or her own staff?

No, hiring at the Authority is a function of the board of directors and the Director-General.

 

How many of your economists have a PhD in industrial economics?

None.

Does the agency include a specialist economist on every case team? If not, why not?

Yes, this happens on all cases.

Is the economics unit a ‘second pair of eyes’ during cases – is it one of the agency’s checks and balances? If not, why not?

Yes it is. This ensures proper checks and balances are done on the report leading to informed decisions by the Authority. The Economics Unit ensures that the case officers have sufficient economic data to enable make them informed decisions.

How much economics work is outsourced?

None. The Authority collaborates with institutions and other agencies to gather more knowledge and exchange ideas. For instance, the Authority has an agreement with the Competition Commission of South Africa as well as the Japan Fair Trade Commission, both of whom support with capacity building and information exchange that has enabled the Authority make more informed decisions.

What type of work is outsourced?

Market inquiries and studies are outsourced.

Competition Authority organisation chart

 

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