INITIATING COMPLAINTS AGAINST HORIZONTAL AGREEMENT: THE PROCEDURE UNDER THE KENYAN COMPETITION LAWS




The procedure is set out under part V of the Competition Act from s32 to s40. The authority[1] is responsible for carrying out the investigation relating to any suspicion of infringement of prohibitions relating to restrictions on trade and abuse of dominance. The information that results into the suspicion is received through a complaint, its own conduct and investigation conducted by the authority.[2] After reception of a complaint or information relating to the possibility of suspicion, the authority can either initiator fail to initiate the investigation. The complainant must however be informed of the failure to initiate investigation.
When the authority accepts to initiate the investigation, the first step would   be to serve a written notice to any person in the prescribed manner requiring that person:
1.      To respond to the notice within the prescribed time in the prescribed manner, while giving the Authority any information relating the matter under investigation.
2.      To equip the Authority with any document specified in the notice that is relevant to the investigation according to the Authority.
3.      To appear before the Authority as specified by the notice and provide any evidence that was indicated in the notice to the Authority
4.      To give copies of records that are considered relevant to the investigation; or submit it to the authority for copying in the time and manner prescribed.
The Authority has the power of entry and search of any premises that it believes is used for the unfair trading activities. An authorized person is given this power in writing when the Authority deems it fit to conduct the search. Upon entry, the authorised person will conduct an inspection of the premises, the goods, documents and records situated thereon and inform anyone who appears to be in charge of the premises of the search. During the search, the authorised person may use of any computer system in the premises, or be assisted in the use of that computer. If such need arises, it should be for the search of any data available in the computer system, in a bid to reproduce any record from that data, to seize any output from that computer for examination and copying;attach and, if necessary, subject to the issuance of a receipt to thateffect, remove from the premises for examination and safekeeping, and anything that has a bearing on the investigation. The Authority may use police officers and other lawenforcement agencies in its execution of the mandate of search.
The Authority mayreceive 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.[3]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. 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 oraffirmation, a written statement. A person attending before the Authority is entitled to the same immunities and privileges as a witness before the High Court.
If, upon conclusion of an investigation, the Authority proposes to make a decision that prohibitions on trade have been infringed; it shall give written notice of its proposed decision to each undertaking which may be affected by that decision. The notice shall state the reasons for the Authority’s proposed decision; set out details of any relief that the Authority may consider to impose; inform each undertaking that it may:  submit written representations to the Authority; and indicate whether it requires an opportunity to make oral
representations to the Authority in relation to the submitted notice on the proposed decision.
If an undertaking indicates that it requires an opportunity to make oral
representationsto the Authority, the Authority convene a conference to be held at a date, time and place determined by the Authority; and give written notice of the date, time and place to the undertaking(s)concerned; any person who had lodged a complaint with the Authority
concerning the conduct which was the subject matter of the Authority’s investigation; and any other person whose presence at the conference is considered by the Authority to be desirable. If a person is given a notice of a conference, any person, including an advocate, whose assistance he may require at the conference, may accompany him. The proceedings at a conference shall be carried out in as informal a manner as the subject matter may permit. 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. 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.
After consideration of any written representations and of any matters raised at
a conference, the Authority may declare the conduct which is the subject matter of the Authority’s investigation, to constitute an infringement of the prohibitions on trade; restrain the undertaking(s)from engaging in that conduct; direct any action to be taken by the undertaking(s) concerned to remedy or reverse the infringement or the effects thereof; impose a financial penalty; or grant any other appropriate relief.
In a situation that the Authority believes, on reasonable grounds, that an undertaking hasengaged, is engaging, or is proposing to engage, in conduct that constitutes or may constitute an infringement of the prohibitions relating to trade, and that it isnecessary for the Authority to act as a matter of urgency to prevent serious, irreparable damage to any person or category ofpersons; or to protect the public interest, the Authority may, by order in writing, direct the undertaking(s)to stop and desist from engaging in such conduct until the on-going investigation is concluded. This order shall serve as an interim order (injunction), until the investigation is carried out and concluded or determined.
During or after an investigation into an alleged infringement of the prohibitions relating to trade, the Authority may enter into an agreement of settlement with the undertaking(s)concerned. The agreement will indicate the award of damages to the complainant; or any amount proposed to be imposed as a pecuniary penalty.
            The authority is responsible for publishing its decision. It gives a notice in the Gazette of any interim relief granted, and of any agreement referred made under a settlement. The notice issued to the Gazette will have the name of every undertaking involved; and the nature of the conduct that is the subject of the action or the settlement agreement.
            If any party is unhappy about the determination given by the Authority, it shall make an appeal to the Authority. A party to an appeal 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 the authority served to him a notice of that decision and the decision of the High Court shall be final.



[1] It is Established under s7 of the Competition Act. It is the Competition Authority
[2]S31 of the Competition Act
[3] Chapter 2 of the The Evidence Act Cap 80 of Kenya Laws. Subject to the provisions of this Act and of any other law, no evidence shall be given in any suit or proceeding except evidence of the existence or non-existence of a fact in issue, and of any other fact declared by any provision of this Act to be relevant.Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction are relevant whether they occurred at the same time and place or at different times and places.Facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts or facts in issue, or which constitute the state of things under which they happened or which afforded an opportunity for their occurrence or transaction are relevant.Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.The word “conduct” in this section does not include statements, unless those statements accompany and explain acts other than statements.Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by such a fact, or which establish the identity of any thing or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose.Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purposeof proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. Facts not otherwise relevant are relevant if they are inconsistent with any fact in issue or relevant fact; or if by themselves or in connexion with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable. In suits in which damages are claimed, any fact which will enable the court to determine the amount of damages which ought to be awarded is relevant.Where the existence of any right or custom is in question, the following facts are relevant. Facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, ill-will or good- will towards any particular person, or showing the existence of any state of body or bodily feeling, are relevant, when the existence of any such state of mind or body or bodily feeling is in issue or relevant. When there is a question whether an act was accidental or intentional, or done with a particular knowledge or intention, the fact that such act formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is relevant. When there is a question whether a particular act was done, the existence of any course of business, according to which it naturally would have been done, is relevant.

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