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.
[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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