Kenya
Answer ... To constitute abuse of dominance, Paragraph 57 of the Consolidated Guidelines on Restrictive Trade Practices provides the following four conditions:
- The entity at issue must qualify as an ‘undertaking’;
- The undertaking must hold a dominant position on a relevant market;
- The undertaking’s conduct must qualify as an abuse; and
- The abusive conduct must be within a market in Kenya or substantial part of Kenya.
Kenya
Answer ... Section 24(2) of the Competition Act provides the following specific examples of acts constituting abuse of dominance:
- directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;
- limiting or restricting production, market outlets or market access, investment, distribution, technical development or technological progress through predatory or other practices;
- applying dissimilar conditions to equivalent transactions with other trading parties;
- 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
- abuse of intellectual property rights.
The above, however, is not an exhaustive list of possible conduct qualifying as abuse of dominance. Section 24(1) of the act expressly provides that “any conduct” which amounts to an abuse of a dominant position is prohibited.
Kenya
Answer ... Section 31 of the Competition Act provides that the Competition Authority of Kenya (CAK) can initiate an investigation relating to abuse of dominance on its own initiative or after receiving a complaint from any person, government agency or ministry.
If the CAK decides not to conduct an investigation, it will inform the complainant in writing of its decision. If the CAK does decide to commence an investigation, it may serve a notice in writing requiring that person to:
- provide it in writing with any information relevant to the investigation;
- produce documents specified in the notice that are relevant to the investigation;
- appear at a specified time and place before it to give evidence/produce documents required by the notice; and
- give copies of any records of relevance to the investigation.
Kenya
Answer ... Section 32 of the Competition Act gives the CAK the powers of entry and search; and Section 33 of the act gives it the power to take evidence.
In this regard, Section 32 of the act provides that the CAK may authorise persons in writing where it deems it necessary to its investigation to enter any premises where the person is believed to be in possession of information, documents and records that are relevant to the investigation. The persons authorised by the CAK to enter the premises may use the computer system on the premises that are being searched to search the data on the computer system, among other things.
Police officers may assist the CAK in the execution of entry and search.
Further, Section 33 empowers the CAK to receive statements, documents, information or anything else that may assist the CAK, in its opinion, with the investigation. The statements, documents and information received must, however, be admissible in court to be received into evidence. The CAK may also:
- administer an oath or affirmation for the purposes of taking evidence from a person before it; and
- verify by oath or affirmation a written statement for a person appearing as a witness as his or her written statement.
Kenya
Answer ... In accordance with Section 36(1) of the Competition General Rules, the CAK may issue a notice to any person to supply information, documents or evidence or to appear before it during the course of its investigation.
Further, Section 38 of the Competition General Rules provides that the CAK shall, upon completion of its investigation but before a final decision has been made:
- serve a notice to each party which may be affected by the decision, as provided for in the Act;
- afford due process to undertakings that are likely to be affected by the decision including the right to access evidence relied on by the Authority.
Kenya
Answer ... Section 34(4) of the Competition General Rules provides:
Where the complaint does not disclose sufficient information to make a preliminary assessment, the Authority may issue to such person−
- a notice requesting for further information on any specific matter, case, event or business agreement or transaction under investigation; or
- a notice to appear before the Authority for an interview in relation to the matter under investigation.
Further, Section 36(1) of the Competition General Rules provides that the CAK may issue a notice to any person to supply information, documents or evidence or to appear before it during its investigations.
Lastly, Section 37 of the Competition Act provides that the CAK may impose interim relief during an ongoing investigation if it is of the opinion that it must act as a matter of urgency for the purpose of preventing serious, irreparable harm to any person or protecting the public interest.
Kenya
Answer ... The target company may be obliged to provide certain information or documents to the CAK in terms of Rule 36 of the Competition General Rules.
Kenya
Answer ... The Consolidated Guidelines on Restrictive Trade Practices provide some information on this topic. The abuse is assessed by first establishing whether it is exploitative or exclusionary. The authority will also consider the specific practice in question and the state of competition in the market with and without the presence of the alleged abuse.
As discussed in question 3.2, Section 24(2) of the Competition Act provides examples of conduct the CAK deems abusive.
Kenya
Answer ... Yes, Section 38 of the Competition Act provides that during and after an investigation, a settlement agreement can be entered into which may include damages to the complainant or a proposal on an amount to be imposed as a pecuniary penalty.
The CAK also sets out further details in the Fining and Settlement Guidelines. The settlement procures are conducted in accordance with Section 4 of the Fair Administrative Action Act and Part IX of the Competition General Rules (63/2019).
In this regard, the parties will notify the CAK in writing of their intention to settle and the CAK will inform the parties in writing within seven days as to whether it is amenable to settlement. Should the CAK consent to the request for settlement, negotiations will begin and a settlement agreement will be executed within 90 days, which may be extended for another 30 days.