Competition Law and Consumer Welfare
Competition law in Kenya is governed by the Competition Act (Act No. 12 of 2010). The Competition Act contains provisions on among others, restrictive trade practices, control of mergers and takeovers, unwarranted concentrations of economic power and the bodies charged with regulating these matters as will be highlighted below.
Regulator
The Competition Act establishes the Competition Authority as the regulatory body in competition matters. The Competition Authority has power to investigate complaints, educate consumers, institute own motion investigations and advice the government on matters relating to competition and consumer welfare. It has powers to process all types of mergers, establish timelines for the processing of mergers, impose sanctions, provide exemptions for certain mergers, conduct investigations and order searches and seizures.
Restrictive Trade Practices
The Competition Act prohibits trade practices. Interested persons may apply to the Competition Authority to be exempted from applying provisions relating to certain restrictive practices.
Abuse of Dominant Position
The Competition Act prohibits abuse of dominant position. An entity is considered to be in a dominant position where it produces, supplies, distributes or otherwise controls not less than 50% of the total goods or services of any description which are produced, rendered supplied or distributed in Kenya.
Merger Control
The Competition Authority must receive advance written notice of an intention to merge, where a merger falls within the Competition Act, and mergers must be approved or excluded in advance by the Competition Authority. The Competition Authority has been given the power to set a threshold for mergers and may exempt a merger from the Act.
Consumer Welfare
The Competition Act introduces offences such as false or misleading representation, unconscionable conduct of trade, supply of unsafe or defective goods and failure to comply with prescribed product information standards. Protection of consumers begins in the Constitution of Kenya with extensive provisions in the Consumer Protection Act, 2012.
The Price Control (Essential Goods) Act of 2011 also deals with Consumer Welfare as it seeks to control the prices of selected goods, by giving the Cabinet Secretary for the National Treasury the discretion to set a mandatory maximum price of certain essential goods.
