This presentation by the Kenyan Delegation was made during Break-out session 3: Due Process in relation to Evidence Gathering, of the discussion on “Investigative Powers in Practice” held at the 17th meeting of the OECD Global Forum on Competition on 29 November 2018. More documents and presentations on this topic can be found at oe.cd/invpw.

1. Vision: "A Kenyan economy with globally efficient markets and enhanced consumer welfare for shared Prosperity"

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Vision: "A Kenyan economy with globally efficient markets and enhanced consumer welfare for shared Prosperity"
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Slide 3
•Competition Authority of Kenya
Slide 4
•Legal Framework
Slides
5-7
•Due process
Slides
8-9
•Remedies
Slides
10-13
•Case Study

3. Established under section 7
of the Act No. 12 of 2010
Mandated to enhance the welfare of
the people of Kenya by promoting
and protecting effective competition
in markets and preventing unfair
and misleading market conduct
Began operations in 2011
Investigates;
Prohibitions relating to restrictive trade
practices; or
Prohibitions relating to abuse of
dominance
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Vision:"A Kenyan economy with globally efficient markets and enhanced
consumer welfare for shared Prosperity"
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4. The Legal Framework in the Investigation Process
The Constitution of Kenya,
2010
The Competition Act No. 12
of 2010
The Evidence Act, 2012
(Cap 80)
The Fair Administrative
Action Act No. 4 of 2015
The Criminal Procedure
Code, 2012
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Vision:"A Kenyan economy with globally
efficient markets and enhanced
consumer welfare for shared Prosperity" 4

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Vision:"A Kenyan economy with globally
efficient markets and enhanced
consumer welfare for shared Prosperity" 5
Complaint/
Authority’s
Initiative
Preliminary
Investigation
Full
Investigation
s
Assessment
of the
evidence
Determinatio
n of the
violation
Hearing
Board
Decision
Enforcement &
Compliance

6. Authority’s Board
Competition Tribunal
High Court
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Vision:"A Kenyan economy with globally
efficient markets and enhanced
consumer welfare for shared Prosperity" 6

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Vision:"A Kenyan economy with globally
efficient markets and enhanced
consumer welfare for shared Prosperity" 7
Written and signed statement
Notice of investigation
Search and seizure
Leniency program
Appearing before the Authority

8. • Declare the conduct to constitute an
infringement of the prohibitions of the Act;
• Restrain the undertaking or undertakings
from engaging in that conduct;
• Impose a financial penalty; or
• Issue an interim relief to cease and desist
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9. ◦Imprisonment for a term not exceeding
five years or fine not exceeding ten
million shillings or to both
• Settlement Agreement refers to an award of
damages to the complainant or any
amount proposed to be imposed as a
pecuniary penalty.
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10.  Focused on the fertilizer sector in Kenya, that
exhibited characteristics of coordinated practices
among the players, specifically two of the leading
undertakings
 One of the undertakings (MEA Ltd.), subsequently,
instituted a suit against the Authority under a
Certificate of Urgency in the High Court asserting
that the documents and information were
unlawfully obtained from them
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Vision:"A Kenyan economy with globally
efficient markets and enhanced
consumer welfare for shared Prosperity" 10

11.  Conservatory orders were sought to;
◦ Stay the investigation(s) or any other
proceedings;
◦ Stay all investigations and/or further proceedings
arising from the allegation of having been
involved in anti-competitive conduct; and
◦ Issue a temporary Injunction and/or Prohibition
restraining the Authority from destroying,
sharing, disclosing or distributing to any other
person
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Vision:"A Kenyan economy with globally
efficient markets and enhanced
consumer welfare for shared Prosperity" 11

12.  In order for MEA Ltd to be successful in the grant
of a Conservatory Order, the following had to be
satisfied:
◦ That there is a prima facie case with a likelihood of
success on whether the applicant will prevail on the
merits of the case at full trial;
◦ Threat of irreparable injury that cannot be compensated
with damages; and
◦ The balance of rights and interests between the two
parties.
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Vision:"A Kenyan economy with globally
efficient markets and enhanced
consumer welfare for shared Prosperity" 12

13.  The Application by the MEA failed to satisfy these
3 requirements and was hence dismissed
 The Court also concluded that the Authority
complied with Statutes guiding conduct of search
and seizure in Kenya.
 Additionally, the Court commended the Authority
for going out of its way to secure a Search Warrant
despite not being mandated under the Act.
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Vision:"A Kenyan economy with globally
efficient markets and enhanced
consumer welfare for shared Prosperity" 13

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Vision: "A Kenyan economy with globally efficient markets and enhanced consumer welfare for shared Prosperity"
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