Key Insights: Consolidated Settlement Guidelines on Administrative Remedies and Settlement

Background

The Competition Act, 2015 (Act) mandates the Competition Authority of Kenya (the Authority) to carry out investigations on alleged anti-competitive conduct either on its own initiative or upon receipt of a complaint. Following investigations, the Authority may impose administrative penalties including among others, a financial penalty of up to ten percent (10%) of the gross annual turnover in Kenya of the business under investigation. The Act also mandates the Authority to enter into settlement agreements with the undertaking or undertakings concerned at any time, during or after an investigation. The Competition Authority of Kenya (Authority) recently issued the Consolidated Administrative Remedies and Settlement Guidelines (Consolidated Settlement Guidelines) outlining the Authority’s approach to administrative remedies and settlements for violations of the Act. Prior to the publication of the Consolidated Settlement Guidelines, the Authority relied on various guidelines including the Fining and Settlement Guidelines, 2018, Administrative Remedies Guidelines for Consumer Protection, 2017 and the Competition Administrative Penalties and Settlement Guidelines, 2020. The Consolidated Settlement Guidelines, which supersede and consolidate the previous versions, therefore aim to ensure consistency, certainty, and transparency in the assessment of penalties.

However, as the Consolidated Settlement Guidelines do not have the force of law, they complement but are not a substitute for the Act and Competition (General) Rules, 2019.