On 21 May 2017, the Competition Authority of Kenya (the CAK) published leniency program guidelines (the Guidelines) pursuant to section 89A of the Competition Act No. 12 of 2010 (the Act),which empowers the CAK to operate a leniency programme subject to any guidelines that it may publish.

The Guidelines set out the principles that govern the processing and granting of leniency to undertakings and are intended to improve the level of compliance with the Act as well as to enhance and facilitate the CAK’s  investigations by encouraging undertakings engaging in anti-competitive conduct to provide direct evidence to the CAK in return for full or partial immunity.

The Guidelines apply to sections 21 and 22 of the Act, which deal with restrictive trade practices (RTPs). RTPs are defined as agreements, decisions or concerted practices between undertakings, which have as their object or effect the prevention, distortion or lessening of competition in trade in any goods or services in Kenya. However, the Guidelines only apply to undertakings in a horizontal relationship (i.e. who are competitors).

Scope of the Guidelines

The Guidelines will apply to a potential leniency applicant where;

• the CAK has no knowledge of the contravention of the Act; or
• the CAK has knowledge of the contravention but not enough information to start an investigation into the alleged RTP; or
• the CAK has commenced its investigation into the alleged RTP but requires additional evidence to penalise offenders, and a potential leniency applicant put forward new evidence.

The leniency agreement will extend to a leniency applicant’s directors and employees as long as they continue to co-operate with the CAK.

Eligibility criteria for the Guidelines

An undertaking will be eligible to enter into a leniency agreement with the CAK if the leniency applicant on a continuous basis throughout the CAK’s investigations;

• provides full, timely and truthful information to the CAK; and includes in its application all evidence and documents in its control relating to the alleged contravention;
• offers full and expeditious co-operation with the CAK;
• keeps the leniency application process confidential; and
• ceases the prohibited conduct unless otherwise instructed by the CAK.

A successful leniency applicant that is first through the door shall be granted immunity (which consists of a 100% reduction in penalties – both financial and administrative); the applicant that is second through the door may be granted up to a 50% reduction in penalties, and the leniency applicant that is third through the door may be granted up to a 30% reduction in penalties.

Any subsequent leniency applicant that is able to provide information that significantly contributes to the CAK’s investigation may be granted up to a 20% reduction in penalties.
Subject to the concurrence of the Director of Public Prosecutions, the leniency applicant who has received immunity will also not be subject to any criminal prosecution.

For more information, please contact the Bowmans Competition practice or your relationship partner at Bowmans Kenya.