As of 1 August 2011, the Restrictive Trade Practices Monopolies and Price Control Act of Kenya was repealed by the Kenyan Competition Act (New Act).

The New Act encapsulates both competition laws and provisions dealing with consumer rights, and creates a new watchdog, the Competition Authority of Kenya (Authority). The Authority is structured as an independent authority
to deal with competition and consumer protection matters. Notably, the previous authority, the Monopolies and Price Commission of Kenya, was not an autonomous entity but rather a division within a department. This dependency reportedly reduced the effectiveness and success of the previous Act.

The New Act also introduces revised penalties for contraventions with fines of up to KS(Kenyan Shillings)10 million and/or imprisonment of up to five years. Offences under the Act include engaging in restrictive trade practices or conduct which amounts to an abuse of a dominant position or offensive behaviour pertaining to mergers including implementing a merger
without the requisite prior approval or failing to implement a merger in accordance with conditions attached to the approval. The Authority is also empowered to conduct sector enquiries to determine whether an economic sector contains an "unwarranted concentration of economic power" - in which case available remedies include a disposal of interests.

At a consumer level, the Authority is tasked with receiving and investigating complaints from consumers and promoting public knowledge and awareness of its role. It will also promote the creation and recognition of consumer bodies to represent consumers appearing before it. Contraventions of the provisions of the New Act dealing with consumer rights may also
attract fines of up to KS10 million and/or imprisonment of up to five years.

Under the New Act, offences include providing false or misleading representations regarding the goods or services being supplied, supplying goods or services that do not comply with prescribed consumer product and safety standards or in connection with the supply of goods or services engaging in conduct that is in all the circumstances unconscionable.

Written by Chris Charter, Director and Kayley de Oliveria, Associate in Competition law at Cliffe Dekker Hofmeyr.