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the competition act, 2010

The Competition Act , 2010 took effect on 1st August, 2011. It repeals the Restrictive Trade, Monopolies and Price Control Act, Cap 504 . It further creates an independent autonomous Competition Authority and Competition tribunal.

Of major interest is the expanded definition of services under the Competition Act. Previously the definition was rather vague and it was not clear on whether or not insurance services were regulated within the Restrictive Trade and Monopolies Act , Cap 504. This grey area appears to have been dealt with under the new statute
Service is now defined to include rights, benefits , privileges or facilities provided , granted or conferred under any contract in relation to :-

  • The performance of work, of a professional nature with or without supply of goods
  • The provision of or use or enjoyment of facilities for amusement, entertainment,transport, broadcasting, tourism, recreation, education or instruction;
  • Insurance ;
  • Banking
  • The lending of money
  • Consultancy;
  • Private professional practice ;

And any right benefit or priviledge for which renumeration is payable in the form of a tribute, levy or similar charge but does not include the performance of work or supply of goods under a contract of employment. Insurance services now fall within the ambit of the Competition Act in matters touching on competition and consumer protection.

Section 56(3) make specific reference to insurance and it states :
“A person shall not in the provision of banking , micro-finance or insurance or other services impose unilateral charges and fees by whatever name called or described if the charges and fees in question had not been brought to the attention of the consumer prior to that imposition or prior to the provision of the service”.

  1. A consumer shall be entitled to be informed by a service provider of all charges and fees by whatever name called or described , intended to be imposed for the provision of a service.
  2. A person cannot continue to engage in unconscionable behaviour by reason that the person has instituted legal proceedings or referred the matter to arbitration.
  3. Reference to the supply of goods and services are those purchased for personal, domestic or household use or consumption.

In brief it is an offence to engage in conduct considered unconscionable in connection with the supply of goods or services to another person or the acquisition or possible acquisition of goods and services in business transactions

Section 22 further provides that any action by a Trade Association to get members to collectively agree on any recommendations that are considered to hinder competition will be deemed to breach the requirements of the Act.

The Competition Authority deals with the issue of Mergers which must now be finalized within a time limit of sixty (60) days after the date from which it receives a request for such merger .

The Competition Act, 2010 has stringent provisions on consumer protectionsim which will most certainly affect the manner in which insurers have in the past conducted their business. This will call for heightened transparency and accountability by insurers when engaging with all consumers going forward. The new penalty prescribed for breach of any requirement of the Competition Act is Kshs ten million or five years imprisonment or both


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