ADVOKS GLOBAL · KENYA
Competition Act
46. Determination of proposed merger
Edition: 2022-12-31 · In force
46. Determination of proposed merger
(1)In making a determination in relation to a proposed merger, the Authority may either—(a)give approval for the implementation of the merger;(b)decline to give approval for the implementation of the merger; or(c)give approval for the implementation of the merger with conditions.(2)The Authority may base its determination in relation to a proposed merger on any criteria which it considers relevant to the circumstances involved in the proposed merger, including—(a)the extent to which the proposed merger would be likely to prevent or lessen competition or to restrict trade or the provision of any service or to endanger the continuity of supplies or services;(b)the extent to which the proposed merger would be likely to result in any undertaking, including an undertaking not involved as a party in the proposed merger, acquiring a dominant position in a market or strengthening a dominant position in a market;(c)the extent to which the proposed merger would be likely to result in a benefit to the public which would outweigh any detriment which would be likely to result from any undertaking, including an undertaking not involved as a party in the proposed merger, acquiring a dominant position in a market or strengthening a dominant position in a market;(d)the extent to which the proposed merger would be likely to affect a particular industrial sector or region;(e)the extent to which the proposed merger would be likely to affect employment;(f)the extent to which the proposed merger would be likely to affect the ability of small undertakings to gain access to or to be competitive in any market;(g)the extent to which the proposed merger would be likely to affect the ability of national industries to compete in international markets; and(h)any benefits likely to be derived from the proposed merger relating to research and development, technical efficiency, increased production, efficient distribution of goods or provision of services and access to markets.(3)For the purpose of considering a proposed merger, the Authority may refer the particulars of the proposed merger to an investigator, who may include an employee of the Authority or any other suitable person, for investigation and a report in relation to the criteria referred to in subsection (2), and shall inform the undertakings involved of such referral.(4)As soon as practicable after a referral in terms of subsection (3), the investigator concerned shall—(a)investigate the proposal so referred; and(b)before the date specified by the Authority, furnish the Authority with a report of the investigation.(5)Any person, including a person not involved as a party in the proposed merger, may voluntarily submit to an investigator or the Authority any document, affidavit, statement or other relevant information in respect of a proposed merger.(6)The Authority shall—(a)give notice of the determination made by the Authority in relation to a proposed merger—(i)to the parties involved in the proposed merger, in writing; and(ii)by notice in the Gazette; and(b)issue written reasons for its determination—(i)if it prohibits or conditionally approves a proposed merger; or(ii)if it is requested to do so by any party to the merger.