ADVOKS GLOBAL · KENYA
Competition Act
57. Unconscionable conduct in business transactions
Edition: 2022-12-31 · In force
57. Unconscionable conduct in business transactions
(1)It shall be an offence for a person in trade in connection with—(a)the supply or possible supply of goods or services to another person; or(b)the acquisition or possible acquisition of goods or services from another person, to engage in conduct that is, in all the circumstances, unconscionable.(2)Without limiting the matters to which the Authority may have regard for the purpose of determining whether a person, being a supplier, has contravened subsection (1) in connection with the supply or possible supply of goods or services to a business consumer, the Authority may have regard to—(a)the relative strengths of the bargaining positions of the supplier and the business consumer;(b)whether, as a result of conduct engaged in by the supplier, the business consumer was required to comply with conditions which were not reasonably necessary for the protection of the legitimate interests of the supplier;(c)whether the business consumer was able to understand any documents relating to the supply or possible supply of the goods or services;(d)whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the business consumer or a person acting on behalf of the business consumer by the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the goods or services;(e)the amount for which, and the circumstances under which, the business consumer could have acquired identical or equivalent goods or services from a person other than the supplier;(f)the extent to which the supplier’s conduct towards the business consumer was consistent with the supplier’s conduct in similar transactions between the supplier and other like business consumers;(g)the requirements of any applicable industry code;(h)the requirements of any other industry code, if the business consumer acted on the reasonable belief that the supplier would comply with that code;(i)the extent to which the supplier unreasonably failed to disclose to the business consumer—(i)any intended conduct of the supplier that might affect the interests of the business consumer; and(ii)any risks to the business consumer arising from the supplier’s intended conduct (being risks that the supplier should have foreseen that would not be apparent to the business consumer);(j)the extent to which the supplier was willing to negotiate the terms and conditions of any contract for supply of the goods or services with the business consumer; and(k)the extent to which the supplier and the business consumer acted in good faith.