Mobile phone operator Airtel Kenya has moved to court to block the competition watchdog from undertaking investigations into complaints made by four distributors over alleged abuse of buyer power.
The company says in the petition filed before the High Court that the Competition Authority of Kenya (CAK) has no powers to investigate the complaints yet if proven, the allegations are subject to penalties of fines ranging from a minimum of Sh10 million to 10 percent of the previous year’s gross turnover.
The telco says the complaints were lodged by Pesapal Ltd, Mawingu Airtime Ltd, Interintel Technologies Ltd and Okazaki Ltd.
“The respondent (CAK) herein is attempting to assume jurisdiction over matters beyond the scope of its mandate as none of the interested parties are suppliers or consumers and the applicant is not a buyer as defined under the Competition Act,” said Ms Lillian Mugo, the head of legal affairs at Airtel Kenya, in an affidavit filed in court.
Justice John Chigiti directed the matter to be mentioned on February 14.
Airtel says it entered into a distributorship agreement for its products with the distributors between December 2012 and July 2019.
Then it received notification from the competition watchdog in September and October, that it was undertaking investigations lodged by the distributors over alleged abuse of buyer power under Section 31 of the Competition Act.
The notification of investigations refers to various remedies sought such as refunds of commission which are matters within the dispute resolution clauses, according to Airtel.
The CAK gave Airtel 14 days to respond to the letters, but the company says it asked to be furnished with individual complaints, which the watchdog allegedly declined.
“The investigations and potential penalties likely to be imposed by the respondent as indicated on its notifications require as a bare minimum the respondent does furnish the individual complainants and annexures as well as preliminary analysis so as to enable the applicant to file a robust and comprehensive response,” said the telco.
Further, the telco says the notifications of investigations refer to various remedies sought such as refunds of commission, which are matters within the dispute resolution clauses set out on the contracts signed between parties.
The mobile company operator added that the parties have been engaged in mutually beneficial contracts that have resulted in many engagements over the years without protest or complaint.
The mobile phone operator added that it recalled or withdrew the letters that sparked the alleged dispute and there is thus, no longer any dispute between it and the distributors.
Ms Mugo said there is no buyer-seller relations between Airtel and the distributors to warrant giving CAK powers to investigate the complaints.
The company says unless it is furnished with copies of the complaints and annexures, will give rise to apprehension that CAK has already pre-determined the issue and will go to great lengths not to allow Airtel to file a robust response.
“The respondent has vide its letter dated 22nd November 2023 directed that the applicant do file responses to the notice of investigation on or before end of the day 6th December 2023 and emphasized that it will not provide the individual complaints and annexures thereto despite a requirement to do so under Article 50(2) (j) of the constitution and Fair Administrative Actions Act,” Airtel said.
