GAZETTE NOTICE NO. 4731

PURSUANT to the provisions of section 46 (6) of the Competition Act, 2010, it is notified for general information of the public that the Competition Authority of Kenya has approved the proposed acquisition of 19.91% of the shareholding in Vivo Energy Holdings B.V from Shell Overseas Investments B.V by Vitol Africa B.V due to the following reasons— the transaction will not affect competition negatively; and the transaction is unlikely to lead to any negative public interest issues. Dated the 2nd May, 2017. WANG'OMBE KARIUKI, Director-General. GAZETrE NOTICE No. 4732 THE COMPETITION ACT (No. 12 of 2010) PROPOSED ACQUISITION PURSUANT to the provisions of section 46 (6) of the Competition Act, 2010, it is notified for general information of the public that the Competition Authority of Kenya has approved the proposed acquisition of 75% shareholding in Healthlink Management Limited by the Abraaj Healthcare Group Hospitals Mauritius Limited due to the following reasons— the transaction will not affect competition negatively; and the transaction is unlikely to lead to any negative public interest issues. Dated the 2nd May, 2017. Africa Limited by Distell International Holdings Limited resulting in 52% majority shareholding due to the following reasons— the transaction will not affect competition negatively; and the transaction is unlikely to lead to any negative public interest issues. Dated the 2nd May, 2017. WANG'OMBE KARHJKI, Director-General. GAZETFE NOTICE No. 4734 GAZE-rrE NOTICE No. 4736 THE COMPETITION ACT (No. 12 of 20 10) LENIENCY PROGRAM GUIDELINES IT IS notified for general information that pursuant to 89A of the Competition Act, 2010, the Competition Authority of Kenya has issued the guidelines set out in the Schedule as the Programme for purposes of the Act. SCHEDULE PART 1.0—PRELIMINARY PROVISIONS THE COMPETITION ACT (No. 12 of 2010) PROPOSED ACQUISITION PURSUANT to the provisions of section 46(6) of the Competition Act, 2010, it is notified for general information of the public that the Competition Authority of Kenya has approved the proposed acquisition of joint control of ETG Inputs Holdco Limited by the Government Employees Pension Fund Limited of South Africa, represented by the Public Investment Corporation Soc Limited due to the following reasons— the transaction will not affect competition negatively; and the transaction is unlikely to lead to any negative public interest issues. 1.1. Citation. These Guidelines may be cited as the Leniency Programme Guidelines. 1.2. Introduction These Guidelines contain the collection of principles and conditions adopted by the Competition Authority of Kenya and which govern the processing and granting of leniency to undertakings as defined in the Act. The Guidelines have been prepared to inform parties to horizontal agreements and practices prohibited under sections 21 and 22 and the Act, legal practitioners and the general public on how the Authority will handle applications for leniency as provided for in section 89A (I) of the Act. Dated the 2nd May, 2017. GAZETrE NOTICE NO. 4735 WANG'OMBE KARIUKI, Director-General. (3) The operative sections of the Act for the purpose of these Guidelines are sections 21 and 22 which deal with prohibited restrictive agreements between undertakings, decisions by associations of undertakings and practices of trade associations; however, it is restricted to horizontal agreements, decisions by associations of undertakings and concerted practices entered into by competitors. 1.3. Glossary of terms THE COMPETITION ACT (No. 12 of 20 10) EXEMPTION PURSUANT to the provisions of section 25(3) of the Competition Act, 2010, it is notified for general information of the public that Snackbyte Company Limited has made an application for exemption of their proposed franchise agreement with Mr. Pretzel LLC, for a period often (10) years. Pursuant to the proposed franchise agreement, Snackbyte Company Limited will have the exclusive right to develop and operate retail outlets in Kenya under the MR. PRETZELS® trademark subject to the following terms and conditions— Mr. Pretzel® will allocate Kenya as an exclusive territory for Snackbyte to develop and operate Mr. Pretzel Kiosks; Snackbyte will be required to purchase some ingredients from Mr. Pretzels or its nominated suppliers; the agreement further restricts Snackbyte directors, owners and direct relatives from engaging in competitive business. The above requirements under the agreement if not exempted from the Act qualify as contraventions under the Act, hence the application for exemption. All interested parties are required to submit any written representations, if any, with regard to this application within thirty days of the publication of this notice. Submissions may be made through the email: info@cak.go.ke or hand-delivered between 8.00 am, to 5.00 p.m. during working days or be sent by post to the following address: The Competition Authority of Kenya, Railways Headquarters, Block "D" Ground Floor, Haile Selassie Avenue, P.O. Box 36265- 00200, Nairobi. Dated the 24th April, 2017. WANG'OMBE KARIUKI, Director-General, In these Guidelines, unless the context otherwise requires— "Act" means the Competition Act, 2010; "Authority" means the Competition Authority of Kenya; "conditional leniency" means provisional immunity granted in writing to an applicant initially upon successful application for leniency once the Authority is satisfied that the applicant is providing material evidence and information that will aid in its investigations, findings, decisions or subsequent proceedings and which require the applicant to cooperate with the Authority as well as to respect the other conditions specified in these guidelines; "first through the door" means the first person to qualify for conditional immunity with regard to participation in a certain cartel, after the Authority is satisfied that the person qualifies for Leniency and has provided sufficient evidence; "full, total or permanent leniency" succeeds the conditional leniency and is given to an applicant upon the completion of the entire investigation process, when a determination is issued; "immunity" means total or 100% reduction in administrative financial penalty, pursuant to section 89A of the Competition Act on an undertaking found to have committed an offence amounting to horizontal restrictive agreements prohibited under section 21 and 22 of the Act; and the applicant shall not be subject to prosecution for the criminal aspects of the offence, subject to the concurrence of the Director of Public Prosecution; "marker" means a formal acknowledgement by the Authority of a leniency application intent which records the timing of the application and priority relative to other applicants and reserves a place for an applicant for a period of twenty-eight days in the queue whilst it conducts further internal investigation and attempts to perfect its application for leniency. 1.4. Aim of the Guidelines The overall objective of these guidelines is to improve the level of compliance with the Act. It enhances and facilitates investigations and enforcement actions within the economy by encouraging undertakings that have been engaging in wrong doing to provide direct evidence and 19th May, 2017 THE KENYA GAZETTE 2199 proactively cooperate in bringing successful enforcement action in return of full or partial immunity. 1.5 Application for Leniency An application for leniency shall be in the form set out in the Schedule. PART 2.0—GENERAL PROVISIONS 2.1 Eligibility Criteria for the Guidelines An undertaking or a division of an undertaking would be eligible for leniency through the legal entity which it formed and which controls its decision-making process. A leniency agreement shall cover the applicant's directors and employees as long as they respect the obligation to co-operate with the Authority. The leniency applicant shall not coerce or instigated others to operationalize the agreement, and any claim that the applicant coerced or instigated others shall need to be substantiated with irrefutable and direct evidence, and the burden of proof for any such claim shall lie with the undertaking or person alleging these grounds for disqualification. If a subsidiary applies, it would be eligible for leniency in relation to its participation in prohibited conduct but not in relation to its parent's participation in the prohibited conduct (as the parent undertaking is not under the control of the subsidiary), A parent undertaking of a subsidiary would be eligible for leniency in relation to its own and its subsidiary's participation in prohibited conduct as the subsidiary is under the control of the parent). Leniency mayonly be granted to one of the legal entities involved in a joint venture. However, a joint venture constituted as a separate legal entity under the joint control of two parent companies is eligible for leniency. Nonetheless, the direct invohement of the parent companies in prohibited conduct would rot be eligible for leniency since the joint venture does not exercise 01 ov'r its parent. Generally, the involvement of the join ,enture in prohibited conduct is not covered by the application by one of the parent's undertaking because control over the joint vCuI'ee does not rest solely with the parent applicant. 2.2 Scope of the Guidelines Applications for leniency will be accepted in the following circumstances— (a) when the Authority has no knowledge of the contravention; or (6) when the Authority has knowledge of the contravention but lacks sufficient information to start an investigation; or (c) when the Authority has commenced investigations but requires additional evidence to penalize the offenders in which case, applications may be received for as long as new evidence can be introduced in the file. 2.3 Conditions, Obligations and Requirements under the Guidelines The applicant shall qualify for leniency if it meets the following conditions and requirements on a c&ntinuous basis throughout the Authority's investigations until determination— (a) provide full, timely and truthful informaion: The applicant must honestly provide the Authority with complete and truthful disclosure of all evidence, information and documents in its possession or under its control relating to any restrictive agreements, practices and decisions. This also implies not destroying, falsifying or concealing information or misrepresenting any material facts of any restrictive trade practice it is involved in; (6) total co-operation: The applicant must offer full and expeditious co-operation to the Authority concerning the reported restrictive agreements, practices or decisions. keep the application process confidential. The applicant must not alert other cartel members or any third party that it has applied for leniency; the applicant must Immediately stop the conduct unless otherwise directed by the Authority. 2.4. Prie;iples of the Guidelines (1) These Guidelines strive to ensure certainty, transparency and predictability for potential applicants. Consequently, eligible applicants who qualify for leniency as per the conditions set in these Guidelines shall be awarded leniency in the following order.- first through the door applicant shall be granted 100% percent reduction in penalties, also termed as immunity; second through the door applicant may be granted up to 50% percent reduction in penalties; third through the door may be granted up to 30% percent reduction in penalties; and (a) any subsequent applicant who approaches the Authority before investigations are completed and provides useful information that dgnificantly contributes to success of the investigations may be given up to 20 percent reduction in "enalties, (2) The identity of the applicant for leniency shall be kept confidential throughout all stages of the procedure. The identity at the applicant shall not be disclosed to anyone outside the Authority during the investigation or once a decision has been taken. The Authority shall undertake all necessary steps to preserve the identity of the leniency applicant. (3) Conditional leniency, which precedes permanent k'nicncy, shall be provisionally granted at the initial stage of the investigatun pending final determination by the Authority. (4) In order to obtain permanent leniency the applicant has the obligation to co-operate with the Authority and fulfill any other condition or requirement set out in these Guidelines. Only a serious breach of these obligations can preclude an applicant from obtaining permanent leniency. (5) If permanent leniency is not granted, the Authority would he at liberty to deal with the applicant as provided for in the Act. in the same breath the Authority may consider a settlement agreement usually initiated by the undertaking concerned. PROCEDURE UNDER THE LENIENCY PROGRAMME GUIDELINES 3.1 First Contact with the Authority (I) W here a firm is unsure whether or not the,e guidelines apply to a particular conduct, it may seek clarity from the Authority through telephone or in writing and a firm may choose to remain anonymous and once a firm it is satisfied that it can apply for leniency it may apply for a marker. (2) For the purposes of Marker and Leniency application, applicants shall contact the Manager Enforcement and Compliance in person or via a designated email tleniency@cak.go.ke> or phone (+254 202628233 between 8.00 am. and 5.00 p.m. Monday to Friday). 3.2 Marker Application The application must contain information substantial enough to enable the Authority to identify the conduct and its participants in order to determine whether or not an application for leniency has been made in respect of the same conduct. The applicant is given an initial period of 28 days to tubroti relevant documentation information either orally or in writing. 3.3 Marker Extension An applicant may seek an extension of its marker after the expiry of the twenty-eight days if due to unavoidable circumstances, which shall be reviewed on a ease by case basis, it is unable to perfect its application. 3.4 Initial Meeting with the Authority after the Marker has been Perfected (I) Tn applicant shall bring any information or evidence it deems relevant and answer the questions posed by the Authority in relation to the conduct being reported or matters relating thereto. (2) The Authority may only have sight of and peruse all the documents brought by the applicant but may not make copies. 3.5 Communication for Qualification for Leniency The Authority shall within fourteen days after the date of the first meeting make a decision on whether or not the applicant's case qualifies for leniency and inform the applicant accordingly in writing within forteen (14) days thereof. 3.6 Meeting with the Authority after the applicant has qualified for Leniency The aim of this meeting is to discuss and grant conditional leniency to the applicant pending finalization of any further investigations and determination by the Authority in the matter. At this stage, the Authority would be able to make copies of all documents provided. 3.7 Grant of Conditional Leniency A written agreement otherwise known as the conditional leniency agreement shall be executed between the application and the Authority which will be granted subject to the conditions and requirements under these guidelines. The conditional leniency agreement shall explicitly also cover the directors and employees of the applicant undertaking. The Authority shall engage with the office of the Director of Public Prosecution in respect of the prosecution of the criminal aspects of the contravention. 3.8 Confidentiality Claim Any applicant who gives or discloses any material to the Authority may claim confidentiality in respect of the whole or any part of the material in accordance with section 70 of the Act. The applicant may grant a wa r so that the Authority may disclose necessary information for enabling co-ordination of leniency applications presented, in other jurisdictions. 3.9 Investigation, Analysis and Verification After the granting of conditional leniency, the Authority shall move forward with its investigations relating to the prohibited conduct. The applicant granted conditional leniency is expected to co-operate fully and in good faith with the Authority throughout this stage. 3.10 Subsequent Meetings with the Authority Should the Authority wish to communicate in matter concerning the investigation to the applicant, it may contact the applicant through any mode of communication it deems fit or even convene a meeting if and when needed during the process. 3.11 Final Meeting with the Authority The purpose of this meeting between the Authority and the applicant is to give the applicant a Leniency Certificate or sign the Leniency Contract. This only happens when the applicant has met all the conditions set out in these Guidelines and when the Authority has completed its investigation. 3.12 Revocation of a Conditional Leniency Contract Only a serious breach of the cooperation obligation may result in revocation of the conditional leniency by the Authority. Before the Authority makes a decision to revoke the conditional leniency, it shall inform the applicant in writing and provide an opportunity to meet with the Authority and make good the breach. While the Authority is considering revoking the conditional leniency, it shall suspend the obligation of the applicant to co-operate. The Authority shall revoke a conditional leniency by notice in writing Where conditional leniency is revoked, the Authority may decide to pursue the matter in terms of the relevant provisions of the Act. The undertaking involved may also initiate a settlement process under section 38 of the Act. SCHEDULE COMPETITION AUTHORITY OF KENYA LENIENCY APPLICATION FORM (Par. 16) PART I—INFORMATION ABOUT THE PARTIES 1. Name of the applicant 2. Registration number 3. Address: Postal address of applicant Physical address Telephone number fax number email address 4. Contact person(s) in the undertaking and position(s) held Postal address of applicant Physical address Telephone number fax number email address 5. Legal representative Postal address of applicant Physical address Telephone number fax number email address 6. Details of the parties to the agreement(s) Postal address of applicant Physical address Telephone number fax number email address PART 11— DETAILS OF THE CONDUCT Description of the type of infringement (e.g. price fixing, market allocation, bid rigging). Provide details of the affected market (s) in terms of the products and geographic scope. During which period of time did the infringement take place. (a). Indicate whether or not you still participate in the agreement. (b) If no, provide the reasons why and when you stopped participation in the prohibited agreement and provide the evidence necessary to prove such. Indicate other undertakings involved in the infringement (name, legal statusand address of the undertakings). Clearly identify the ring leader(s), coercer(s), and initiator(s) of the infringement. Provide the method of contact with other operators (e.g. email, telephone, fax, etc.) to discuss issues related to the prohibited agreement. Provide the number of gatherings of those participating in the prohibited agreement (e.g.... times alifrom ............ to ............ ). 14,Indicate the competition authorities to which you have applied for leniency or where you plan to apply for leniency. PART Ill—NATURE OF THE MARKET(S) 15. For each of the main products or services covered by the conduct, indicate— any close substitutes or complementary products available on the market in Kenya; and the products supplied by the parties to the conduct. 16. Indicate the market shares (nationally or regionally) for each of the parties in each of the products or services supplied in Kenya. 17. Indicate the latest estimated market shares (nationally or regionally) of competing suppliers or manufacturers in Kenya that are not part of the conduct. 18. Provide estimates of imports into Kenya, if any, in each of the products or services affected by the agreement. (a) list the five largest customers of the parties in each affected market in Kenya. 19th May, 2017 THE KENYA GAZETTE - (b) State the name, address, fax, telephone numbers of the contact person for each of the large customers indicated above. DECLARATION I, the undersigned being a participant to the aforesaid prohibited agreement, declare that to the best of my knowledge the information given in this application is true, correct and complete. I hereby pledge to co-operate in good faith until conclusion of the matter. Name: Position: Signature Date: Stamp Dated the 3rd May, 2017. WANG'OMBEKARIUKI, Director-General.