1. This judgment determines the Originating Motion dated 26 th January 2026 and filed under Certificate of Urgency, pursuant to Sections 7, 9 of the Fair Administrative Action Act, Rule 11 and 13(2) of the Fair Administrative Action Rules 2020 and all other enabling provisions of the law. The Applicant seeks the following ORDERS: -
(1 Spent.
(2 Pending the inter-partes hearing and determination of this Application, this Honourable Tribunal be pleased to issue a temporary order of PROHIBITION prohibiting the Respondent from issuing a final decision in relation to its alleged unilateral investigation conducted with respect to the Wholesale Concession and Operating Agreement between the Applicant and Vivo Energy Kenya Limited.
(3 Pending the inter-partes hearing and determination of this Application, this Honourable Tribunal be pleased to issue a temporary order of PROHIBITION restraining the Respondent from requiring the Applicant to submit its merits written submissions as directed in the Respondent’s letter dated 2 nd January 2026.
(4 This Honourable Court be pleased to exempt the Applicant from the obligation under Section 40 of the Competition Act, 2015 and Rule 9 of the Competition Tribunal (Procedure) Rules to exhaust the alternative remedy of approaching the Competition Tribunal, as the Tribunal is not quorate and is therefore unable to hear matters.
(5 This Honourable Court be pleased to issue orders of CERTIORARI bringing to this court and quashing the Competition Authority of Kenya’s Notice of Proposed Decision dated 15 th April 2025 for violation of Article 47 of the Constitution and Section 4 (3) (g) of the Fair Administrative Action Act.
(6 This Honourable Court be pleased to issue an order of PROHIBITION prohibiting the Competition Authority of Kenya, its agents, servants and/or employees or such other persons, from investigating the alleged restrictive trade practices with respect to the Wholesale Concession and Operating Agreement dated 18 April 2018 between the Applicant and Vivo Energy Kenya Limited as the exemption automatically lapsed and the parties had already amended the agreement to remove the anti-competitive clauses subject of the alleged investigation.
(7 Any other relief that this Honourable Court may deem just and appropriate in the circumstances of the case.
(8 The costs of this Application be provided for.
2. The Application is premised on the grounds on the face of it and is further supported by the sworn affidavit of Mathew Schiller, the President and Chief Operating Officer of the Applicant herein on 26 th January, 2026. Mr. Schiller deposes that their business Koko Networks (Kenya) Limited operates a renewable fuel utility, retailing denatured ethanol cooking fuel (KOKO Fuel) to low-income households in urban Kenya. That on 18 th April 2018, the Applicant entered into a 10-year Wholesale Concession and Operating Agreement with Vivo Energy Kenya Limited (Vivo) for KOKO Fuel supply and distribution. That the parties obtained a (5) five-year exemption from the Respondent on 28 th March 2019, for potentially anti-competitive clauses, including exclusivity.
3. The deponent states that despite the exemption, the Applicant began engaging alternative suppliers from various markets as early as 2021 as evidenced by its response letter of 29 th May 2025 so that it was clear that the parties ceased to operate on an exclusive basis even during the pendency of the exemption clauses. It is averred that and that VIVO informed them on 7 th February 2024 through a letter that the exemption which was expected to lapse on 28 th March 2024, would not be renewed. That this was communicated to the Respondent on 18 th November 2024 where Vivo told the Respondent that the exemption clauses were no longer needed, that no party had exercised exclusivity and that they were in the process of amending their agreement. It is stated that the Agreement was subsequently amended to remove exclusivity clauses, with a signed copy shared with the Respondent on 4 th March 2025. The deponent reiterates that at the end of the Exemption Period, none of the parties was operating under an exclusive arrangement.
4. It is contended that on 15 th April 2025, the Respondent unilaterally issued a Notice of Proposed Decision (NoPD), based on an alleged surveillance report, claiming the parties were still engaged in exclusive arrangements and price-fixing, in breach of the Competition Act. It is alleged that the Respondent conducted surveillance between 6 th to 12 th October 2024 in eight counties which led to certain findings of breach that informed the issuance of the NOPD. It is further contended that the Respondent has failed and refused to provide the Surveillance Report and all evidence relied upon for issuing the NOPD, despite repeated requests, an act which is an outright withholding evidence against the requirement of procedural fairness.
5. It is the Applicant’s case that they were subsequently, invited for a meeting by the Respondent on 22 nd September 2025, where they raised a Preliminary Objection (PO) challenging the Respondent's failure to issue a Notice of Intention to Investigate (NoITI) and denying them an opportunity to provide information before the NOPD was issued.
6. The Applicant urges that, had it been invited to participate prior to issuance of the NoPD, it would have been able to supply the Respondent with relevant information and clarifications regarding its business model and the Agreement which would have materially assisted the Respondent in conducting a fair and informed investigation. However, it is deposed that the Respondent dismissed the Preliminary Objection on 3 rd October, 2025 (the PO Decision), contending surveillance was merely a preliminary monitoring tool, not an investigation.
7. It is further deposed that the Respondent’s conduct violates several constitutional and statutory provisions. In particular, Section 4 (3) (g) of the Fair Administrative Action Act, 2015 (FAAA), which obligates furnishing all relevant information; Articles 25 (c) and 50 of the Constitution, guaranteeing a fair hearing, Section 6(4) of the Fair Administrative Action Act, prohibiting administrative decisions without reasons or evidential support, Article 47 of the Constitution and Section 7 (2) (c) of the Fair Administrative Action Act, pertaining to fair administrative action.
8. It is also contended by the deponent that there was a flawed Assessment from the alleged surveillance which the Respondent conducted because the NoPD relied on unverified information from unnamed vendors and sales representatives, making factually incorrect assumptions about KOKO agents’ roles and price determination, thus breaching Section 7 (2) (k) and (n) of the FAAA and violating the Applicant's legitimate expectations.
9. It is further deposed that the Applicant approached the Competition Tribunal on 15 th January 2026, seeking injunctions against the Respondent's final decision but learned of the Tribunal’s incapacity on 21 st January 2026, when the Acting Chairperson informed parties that the Tribunal was not lawfully constituted since the Chairperson’s term expired and thus were unable to deal with the Applications. That for this reason, the Applicant asserts that, the High Court is the only forum with jurisdiction for urgent matters under the Competition Act.
10. It is contended that the Applicant faces irreparable damage, including potential insolvency and devastating impacts on its 1.3 million consumer base, if the Respondent proceeds with its final decision and imposes undisclosed financial penalties based on the withheld Surveillance Report. The Applicant seeks the High Court’s intervention to enforce its right to fair administrative action and a review of the NOPD and PO Decision.
Response
11. In response to the Application, the Respondent filed a Replying Affidavit sworn by Bernard Ayieko, the Manager at the Enforcement and Compliance Department dated 16 th February 2026, vehemently opposing the Application in several grounds. He deposes that on 28 th March 2019, the Respondent granted the Applicant and Vivo Energy Kenya Limited (Vivo) a five-year exemption for certain anti-competitive clauses in their Wholesale Concession and Operating Agreement, which was otherwise a ten-year agreement. This exemption expired on 28 th March 2024.
12. It deposed that upon the exemption's expiry and without receiving any new Application, the Authority/Respondent conducted surveillance which led to certain findings. The Respondent observed that Vivo was the exclusive supplier to the Applicant and the Applicant carried out resale price maintenance and managed prices through its "KOKO Cloud" platform.
13. It is further deposed that on 18 th November 2024, Vivo informed the Respondent that the business landscape had shifted, rendering the exempted clauses redundant, and stated that they were amending the agreement. That subsequently on 3 rd March 2025 Vivo confirmed the amendment was complete and in circulation for signature. The executed Fourth Deed of Amendment was then forwarded by Vivo on 4 th March 2025 in which Vivo claimed the deletions took effect from 27 th March 2024 right before the expiry of the exemption period.
14. It is the Respondent’s position and conclusion that there was no amendment lodged with the Authority removing the anti-competitive clauses by the exemption's lapse date of 28 th March 2024 contrary to Vivo’s claims. That therefore, the continued existence of these exclusivity clauses in the agreement after the exemption period constituted a preliminary breach of Section 21 (1) of the Competition Act .
15. It is averred that based on these findings, the Respondent issued a NoPD to the Applicant and Vivo on 15 April, 2025 and states that bundles of evidence were supplied with the NoPD, and the Applicant was given 21 days to submit written representations or request an oral hearing, to which they responded by requesting a hearing, which was convened on 22 nd September 2025.
16. The Respondent asserts that issuing a formal Notice of Investigation is discretionary under Section 31(4) of the Act and affirms full compliance with Article 47 of the Constitution of Kenya and Section 4 of the Fair Administrative Action Act , having provided all the evidence that they relied-upon in issuing the NoPD. They assert that the NoPD is not a final determination, as per Section 34 of the Act , and states that a final decision is made under Section 36 . That for this reason, the Applicant's prayer to remove the NoPD cannot be granted.
17. With regard to its Statutory mandate, the Respondent contends that it cannot be restrained from exercising the powers granted under the law and asserts that the Application be dismissed with costs because the Applicant has failed to demonstrate any illegality, irrationality, or procedural unfairness by the Authority.
Further Affidavit
18. The Applicant filed a further Affidavit dated 23 rd February 2026 sworn by GEORGE WERU, a Joint Administrator appointed for KOKO Networks (Kenya) Ltd. The Applicant decried the Competition Authority of Kenya, the Respondent’s actions stating that they are tainted with procedural irregularities and substantive errors arising from the Respondent's investigation and issuance of the Notice of Proposed Decision (NoPD).
19. The deponent states that the Respondent’s discretion to issue a NoITI cannot justify a decision-making process based on irrelevant considerations. Further, that the Respondent failed to engage the Applicant and Vivo Energy Kenya Limited (Vivo) for contextual understanding, leading to a flawed NOPD based on unverified reports.
20. The Applicant contends that the Respondent acted unreasonably by failing to engage them directly, by failing to issue a Notice of Intention To Investigate, and by relying on unverified statements, thereby violating Section 7 (2) (f), (k), and (n) of the Fair Administrative Action Act.
21. Additionally, that despite conducting a surveillance exercise, the Respondent failed to furnish the Applicant with the resulting Surveillance Report and its underlying evidence being in the nature of SMS, WhatsApp messages, phone calls and meeting minutes or a list of the people interviewed, thereby depriving the Applicant of a fair opportunity to respond to allegations of price-fixing and exclusive distribution. That consequently, the Respondent wrongly assumed KOKO agents own and resell fuel yet KOKO maintains title to the fuel and thus the allegation of price-fixing "against itself" was an illogical and legally untenable finding.
22. The Applicant states that it did not act on the exclusivity clause in its agreement with Vivo, sourcing bio-ethanol fuel from alternative suppliers since 2021. That in any case, the exemption for the exclusivity lapsed on 28 th March 2024 and the agreement was formally amended to reflect this, with copies shared with the Respondent.
23. It is contended that the Respondent took a contradictory stance because it initially stated that surveillance observations formed the basis of its NOPD but later asserted it did not rely on them. The Applicant contends that this is inconsistent and an afterthought. Further, the Applicant asserts that the NoPD falls within the definition of an administrative decision under Section 2 of the FAAA and is thus subject to fair administrative action safeguards and judicial review.
24. On procedural unfairness, the Applicant contends that the Respondent's refusal to provide the Surveillance Report renders the administrative process procedurally unfair, irrational, and constitutionally deficient, breaching Articles 47 and 50 of the Constitution and Fair Administrative Action Act on disclosure obligations. The Applicant concludes that there was no lawful basis for the investigation given the exemption had automatically lapsed and no exclusivity arrangements were in operation at the material time. That in this regard, the Court should grant the prayers sought in the interests of justice.
25. The Originating motion was canvassed by way of written submissions with both parties complying with the court’s directions on the filing of their respective submissions.
Submissions
The Applicant’s Submissions
26. The Applicant’s submissions are dated 23 rd February 2026. Its Counsel submitted on alleged violations of Article 47 of the Constitution and Sections 4(3)(g) and 7(2) of the Fair Administrative Action Act (FAAA). The core of the Applicant's challenge lies in the Respondent’s failure to provide the Surveillance Report, which forms the basis of the NoPD's adverse findings and failure to issue a Notice of Intention to Investigate (NOITI) before conducting its investigation. Counsel isolated two issues for determination being:
a. whether the Respondent's refusal to supply the Surveillance Report violates the Applicant's right to fair administrative action and
b. whether the Respondent's refusal to issue a NoITI before investigation violates the Applicant's right to fair administrative action.
27. Counsel for the Applicant argues that the Respondent's persistent refusal to supply the Surveillance Report, despite expressly stating that it formed the foundation for the NoPD's findings, violates the right to fair administrative action. That Article 47 guarantees fair administrative action, including written reasons for adverse actions. Section 4 (3) (g) of the FAAA mandates administrators to provide all documents, information, and evidence relied upon.
28. Counsel submitted that the Respondent’s Replying Affidavit claims it did not rely on surveillance observations, directly contradicting its NoPD, which detailed findings from the surveillance. The Applicant invokes the doctrine of estoppel and cited the Court of Appeal decision in Serah Njeri Mwobi v John Kimani Njoroge [2013] KECA 501 (KLR) . Further, that without the report, the Applicant cannot ascertain the basis of allegations or meaningfully respond, thus violating their the non-derogable right to a fair hearing under Articles 25 (c) and 50 of the Constitution .
29. The applicant’s Counsel cited a myriad of cases being the Supreme Court case of Saisi & 7 others vs. Director of Public Prosecutions & 2 others [2023] KESC 6 (KLR) (the Saisi Case) and Republic vs. Speaker of the National Assembly & 4 others Ex-Parte Edward R.O. Ouko [2017] KEHC 9413 (KLR), Republic vs. Speaker of the National Assembly & 4 others Ex-Parte Edward R.O. Ouko [2017] KEHC 9413 (KLR), Geothermal Development Company Limited vs. Attorney General and 3 others [2013] eKLR, Kenya Human Rights Commission vs. Non-Governmental Organizations Co-ordination Board [2016] eKLR, Priscillah Wanjiku Kihara v Kenya National Examination Council (KNEC) [2016] eKLR, Tononoka Rolling Mills Limited v Competition Authority of Kenya [2025] KECT 4 (KLR), Alubala v Capital Markets Authority; National Bank of Kenya Limited (Interested Party) [2019] KEHC 4895 (KLR to emphasize the mandatory nature of evidence disclosure, the right to a fair hearing, the requirement of administrators to give reasons for their decisions and support invalidating decisions where crucial evidence is withheld.
30. It is also submitted that the refusal to supply the report suggests either a lack of lawful justification for the NoPD or an intentional deprivation of the Applicant's right to defend itself.
31. On the Notice of Intention to Investigate (NoITI), Counsel for the Applicant contends in his submissions that the Respondent's failure to issue a NoITI led to a fundamentally flawed NOPD based on unverified information and a misunderstanding of the Applicant's business model. Counsel submitted that the NoPD was an irrational decision because the Respondent relied on statements from ‘unnamed vendors and sales representatives’ who allegedly misunderstood the Applicant's operational structure. It is contended that the Applicant cannot ‘fix prices against itself’ as it solely determines the price of its product. That consequently, the Respondent arrived at a decision based on irrelevant considerations and disregarded relevant ones which constitutes irrationality and a violation Section 7 (2) (f), (k), and (n) of the FAAA .
32. Counsel submits that while the Respondent has discretion to issue a NoITI, this discretion cannot circumvent statutory and constitutional obligations for fair administrative action. Additionally, the Respondent breached the Applicant's legitimate expectation, reinforced by its historical practice of issuing NoITIs before substantive inquiries, which allows for engagement and clarification of business models. Reliance was placed on the Supreme Court’s decision in Communication Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others [2014] eKLR in support of the proposition that public authorities are bound to honour set practices and their representations unless an overriding reason grounded in law justifies a departure.
33. It is Counsel’s submission that the Applicant concludes that its right to fair administrative action has been violated, that the NoPD was solely grounded on the Surveillance Report, which the Respondent failed to provide rendering it impossible for the Applicant to respond substantively and consequently violating its constitutional right to a fair hearing. That the Respondent's inability to rebut its failure to supply evidence leads to the inference that no surveillance was conducted, rendering the NoPD illegal, irrational, and devoid of lawful justification. Moreover, that the absence of a NoITI and the failure to produce the Surveillance Report imply no factual or evidentiary basis for the NoPD. The Applicant urged the Court to allow the Application with costs.
The Respondent’s Submissions
34. The Respondent’s submissions are dated 27 th February 2026. Its Counsel isolated two issues for determination namely:
a. whether the Respondent's failure to supply the surveillance report violates the Applicant's right to fair administrative action and
b. whether the Respondent's failure to issue a Notice of Intention to Investigate (NoITI) violates the Applicant's right to fair administrative action .
35. On alleged violation of Article 47 of the Constitution, it was submitted that this Article guarantees procedural fairness, not a general right to pre-decision discovery or access to every internal working document and further, that the Respondent’s surveillance observations were not relied upon as evidence for its preliminary finding of a breach of the Act. It is submitted that Section 4 (3) (g) of the FAAA only obligates disclosure of materials actually relied upon in making a decision and that surveillance activities generate leads and preliminary observations, forming part of regulatory fact-finding such as patrols, and are not evidentiary records requiring disclosure. That statutory bodies must retain confidential investigative capacity to ensure effective enforcement, protecting informants and investigative methodologies.
36. Counsel contends that the NoPD is a preliminary document, specifying alleged conduct and factual concerns, aimed at giving the Applicant an opportunity to make representations. Accordingly, it was urged that judicial interference at such preliminary stages is deemed premature and legally misconceived. It is also argued that the Respondent accorded the Applicant a fair hearing by issuing the NoPD, supplying bundles of evidence, providing 21 days for written representations, and offering an opportunity for oral representations.
37. On the issuance of Notice of Intention to Investigate (NoITI), Counsel submits that Section 31 of the Competition Act empowers the Authority to initiate investigations on its own motion or upon a complaint. It is contended that Section 31(4) uses the permissive term "may" regarding the issuance of a NoITI, indicating that it is discretionary and context-dependent, not a mandatory prerequisite for investigation. That interpreting NoITI as mandatory would undermine enforcement, frustrate statutory purpose, and enable concealment or destruction of evidence by alerting subjects of investigation prematurely.
38. The Respondent’s Counsel provides a distinction between stages and submitted that procedural fairness obligations, including the right to be heard, intensify at the decision-making or adjudicative stage, not the intelligence-gathering or investigative stage. That in line with this, the Applicant's claim of legitimate expectation lacks evidentiary substantiation of an express promise or consistent practice by the Respondent to invariably issue NoITIs. It is argued that legitimate expectation cannot override express statutory provisions or fetter statutory discretion.
39. The Respondent submits that the Application lacks any recognizable grounds for judicial review. Counsel contends that the Respondent acted strictly within its statutory mandate, exercised granted discretion, disclosed all material relied upon, accorded the Applicant fair hearing opportunities, and has not yet made a final determination. Further, that the Application is a premature attempt to terminate an ongoing statutory process and improperly transform judicial review into an appeal on merits. That granting the relief sought would contradict settled jurisprudence and undermine regulatory autonomy. The Court is urged to dismiss the Application in its entirety with costs.
Analysis and Determination.
40. I have considered that originating motion as pleaded, the respective affidavits and the annexures together with the rival submissions, the main issues for my determination are: -
(i) Whether this Court has jurisdiction to adjudicate upon the matter.
(ii) Whether the Respondent has violated the Applicant’s right to fair administrative action in failing to supply it with the Surveillance Report and in issuing the Notice of Intention to Investigate.
(iii) What orders should this Court make.
(i) Whether this Court has jurisdiction to adjudicate upon the matter.
41. This dispute emanates from the impugned Notice of Proposed Decision (NoPD) dated 15 th April 2025 issued by the Respondent, upon the latter’s discovery , following a surveillance exercise between 6 th October 2024 and 12 th October 2024.
42. On whether this court is clothes with jurisdiction to entertain the matter, especially where there exist alternative mechanisms set out by statute, it is trite that jurisdiction is everything and without it, a court of law cannot act. the locus classicus Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd. (1989) defined jurisdiction as follows:
“Jurisdiction is everything. Without it a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction…. Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given.”
43. This Court identifies with the fact that courts are hesitant to preside over a matter where either the Constitution or statute provide for alternative dispute resolution mechanisms before the court is moved. These mechanisms may be internal dispute resolution mechanisms or adjudication by tribunals established to preside over matters relating to specific thematic issues or by way of appeal.
44. In this matter, Section 71 of the Competition Act establishes the Competition Tribunal as follows:
71. Establishment of the Competition Tribunal
(1 There is hereby established a Tribunal to be known as the Competition Tribunal which shall exercise the functions conferred upon it by this Act.
45. The Tribunal’s jurisdiction is captured at Section 73 as follows:
73. Persons entitled to appeal to the Tribunal
The following persons may exercise the right of appeal to the Tribunal conferred under this Act—
(a) any person who, by a determination made by the Authority under this Act—
(i) is directed to discontinue or not to repeat any trade practice;
(ii) is issued with a stop and desist order or any other interim order;
(iii) is permitted to continue or repeat a trade practice subject to conditions prescribed by the order;
(iv) is directed to take certain steps to assist existing or potential suppliers or customers adversely affected by any prohibited trade practices;
(v) is ordered to pay a pecuniary penalty or fine; or
(vi) is aggrieved by a stop and desist order or any other interim order of the Authority;
46. Rule 9 of the Competition Tribunal (Procedure) Rules made under the Competition Act also sets out the jurisdiction of the Tribunal as follows:
9. Jurisdiction of the Tribunal
The Tribunal shall have jurisdiction to hear and determine the following matters—
(a) matters referred to it for review of the Authority's decision under section 48 (1) of the Act;
a. to hear Appeals from the decisions of the Authority;
b. any other matter arising under the Act; and
c. any other matter referred to it by a competent court of law.
47. Section 40 of the Act further sets out a dispute resolution mechanism between aggrieved parties and the Authority/Respondent as follows:
40. Appeals to the Tribunal
(1) A person aggrieved by a determination of the Authority made under this Part shall appeal in writing to the Tribunal within thirty days of receiving the Authority's decision.
(2) A party to an appeal under subsection (1) who is dissatisfied with the decision of the Tribunal may appeal to the High Court against that decision within thirty days after the date on which a notice of that decision has been served on him and the decision of the High Court shall be final.
48. From the material before this Court, it is safe to conclude that the subject of this dispute falls within the jurisdiction of the Tribunal. Courts have on several occasions declined to entertain matters that fall for resolution in other forums at the first instance in compliance with the doctrine of exhaustion which connotes that where there exists a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed before moving the courts. This was aptly enunciated by the High Court of Appeal in Speaker of the National Assembly v Karume (Civil Application 92 of 1992) [1992] KECA 42 (KLR) (29 May 1992) (Ruling) where the Superior Court stated that:
“15.In our view, there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. We observe without expressing a concluded view that order 53 of the Civil Procedure Rules cannot oust clear constitutional and statutory provisions.”
49. In Republic vs. Independent Electoral and Boundaries Commission (I.E.B.C) Ex- Parte National Super Alliance (NASA) Kenya and 6 others [2017] eKLR, the Court applying the above principle established in the Speaker of the National Assembly v Karume (supra) opined that:
“42. This doctrine is now of esteemed juridical lineage in Kenya. It was perhaps most felicitously stated by the Court of Appeal in Speaker of National Assembly v Karume [1992] KLR 21 in the following oft-repeated words:
Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the spec
[...truncated]
(1 Spent.
(2 Pending the inter-partes hearing and determination of this Application, this Honourable Tribunal be pleased to issue a temporary order of PROHIBITION prohibiting the Respondent from issuing a final decision in relation to its alleged unilateral investigation conducted with respect to the Wholesale Concession and Operating Agreement between the Applicant and Vivo Energy Kenya Limited.
(3 Pending the inter-partes hearing and determination of this Application, this Honourable Tribunal be pleased to issue a temporary order of PROHIBITION restraining the Respondent from requiring the Applicant to submit its merits written submissions as directed in the Respondent’s letter dated 2 nd January 2026.
(4 This Honourable Court be pleased to exempt the Applicant from the obligation under Section 40 of the Competition Act, 2015 and Rule 9 of the Competition Tribunal (Procedure) Rules to exhaust the alternative remedy of approaching the Competition Tribunal, as the Tribunal is not quorate and is therefore unable to hear matters.
(5 This Honourable Court be pleased to issue orders of CERTIORARI bringing to this court and quashing the Competition Authority of Kenya’s Notice of Proposed Decision dated 15 th April 2025 for violation of Article 47 of the Constitution and Section 4 (3) (g) of the Fair Administrative Action Act.
(6 This Honourable Court be pleased to issue an order of PROHIBITION prohibiting the Competition Authority of Kenya, its agents, servants and/or employees or such other persons, from investigating the alleged restrictive trade practices with respect to the Wholesale Concession and Operating Agreement dated 18 April 2018 between the Applicant and Vivo Energy Kenya Limited as the exemption automatically lapsed and the parties had already amended the agreement to remove the anti-competitive clauses subject of the alleged investigation.
(7 Any other relief that this Honourable Court may deem just and appropriate in the circumstances of the case.
(8 The costs of this Application be provided for.
2. The Application is premised on the grounds on the face of it and is further supported by the sworn affidavit of Mathew Schiller, the President and Chief Operating Officer of the Applicant herein on 26 th January, 2026. Mr. Schiller deposes that their business Koko Networks (Kenya) Limited operates a renewable fuel utility, retailing denatured ethanol cooking fuel (KOKO Fuel) to low-income households in urban Kenya. That on 18 th April 2018, the Applicant entered into a 10-year Wholesale Concession and Operating Agreement with Vivo Energy Kenya Limited (Vivo) for KOKO Fuel supply and distribution. That the parties obtained a (5) five-year exemption from the Respondent on 28 th March 2019, for potentially anti-competitive clauses, including exclusivity.
3. The deponent states that despite the exemption, the Applicant began engaging alternative suppliers from various markets as early as 2021 as evidenced by its response letter of 29 th May 2025 so that it was clear that the parties ceased to operate on an exclusive basis even during the pendency of the exemption clauses. It is averred that and that VIVO informed them on 7 th February 2024 through a letter that the exemption which was expected to lapse on 28 th March 2024, would not be renewed. That this was communicated to the Respondent on 18 th November 2024 where Vivo told the Respondent that the exemption clauses were no longer needed, that no party had exercised exclusivity and that they were in the process of amending their agreement. It is stated that the Agreement was subsequently amended to remove exclusivity clauses, with a signed copy shared with the Respondent on 4 th March 2025. The deponent reiterates that at the end of the Exemption Period, none of the parties was operating under an exclusive arrangement.
4. It is contended that on 15 th April 2025, the Respondent unilaterally issued a Notice of Proposed Decision (NoPD), based on an alleged surveillance report, claiming the parties were still engaged in exclusive arrangements and price-fixing, in breach of the Competition Act. It is alleged that the Respondent conducted surveillance between 6 th to 12 th October 2024 in eight counties which led to certain findings of breach that informed the issuance of the NOPD. It is further contended that the Respondent has failed and refused to provide the Surveillance Report and all evidence relied upon for issuing the NOPD, despite repeated requests, an act which is an outright withholding evidence against the requirement of procedural fairness.
5. It is the Applicant’s case that they were subsequently, invited for a meeting by the Respondent on 22 nd September 2025, where they raised a Preliminary Objection (PO) challenging the Respondent's failure to issue a Notice of Intention to Investigate (NoITI) and denying them an opportunity to provide information before the NOPD was issued.
6. The Applicant urges that, had it been invited to participate prior to issuance of the NoPD, it would have been able to supply the Respondent with relevant information and clarifications regarding its business model and the Agreement which would have materially assisted the Respondent in conducting a fair and informed investigation. However, it is deposed that the Respondent dismissed the Preliminary Objection on 3 rd October, 2025 (the PO Decision), contending surveillance was merely a preliminary monitoring tool, not an investigation.
7. It is further deposed that the Respondent’s conduct violates several constitutional and statutory provisions. In particular, Section 4 (3) (g) of the Fair Administrative Action Act, 2015 (FAAA), which obligates furnishing all relevant information; Articles 25 (c) and 50 of the Constitution, guaranteeing a fair hearing, Section 6(4) of the Fair Administrative Action Act, prohibiting administrative decisions without reasons or evidential support, Article 47 of the Constitution and Section 7 (2) (c) of the Fair Administrative Action Act, pertaining to fair administrative action.
8. It is also contended by the deponent that there was a flawed Assessment from the alleged surveillance which the Respondent conducted because the NoPD relied on unverified information from unnamed vendors and sales representatives, making factually incorrect assumptions about KOKO agents’ roles and price determination, thus breaching Section 7 (2) (k) and (n) of the FAAA and violating the Applicant's legitimate expectations.
9. It is further deposed that the Applicant approached the Competition Tribunal on 15 th January 2026, seeking injunctions against the Respondent's final decision but learned of the Tribunal’s incapacity on 21 st January 2026, when the Acting Chairperson informed parties that the Tribunal was not lawfully constituted since the Chairperson’s term expired and thus were unable to deal with the Applications. That for this reason, the Applicant asserts that, the High Court is the only forum with jurisdiction for urgent matters under the Competition Act.
10. It is contended that the Applicant faces irreparable damage, including potential insolvency and devastating impacts on its 1.3 million consumer base, if the Respondent proceeds with its final decision and imposes undisclosed financial penalties based on the withheld Surveillance Report. The Applicant seeks the High Court’s intervention to enforce its right to fair administrative action and a review of the NOPD and PO Decision.
Response
11. In response to the Application, the Respondent filed a Replying Affidavit sworn by Bernard Ayieko, the Manager at the Enforcement and Compliance Department dated 16 th February 2026, vehemently opposing the Application in several grounds. He deposes that on 28 th March 2019, the Respondent granted the Applicant and Vivo Energy Kenya Limited (Vivo) a five-year exemption for certain anti-competitive clauses in their Wholesale Concession and Operating Agreement, which was otherwise a ten-year agreement. This exemption expired on 28 th March 2024.
12. It deposed that upon the exemption's expiry and without receiving any new Application, the Authority/Respondent conducted surveillance which led to certain findings. The Respondent observed that Vivo was the exclusive supplier to the Applicant and the Applicant carried out resale price maintenance and managed prices through its "KOKO Cloud" platform.
13. It is further deposed that on 18 th November 2024, Vivo informed the Respondent that the business landscape had shifted, rendering the exempted clauses redundant, and stated that they were amending the agreement. That subsequently on 3 rd March 2025 Vivo confirmed the amendment was complete and in circulation for signature. The executed Fourth Deed of Amendment was then forwarded by Vivo on 4 th March 2025 in which Vivo claimed the deletions took effect from 27 th March 2024 right before the expiry of the exemption period.
14. It is the Respondent’s position and conclusion that there was no amendment lodged with the Authority removing the anti-competitive clauses by the exemption's lapse date of 28 th March 2024 contrary to Vivo’s claims. That therefore, the continued existence of these exclusivity clauses in the agreement after the exemption period constituted a preliminary breach of Section 21 (1) of the Competition Act .
15. It is averred that based on these findings, the Respondent issued a NoPD to the Applicant and Vivo on 15 April, 2025 and states that bundles of evidence were supplied with the NoPD, and the Applicant was given 21 days to submit written representations or request an oral hearing, to which they responded by requesting a hearing, which was convened on 22 nd September 2025.
16. The Respondent asserts that issuing a formal Notice of Investigation is discretionary under Section 31(4) of the Act and affirms full compliance with Article 47 of the Constitution of Kenya and Section 4 of the Fair Administrative Action Act , having provided all the evidence that they relied-upon in issuing the NoPD. They assert that the NoPD is not a final determination, as per Section 34 of the Act , and states that a final decision is made under Section 36 . That for this reason, the Applicant's prayer to remove the NoPD cannot be granted.
17. With regard to its Statutory mandate, the Respondent contends that it cannot be restrained from exercising the powers granted under the law and asserts that the Application be dismissed with costs because the Applicant has failed to demonstrate any illegality, irrationality, or procedural unfairness by the Authority.
Further Affidavit
18. The Applicant filed a further Affidavit dated 23 rd February 2026 sworn by GEORGE WERU, a Joint Administrator appointed for KOKO Networks (Kenya) Ltd. The Applicant decried the Competition Authority of Kenya, the Respondent’s actions stating that they are tainted with procedural irregularities and substantive errors arising from the Respondent's investigation and issuance of the Notice of Proposed Decision (NoPD).
19. The deponent states that the Respondent’s discretion to issue a NoITI cannot justify a decision-making process based on irrelevant considerations. Further, that the Respondent failed to engage the Applicant and Vivo Energy Kenya Limited (Vivo) for contextual understanding, leading to a flawed NOPD based on unverified reports.
20. The Applicant contends that the Respondent acted unreasonably by failing to engage them directly, by failing to issue a Notice of Intention To Investigate, and by relying on unverified statements, thereby violating Section 7 (2) (f), (k), and (n) of the Fair Administrative Action Act.
21. Additionally, that despite conducting a surveillance exercise, the Respondent failed to furnish the Applicant with the resulting Surveillance Report and its underlying evidence being in the nature of SMS, WhatsApp messages, phone calls and meeting minutes or a list of the people interviewed, thereby depriving the Applicant of a fair opportunity to respond to allegations of price-fixing and exclusive distribution. That consequently, the Respondent wrongly assumed KOKO agents own and resell fuel yet KOKO maintains title to the fuel and thus the allegation of price-fixing "against itself" was an illogical and legally untenable finding.
22. The Applicant states that it did not act on the exclusivity clause in its agreement with Vivo, sourcing bio-ethanol fuel from alternative suppliers since 2021. That in any case, the exemption for the exclusivity lapsed on 28 th March 2024 and the agreement was formally amended to reflect this, with copies shared with the Respondent.
23. It is contended that the Respondent took a contradictory stance because it initially stated that surveillance observations formed the basis of its NOPD but later asserted it did not rely on them. The Applicant contends that this is inconsistent and an afterthought. Further, the Applicant asserts that the NoPD falls within the definition of an administrative decision under Section 2 of the FAAA and is thus subject to fair administrative action safeguards and judicial review.
24. On procedural unfairness, the Applicant contends that the Respondent's refusal to provide the Surveillance Report renders the administrative process procedurally unfair, irrational, and constitutionally deficient, breaching Articles 47 and 50 of the Constitution and Fair Administrative Action Act on disclosure obligations. The Applicant concludes that there was no lawful basis for the investigation given the exemption had automatically lapsed and no exclusivity arrangements were in operation at the material time. That in this regard, the Court should grant the prayers sought in the interests of justice.
25. The Originating motion was canvassed by way of written submissions with both parties complying with the court’s directions on the filing of their respective submissions.
Submissions
The Applicant’s Submissions
26. The Applicant’s submissions are dated 23 rd February 2026. Its Counsel submitted on alleged violations of Article 47 of the Constitution and Sections 4(3)(g) and 7(2) of the Fair Administrative Action Act (FAAA). The core of the Applicant's challenge lies in the Respondent’s failure to provide the Surveillance Report, which forms the basis of the NoPD's adverse findings and failure to issue a Notice of Intention to Investigate (NOITI) before conducting its investigation. Counsel isolated two issues for determination being:
a. whether the Respondent's refusal to supply the Surveillance Report violates the Applicant's right to fair administrative action and
b. whether the Respondent's refusal to issue a NoITI before investigation violates the Applicant's right to fair administrative action.
27. Counsel for the Applicant argues that the Respondent's persistent refusal to supply the Surveillance Report, despite expressly stating that it formed the foundation for the NoPD's findings, violates the right to fair administrative action. That Article 47 guarantees fair administrative action, including written reasons for adverse actions. Section 4 (3) (g) of the FAAA mandates administrators to provide all documents, information, and evidence relied upon.
28. Counsel submitted that the Respondent’s Replying Affidavit claims it did not rely on surveillance observations, directly contradicting its NoPD, which detailed findings from the surveillance. The Applicant invokes the doctrine of estoppel and cited the Court of Appeal decision in Serah Njeri Mwobi v John Kimani Njoroge [2013] KECA 501 (KLR) . Further, that without the report, the Applicant cannot ascertain the basis of allegations or meaningfully respond, thus violating their the non-derogable right to a fair hearing under Articles 25 (c) and 50 of the Constitution .
29. The applicant’s Counsel cited a myriad of cases being the Supreme Court case of Saisi & 7 others vs. Director of Public Prosecutions & 2 others [2023] KESC 6 (KLR) (the Saisi Case) and Republic vs. Speaker of the National Assembly & 4 others Ex-Parte Edward R.O. Ouko [2017] KEHC 9413 (KLR), Republic vs. Speaker of the National Assembly & 4 others Ex-Parte Edward R.O. Ouko [2017] KEHC 9413 (KLR), Geothermal Development Company Limited vs. Attorney General and 3 others [2013] eKLR, Kenya Human Rights Commission vs. Non-Governmental Organizations Co-ordination Board [2016] eKLR, Priscillah Wanjiku Kihara v Kenya National Examination Council (KNEC) [2016] eKLR, Tononoka Rolling Mills Limited v Competition Authority of Kenya [2025] KECT 4 (KLR), Alubala v Capital Markets Authority; National Bank of Kenya Limited (Interested Party) [2019] KEHC 4895 (KLR to emphasize the mandatory nature of evidence disclosure, the right to a fair hearing, the requirement of administrators to give reasons for their decisions and support invalidating decisions where crucial evidence is withheld.
30. It is also submitted that the refusal to supply the report suggests either a lack of lawful justification for the NoPD or an intentional deprivation of the Applicant's right to defend itself.
31. On the Notice of Intention to Investigate (NoITI), Counsel for the Applicant contends in his submissions that the Respondent's failure to issue a NoITI led to a fundamentally flawed NOPD based on unverified information and a misunderstanding of the Applicant's business model. Counsel submitted that the NoPD was an irrational decision because the Respondent relied on statements from ‘unnamed vendors and sales representatives’ who allegedly misunderstood the Applicant's operational structure. It is contended that the Applicant cannot ‘fix prices against itself’ as it solely determines the price of its product. That consequently, the Respondent arrived at a decision based on irrelevant considerations and disregarded relevant ones which constitutes irrationality and a violation Section 7 (2) (f), (k), and (n) of the FAAA .
32. Counsel submits that while the Respondent has discretion to issue a NoITI, this discretion cannot circumvent statutory and constitutional obligations for fair administrative action. Additionally, the Respondent breached the Applicant's legitimate expectation, reinforced by its historical practice of issuing NoITIs before substantive inquiries, which allows for engagement and clarification of business models. Reliance was placed on the Supreme Court’s decision in Communication Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others [2014] eKLR in support of the proposition that public authorities are bound to honour set practices and their representations unless an overriding reason grounded in law justifies a departure.
33. It is Counsel’s submission that the Applicant concludes that its right to fair administrative action has been violated, that the NoPD was solely grounded on the Surveillance Report, which the Respondent failed to provide rendering it impossible for the Applicant to respond substantively and consequently violating its constitutional right to a fair hearing. That the Respondent's inability to rebut its failure to supply evidence leads to the inference that no surveillance was conducted, rendering the NoPD illegal, irrational, and devoid of lawful justification. Moreover, that the absence of a NoITI and the failure to produce the Surveillance Report imply no factual or evidentiary basis for the NoPD. The Applicant urged the Court to allow the Application with costs.
The Respondent’s Submissions
34. The Respondent’s submissions are dated 27 th February 2026. Its Counsel isolated two issues for determination namely:
a. whether the Respondent's failure to supply the surveillance report violates the Applicant's right to fair administrative action and
b. whether the Respondent's failure to issue a Notice of Intention to Investigate (NoITI) violates the Applicant's right to fair administrative action .
35. On alleged violation of Article 47 of the Constitution, it was submitted that this Article guarantees procedural fairness, not a general right to pre-decision discovery or access to every internal working document and further, that the Respondent’s surveillance observations were not relied upon as evidence for its preliminary finding of a breach of the Act. It is submitted that Section 4 (3) (g) of the FAAA only obligates disclosure of materials actually relied upon in making a decision and that surveillance activities generate leads and preliminary observations, forming part of regulatory fact-finding such as patrols, and are not evidentiary records requiring disclosure. That statutory bodies must retain confidential investigative capacity to ensure effective enforcement, protecting informants and investigative methodologies.
36. Counsel contends that the NoPD is a preliminary document, specifying alleged conduct and factual concerns, aimed at giving the Applicant an opportunity to make representations. Accordingly, it was urged that judicial interference at such preliminary stages is deemed premature and legally misconceived. It is also argued that the Respondent accorded the Applicant a fair hearing by issuing the NoPD, supplying bundles of evidence, providing 21 days for written representations, and offering an opportunity for oral representations.
37. On the issuance of Notice of Intention to Investigate (NoITI), Counsel submits that Section 31 of the Competition Act empowers the Authority to initiate investigations on its own motion or upon a complaint. It is contended that Section 31(4) uses the permissive term "may" regarding the issuance of a NoITI, indicating that it is discretionary and context-dependent, not a mandatory prerequisite for investigation. That interpreting NoITI as mandatory would undermine enforcement, frustrate statutory purpose, and enable concealment or destruction of evidence by alerting subjects of investigation prematurely.
38. The Respondent’s Counsel provides a distinction between stages and submitted that procedural fairness obligations, including the right to be heard, intensify at the decision-making or adjudicative stage, not the intelligence-gathering or investigative stage. That in line with this, the Applicant's claim of legitimate expectation lacks evidentiary substantiation of an express promise or consistent practice by the Respondent to invariably issue NoITIs. It is argued that legitimate expectation cannot override express statutory provisions or fetter statutory discretion.
39. The Respondent submits that the Application lacks any recognizable grounds for judicial review. Counsel contends that the Respondent acted strictly within its statutory mandate, exercised granted discretion, disclosed all material relied upon, accorded the Applicant fair hearing opportunities, and has not yet made a final determination. Further, that the Application is a premature attempt to terminate an ongoing statutory process and improperly transform judicial review into an appeal on merits. That granting the relief sought would contradict settled jurisprudence and undermine regulatory autonomy. The Court is urged to dismiss the Application in its entirety with costs.
Analysis and Determination.
40. I have considered that originating motion as pleaded, the respective affidavits and the annexures together with the rival submissions, the main issues for my determination are: -
(i) Whether this Court has jurisdiction to adjudicate upon the matter.
(ii) Whether the Respondent has violated the Applicant’s right to fair administrative action in failing to supply it with the Surveillance Report and in issuing the Notice of Intention to Investigate.
(iii) What orders should this Court make.
(i) Whether this Court has jurisdiction to adjudicate upon the matter.
41. This dispute emanates from the impugned Notice of Proposed Decision (NoPD) dated 15 th April 2025 issued by the Respondent, upon the latter’s discovery , following a surveillance exercise between 6 th October 2024 and 12 th October 2024.
42. On whether this court is clothes with jurisdiction to entertain the matter, especially where there exist alternative mechanisms set out by statute, it is trite that jurisdiction is everything and without it, a court of law cannot act. the locus classicus Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd. (1989) defined jurisdiction as follows:
“Jurisdiction is everything. Without it a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction…. Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given.”
43. This Court identifies with the fact that courts are hesitant to preside over a matter where either the Constitution or statute provide for alternative dispute resolution mechanisms before the court is moved. These mechanisms may be internal dispute resolution mechanisms or adjudication by tribunals established to preside over matters relating to specific thematic issues or by way of appeal.
44. In this matter, Section 71 of the Competition Act establishes the Competition Tribunal as follows:
71. Establishment of the Competition Tribunal
(1 There is hereby established a Tribunal to be known as the Competition Tribunal which shall exercise the functions conferred upon it by this Act.
45. The Tribunal’s jurisdiction is captured at Section 73 as follows:
73. Persons entitled to appeal to the Tribunal
The following persons may exercise the right of appeal to the Tribunal conferred under this Act—
(a) any person who, by a determination made by the Authority under this Act—
(i) is directed to discontinue or not to repeat any trade practice;
(ii) is issued with a stop and desist order or any other interim order;
(iii) is permitted to continue or repeat a trade practice subject to conditions prescribed by the order;
(iv) is directed to take certain steps to assist existing or potential suppliers or customers adversely affected by any prohibited trade practices;
(v) is ordered to pay a pecuniary penalty or fine; or
(vi) is aggrieved by a stop and desist order or any other interim order of the Authority;
46. Rule 9 of the Competition Tribunal (Procedure) Rules made under the Competition Act also sets out the jurisdiction of the Tribunal as follows:
9. Jurisdiction of the Tribunal
The Tribunal shall have jurisdiction to hear and determine the following matters—
(a) matters referred to it for review of the Authority's decision under section 48 (1) of the Act;
a. to hear Appeals from the decisions of the Authority;
b. any other matter arising under the Act; and
c. any other matter referred to it by a competent court of law.
47. Section 40 of the Act further sets out a dispute resolution mechanism between aggrieved parties and the Authority/Respondent as follows:
40. Appeals to the Tribunal
(1) A person aggrieved by a determination of the Authority made under this Part shall appeal in writing to the Tribunal within thirty days of receiving the Authority's decision.
(2) A party to an appeal under subsection (1) who is dissatisfied with the decision of the Tribunal may appeal to the High Court against that decision within thirty days after the date on which a notice of that decision has been served on him and the decision of the High Court shall be final.
48. From the material before this Court, it is safe to conclude that the subject of this dispute falls within the jurisdiction of the Tribunal. Courts have on several occasions declined to entertain matters that fall for resolution in other forums at the first instance in compliance with the doctrine of exhaustion which connotes that where there exists a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed before moving the courts. This was aptly enunciated by the High Court of Appeal in Speaker of the National Assembly v Karume (Civil Application 92 of 1992) [1992] KECA 42 (KLR) (29 May 1992) (Ruling) where the Superior Court stated that:
“15.In our view, there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. We observe without expressing a concluded view that order 53 of the Civil Procedure Rules cannot oust clear constitutional and statutory provisions.”
49. In Republic vs. Independent Electoral and Boundaries Commission (I.E.B.C) Ex- Parte National Super Alliance (NASA) Kenya and 6 others [2017] eKLR, the Court applying the above principle established in the Speaker of the National Assembly v Karume (supra) opined that:
“42. This doctrine is now of esteemed juridical lineage in Kenya. It was perhaps most felicitously stated by the Court of Appeal in Speaker of National Assembly v Karume [1992] KLR 21 in the following oft-repeated words:
Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the spec
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