1. Vide Originating Motion dated 23 rd January 2026, the ex-parte Applicant seeks the following Orders: -
(1) SPENT
(2) SPENT
(3) THAT this Honourable Court be pleased to issue an Order exempting Vivo Energy Kenya Limited, the Applicant herein from the obligations under Section 40 of the Competition Act, 2015 and Rule 9 of the Competition Tribunal (Procedure) Rules requiring it to exhaust the alternative remedy of approaching the Competition Tribunal as the Tribunal is presently not quorate and is therefore unable to hear matters under the Competition Act, Chapter 504 Laws of Kenya.
(4) THAT this Honourable Court be pleased to issue Orders of PROHIBITION directed at the Competition Authority of Kenya, the Respondent, its agents, servants and/or employees or such other persons restraining them from further demanding, considering and reviewing documents relating to an alleged complaint with respect to the Wholesale Concession and Operating Agreement dated 18 th April 2018 and constituting a committee or officers for the purposes of sitting, reviewing, drafting and publishing a decision, final or otherwise with respect to the alleged unilateral investigations said to have been conducted with respect to the then business between the Applicant Vivo Energy Kenya Limited and KOKO Networks Limited and the implementation of the decisions and/or recommendations in the Notice of Proposed Decision dated 15 th April 2025.
(5) THAT this Honourable Court be pleased to issue Orders of CERTIORARI to remove into the High Court for purposes of quashing the Notice of Proposed Decision dated 15 th April 2025.
(6) THAT this Honourable Court be pleased to issue Orders of CERTIORARI to remove into this Honourable Court for purposes of quashing the decision by the Competition Authority of Kenya, the Respondent, NOT to issue the Applicant with the documents listed hereunder: -
(i) Notice to Investigate under Section 31 of the Competition Act, Chapter 504 Laws of Kenya.
(ii) Notice to furnish information and/or documents under Section 34 of the Competition Act, Chapter 504 Laws of Kenya.
(iii) The Surveillance Report and all material information and evidence, the subject of a Notice of Proposed Decision dated 15 th April 2025.
(7) THAT 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 practises with respect to the Wholesale Concession and Operating Agreement dated 18 th April 2018 between the Applicant and Vivo Energy Kenya Limited as the exemption automatically lapsed and the parties thereto had already amended the agreement to remove the anti-competitive clauses, the subject of the alleged investigation.
(8) THAT this Honourable Court be pleased to issue any other orders that it may deem just and appropriate in the circumstances of the case.
(9) THAT the costs of the Application be provided for.
2. The Application is brought under the provisions of Sections 7, 8 and 9(4) of the Fair Administrative Action Act, No. 4 of 2015 and all other enabling provisions of the law. The Originating Motion is supported by the affidavit of NAOMI ASSUMANI, the ex-parte Applicant’s Regional Counsel and Legal Manager, Kenya, sworn on even date and is premised on several grounds inter alia- that the Applicant entered into a Wholesale Concession and Operating Agreement on 18 th April 2018 (hereinafter referred to as ‘the Agreement’) with Koko Networks (Kenya) Limited for ten years to deliver cheaper, cleaner and safer alternative cooking fuel to the market (the Koko fuel) which was operationalized by a 5-years Exemption issued by the Respondent on 29 th March 2019.
3. The ex-parte Applicant avers that once the commercial landscape evolved, they informed Koko that they would not be pursuing a renewal of the Exemption from the Respondent, rendering the exclusivity of the Agreement untenable. That as a result, Koko acted on this representation and began to engage alternative suppliers from various markets as early as 2021 before the expiry of the Exemption period.
4. The ex-parte Applicant asserts that at the end of the Exemption period, the parties jointly agreed that the exclusivity aspect of the Agreement was no longer necessary, leading to amendments of the said Agreement on 4 th March 2025, to remove the exclusivity clauses.
5. The ex-parte Applicant urges that the Respondent then unilaterally issued a Notice of Proposed Decision (the NoPD) on 15 th April 2025 anchored on an alleged Surveillance Report and made several findings against the ex-parte Applicant, without interrogating the parties’ conduct after the lapse of the Exemption period or inviting them to confirm whether they would seek an exemption. That the effect of this decision is to compel the ex-parte Applicant to file merit-based submissions and make arguments in respect of the alleged violations without the Respondent first discharging its statutory obligations which amongst others, was to issue Notice to Investigate and furnish information and documents pertaining to the decision.
6. According to the ex-parte Applicant, it is unable to lawfully afford itself a right to be heard since the Respondent refused, neglected and failed to discharge its duties under the law with a justifiable risk and danger of an adverse decision of financial penalties thereby causing them irreparable loss and damage. That further, they have not been informed of the circumstances informing the decision to investigate the business sanctioned by the Agreement and that they should not be punished for supporting initiatives by the National Government for affordable safe and alternative cooking solutions under the Kenya National Cooking Transition Strategy 2024-2028.
7. It is averred that the ex-parte Applicant could not approach the Competition Tribunal under Section 71 (4) because it is currently not properly constituted as communicated by the Secretariat on 21 st January 2026, making the Court the only forum for redress. The ex-parte Applicant also avers that the Respondent delayed with the Minutes of their engagement meeting held on 22 nd September 2025 and only availed the same on 2 nd January 2026.
8. The ex-parte Applicant further avers that there was no possibility of credible investigations being conducted as alleged by the Respondent and that in taking the role of a complainant, executioner and decision maker, the Respondent was acting in excess of its power and contrary to Section 7 of the Fair Administrative Action Act. It is contended that the ex-parte Applicant should be subjected to a lawful and open process, that no prejudice will be suffered by the Respondent and it is only in the interests of justice that the prayers in the Application be granted.
Response to the Application
9. In a response to the Application, the Respondent file a Replying Affidavit sworn by BENARD AYIEKO, the Respondent’s Manager –Enforcement and Compliance Department dated 16 th February 2026. He avers that Section 31 (4) of the Competition Act provides discretionary powers to the Respondent to issue a Notice of Investigation and ask the affected party to provide records relevant to the investigation or appear before them to help with the investigation. That at the same time, Section 34 provides that the Respondent will only give written notice of its proposed decision to a party that is affected. He avers that the Respondent granted the ex-parte Applicant a 5-year exemption upon receiving their letter of request dated 28 th March 2019, which was to end on 28 th March 2024.
10. It is deposed in contention that the Authority never received a new exemption application from the ex-parte Applicant for the remaining contract period of 5 years and this informed their decision to conduct a surveillance exercise to determine if the parties were still continuing with the business that was sanctioned by the Agreement, in breach of the Act stemming from the contentious clauses.
11. It is stated that from the surveillance, they observed that the Applicant was still the exclusive supplier of bio-ethanol fuel as submitted by the vendors and corroborated by the ex-parte Applicant’s sales representatives; that the prices were automatically determined and managed by the Applicant which was indicative of a resale price maintenance configured in the system and changed automatically to reflect the final price in the dispensing machines; and that the price changes were notified to the agents via SMS, physical meetings, WhatsApp messaging, phone call communication and through the ex-parte Applicant’s sales representatives.
12. It is deposed that from the surveillance, the Respondent concluded that the ex-parte Applicant and Koko were engaged in practises in breach of Section 21 (1) as read with 21 (3) of the Competition Act on price fixing and territorial allocation after the lapse of the Exemption period.
13. The Respondent in its affidavit denies that its decision was only pegged on the preliminary findings from the surveillance and stated that it was also informed by the evidence attached to the Notice of Proposed Decision (NoPD) being the fact that the ex-parte Applicant was yet to forward an amended Agreement during the period when the exemption period had lapsed as confirmed by their e-mails dated 18 th November 2024 and 3 rd March 2025 where they stated that they were still in the process of making amendments with Koko. It is their position that because of this, the contentious clauses in the Agreement were still operational during the period when the ex-parte Applicant failed to lodge an amended agreement by the expiry date being 28 th March 2024 and that the continued existence of these clauses beyond the exemption period was in breach of Section 21 (1) and (3) (a) and (b) of the Act.
14. The Respondent further contends that they issued a Notice of Proposed Decision dated 15 th April 2025 and gave the ex-parte Applicant bundles of evidence relied upon to come up with the said decision, and then granted them 21 days to make written representations indicating whether they wanted an opportunity to be heard.
15. It is contended that the ex-parte Applicant responded to the NoPD on 29 th May 2025 but did not request for a hearing conference but later through an email dated 4 th September 2025, they requested to accompany Koko to their (Koko’s) hearing conference which the Respondent allowed and convened a meeting on 22 nd September 2025. That in doing this, they also gave the ex-parte Applicant an opportunity to file supplementary submission based on their request at the hearing conference of 22 nd September 2025.
16. The Respondent maintains that it has fully complied with the provisions of Article 47 of the Constitution and Section 4 of the Fair Administrative Action Act as it provided all the evidence it relied upon in issuing the NoPD and therefore, no prima facie case has been established by the ex-parte Applicant to warrant the orders sought.
17. With respect to the Minutes of the hearing conference of 22 nd September 2025, it is the Respondent’s case that the draft Minutes were sent to the ex-parte Applicant on 4 th November 2025 for confirmation between itself and Koko where correspondences were exchanged regarding the correctness of the said minutes until 2 nd January 2026. Additionally, it is stated that credible investigations were conducted and that the Respondent has at all material times acted in accordance with its statutory mandate so that the ex-parte Applicant cannot point to any irrationality, unfairness of procedural impropriety on its part.
Rejoinder
18. The ex-parte Applicant filed a further Affidavit dated 20 th February 2026 in response to the Respondent’s Replying Affidavit in which it is deposed that prior to the issuance of the decision contained in the NoPD, the Respondent disclosed that their decision was based on the Surveillance Report which they alluded to in the same NoPD. It is stated that the Respondent being the investigator and the decision-maker, the ex-parte Applicant Vivo has not been afforded a meaningful right to defend itself against the alleged findings that informed the decision, when they have been denied access to the Surveillance Report in contravention of the Constitution and the Fair Administrative Action Act.
19. It is deposed that none of Vivo’s officers were ever interviewed in the alleged investigations that were said to be conducted in 10 counties and that the NoPD does not disclose inter alia the specific stations visited and the identity of the officers interviewed. That as such, it is not possible to discern how a 6-days surveillance could have possibly yielded the broad findings that were set out in the NoPD.
20. Further deposition is that the Respondent has put Vivo on its defence but refused to avail all the information requested for to enable it to make its submissions and that the Respondent was called to a higher standard of procedural fairness and transparency in conducting its investigations and making a decision on liability that would likely lead to sanctions.
21. It is further contended that the investigations were conducted in an opaque manner leading to an unlawful decision and that there can never be discretion where a person is obligated by the constitution to act in a specific manner or in light of a statute that was enacted to operationalize a constitutional right.
22. The ex-parte Applicant ‘s deponent asserts that the Respondent conceded to not issuing the Notice of Investigations or granting Vivo the opportunity to be heard or supplying them with material information that led to its decision in utter disregard of Section 6 of the Fair Administrative Action Act 2015, Access to Information Act 2016 and Chapter 2 and 6 of the Mwongozo Code of Governance, being a state corporation.
23. Directions were issued on 27 th February 2026 to consider out of court negotiations and file a consent and to also file written submissions in case they fail to reach an agreement. Both submissions are now duly filed and on record.
Submissions
24. The ex-parte Applicant’s submissions are dated 20 th February 2026. Counsel for the ex-parte Applicant submits on two issues being: whether the surveillance report is a material document which ought to have been furnished to Vivo; and whether the investigations and process culminating in the NoPD were opaque and procedurally unfair.
25. On the first issue, it is submitted that the Respondent denies that it did not rely on the surveillance observations in issuing the impugned decision in the NoPD but it is clear from their response that they did rely on it. That it was impracticable for the Respondent to conduct investigations in the 10 listed counties that were geographically widely apart where also the ex-parte Applicant runs 95 Shell branded service stations.
26. It is submitted that even though the ex-parte Applicant recognizes that the Respondent is clothed with investigative, prosecutorial and adjudicatory powers under the Act, they are a statutory body obligated to adhere to the Constitution and Acts of parliament as held in Tononoka Rolling Mills Ltd vs. Competition Authority of Kenya, (2025) KECT 4 (KLR) .
27. Counsel submits that Section 4 (3) of the Fair Administrative Action Act is couched in mandatory terms and requires that the Respondent furnishes a party whom administrative action is proposed with relevant information and material relied upon in making the decision, while Section 3 and 4 of the Access to Information Act 2016 confers upon Vivo as corporate citizen the right to access information. They referred to the Supreme Court case of Njonjo Mue & Another vs. Chairperson of Independent Electoral and Boundaries Commission & 3 Others (2017) eKLR and Republic vs. Capital Markets Authority & Another Ex-parte Jonathan Irungu Ciano (2018) eKLR.
28. Counsel submits that the continued requests for information and unjustified refusal is a breach of Section 8 of the Access to Information Act and the case of Kenya Human Rights Commission & Another vs. Attorney General & Another (2024) KEHC 15702 (KLR ) is cited in support. Further, that being a state corporation, the Respondent is governed by the Mwongozo Code of Governance at chapters 2 and 6 which have gained the force of law as held in the case of Okoiti vs. the Board ExpoRt Processing Zones Authority & 3 Others; Otieno (2022) KEELRC 3771 (KLR). Further, that access to information by state agencies was vital for the protection of the rights of citizens as held in Katiba Institute vs. President’s Delivery Unity & 3 Others (2017) eKLR .
29. It is submitted that the without the evidence sought, it is impossible for the Applicant to defend itself and ensure its non-derogable right to fair hearing under Articles 25 and 50 of the Constitution are adhered to. The cases of Republic vs. Ethics and Anti-Corruption Commission & 2 Others ex-parte Erastus Gatebe (2014) eKLR and Geothermal Development Company Limited vs. Attorney General & 3 Others (2013) eKLR are cited in support of the proposition that the principles of natural justice entail procedural fairness and ensure that a fair decision is reached by an objective administrative body.
30. On the second issue, it is submitted that the purpose of an investigation is to gather evidence to support an informed or objective decision making process as defined by Black’s Law Dictionary 8 th Edn. at page 2420 and the case of Mea Limited vs. Competition Authority and Another (2016) eKLR . That in the present case, the investigations and processes culminating into the issuance of the NoPD were opaque and procedurally unfair. It is contended that from the material before the Court, the Respondent’s justification for its failure to issue a Formal Notice of Intention to Investigate and request any further documentation is premised on the term “may” under Sections 31 (1) and (4) of the Act which they claim connotes discretion.
31. It is their submission that discretion cannot arise in circumstances where an entity is under a mandatory constitutional obligation to comply with a statute enacted to enforce a constitutional right. That consequently, the Respondent cannot exercise its powers under the parent Act without affording the persons who would be affected by the said decision a right to be heard and right to information or material relied upon and that regardless of the term ‘may’ conferring discretionary authority, that discretion had to be exercised reasonably and proportionately in a manner consistent with constitutional and statutory obligations.
32. Counsel further submits that the term ‘may’ has also been interpreted to mean a mandatory obligation based on the circumstance of a case as held by the Supreme Court of India in State of Uttar Pradesh vs. Jogendra Singh (1964) SCR (2) 197 and that in the present case, the term ‘may’ under Sections 31 (1) and (4) of the Act confers a mandatory obligation on the Respondent. That it is a standard and customary practice for an administrator such as the Respondent to issue such notices and requests for further information and involve parties in the investigations prior to the issuance of a NoPD as it did in the case of Blue Nice Wire Products Limited vs. Competition Authority of Kenya (2025) KECT 3 (KLR) where it issued a Notice of Investigation and Summons for Appearance to the Appellant to attend an interview under Section 31 of the Act; and therefore this conduct against the ex-parte Applicant was a departure from its customary practice without plausible justification.
33. It is their submission that the Respondent’s argument that the NoPD is not a final decision rendering these proceedings unwarranted is mischievous, disingenuous and misguided because the consequences contemplated under Section 36 of the Act are extremely punitive and carry severe commercial implications for Vivo and had the Respondent complied with the requests and its statutory obligations before issuing the NoPD, it would have had a proper contextual understanding of Vivo’s business model and not arrived at the unreasonable NoPD. Counsel concluded in their submissions that the investigations and the process culminating into the NoPD breached Sections 6 and 7 of the Fair Administrative Action Act for being procedurally unfair, unreasonable and illegal and cited the decision by Justice Moses Ado in Cytonn Investments Management PLC vs. Capital Markets Authority, HCCOM Pet. No. E007 of 2021 .
The Respondent’s Submissions
34. The Respondent’s submissions are dated 27 th February 2026. Counsel outlined two issues for determination being: Whether the Respondent’s failure to supply the surveillance report violates the Applicant’s right to fair administrative action; and Whether the Respondent’s failure to issue a Notice of Intention to Investigate (NITI) violates the Applicant’s right to fair administrative action .
35. On the first issue, it is submitted that the Applicant’s case rests almost entirely on the alleged non-disclosure of a surveillance report which is both legally and logically fatal because the surveillance exercise conducted by the Respondent aimed to ascertain whether the parties were still continuing with the Agreement which had clauses that were in breach of the Act and that the Respondent did not rely on this as evidence of its preliminary findings of breach of the Act by the Parties.
36. It is submitted that Article 47 of the Constitution does not create a general right to pre-decision discovery, but guarantees procedural fairness, not wholesome evidentiary discovery. Counsel submits that it has been consistently held by courts that the right to fair administrative action does not equate to the right to access every internal working document of a decision-maker as stated by the Court of Appeal in Judicial Service Commission v Mbalu Mutava [2015] eKLR and Suchan Investment Limited v Ministry of National Heritage [2016] eKLR where the Court emphasized that Judicial review concerns legality of process not microscopic examination of evidentiary sufficiency or disclosure formats. That the Applicant’s approach is intended to improperly elevate procedural fairness into a doctrine of compulsory evidentiary disclosure akin to civil discovery.
37. Counsel submits that Section 4 (3) (g) of the Fair Administrative Action Act obligates decision makers to provide information, materials and evidence to be relied upon in making the decision and that disclosure duties extend to materials actually relied upon for the decision. It is argued that reference to investigative activity in a surveillance observation does not convert the underlying intelligence into evidence relied upon. Counsel refers to R vs. Secretary of State ex-parte Doody [1194] 1 AC 531 , where the House of Lords held that fairness requires disclosure only of the gist of adverse material, not every document and Republic s.v Kenya Revenue Authority Ex parte Shake Distributors Ltd [2012] eKLR , where the Court held that procedural fairness does not compel disclosure of internal investigative reports where the substance of allegations has been communicated. That the duty therefore is to disclose the case to be made, not intelligence files from surveillance observations.
38. It is further submitted that surveillance activities are analogous to “patrols and form part of regulatory fact finding as they generate leads, impressions, and preliminary observations used to determine whether further enquiry is warranted. Counsel cites Republic vs. National Environmental Management Authority ex-parte Sound Equipment Limited [2011] eKLR where it was held that investigative notes used internally to guide enforcement decisions are not part of the evidentiary record requiring disclosure.
39. It is their position that Statutory bodies such as the Respondent that exercise enforcement mandates must retain confidential investigative capacity to avoid making enforcement ineffective. Counsel cites Republic vs. Public Procurement Administrative Review Board ex parte Kenya Power & Lighting co. Ltd [2019] KLR , in support of investigative privilege where the court affirmed that regulators are not required to disclose internal investigative material where doing so would compromise enforcement processes and Marks vs. Beyfus (1890) 25 QB 494 at 498 . Further, that procedural fairness requires that a party understands the allegations and not that it be furnished with surveillance notes.
40. It is also submitted that the impugned instrument is a Notice of Proposed Decision, a stage where the Applicant is expected to make representations as part of a fair hearing and not a final determination. The case of Republic vs. Independent Electoral and Boundaries Commission ex-parte National Super Alliance [2017] eKLR , was cited on judicial interference at preliminary stages and it was submitted that the Applicant’s request is procedurally premature and legally misconceived. That further, the authorities cited by the Applicant concerned situations where final sanctions had been imposed and undisclosed documents were used in arriving at a decision.
41. Counsel also submits that the Respondent issued the Applicant with a NoPD dated 15 th April, 2025 accompanied by all the pieces of evidence it relied on and complied with its obligation to grant the Applicant a fair hearing in accordance with Article 47 of the Constitution and Section 4 of the Fair Administrative Action Act and the Competition Act . The case of Majid Al Futtaim Hypermarkets Limited vs. Competition Authority of Kenya & another [2021] eKLR was cited in support. Further, that Constitutional access to information is not a tool for speculative discovery and that Article 35 cannot be invoked for generalized disclosure requests as held in Trusted Society of Human Rights Alliance vs. Judicial Service Commission [2016] eKLR .
42. On the second issue, it is submitted that the Applicant’s contention that the Respondent was legally obligated to issue a Notice of Intention to Investigate (NITI) prior to commencing investigations is fundamentally misconceived, both as a matter of statutory interpretation and administrative law principle as Section 31 of the Competition Act empowers the Respondent to carry out investigations either on its own initiative or upon receipt of information or complaint from any person or government agency or Ministry. Further, that Section 31(4) employs the permissive term “may” rather than the mandatory term “shall” which is a settled canon of statutory construction conferring discretion unless the statutory context compels a contrary interpretation.
43. Counsel argues that courts cannot convert discretion into a duty as held authoritatively by the Court of Appeal in Kenya National Examinations Council vs. Republic ex-parte Geoffrey Gathenji Njoroge [1997] KLR , and that consequently, the issuance of a NITI is optional and context dependent rather than obligatory. That the Court should reject statutory interpretations that defeat legislative intent or render regulatory enforcement impracticable.
44. It is further contended that Section 31 establishes the Authority’s investigative jurisdiction broadly, empowering it to initiate investigations either on its own motion or upon receipt of information from any source making the power to investigate a statutory mandate in itself, and not by issuance of notice. Subsection 31(4) of the Act therefore, merely provides one of several procedural mechanisms available to the Authority where it considers it necessary to compel production of information making it an enabling provision, not a condition precedent to lawful investigation.
45. It is their argument that the Applicant’s interpretation would produce absurd results, because it would mean that the Authority cannot conduct any preliminary inquiry unless it first alerts the subject of investigation which would render enforcement impossible, frustrate statutory purpose and enable concealment or destruction of evidence.
46. Counsel submits that procedural fairness under Article 47 is to be assessed at the decision-making stage, not at the intelligence-gathering stage and that courts have consistently recognized that investigations are exploratory in nature and do not trigger full hearing rights until they crystallize into proposed adverse action. Counsel cites Dry Associates Ltd vs. Capital Markets Authority [2012] eKLR, where investigative processes and adjudicative determinations were expressly distinguished.
47. The Respondent’s submissions posit that the Applicant’s reliance on discretion - based arguments is equally untenable because it proceeds from the erroneous assumption that whenever a statutory body has discretion, it must exercise that discretion in a particular way, favorable to the regulated party The case of Republic vs. Public Service Commission & another ex-parte Kirinyaga County Government [2023] KEELRC 1066 (KLR) is cited in support.
48. Counsel also submits that the allegation that failure to issue a NITI violated legitimate expectation is legally unsustainable because legitimate expectation arises only where a public authority has made a clear representation or established a consistent past practice that is certain, regular, and devoid of relevant qualification as explained by the Supreme Court in Communications Commission of Kenya vs. Royal Media Services Ltd [2014] eKLR and that in this regard, the Applicant has not produced any instance demonstrating a binding representation by the Respondent that it would invariably issue a NITI before investigations.
49. That additionally, th
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(1) SPENT
(2) SPENT
(3) THAT this Honourable Court be pleased to issue an Order exempting Vivo Energy Kenya Limited, the Applicant herein from the obligations under Section 40 of the Competition Act, 2015 and Rule 9 of the Competition Tribunal (Procedure) Rules requiring it to exhaust the alternative remedy of approaching the Competition Tribunal as the Tribunal is presently not quorate and is therefore unable to hear matters under the Competition Act, Chapter 504 Laws of Kenya.
(4) THAT this Honourable Court be pleased to issue Orders of PROHIBITION directed at the Competition Authority of Kenya, the Respondent, its agents, servants and/or employees or such other persons restraining them from further demanding, considering and reviewing documents relating to an alleged complaint with respect to the Wholesale Concession and Operating Agreement dated 18 th April 2018 and constituting a committee or officers for the purposes of sitting, reviewing, drafting and publishing a decision, final or otherwise with respect to the alleged unilateral investigations said to have been conducted with respect to the then business between the Applicant Vivo Energy Kenya Limited and KOKO Networks Limited and the implementation of the decisions and/or recommendations in the Notice of Proposed Decision dated 15 th April 2025.
(5) THAT this Honourable Court be pleased to issue Orders of CERTIORARI to remove into the High Court for purposes of quashing the Notice of Proposed Decision dated 15 th April 2025.
(6) THAT this Honourable Court be pleased to issue Orders of CERTIORARI to remove into this Honourable Court for purposes of quashing the decision by the Competition Authority of Kenya, the Respondent, NOT to issue the Applicant with the documents listed hereunder: -
(i) Notice to Investigate under Section 31 of the Competition Act, Chapter 504 Laws of Kenya.
(ii) Notice to furnish information and/or documents under Section 34 of the Competition Act, Chapter 504 Laws of Kenya.
(iii) The Surveillance Report and all material information and evidence, the subject of a Notice of Proposed Decision dated 15 th April 2025.
(7) THAT 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 practises with respect to the Wholesale Concession and Operating Agreement dated 18 th April 2018 between the Applicant and Vivo Energy Kenya Limited as the exemption automatically lapsed and the parties thereto had already amended the agreement to remove the anti-competitive clauses, the subject of the alleged investigation.
(8) THAT this Honourable Court be pleased to issue any other orders that it may deem just and appropriate in the circumstances of the case.
(9) THAT the costs of the Application be provided for.
2. The Application is brought under the provisions of Sections 7, 8 and 9(4) of the Fair Administrative Action Act, No. 4 of 2015 and all other enabling provisions of the law. The Originating Motion is supported by the affidavit of NAOMI ASSUMANI, the ex-parte Applicant’s Regional Counsel and Legal Manager, Kenya, sworn on even date and is premised on several grounds inter alia- that the Applicant entered into a Wholesale Concession and Operating Agreement on 18 th April 2018 (hereinafter referred to as ‘the Agreement’) with Koko Networks (Kenya) Limited for ten years to deliver cheaper, cleaner and safer alternative cooking fuel to the market (the Koko fuel) which was operationalized by a 5-years Exemption issued by the Respondent on 29 th March 2019.
3. The ex-parte Applicant avers that once the commercial landscape evolved, they informed Koko that they would not be pursuing a renewal of the Exemption from the Respondent, rendering the exclusivity of the Agreement untenable. That as a result, Koko acted on this representation and began to engage alternative suppliers from various markets as early as 2021 before the expiry of the Exemption period.
4. The ex-parte Applicant asserts that at the end of the Exemption period, the parties jointly agreed that the exclusivity aspect of the Agreement was no longer necessary, leading to amendments of the said Agreement on 4 th March 2025, to remove the exclusivity clauses.
5. The ex-parte Applicant urges that the Respondent then unilaterally issued a Notice of Proposed Decision (the NoPD) on 15 th April 2025 anchored on an alleged Surveillance Report and made several findings against the ex-parte Applicant, without interrogating the parties’ conduct after the lapse of the Exemption period or inviting them to confirm whether they would seek an exemption. That the effect of this decision is to compel the ex-parte Applicant to file merit-based submissions and make arguments in respect of the alleged violations without the Respondent first discharging its statutory obligations which amongst others, was to issue Notice to Investigate and furnish information and documents pertaining to the decision.
6. According to the ex-parte Applicant, it is unable to lawfully afford itself a right to be heard since the Respondent refused, neglected and failed to discharge its duties under the law with a justifiable risk and danger of an adverse decision of financial penalties thereby causing them irreparable loss and damage. That further, they have not been informed of the circumstances informing the decision to investigate the business sanctioned by the Agreement and that they should not be punished for supporting initiatives by the National Government for affordable safe and alternative cooking solutions under the Kenya National Cooking Transition Strategy 2024-2028.
7. It is averred that the ex-parte Applicant could not approach the Competition Tribunal under Section 71 (4) because it is currently not properly constituted as communicated by the Secretariat on 21 st January 2026, making the Court the only forum for redress. The ex-parte Applicant also avers that the Respondent delayed with the Minutes of their engagement meeting held on 22 nd September 2025 and only availed the same on 2 nd January 2026.
8. The ex-parte Applicant further avers that there was no possibility of credible investigations being conducted as alleged by the Respondent and that in taking the role of a complainant, executioner and decision maker, the Respondent was acting in excess of its power and contrary to Section 7 of the Fair Administrative Action Act. It is contended that the ex-parte Applicant should be subjected to a lawful and open process, that no prejudice will be suffered by the Respondent and it is only in the interests of justice that the prayers in the Application be granted.
Response to the Application
9. In a response to the Application, the Respondent file a Replying Affidavit sworn by BENARD AYIEKO, the Respondent’s Manager –Enforcement and Compliance Department dated 16 th February 2026. He avers that Section 31 (4) of the Competition Act provides discretionary powers to the Respondent to issue a Notice of Investigation and ask the affected party to provide records relevant to the investigation or appear before them to help with the investigation. That at the same time, Section 34 provides that the Respondent will only give written notice of its proposed decision to a party that is affected. He avers that the Respondent granted the ex-parte Applicant a 5-year exemption upon receiving their letter of request dated 28 th March 2019, which was to end on 28 th March 2024.
10. It is deposed in contention that the Authority never received a new exemption application from the ex-parte Applicant for the remaining contract period of 5 years and this informed their decision to conduct a surveillance exercise to determine if the parties were still continuing with the business that was sanctioned by the Agreement, in breach of the Act stemming from the contentious clauses.
11. It is stated that from the surveillance, they observed that the Applicant was still the exclusive supplier of bio-ethanol fuel as submitted by the vendors and corroborated by the ex-parte Applicant’s sales representatives; that the prices were automatically determined and managed by the Applicant which was indicative of a resale price maintenance configured in the system and changed automatically to reflect the final price in the dispensing machines; and that the price changes were notified to the agents via SMS, physical meetings, WhatsApp messaging, phone call communication and through the ex-parte Applicant’s sales representatives.
12. It is deposed that from the surveillance, the Respondent concluded that the ex-parte Applicant and Koko were engaged in practises in breach of Section 21 (1) as read with 21 (3) of the Competition Act on price fixing and territorial allocation after the lapse of the Exemption period.
13. The Respondent in its affidavit denies that its decision was only pegged on the preliminary findings from the surveillance and stated that it was also informed by the evidence attached to the Notice of Proposed Decision (NoPD) being the fact that the ex-parte Applicant was yet to forward an amended Agreement during the period when the exemption period had lapsed as confirmed by their e-mails dated 18 th November 2024 and 3 rd March 2025 where they stated that they were still in the process of making amendments with Koko. It is their position that because of this, the contentious clauses in the Agreement were still operational during the period when the ex-parte Applicant failed to lodge an amended agreement by the expiry date being 28 th March 2024 and that the continued existence of these clauses beyond the exemption period was in breach of Section 21 (1) and (3) (a) and (b) of the Act.
14. The Respondent further contends that they issued a Notice of Proposed Decision dated 15 th April 2025 and gave the ex-parte Applicant bundles of evidence relied upon to come up with the said decision, and then granted them 21 days to make written representations indicating whether they wanted an opportunity to be heard.
15. It is contended that the ex-parte Applicant responded to the NoPD on 29 th May 2025 but did not request for a hearing conference but later through an email dated 4 th September 2025, they requested to accompany Koko to their (Koko’s) hearing conference which the Respondent allowed and convened a meeting on 22 nd September 2025. That in doing this, they also gave the ex-parte Applicant an opportunity to file supplementary submission based on their request at the hearing conference of 22 nd September 2025.
16. The Respondent maintains that it has fully complied with the provisions of Article 47 of the Constitution and Section 4 of the Fair Administrative Action Act as it provided all the evidence it relied upon in issuing the NoPD and therefore, no prima facie case has been established by the ex-parte Applicant to warrant the orders sought.
17. With respect to the Minutes of the hearing conference of 22 nd September 2025, it is the Respondent’s case that the draft Minutes were sent to the ex-parte Applicant on 4 th November 2025 for confirmation between itself and Koko where correspondences were exchanged regarding the correctness of the said minutes until 2 nd January 2026. Additionally, it is stated that credible investigations were conducted and that the Respondent has at all material times acted in accordance with its statutory mandate so that the ex-parte Applicant cannot point to any irrationality, unfairness of procedural impropriety on its part.
Rejoinder
18. The ex-parte Applicant filed a further Affidavit dated 20 th February 2026 in response to the Respondent’s Replying Affidavit in which it is deposed that prior to the issuance of the decision contained in the NoPD, the Respondent disclosed that their decision was based on the Surveillance Report which they alluded to in the same NoPD. It is stated that the Respondent being the investigator and the decision-maker, the ex-parte Applicant Vivo has not been afforded a meaningful right to defend itself against the alleged findings that informed the decision, when they have been denied access to the Surveillance Report in contravention of the Constitution and the Fair Administrative Action Act.
19. It is deposed that none of Vivo’s officers were ever interviewed in the alleged investigations that were said to be conducted in 10 counties and that the NoPD does not disclose inter alia the specific stations visited and the identity of the officers interviewed. That as such, it is not possible to discern how a 6-days surveillance could have possibly yielded the broad findings that were set out in the NoPD.
20. Further deposition is that the Respondent has put Vivo on its defence but refused to avail all the information requested for to enable it to make its submissions and that the Respondent was called to a higher standard of procedural fairness and transparency in conducting its investigations and making a decision on liability that would likely lead to sanctions.
21. It is further contended that the investigations were conducted in an opaque manner leading to an unlawful decision and that there can never be discretion where a person is obligated by the constitution to act in a specific manner or in light of a statute that was enacted to operationalize a constitutional right.
22. The ex-parte Applicant ‘s deponent asserts that the Respondent conceded to not issuing the Notice of Investigations or granting Vivo the opportunity to be heard or supplying them with material information that led to its decision in utter disregard of Section 6 of the Fair Administrative Action Act 2015, Access to Information Act 2016 and Chapter 2 and 6 of the Mwongozo Code of Governance, being a state corporation.
23. Directions were issued on 27 th February 2026 to consider out of court negotiations and file a consent and to also file written submissions in case they fail to reach an agreement. Both submissions are now duly filed and on record.
Submissions
24. The ex-parte Applicant’s submissions are dated 20 th February 2026. Counsel for the ex-parte Applicant submits on two issues being: whether the surveillance report is a material document which ought to have been furnished to Vivo; and whether the investigations and process culminating in the NoPD were opaque and procedurally unfair.
25. On the first issue, it is submitted that the Respondent denies that it did not rely on the surveillance observations in issuing the impugned decision in the NoPD but it is clear from their response that they did rely on it. That it was impracticable for the Respondent to conduct investigations in the 10 listed counties that were geographically widely apart where also the ex-parte Applicant runs 95 Shell branded service stations.
26. It is submitted that even though the ex-parte Applicant recognizes that the Respondent is clothed with investigative, prosecutorial and adjudicatory powers under the Act, they are a statutory body obligated to adhere to the Constitution and Acts of parliament as held in Tononoka Rolling Mills Ltd vs. Competition Authority of Kenya, (2025) KECT 4 (KLR) .
27. Counsel submits that Section 4 (3) of the Fair Administrative Action Act is couched in mandatory terms and requires that the Respondent furnishes a party whom administrative action is proposed with relevant information and material relied upon in making the decision, while Section 3 and 4 of the Access to Information Act 2016 confers upon Vivo as corporate citizen the right to access information. They referred to the Supreme Court case of Njonjo Mue & Another vs. Chairperson of Independent Electoral and Boundaries Commission & 3 Others (2017) eKLR and Republic vs. Capital Markets Authority & Another Ex-parte Jonathan Irungu Ciano (2018) eKLR.
28. Counsel submits that the continued requests for information and unjustified refusal is a breach of Section 8 of the Access to Information Act and the case of Kenya Human Rights Commission & Another vs. Attorney General & Another (2024) KEHC 15702 (KLR ) is cited in support. Further, that being a state corporation, the Respondent is governed by the Mwongozo Code of Governance at chapters 2 and 6 which have gained the force of law as held in the case of Okoiti vs. the Board ExpoRt Processing Zones Authority & 3 Others; Otieno (2022) KEELRC 3771 (KLR). Further, that access to information by state agencies was vital for the protection of the rights of citizens as held in Katiba Institute vs. President’s Delivery Unity & 3 Others (2017) eKLR .
29. It is submitted that the without the evidence sought, it is impossible for the Applicant to defend itself and ensure its non-derogable right to fair hearing under Articles 25 and 50 of the Constitution are adhered to. The cases of Republic vs. Ethics and Anti-Corruption Commission & 2 Others ex-parte Erastus Gatebe (2014) eKLR and Geothermal Development Company Limited vs. Attorney General & 3 Others (2013) eKLR are cited in support of the proposition that the principles of natural justice entail procedural fairness and ensure that a fair decision is reached by an objective administrative body.
30. On the second issue, it is submitted that the purpose of an investigation is to gather evidence to support an informed or objective decision making process as defined by Black’s Law Dictionary 8 th Edn. at page 2420 and the case of Mea Limited vs. Competition Authority and Another (2016) eKLR . That in the present case, the investigations and processes culminating into the issuance of the NoPD were opaque and procedurally unfair. It is contended that from the material before the Court, the Respondent’s justification for its failure to issue a Formal Notice of Intention to Investigate and request any further documentation is premised on the term “may” under Sections 31 (1) and (4) of the Act which they claim connotes discretion.
31. It is their submission that discretion cannot arise in circumstances where an entity is under a mandatory constitutional obligation to comply with a statute enacted to enforce a constitutional right. That consequently, the Respondent cannot exercise its powers under the parent Act without affording the persons who would be affected by the said decision a right to be heard and right to information or material relied upon and that regardless of the term ‘may’ conferring discretionary authority, that discretion had to be exercised reasonably and proportionately in a manner consistent with constitutional and statutory obligations.
32. Counsel further submits that the term ‘may’ has also been interpreted to mean a mandatory obligation based on the circumstance of a case as held by the Supreme Court of India in State of Uttar Pradesh vs. Jogendra Singh (1964) SCR (2) 197 and that in the present case, the term ‘may’ under Sections 31 (1) and (4) of the Act confers a mandatory obligation on the Respondent. That it is a standard and customary practice for an administrator such as the Respondent to issue such notices and requests for further information and involve parties in the investigations prior to the issuance of a NoPD as it did in the case of Blue Nice Wire Products Limited vs. Competition Authority of Kenya (2025) KECT 3 (KLR) where it issued a Notice of Investigation and Summons for Appearance to the Appellant to attend an interview under Section 31 of the Act; and therefore this conduct against the ex-parte Applicant was a departure from its customary practice without plausible justification.
33. It is their submission that the Respondent’s argument that the NoPD is not a final decision rendering these proceedings unwarranted is mischievous, disingenuous and misguided because the consequences contemplated under Section 36 of the Act are extremely punitive and carry severe commercial implications for Vivo and had the Respondent complied with the requests and its statutory obligations before issuing the NoPD, it would have had a proper contextual understanding of Vivo’s business model and not arrived at the unreasonable NoPD. Counsel concluded in their submissions that the investigations and the process culminating into the NoPD breached Sections 6 and 7 of the Fair Administrative Action Act for being procedurally unfair, unreasonable and illegal and cited the decision by Justice Moses Ado in Cytonn Investments Management PLC vs. Capital Markets Authority, HCCOM Pet. No. E007 of 2021 .
The Respondent’s Submissions
34. The Respondent’s submissions are dated 27 th February 2026. Counsel outlined two issues for determination being: Whether the Respondent’s failure to supply the surveillance report violates the Applicant’s right to fair administrative action; and Whether the Respondent’s failure to issue a Notice of Intention to Investigate (NITI) violates the Applicant’s right to fair administrative action .
35. On the first issue, it is submitted that the Applicant’s case rests almost entirely on the alleged non-disclosure of a surveillance report which is both legally and logically fatal because the surveillance exercise conducted by the Respondent aimed to ascertain whether the parties were still continuing with the Agreement which had clauses that were in breach of the Act and that the Respondent did not rely on this as evidence of its preliminary findings of breach of the Act by the Parties.
36. It is submitted that Article 47 of the Constitution does not create a general right to pre-decision discovery, but guarantees procedural fairness, not wholesome evidentiary discovery. Counsel submits that it has been consistently held by courts that the right to fair administrative action does not equate to the right to access every internal working document of a decision-maker as stated by the Court of Appeal in Judicial Service Commission v Mbalu Mutava [2015] eKLR and Suchan Investment Limited v Ministry of National Heritage [2016] eKLR where the Court emphasized that Judicial review concerns legality of process not microscopic examination of evidentiary sufficiency or disclosure formats. That the Applicant’s approach is intended to improperly elevate procedural fairness into a doctrine of compulsory evidentiary disclosure akin to civil discovery.
37. Counsel submits that Section 4 (3) (g) of the Fair Administrative Action Act obligates decision makers to provide information, materials and evidence to be relied upon in making the decision and that disclosure duties extend to materials actually relied upon for the decision. It is argued that reference to investigative activity in a surveillance observation does not convert the underlying intelligence into evidence relied upon. Counsel refers to R vs. Secretary of State ex-parte Doody [1194] 1 AC 531 , where the House of Lords held that fairness requires disclosure only of the gist of adverse material, not every document and Republic s.v Kenya Revenue Authority Ex parte Shake Distributors Ltd [2012] eKLR , where the Court held that procedural fairness does not compel disclosure of internal investigative reports where the substance of allegations has been communicated. That the duty therefore is to disclose the case to be made, not intelligence files from surveillance observations.
38. It is further submitted that surveillance activities are analogous to “patrols and form part of regulatory fact finding as they generate leads, impressions, and preliminary observations used to determine whether further enquiry is warranted. Counsel cites Republic vs. National Environmental Management Authority ex-parte Sound Equipment Limited [2011] eKLR where it was held that investigative notes used internally to guide enforcement decisions are not part of the evidentiary record requiring disclosure.
39. It is their position that Statutory bodies such as the Respondent that exercise enforcement mandates must retain confidential investigative capacity to avoid making enforcement ineffective. Counsel cites Republic vs. Public Procurement Administrative Review Board ex parte Kenya Power & Lighting co. Ltd [2019] KLR , in support of investigative privilege where the court affirmed that regulators are not required to disclose internal investigative material where doing so would compromise enforcement processes and Marks vs. Beyfus (1890) 25 QB 494 at 498 . Further, that procedural fairness requires that a party understands the allegations and not that it be furnished with surveillance notes.
40. It is also submitted that the impugned instrument is a Notice of Proposed Decision, a stage where the Applicant is expected to make representations as part of a fair hearing and not a final determination. The case of Republic vs. Independent Electoral and Boundaries Commission ex-parte National Super Alliance [2017] eKLR , was cited on judicial interference at preliminary stages and it was submitted that the Applicant’s request is procedurally premature and legally misconceived. That further, the authorities cited by the Applicant concerned situations where final sanctions had been imposed and undisclosed documents were used in arriving at a decision.
41. Counsel also submits that the Respondent issued the Applicant with a NoPD dated 15 th April, 2025 accompanied by all the pieces of evidence it relied on and complied with its obligation to grant the Applicant a fair hearing in accordance with Article 47 of the Constitution and Section 4 of the Fair Administrative Action Act and the Competition Act . The case of Majid Al Futtaim Hypermarkets Limited vs. Competition Authority of Kenya & another [2021] eKLR was cited in support. Further, that Constitutional access to information is not a tool for speculative discovery and that Article 35 cannot be invoked for generalized disclosure requests as held in Trusted Society of Human Rights Alliance vs. Judicial Service Commission [2016] eKLR .
42. On the second issue, it is submitted that the Applicant’s contention that the Respondent was legally obligated to issue a Notice of Intention to Investigate (NITI) prior to commencing investigations is fundamentally misconceived, both as a matter of statutory interpretation and administrative law principle as Section 31 of the Competition Act empowers the Respondent to carry out investigations either on its own initiative or upon receipt of information or complaint from any person or government agency or Ministry. Further, that Section 31(4) employs the permissive term “may” rather than the mandatory term “shall” which is a settled canon of statutory construction conferring discretion unless the statutory context compels a contrary interpretation.
43. Counsel argues that courts cannot convert discretion into a duty as held authoritatively by the Court of Appeal in Kenya National Examinations Council vs. Republic ex-parte Geoffrey Gathenji Njoroge [1997] KLR , and that consequently, the issuance of a NITI is optional and context dependent rather than obligatory. That the Court should reject statutory interpretations that defeat legislative intent or render regulatory enforcement impracticable.
44. It is further contended that Section 31 establishes the Authority’s investigative jurisdiction broadly, empowering it to initiate investigations either on its own motion or upon receipt of information from any source making the power to investigate a statutory mandate in itself, and not by issuance of notice. Subsection 31(4) of the Act therefore, merely provides one of several procedural mechanisms available to the Authority where it considers it necessary to compel production of information making it an enabling provision, not a condition precedent to lawful investigation.
45. It is their argument that the Applicant’s interpretation would produce absurd results, because it would mean that the Authority cannot conduct any preliminary inquiry unless it first alerts the subject of investigation which would render enforcement impossible, frustrate statutory purpose and enable concealment or destruction of evidence.
46. Counsel submits that procedural fairness under Article 47 is to be assessed at the decision-making stage, not at the intelligence-gathering stage and that courts have consistently recognized that investigations are exploratory in nature and do not trigger full hearing rights until they crystallize into proposed adverse action. Counsel cites Dry Associates Ltd vs. Capital Markets Authority [2012] eKLR, where investigative processes and adjudicative determinations were expressly distinguished.
47. The Respondent’s submissions posit that the Applicant’s reliance on discretion - based arguments is equally untenable because it proceeds from the erroneous assumption that whenever a statutory body has discretion, it must exercise that discretion in a particular way, favorable to the regulated party The case of Republic vs. Public Service Commission & another ex-parte Kirinyaga County Government [2023] KEELRC 1066 (KLR) is cited in support.
48. Counsel also submits that the allegation that failure to issue a NITI violated legitimate expectation is legally unsustainable because legitimate expectation arises only where a public authority has made a clear representation or established a consistent past practice that is certain, regular, and devoid of relevant qualification as explained by the Supreme Court in Communications Commission of Kenya vs. Royal Media Services Ltd [2014] eKLR and that in this regard, the Applicant has not produced any instance demonstrating a binding representation by the Respondent that it would invariably issue a NITI before investigations.
49. That additionally, th
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