Airtel Kenya, a prominent mobile phone operator, has taken legal action to block the Competition Authority of Kenya (CAK) from investigating complaints made by four distributors—Pesapal Ltd, Mawingu Airtime Ltd, Interintel Technologies Ltd, and Okazaki Ltd—regarding alleged abuse of buyer power.

The telco argues that CAK lacks the authority to probe these complaints, emphasizing that the allegations, if proven, could lead to substantial fines ranging from Sh10 million to 10 per cent of the previous year's gross turnover.

According to Ms Lillian Mugo, Airtel Kenya's head of legal affairs, the CAK is overstepping its mandate, asserting, "The respondent (CAK) herein is attempting to assume jurisdiction over matters beyond the scope of its mandate as none of the interested parties are suppliers or consumers, and the applicant is not a buyer as defined under the Competition Act."

The telco insists that the complaints fall within the realm of dispute resolution clauses outlined in the distributorship agreements signed between December 2012 and July 2019.

Upon receiving notifications of the investigations in September and October, Airtel claims it sought individual complaints from the watchdog, which were allegedly declined.

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The company contends that the investigations and potential penalties necessitate access to detailed complaints and annexures to formulate a comprehensive response.

Airtel further states that the notifications refer to various remedies sought, such as commission refunds, matters it believes are covered by the dispute resolution clauses.

The telco maintains that the recall or withdrawal of letters that initiated the alleged dispute signifies the absence of an ongoing disagreement with the distributors.

Mugo emphasizes the absence of buyer-seller relations between Airtel and the distributors, questioning the justification for granting CAK the authority to investigate.

Airtel insists that without copies of the complaints and annexures, there is a risk that CAK has pre-determined the issue, hindering the telco's ability to provide a robust response.

In response to CAK's directive to file responses by December 6, 2023, Airtel argues that the refusal to provide individual complaints and annexures raises concerns about fair administrative practices, invoking Article 50(2)(j) of the Constitution and the Fair Administrative Actions Act.

Justice John Chigiti has scheduled the matter to be mentioned on February 14, underscoring the significance of this legal challenge to CAK's jurisdiction.