https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9508

Competition Authority of Kenya v Foam Mattress Ltd (Criminal Revision E010 of 2026) [2026] KEHC 9508 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KEHC 9508 (KLR) Republic of Kenya In the High Court at Kisumu Criminal Revision E010 of 2026 A Mabeya, J July 3, 2026 Between Competition Authority Of Kenya Applicant and Foam Mattress Limited Respondent Ruling 1.By a Motion on Notice dated 20/3/2026, the applicant approached the Chief Magistrate’s Court, Kisumu for the following orders: -“1.That this application be deemed fit for admission to hearing exparte and on a priority basis.2.That the Honourable Court do issue a search warrant to the applicant’s investigator, Joshua Omollo Ogalo of CAKxxx37, or any other investigator duly appointed by the applicant, to have access and/or gain entry into and search the offices and business premises of Foam Mattress Limited situated in Tuffoam Mattress building which is located along Odera Street in Kisumu Town and any other such related office or business premises within the Republic of Kenya for purposes of examining and obtaining documents in hard and digital copy, data materials or information that may be related to the anticompetitive conduct being investigated.3.That Joshua Omollo Ogalo of CAKxxx37, or any other investigator duly appointed by the applicant to seize, copy, extract, take away and/or retain any records (hard and digital copy), documents, computers, thumb drives and external hard disks, compact discs, electronic records and electronic devises including mobile phones or other devices found at Tuffoam Mattress building which is located along Odera Street in Kisumu Town necessary for the conduct of investigations into offences constituting anticompetitive practices suspected to have been committed by the respondent.4.That Joshua Omollo Ogalo of CAKxxx37, or any other investigator duly appointed by the applicant be provided with all the necessary access to credentials of any seized electronic devices to enable the applicant to access the relevant data on the said devices.5.That the search shall be in force for a period of twenty-one (21) days from the date hereof.” 2.The application was expressed to have been brought under sections 118, 118A, 119, 120, 121 and 122 of the Criminal Procedure Code and sections 31 and 32 of the Competition Act, Cap 504 Laws of Kenya. 3.The matter came before Hon. Rashid, SPM on 24/3/2026 for consideration. By a ruling delivered on the same day, she dismissed the Motion on the grounds, inter alia, that; the applicant had not complied with section 31(4) of the Competition Act, (‘the Act’) that search warrants are to be issued to an investigation officer under the Directorate of Criminal Investigations (‘DCI’), that the prayers sought were too broad and could affect rights of innocent 3rd parties and that the application amounted to a fishing expedition. 4.Aggrieved by that decision, the applicant has applied under sections 362 and 364 of the Criminal Procedure Code for the revision of that decision. The grounds for the application are that; under sections 9(1) as read with section 31(1) of the Competition Act, (‘the Act’) the applicant is empowered to conduct investigation into any conduct or proposed conduct which is alleged to infringe on the Act. That such investigation is to be conducted by the applicant either on its own motion or on complaint by any person. That the request for information under section 31(4) of the Act is not a preliquisite to the applicant exercising its powers under section 32 of the Act for entry and search. That such entry and search is by authorized persons and not necessarily those from the DCI. 5.In support of the Motion, the applicant filed submissions dated 9/6/2026 which have been considered. The same addressed two issues only; to wit; whether the applicant was authorized to obtain and execute the search warrants and whether compliance with section 31(4) of the Act was a preliquisite requirement before obtaining the search warrants. 6.It was submitted that section 31(1) of the Act empowered the applicant to investigate any conduct or proposed conduct that is alleged or may constitute an infringement of the Act. That further, section 32 of the Act empowers the applicant in the course of such investigations to enter and search any premises believed to contain information, documents or records therein. Further, that under Rule 37(1) of the Competition (General) Rules, 2019 the applicant is to conduct a search in accordance with the Act and the Criminal Procedure Code. 7.That the Motion in the lower court was premised on the foregoing statutory provisions. That courts have recognized investigative powers of independent bodies. The case of Capital Markets Authority vs Alnashir Popat & Others (2019) eKLR was cited in support of that proposition. That likewise, in Aly Khan Satchir vs Capital Markets Authority (2019) eKLR, the Court recognized the powers of an independent body to conduct search and entry. 8.On the second issue, it was submitted that the power under section 31(4) of the Act to require production of information is a separate independent and distinct investigative tool from the power of entry and search under section 32 of the Act. That the applicant had the discretion to determine which tool to adopt in investigations. That in the present case, the investigations were on a cartel like dealing and if disclosed would have led to the destruction of the evidence it was seeking. The case of Koko Networks (K) Ltd (under Administration) vs Competition Authority of Kenya (2026) KEHC 5480 (KLR) was cited in support of that submissions. 9.This is an application for Revision. It was considered exparte. I have called for and examined the record in Ksm CM Misc. Case No. E108 of 2026 Competition Authority of Kenya vs Foam Mattress Ltd by virtual of sections 362 and 364 of the Criminal Procedure Code. 10.As set out at the beginning of this ruling, the impugned ruling of the Learned Magistrate was based on four grounds; that the applicant had not complied with section 31(4) of the Act, that the search warrants are only to be issued to an investigation officer from the Directorate of Criminal Investigations, that the prayers being sought were too broad and could affect rights of 3rd parties and that the application amounted to a fishing expedition. Although the applicant attacked that ruling on two of those reasons, the Court will consider all the four of them in order to ascertain or satisfy itself of the r regularity or otherwise of the impugned ruling in terms of sections 362 and 364 of the Criminal Procedure Code. 11.On the first issue; section 31(1) of the Act provides: -“The Authority may, on its own initiative or upon receipt of information or complaint from any person or Government agency or Ministry, carry out an investigation into any conduct or proposed conduct which is alleged to constitute or may constitute an infringement of—(a)prohibitions relating to restrictive trade practices;(b)prohibitions relating to abuse of dominance; or(c)prohibitions relating to abuse of buyer power.” 12.On the other hand, section 32 of the Act provides: -“(1)Where the Authority deems it necessary for its investigations under this Part, the person or persons authorized in writing by it may enter any premises in the occupation or under the control of a trader, manufacturer, producer, commission agent, clearing and forwarding agent, transporter or other person believed to be in possession of relevant information and documents and inspect the premises and any goods, documents and records situated thereon.(2)Upon entering premises in pursuance of the powers conferred by subsection (1), the person or persons authorized in writing shall, before proceeding to conduct an inspection of the premises, goods, documents and records situated thereon, inform the person present who is or who reasonably appears to be for the time being in charge of the premises of his intention to exercise his powers under this Act.(3)The authorized persons may use any computer system on the premises, or require assistance of any person on the premises to use that computer system, to—(a)search any data contained in or available to that computer system;(b)reproduce any record from that data;(c)seize any output from that computer for examination and copying;(d)attach and, if necessary, subject to the issuance of a receipt to that effect, remove from the premises for examination and safekeeping anything that has a bearing on the investigation.(4)The Authority may seek the assistance of police officers and other law enforcement agencies in its execution of the mandate conferred upon it by this section.” 13.From the foregoing provisions; it is clear that the applicant has the authority to conduct investigations. It also has the power of entry and search. These powers may be exercised by it on its own motion or on a complaint by a 3rd party. 14.The lower court was criticized for insisting that the search warrants were only to be issued to an investigation officer appointed by the DCI. The operative part of section 118 of the Criminal Procedure Code is; “the Court or a Magistrate may by written warrant (called a search warrant) authorized a (police officer or a person named in the search warrant…)” In my view, the reference to ‘or a person named in the search warrant’ expands the category of the people who could conduct the search beyond the known investigations officers by the DCI. 15.The conclusion the Court arrives is that, the applicant is empowered to conduct investigations. The person authorized by the applicant in writing is to be named in the search warrant and will be competent to undertake the powers set out in sections 118 of the Criminal Procedure Code, 31 and 32 of the Competition Authority Act and not necessarily an investigations officer from the DCI as held by the Court below. 16.On the second issued, was the applicant enjoined to comply with section 31(4) of the Act before pursuing the option of entry and search? 17.Part III (E) of the Act is dedicated to ‘Investigation to prohibited practices.’ It is not clear whether the two powers are conjunctive or disjunctive. The applicant contended that the powers under sections 31 and 32 of the Act are separate and distinct. It relied on the decision of Koko Networks vs Competition Authority (supra). I have considered that authority. Aburili J was called upon to determine whether the applicant in this case was obligated to call for the documents under section 3(1) of the Act before rendering its decision on its investigations. That decision is not applicable in this case as the Court in that case was not rendering itself on the application of that subsection vis a vis section 32 of the Act as is in this case. 18.In the present case, the applicant states that if it called for the documents it needed as provided for under section 31(4), it would have led the culprit to hide or destroy the evidence that the applicant was seeking. There is no evidence of such assertion on record. Mr. Joshua Omollo Ogalo who swore the affidavit in support of the Motion for the search warrants did not lay a basis for such fear. 19.The view which this Court takes is this; section 32 of the Act does not have words that are exclusionary such as “notwithstanding any provision in this Act…. or without prejudice to the provisions of section 31 or subject to the provisions of section 31.” As a result, it is not clear whether the power set out there is secondary to that provided for in section 31 or is exclusive and separate. 20.The powers set out in section 32 are very drastic. They are in the nature of a Mareva Injunction. Their exercise can paralyse or destroy a business depending on how they are exercised. They are open to abuse. They are so wide that they can infringe on an entity’s right to property, right to privacy and indeed even infringe on Data Protection. For that reason, they need to be exercised with circumspection and a clear basis must be laid before they can be exercised. 21.In the present case, no such clear case had been laid out. The basis for circumventing section 31(4) of the Act was never laid. There was nothing to show that the information being sought could not be obtained through the application of section 31(4) before resorting to the powers laid under section 32. The deponent was clear that the applicant had information of specific dates and times that the prices were increased. Requesting the data or information on the exact period the alleged prices where increased and the rates could not have been difficult. The request could have been followed by a hearing in the normal manner under the Act. The Court is not satisfied why the entry and search became the first option for the applicant in this case. Be that as it may, this power is exercisable independent of section 31(4) of the Act where circumstances permit. 22.The other ground for rejecting the applicant’s application of 20/3/2026 by the lower court was that the orders sought were too wide. That they would likely infringe affect and/or prejudice rights of 3rd parties. The applicant was quiet on this ground. 23.I have looked at prayer No. 3 of the Motion of 20/3/3036. The prayer has been reproduced at the beginning of this ruling. What was proposed to be seized, copied, extracted and carted away included ‘computers, …compact discs, electronic records and electronic devices including mobile phones or other devices found at Tuffoam Mattress building…” 24.The questions that arise are; whose such items that were targeted? Why was the applicant not particular and specific on the items sought to be carted away? The orders did not limit itself to the gadgets belonging only to the subject company. The orders were too wide and could have covered private phones or gadgets and not necessarily those belonging to the subject entity only. Anyone within the building, including employees and 3rd parties would have been subject to the order. 25.In my view, this ground alone was enough to deny the applicant the orders sought. The orders were so wide and open to abuse. The Data Protection Act and the right to privacy under the Constitution could have been breached by such wide and sweeping orders. Nothing can be intrusive as entering into one’s private phone! The trial court was right in declining them. In my view, the orders under that section must be targeted clear and unambiguous. It should have specified whose computers, whose electronic gadgets, whose phones etc that were to be subject to the order. 26.Finally, by failing to be targeted and specific, the orders amounted to a fishing expedition which I agree with the trial court could not be permitted. The applicant wanted to clear all the electronic gadgets in the building, access the information therein (including private phones) then look/seek for the information it alleged it was seeking. 27.For the foregoing reasons, I find that the ruling of 24/3/2026 was not irregular. Accordingly, the Motion dated 14/4/2026 is found to be without merit and is dismissed. The original file be returned to the trial court.It is so ordered. DATED AND DELIVERED AT KISUMU THIS 3RD DAY OF JULY, 2026.A. MABEYA, FCI ArbJUDGE