Last week a friend of mine posted on a group chat a problem she was grappling with. A fundi (repairman) who was doing some tasks at her house had missed two days of work because he had been looking for a specific bag that had been requested by his child’s school for students to use. The bag, costing Kshs 6,000/-, was only available at singular a shop that the school had issued directions to for the purchase. The fundi was therefore hunting high and low for where he could find the recommended bag by the school for a much lower cost despite the fact that he had a good old well-worn metal box  already in existence.

The issue that the fundi was grappling with was anti-competitive behavior perpetuated by the school. Kenya has a good set of laws to protect the consumer starting with the Competition Act whose objective is to promote and protect effective competition in markets as well as prevent misleading market conduct in Kenya. It does this through the Competition Authority of Kenya (CAK), which has undertaken a host of interventions in the market to protect consumers from abuse of buyer power and restrictive trade practices.

CAK regularly publishes an annual report of its activities and two school related interventions that occurred in 2016 are of interest. In the first case Nakuru parents, whose flamingo pink irritation was simmering to a boil, had had enough and, via the Nakuru Residents Association, complained to the CAK that schools in Nakuru were colluding with two uniform shops in the lakeside town. Now for those of you who are parents of children in primary or secondary school, you recognize how often your financially constrained back is against the wall annually when it’s time to buy uniform and text books at the beginning of each academic year. God bless CAK’s socks because they sprang into action, recognizing that this conduct amounted to allocation of customers which is prohibited under section 21 (3)(b) of the Competition Act. CAK undertook investigations and found that the practice was widespread throughout the country and issued public notices in the leading newspapers warning school heads and uniform shops against the behavior.

But a uniform retailer took an even bigger step the following year by writing to the CAK naming two leading uniform shops in our beloved Nairobi city that were colluding with schools to recommend to parents where to buy uniforms. To be honest, for the longest time I only ever purchased from the two named shops, lining up early in the morning like the typical last minute Kenyan waiting to be ushered into the hallowed ground of frenetic, mind numbing annual activity of uniform purchasing.

CAK in this case undertook investigations and engaged the Ministry of Education to develop a policy to deal with anti-competitive concerns about the procurement of uniforms.

However, while a ministry policy driven solution may work with public schools it doesn’t cover the ambit of private schools. So the next example demonstrates where the CAK went on a bare knuckled fight with an anti-competition transgressor in the private schools sector. In July 2018, the authority received a complaint about a private school alleging that the management of the school was making it mandatory for students to obtain laptops for e-learning (remember this was before COVID-19) and had essentially rolled up the costs of the laptop into the overall school fees without giving parents the option to source the laptops themselves.

The CAK issued a cease and desist order premised on the fact that the likely harm of the arrangement on the parents could be irreparable. The order was based on Section 37 of the Competition Act which allows the CAK to issue an interim relief upon belief that an undertaking is engaging or is proposing to engage in conduct that constitutes an infringement of the Act. CAK concluded that tying parents to purchase laptops from the school was not based on any commercial or technical justifications and ordered the school to allow parents to purchase laptops from alternative vendors and suppliers provided the laptops met the school’s specifications. The school was also ordered to unbundle the price of the laptops from the school fees so that parents who opted to get the school issued machines would have an idea of what the actual costs were.

To cut a long story short, on behalf of her fundi my friend has now registered a complaint against the school on the CAK website and I’m hoping to narrate a happy ending to this “serikali saidia” story once the outcome of that complaint emerges. If you are a long suffering parent tired of being forced to buy a singular item from a singular source, please visit www.cak.go.ke website and let your fingers do the talking for you!

[email protected]

Twitter: @carolmusyoka