Telecom firms reposition for market share battle

By KURIAN MUSA and JAMES MBAKA

Leading mobile service providers are embroiled in a legal tussle after Airtel Kenya limited accused its market rival Safaricom limited of anti-competitive practices.

The battle for the control of the lucrative local mobile service market is headed to the corridors of the justice judicial review with Airtel seeking orders to quash the decision by Competition Authority of Kenya to terminate a hearing conference of its complaints.

Airtel in its application at Milimani Law Court says each party was to be allowed to make its case before the Authority, which could arbitrate on the matter where Airtel accuses Safaricom of unfair market dominance.

 But the Competition Authority terminated a conference hearing, which was supposed to be held on October 29, 2013 after Safaricom requested to solve the matter under settlements procedures a day before the hearing.

Part of the application for judicial review reads: “The views of Airtel were not considered before the authority made the decision to terminate the hearing conference and consent was not procured before the termination.”  Airtel argues that its advocates were ready to table their case before the authority but it was not allowed to make its submissions.

It wants the authority to be forbidden from implementing the decision. Competition Authority of Kenya is accused of not providing Airtel with the particulars of the purported settlement offer by Safaricom, which necessitated the termination of the hearing conference.

But in its response to Airtel dated October 30, 2013, the authority said the law allowed Safaricom as the initiator of the hearing conference to terminate the talks as ‘good practice to enter into settlement’.

hearing conference

On it part, Airtel contends that the authority has a mandate to convene a hearing conference if a party indicates that it requires an opportunity to make oral representations.

“While the hearing conference is initiated at the request of an undertaking, it is the respondent who makes the decision to convene the hearing conference and once the conference is convened, the matter is no longer in the hands of the undertaking that initiated the conference,” Airtel responded.

The mobile company avers that the hearing could have been terminated upon satisfaction that reasonable opportunity for expression has been given to both parties and not otherwise.