The anticipated merger of Airtel Kenya and Telkom Kenya is set
to delay by up to four months as the two companies await the verdict of a
tribunal on the protest they made over conditions placed on their
proposed tie-up.
The telcos filed an application with
the Competition Tribunal on January 10 to have most of the post-merger
conditions they were given by the Competition Authority of Kenya (CAK)
set aside.
The rigorous process involved in evaluating
their appeal could push the fate of the deal to May, according to the
timelines set by the law.
The Competition Act 2010
allows the Competition Tribunal to receive applications for review of
CAK’s decisions and make a ruling within four months.
“Within
four months after the date of the making of an application for a review
was made, the Tribunal shall make a determination,” the law reads in
part.
The tribunal has powers to make one of several decisions,
including overturning CAK’s conditions, amending them or upholding them.
It can also refer the matter back to the regulator for reconsideration
on specified terms.
The tribunal started the review
process last week by inviting interested parties to start making
comments on the Airtel and Telkom appeal. It seeks, among other things,
the quashing of a condition barring the firms from selling any stake of
the resultant entity within the first five years of merger.
The
chairperson for the tribunal Stephen Kipkenda said in a gazette notice
last week that the process of receiving and reviewing comments will take
30 days. Mr Kipkenda’s team will then communicate its decision to
Airtel, Telkom and CA in writing and gazette the same, giving reasons.
The
two telcos are facing a tall order to have the tribunal completely
revoke four of the merger conditions and amend two others. They have the
option to appeal the outcome should they feel dissatisfied. CA is also
allowed to appeal if it differs with the tribunal.
“A
party to an appeal under this part who is dissatisfied with the decision
of the Tribunal may appeal to the High Court within 30 days after the
date on which a notice of that decision has been served,” states the
Competition Act.
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