Vide a letter dated 09 th November 2020 to the Ministry of Industrialization, Trade and Enterprise
Development referencing a Statement on monopolistic tendencies by EABL in beer packaging,
the Senate Standing Committee on Trade, Tourism and Industrialization requested the
Competition Authority to provide the following information:
i. Explain why EABL is using its dominant position in the market to engage in restrictive
trade practices by engraving the universal position in the market to engage in
restrictive trade practices by engraving the universal Euro brown design beer bottles
with the EABL initial thus limiting access of beer bottles by its competitors.
ii. Explain whether any beer company in Kenya has the right to claim ownership of the
Euro brown beer bottles considering that the bottles design existed many years
before EABL and these competitors ever entered the Kenyan market.
iii. State whether the move by EABL to engrave the Euro Brown design beer bottles
with its trade mark is in contravention of the Competition Act.
iv. Cause the Competition Authority of Kenya(CAK) to investigate EABL`s unfair
competition practices and take the requisite action as provided in law: and
v. State measures put in place by the Government to ensure EABL does not continue
abusing its dominant position in the market to perpetrate anticompetitive practices
against other players in the beer market.
In its response to the Senate, the Authority stated that it had written to the Kenya Industrial
Property Institute (KIPI) on 7 th February 2020 in an effort to establish whether or not EABL or
any company has Intellectual Property Rights over the Euro brown beer bottle. KIPI responded
to the Authority 19 th February 2020 requesting for a sample of the bottle referred to in order to
allow them to respond adequately to the Authority. Following this, the Authority wrote to
Keroche Breweries Limited on 20 th February 2020 requesting for the sample of the Universal
Brown Euro Beer Bottle that was contested. This information request has never been responded
to by Keroche Breweries.
The Authority also took cognizance of pending litigation on the same issue Civil Case No E471
of 2019 Alexander Mugo Mtetu &5 Others Versus Kenya Breweries Limited, CAK &3
Others which made reference to various allegations of market dominance by KBL and EABL
i. causing a bottle that is universally used in alcohol packaging to be embossed as
an exclusive property of the 2nd Defendant (East African Breweries Limited);
ii. using the irregularly acquired intellectual property rights, which are denied in a
manner that goes beyond the limits of fair, reasonable and non-discriminatory
iii. continuously harassing the Plaintiffs through the use of police;
iv. engaging in concerted practices with the object or effect of preventing, distorting
or lessening competition in the alcohol industry;
v. working to prevent, distort and or restrict competition in the alcohol industry;
vi. seeking to limit and or control production and market outlets of the Plaintiffs
vii. seeking to own bottles shape whilst not owning the bottle (which had already
been sold to a distributor), a practice that has no parallel in other industries.
Rule 34 (5) (a) of the Competition (General) Rules, 2019, the Authority decided to hold the
matter in abeyance pending the dispensation of the same for the reasons that (among others):
a. The issues considered by the Authority in its investigations were similar to the subject
matter in Civil Case No E471 of 2019 and HCC No 88 of 2016 which are matters
before the High court. Specifically:
i. The subject matter in both cases is the Euro Brown Bottle whose ownership is
ii. Issues of abuse of dominance are directly and substantially in issue in Civil
Case No E471 of 2019.
iii. The Orders sought directly against the Authority are with respect to failure to
curtail abuse of dominance by these players in the industry
b. There is a Consent Order in HCC No 88 of 2016 which prevents other players in the
industry from using the EABL trademark of the bottles.
Thus, in conclusion, the Authority stated that although they had initiated investigations into the
concerns raised over dominance, no determination was made on the same because of the
pending court matters.
Notably, the Authority will soon again be called in to make submissions with regards to the
reinstated debate on market dominance by Safaricom Plc. The telco was the latest to be
mentioned by Senator Petronilla Were earlier this month when she by sought a statement from
Standing Committee on Information and Technology (ICT) regarding the abuse of dominance by
Safaricom. She wants the committee chaired by Baringo Senator Gideon Moi to outline
measures put in place to ensure there is a level playing field for players in the telcoms sector.