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High CourtDismissedPetition (Nairobi HC, filed 9th April 2019)· [2020] KEHC 2940 (KLR)

Paul Kobia v Central Bank of Kenya & Another

High Court of Kenya
24 September 2020
WOW. A. Okwany
3,220 words in judgment
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The bottom line

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To challenge a financial regulation, you must precisely prove how it violates your rights, not just that you disagree with it.

What this practically means

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Executive summary

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Paul Kobia, a politician and businessman, petitioned the High Court challenging regulations of the Central Bank of Kenya requiring customers to disclose and prove the source of funds before their accounts are credited. He sought declarations that the regulations infringed his constitutional rights to privacy (Article 31) and property (Article 40), injunctions to allow access to his funds and prevent closure of his bank accounts, and general damages. The petition followed a letter dated 14th December 2018 from Barclays Bank of Kenya threatening to close his accounts. The 1st respondent (Central Bank of Kenya) denied any cause of action, arguing the petitioner's grievance lay with his bankers and that the petition lacked precision. The 2nd respondent raised a preliminary objection that the petition was sub judice given Nairobi HC Petition No. 426 of 2018. The court, per W. A. Okwany J, first rejected the sub judice objection, finding the cited petition challenged the Finance Act's amendment introducing Section 33C of the Banking Act, a different matter from this petition. On the merits, the court applied Anarita Karimi Njeru v Republic and Mumo Matemu, holding the petition fell short of the required precision: the closure letter was authored by Barclays Bank, not the respondents, and made no reference to their regulations. The petitioner also failed to discharge the burden of proof under Section 107(1) of the Evidence Act. The petition was dismissed with costs to the respondents.

Key legal issues

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01

Whether the petition was sub judice given Nairobi HC Petition No. 426 of 2018

Holding

Not sub judice; the cited petition challenged the Finance Act's amendment introducing Section 33C of the Banking Act, while this petition sought declaratory and injunctive relief over threatened account closure - different parties' issues and no mention of the Finance Act in this petition

Reasoning

The court compared the pleadings in both petitions and found no overlap: the cited petition challenged the enactment of a specific section of the Finance Act, whereas this petition concerned threatened closure of the petitioner's accounts. The Finance Act was not mentioned in this petition, so the res sub judice rule was not triggered.

p. 3
02

Whether the petition met the constitutional petition threshold

Holding

It did not; the complaint was against Barclays Bank of Kenya, not the respondents, and no nexus to the respondents' regulations was established

Reasoning

The triggering letter of 14th December 2018 was authored by Barclays Bank of Kenya and made no reference to the respondents or their regulations. The petitioner therefore failed to plead with precision the provisions infringed and the manner of infringement, contrary to Anarita Karimi Njeru.

p. 5
03

Whether the petitioner discharged the burden of proof

Holding

No; the petitioner did not prove the facts asserted

Reasoning

Applying Section 107(1) of the Evidence Act, the court found the petitioner had not discharged the evidentiary burden of establishing that the respondents' actions infringed his rights to privacy and property, and thus was not entitled to the declaratory, injunctive or damages relief sought.

p. 5

Legal principles established

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  • A constitutional petition must state with reasonable precision the provision infringed and the manner of infringement
  • The res sub judice rule applies only where the matter in issue is directly and substantially in issue in a prior suit between the same parties litigating under the same title
  • He who alleges must prove

Court orders

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  1. 1.Petition dismissed with costs to the respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 3, 4, 10, 22, 23, 24, 25, 31, 35, 40, 46, 47, 48, 50, 231, 232, 258, 259, 260
  • Banking (Amendment) Actnull
  • Consumer Protection Actnull
  • Civil Procedure ActSections 6 and 7
  • Evidence ActSection 107(1)
  • Finance ActSection 65 (amending Banking Act to introduce Section 33C)
  • Banking ActSection 33C

Cases cited (4)

  • Republic v Public Procurement Administrative Review Board & Another Exparte Selex Sistemi Integrati
    [2008] KLR 728

    Statutory provisions ousting court jurisdiction must be construed strictly and narrowly

  • Pil Kenya Limited v Joseph Oppong
    [2009] eKLR

    Contrary claims barred by doctrine of estoppel and constitute abuse of court process

  • Anarita Karimi Njeru v Republic
    [1979] KLR 154

    Precision required in pleading constitutional petitions - provisions infringed and manner of infringement

  • Mumo Matemu v Trusted Society of Human Rights Alliance
    [2014] eKLR

    Reiteration of the Anarita Karimi Njeru principle on defining disputes in constitutional petitions

Jurisdiction invoked
Articles 22, 23, 258 of the Constitution (enforcement of Bill of Rights)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Paul Kobia v Central Bank of Kenya & Another", Case Analysis (2020). Petition (Nairobi HC, filed 9th April 2019). Source:

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.