Mohamed Hashi Khalif v Equity Bank (kenya) Limited & 1 other

3. It is declared that the 1st respondent has breached banker customer relationship by not keeping the petitioner’s account affairs secret and/ or confidential from 3rd parties without his consent or communicating to him. 4. It be declared that the 1st respondent has contravened the right not to be discriminated against by article 27 of the Constitution, the freedom and security of the person under article 29 of the Constitution. The right to privacy protected under article 31 of the Constitution, the freedom to acquire property by article 40 of the Constitution and the rights under article 47 to expeditious, effective, lawful, reasonable and procedurally fair administrative action and article 50 of the Constitution to observance of fair hearing respectively. 5. It be declared that the 1st respondent has contravened the constitutional requirement that they respect the rule of law and respect human rights under article 10 of the Constitution. 6. An order be issued to compel the 1st respondent to credit the sum of Kshs. 500,000/= to the petitioner’s Account No. 18702xxxxxxxx that he holds in the 1st respondent’s Isebania Branch. 7. A permanent injunction to restrain the 1st respondent, their agents and/or servants from harassing and/or intimidating the petitioner’s clients and all other persons depositing funds into his account without his consent as the same is humiliating and defamatory. 8. Damages for contravention of the petitioner’s rights and breach of bankercustomer relationship. 9. Costs of this petition. 10. Interests at court rates and any other relief the court deems fit and just to grant. 2. The petition was supported by the affidavit of the petitioner sworn on 18th November, 2024. 3. The brief background of the petition is that the petitioner operated Bank Account No. 18702xxxxxxxx held at the 1st respondent’s Isebania Branch. 4. The petitioner complained that Kshs. 500,000/= deposited in his account on 10th August 2024 by the 2nd respondent was frozen for one month and subsequently debited and refunded to the 2nd respondent without prior notice and in contravention of articles 10, 27, 28, 29, 31, 40, 46(1)(b)&(d), 47(1), 50 and 258 of the Constitution as read together with section 4 and 6 of the Fair Administrative Actions Act and he suffered loss as the move greatly interfered with his business. 5. The petitioner said that when he visited the 1st respondent’s Branch at Isebania to inquire why his account was debited he was dismissed without a hearing. 6. The petition was served upon the respondents and directions were taken for hearing of the petition by way of written submissions. 7. The notice of the directions was again served but the respondents did not file response or submissions. 8. The petitioner filed submissions dated 9th October 2025 which this court has considered for purposes of determining the petition herein. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8326/eng@2026-03-13 2

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Analysis and Determination 9. The court has carefully considered the petition dated 18th November 2024, the supporting affidavit sworn by the petitioner, and the written submissions filed on his behalf. The respondents, despite being served with the petition and subsequent directions of the court, did not file any response or submissions. 10. The issues that arise for determination are: 1. Whether the petitioner has established violation of his constitutional rights and fundamental freedoms as alleged. 2. Whether the reliefs sought in the petition are merited. 11. On whether the petitioner has proved violation of his rights, it is his case that he operated Bank Account Number 18702xxxxxxxx at the 1st respondent’s Isebania Branch. He contends that on 10th August 2024 a sum of Kshs. 500,000/= was deposited into the said account by the 2nd respondent. According to him, the said amount was subsequently frozen for about one month and later debited from his account and refunded to the 2nd respondent without prior notice to him. 12. The petitioner argues that the said action violated several constitutional provisions including articles 10, 27, 29, 31, 40, 47 and 50 of the Constitution as well as the provisions of the Fair Administrative Action Act. He further contends that the respondents breached the banker–customer relationship and interfered with his business operations. 13. It is settled law that a party alleging violation of constitutional rights must plead and prove the violation with a reasonable degree of precision. This principle was articulated in Anarita Karimi Njeru v Republic (1979) and later reaffirmed by the Court of Appeal in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others (2013). The petitioner must identify the specific constitutional provisions allegedly violated and demonstrate the manner in which those provisions were infringed. 14. Although the respondents did not file a response to the petition, the burden still remained upon the petitioner to prove his case on a balance of probabilities. 15. From the material placed before the court, the petitioner has demonstrated that a sum of Kshs. 500,000/= was deposited into his bank account and that the said funds were subsequently frozen and later reversed to the depositor. However, beyond this assertion, the petitioner has not placed before the court evidence demonstrating that the respondents’ actions were unlawful or arbitrary so as to amount to a constitutional violation. 16. In particular, no material has been presented to demonstrate the circumstances under which the funds were reversed, whether the depositor had disputed the transaction, or whether the bank acted pursuant to its regulatory obligations or internal controls in relation to suspicious or disputed transactions. Financial institutions are ordinarily permitted, within the framework of banking regulations and contractual arrangements with customers, to restrict or reverse transactions where circumstances so require. 17. With regard to the alleged violation of the right to property under article 40 of the Constitution, the petitioner was required to demonstrate that he was arbitrarily deprived of property that rightfully belonged to him. In the present case, the evidence merely shows that the disputed funds were returned to the depositor. There is no evidence demonstrating that the petitioner had an uncontested proprietary entitlement to the said funds. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8326/eng@2026-03-13 3

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18. The petitioner also alleges violation of the right to fair administrative action under article 47 of the Constitution and the Fair Administrative Action Act. However, the material placed before the court does not establish that the actions complained of constituted administrative action within the meaning contemplated by article 47. The relationship between the petitioner and the 1st respondent is primarily a contractual banker–customer relationship, and the petitioner has not demonstrated the Public Law element necessary to elevate the dispute to a constitutional question. 19. Similarly, although the petition cites several constitutional provisions including articles 27, 29, 31 and 50, no factual basis has been laid to demonstrate discrimination, violation of personal security, breach of privacy, or denial of a fair hearing. 20. The court therefore finds that while the petitioner has complained about the freezing and reversal of funds in his account, he has not demonstrated with precision how the respondents’ actions amounted to violations of the constitutional rights cited in the petition. 21. In essence, the dispute disclosed by the petition appears to arise from a disagreement within the framework of the banker–customer relationship. Such a dispute, without more, does not automatically amount to a constitutional violation and claims relating to such banking transactions should be pursued through the appropriate civil channels. 22. Having found that the petitioner has not established violation of his constitutional rights, it follows that the declaratory orders sought cannot issue. Likewise, the orders seeking compensation, damages, refund of the sum of Kshs. 500,000/= and injunctive relief are not supported by sufficient evidence demonstrating unlawful conduct on the part of the respondents. 23. While the respondents did not participate in these proceedings, the court is nonetheless required to determine the matter based on the law and the evidence presented. The absence of a response does not relieve the petitioner of the obligation to prove his case. 24. Accordingly, the court finds that the petition has not been proved to the required standard makes the following findings and orders: 1. The petition is hereby dismissed in its entirety. The petitioner has not demonstrated with sufficient particularity or evidence that the respondents’ actions amounted to violations of his constitutional rights. 2. No declaratory orders are issued in favour of the petitioner. 3. No orders for damages, compensation, or refund of funds are made, as the petitioner has not proved that the reversal of the deposited funds was unlawful or arbitrary. 4. No injunctions or restraining orders are granted, as the petitioner has not established conduct warranting such relief. 5. Each party shall bear its own costs. DATED, SIGNED AND DELIVERED AT MIGORI THIS 13TH DAY OF MARCH, 2026. HON. ANNE ADWERA - ONG’INJO JUDGE In the Presence of: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8326/eng@2026-03-13 4

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Victor – Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8326/eng@2026-03-13 5

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