BY SAM ALFAN.
The High Court has declared section 33B (3) of Banking Act as unconstitutional.
The court found that the provisions of sections 33 B (3) and (2) of the Banking Act to be vogue, imprecise, ambiguous and indefinite.
“And insofar as the contravention of the provisions attracts penal consequences, the same violates Article 29 and 50 of the constitution,” ruled judges.
The court held that the said section which provides for punishment of banks and Chief Executive Officers and not customers or any other persons who contravenes the provisions as unconstitutional.
The three judge bench Francis Tuyoit, Jacqueline Kamau and Rachael Ngeti’ch suspended the effect for one year to give National Assembly opportunity to reconsider the provisions failure to which it will take effect automatically.
The judges ruled that pending the reconsideration by the National Assembly , the circular No. 4 of 2016 dated September 13 ,2016 issued by central bank of Kenya will continue to provide a measure and clarity to the impugned provisions.
The court held that declaration in respect to section 33B (3) of Banking Act takes effect forthwith.
“In the meantime , the court notes that there will be no lacuna because, any pending further consideration by the National Assembly and any offender will be dealt with under the general provisions of section 49 of the banking act,” ruled the bench.
Article 29 (a) of the constitution guarantees a person the right not to be deprived of freedom arbitrary or without just cause while Article 50 is on the right to fair hearing.
“The court therefore declare sections 33 B (1) and (2) of the banking act to be null and void,” declared the bench.
The petition was challenging the constitutionality of the Banking (amendment) act No. 25 of 2016 which introduced section 33 B into the Banking Act (Cap 488 of the laws of Kenya).
