By Sam Alfan.
I&M Bank Limited has been ordered to pay a person with disability Sh2.5 million for violating his right to non-discrimination on the basis of disability, legal capacity, and accessibility.
Justice Enock Mwita directed the bank to compensate Wilson Macharia, after finding that the lender’s refusal to allow him access to its banking services because of his disability constituted a violation of his right to accessibility under Article 54(1)(e) of the Constitution and Sections 25(1)(b) and 25(3) of the Persons with Disabilities Act.
“Having considered the pleadings, arguments, decisions relied on, the Constitution, and the law, this court can only conclude that I&M Bank violated Macharia’s rights guaranteed under Articles 27 and 28 of the Constitution by failing to accord the petitioner reasonable accommodation and allow him full access to the services he required,” Justice Mwita ruled.
The judge noted that instead of facilitating access, the bank placed impediments on Macharia, thereby denying him the opportunity to participate as an equal member of society and to enjoy his legal capacity.
Justice Mwita further declared that the lender’s requirement that Macharia donate a power of attorney or sign a deed of indemnity in order to open and operate a bank account amounted to a denial of his right to exercise legal capacity.
“A declaration is hereby issued that the requirement by I&M Bank that Macharia donate a power of attorney or sign a deed of indemnity in order to open and operate a bank account was discriminatory and a violation of Article 27(4) of the Constitution,” ruled Justice Mwita.
The court also stated that the bank’s refusal to allow Macharia access to its services due to his disability breached his right to accessibility under Article 54(1)(e) of the Constitution and the Persons with Disabilities Act.
Macharia told the court that he visited the bank’s Panari branch along Mombasa Road in March 2023 intending to open an account. Although staff assisted him to fill out the forms, he was denied the option of using a thumbprint signature due to his visual disability.
He was instead asked to grant a power of attorney to another person to operate the account on his behalf — a suggestion he declined.
On June 27, 2023, Macharia met with officials from the bank’s legal department, who proposed that he sign a deed of indemnity as an alternative to the thumbprint. When he inquired whether this was standard procedure, he was informed that it was not.
Feeling discriminated against due to his visual disability, Macharia filed a petition on May 12, 2024, seeking declarations and orders for violation of his constitutional rights and fundamental freedoms.
He argued that the bank’s demand for a power of attorney or deed of indemnity to open an account amounted to discrimination on the basis of disability, contrary to Article 27 of the Constitution and Article 5 of the Convention on the Rights of Persons with Disabilities (CRPD).
He said the requirement led to distinction, exclusion, and restriction based on disability, amounting to denial of reasonable accommodation and institutionalized discrimination.
In response, the bank, through a replying affidavit sworn by Andrew K. Muchina, admitted that Macharia had approached its branch but claimed he was advised to provide a power of attorney or deed of indemnity in line with internal policies and the Central Bank of Kenya’s Risk Management Guidelines (2013).
The bank maintained that while the deed of indemnity is not a standard requirement for all customers, it is often used to safeguard the institution from operational and exposure risks. It asserted that its policies were aimed at protecting customers’ interests and complying with industry regulations.
The lender further argued that Macharia had not demonstrated bias or discrimination, nor shown how the requirement infringed his constitutional rights or caused him any loss. It also maintained that the requirements were lawful and consistent with the Central Bank’s guidelines and the bank’s fiduciary obligations to its clients.
