Wilson Nderitu Macharia believed he had found the best deal when he opened an account with a local bank.
The bank had waived mobile banking fees, which meant he would incur no transaction costs. The branch is located in a building on Nairobi’s Mombasa Road where the accomplished lawyer lived and had other business interests.
Besides the value for money, he was happy to avoid the hassle of commuting into the city centre. This was a welcome convenience for the visually impaired advocate of the High Court.
“I left my house with a number of activities to do including opening an account with I&M bank,” Mr Macharia recalls the events of March 3, 2023.
“The bank had also indicated that their mobile banking services would be free despite other banks charging for that. Since most of my transactions are mobile and are more accessible, I opted to open an account with I&M bank.”
But what he considered a routine business transaction would leave him with a sour taste in his mouth as he left the bank’s Panari branch and a legal battle against the bank in the High Court's constitutional division.
The PhD candidate at the Centre for Human Rights at the University of Pretoria says in court papers that he found a teller who assisted him with filling in the account opening form. However, when he asked to use his thumbprint instead of his signature, he hit a dead end.
The legal adviser to the International Commission of Jurists says he was stunned to be told that the bank would not allow it because it could pose a security risk.
"The teller went to consult as I had requested, but she came back with more shocking news - that as I am a visually impaired person, the thumbprint signature was no longer a major issue, but I needed to give a power of attorney for someone to operate the account on my behalf," says Mr Macharia.
A power of attorney is a legal document which allows someone else to act on one's behalf, and make decisions about property, investments, healthcare and other critical financial and business decisions.
"I asked to speak to the management and after waiting about 20 to 30 minutes she came back with the same feedback. She added that their internal manuals do not allow visually impaired people to open and operate an account on their own unless they give a power of attorney. I tried to persuade them to allow me to open an account, even explaining that I have other bank accounts in Kenya and South Africa," he says.
Mr Macharia, who is being represented by MNW & advocates law firm, says he produced his debit cards from other banks to prove he operated other accounts.
"I walked into that bank as a person with dignity, but I left without dignity. What they told me was that regardless of the progress I have made and the persuasion that I have made, I cannot open an account unless I appoint someone else to do it on my behalf and I cannot exercise my right to open and manage my own financial affairs as people without disabilities," he laments.
He says that despite follow-up attempts with the bank about the stalemate in opening his account, there was no resolution. The bank later responded to him via an e-mail.
“They (the bank) informed me that in the absence of the power of attorney, I would need to sign a deed of indemnity. This means that they are indemnifying themselves from risks that I may be exposed to,” he adds.
“The constitution recognises international human rights law instruments which Kenya has ratified. One clause specifically states that persons with disability should run their own financial affairs,” he says.
Through the court papers dated November 3, 2023, the lawyer has petitioned the High Court’s constitutional division to order that the requirements by the bank for Mr Macharia to donate a power of attorney and sign a deed of indemnity to open and operate an account are discriminatory.
“The petitioner contends that he has operated other bank accounts both in Kenya and abroad, and he has not been subjected to such discriminatory conditions placed upon him when opening and operating bank accounts. As such the respondent’s decision to impose these conditions on the petitioner are both unjustifiably unreasonable and blatantly discriminatory,” reads the court papers.
Wilson wants the court to order the bank to pay him general damages for violation of his rights to non-discrimination based on his disability, dignity and privacy.
But in a response filed on May 6, 2024, I & M Bank wants the court to dismiss the petition as “it lacks merit and is ill-conceived.”
Through an affidavit sworn by Mr Andrew Muchina, an assistant general manager, the bank explains its policies and practices have never been designed to discriminate against any person with a disability, particularly the petitioner.
Instead, Mr Muchina argues, the policies “seek to protect the interests of its customers- current and prospective as well as remain compliant with the relevant laws, regulations and industry practices regulating the banking sector.”
“That noting that the petitioner was visually impaired, the respondent’s staff informed the petitioner of the respondent’s policies which are aimed at safeguarding the petitioner’s rights whilst being compliant with the Central Bank of Kenya’s risk management guidelines, 2013,” Mr Muchina says in papers drawn and filed by Archer and Wilcock advocates.
“The petitioner has failed to demonstrate and show that the requirements of the power of attorney and/or deed of indemnity have infringed upon his constitutional rights and the loss he has suffered,” Mr Muchina adds.
The bank has also protested that the petitioner is relying on ‘illegally obtained and inadmissible evidence in order to lodge a discrimination claim contrary to the law.”
According to the bank, in the course of discussions with the petitioner, he without the knowledge of bank staff “recorded the conversations during which personal information was shared with the petitioner in a bid to explain the respondent’s policies to him.”
“The respondent shall seek to have such recordings expunged from the court record as the same is inadmissible for lack of express consent from the data subject as required by law,” Mr Muchina says.
