1. The petition against the respondent is dated 6th October 2022. It was subsequently amended on 28th June 2024. The petitioner seeks several declaratory and consequential orders against the respondent arising from the closure and restriction of his bank accounts based on alleged sanctions issued by the Office of Foreign Assets Control (OFAC). He contended that the respondent’s decision to compel him to close his US dollar account and to block two transactions amounting to Kshs.1,000,000/= and Kshs.2,250,000/= from his Kenya Shillings account was unconstitutional and violated his fundamental rights under Articles 27, 28, 40, 46 and 47 of the Constitution of Kenya. He contended that the sanctions, Rules and Regulations issued by the OFAC, a body under the United States Department of the Treasury, have no legal application in Kenya and should not govern the operation of his bank accounts held with the respondent.
2. The petitioner further seeks a declaration that the respondent’s refusal to provide reasons for blocking the transactions and its continued withholding of the sums in question infringed his constitutional rights, including his right to property and fair administrative action. He also seeks a declaration that the operation of his bank accounts is governed solely by Kenyan law and the regulatory framework of the Central Bank of Kenya, and not by the laws or administrative decisions of the United States Government or the OFAC. Additionally, he prays for a declaration that the respondent’s implementation of OFAC directives is both unconstitutional and a breach of the contractual relationship between the parties herein.
3. The petitioner also prays for an order of judicial review in the nature of mandamus, compelling the respondent to reimburse the withheld sums of Kshs.1,000,000/= and Kshs.2,250,000/= by crediting them into his account. He also seeks an order for compensation, for damages occasioned by the alleged embarrassment and inconvenience caused by the denial of access to his funds, the forced closure of his US dollar account, and the unexplained blocking and withholding of the transactions and interest on the awarded sums at Court rates from 22nd December 2020 until payment in full.
4. The petition herein is premised on the grounds on the face of it, and it is supported by an affidavit sworn on 6th October 2022 by Dr. Martin Elia Lomuro, the petitioner herein. Dr. Lomuro averred that he served as the Minister for Cabinet Affairs in the Government of South Sudan, having been appointed in July 2013 by the President of South Sudan, Salva Kiir Mayardit. Dr. Lomuro further stated that he is a Member of Parliament representing Lainya County, the Chairman of the South Sudan Democratic Forum Party and the Principal of the National Agenda Group of political parties.
5. Dr. Lomuro deposed that in 2017, he temporarily relocated his family to Nairobi, Kenya, to enable his wife, Rejah Keji Ladu Kenyi, to undergo specialized medical treatment and attend follow-up care at the Nairobi Hospital. He averred that since his official duties required him to remain in South Sudan, he opened two bank accounts in September 2017, a US dollar account and a Kenya Shillings account with the Co-operative Bank of Kenya Limited (respondent), to facilitate financial support for his family and for his personal use when visiting Kenya.
6. He further averred that he also maintained accounts with the Co-operative Bank of South Sudan in Juba, an affiliate of the respondent. He asserted that the said accounts were operated without difficulty until December 2019 when the Office of Foreign Assets Control (OFAC) of the United States Department of the Treasury imposed sanctions against him and General Kuol Manyang Juuk, alleging their involvement in activities that prolonged the conflict in South Sudan.
7. He denied the allegations and contended that the sanctions were politically motivated and intended to influence the governance of South Sudan. He stated that following the imposition of the said sanctions, he was unable to operate his US dollar account at the respondent’s Cooperative House branch in Nairobi and he was informed by bank officials that he could only transact through his Kenya Shillings account. He stated that he was further advised that the only way to access the funds in the US dollar account was to close it and transfer the funds into the Kenya Shillings account.
8. Dr. Lomuro averred that as a consequence thereof, he was compelled to close the US dollar account in December 2019, and he continued to operate the Kenya Shillings account until December 2020, when he initiated two transactions; being a transfer of Kshs.1,000,000/= to Nigeria through Western Union for the purchase of Christmas gifts, and a transfer of Kshs.2,250,000/= to Rev. Dr. Elizabeth Ann King in Ghana for the benefit of his daughter, Nyarju Lemi Lomuro. He further averred that although the said sums were debited from his account, the transactions were blocked without explanation and the funds were not credited back into his account.
9. He claimed that in February 2021, he was informed that he could not withdraw funds from the account due to an Order issued by the High Court of Kenya at the instance of the Assets Recovery Agency, freezing the account on allegations that the funds were proceeds of money laundering. The petitioner deposed that he challenged the said Order and that a consent recorded on 15th September 2021 confirmed that the Agency was satisfied with the legitimacy of the funds and lifted the freezing Order.
10. He stated that subsequently, his Advocates demanded that the respondent provides an explanation for the cancellation or failure to complete the two transfers, and to immediately credit the equivalent sums back into his account, but the respondent maintained that the transactions had been blocked by Western Union and its correspondent bank pursuant to OFAC Rules and that the funds had been placed in a blocked account pending authorization from the relevant regulatory agency before they could be released. Dr. Lomuro disputed this explanation, noting that only one of the transactions had been conducted through the Western Union, while the other was processed directly through the respondent bank to Zenith Bank (Ghana) Limited. He maintained that he was never informed of the reasons for the blocking or the procedure for the recovery of the funds, although a bank officer informed him that he was not authorized to carry out cross-border payments because he had been sanctioned by the United States Government.
11. Dr. Lomuro contended that the respondent’s actions contravened several provisions of the Constitution of Kenya, including Articles 2, 27, 28, 40, 46 and 47. He asserted that compelling him to close his US dollar account, blocking the transactions without explanation and withholding the debited funds on the basis of OFAC sanctions amounted to unconstitutional conduct, discrimination and an infringement of his dignity, property rights and consumer rights, as well as a violation of his right to fair administrative action. He further contended that the respondent’s actions contravened the Banking Act, which requires banks operating in Kenya to conduct their business in accordance with the laws of Kenya and under the regulatory authority of the Central Bank of Kenya.
12. Dr. Lomuro averred that the respondent’s reliance on OFAC sanctions and its refusal to release his funds without authorization from a foreign regulatory body, effectively subjected the operation of his Kenyan bank accounts to foreign regulations that have no legal application in Kenya.
13. In opposition to the petition, the respondent filed a replying affidavit sworn on 5th November 2022 by Mr. Lewis Mbae, a Branch Manager at the respondent’s Lavington Mall Branch. Mr. Mbae confirmed that the petitioner opened two accounts with the respondent on 7th September 2017 at the Cooperative House Branch in Nairobi, namely a US dollar account and a Kenya Shillings account. He averred that on 24th December 2019, the petitioner issued written instructions requesting for the closure of the US dollar account and for transfer of the proceeds therein to the Kenya Shillings account, which instructions the respondent executed. That thereafter, the petitioner continued to operate the Kenya Shillings account without difficulty. He stated that on or about 22nd December 2020, the respondent while acting on the petitioner’s instructions, initiated two international transfers of Kshs.1,000,000/= to Nigeria through Western Union for the purchase of Christmas gifts, and Kshs.2,250,000/= to Rev. Dr. Elizabeth Ann King in Ghana.
14. He explained that on 8th January 2021, the Western Union informed the respondent that it was required to comply with regulations issued by the Office of Foreign Assets Control of the United States Department of the Treasury, and that the petitioner’s name matched that of an individual on a sanctions-list, necessitating further verification and the temporary blocking of the transactions until authorization could be obtained from the regulatory authority.
15. He stated that the petitioner had acknowledged in his affidavit that sanctions had been imposed against him by the OFAC, which led to his US dollar account being flagged and may have prompted his decision to close that account. Mr. Mbae asserted that the respondent informed the petitioner of the position communicated by the Western Union and advised him to apply for an exemption license from the OFAC, so that the funds could be released and the transactions completed, but the petitioner declined to follow the said advice and instead threatened litigation against the respondent.
16. Mr. Mbae averred that before the issue could be resolved, the respondent was served on 4th June 2021 with an Order issued by the High Court of Kenya, Anti-Corruption and Economic Crimes Division, in proceedings initiated by the Assets Recovery Agency, freezing the petitioner’s Kenya Shillings account on allegations that the funds were proceeds of a complex international money laundering scheme. He stated that the bank complied with the Order and froze the account until 17th September 2021, when a consent Order recorded before the Court lifted the freezing Order, which the respondent also complied with.
17. Mr. Mbae further averred that the petitioner’s Advocates later issued a demand for the refund of USD 28,000.00 and damages for breach of contract, to which the respondent responded by clarifying that the USD 20,000.00 transaction had been processed through the Society for Worldwide Interbank Financial Telecommunication (SWIFT) system and had been blocked by the respondent’s correspondent bank pursuant to OFAC Regulations.
18. Mr. Mbae asserted that international money transfers involve intermediary institutions such as correspondent banks and money transfer platforms that are subject to international compliance obligations, including OFAC screening requirements. He maintained that the respondent repeatedly informed the petitioner that the transactions were blocked by the Western Union and the respondent’s correspondent bank due to OFAC sanctions, and that the relevant regulations require blocked funds to be held in a designated account until authorization is obtained from the regulatory authority.
19. Mr. Mbae maintained that the respondent acted lawfully, in good faith and in compliance with its legal and regulatory obligations, and that it cannot determine the legality or applicability of OFAC sanctions. He stated that the petitioner declined to obtain the exemption license that would have enabled the transactions to proceed, despite being advised to do so. He contended that the instant petition raises no valid constitutional issues and amounts to an abuse of the Court process.
20. The petition herein was canvassed by way of written submissions that were highlighted on 22nd September 2025 and 10th November 2025. The petitioner’s submissions were filed by the law firm of Kogweno & Bubi Advocates LLP on 18th January 2025 & 10th April 2025, whereas the respondent’s submissions were filed on 6th March 2025 by the law firm of Waweru Gatonye & Company Advocates.
21. Ms Bubi, learned Counsel for the petitioner submitted that the petitioner’s principal complaint is that the respondent unlawfully applied the sanctions regime administered by the OFAC of the United States Department of the Treasury to regulate its banker-customer relationship with him, in Kenya. She argued that the OFAC administers economic and trade sanctions pursuant to United States legislation, including the International Emergency Economic Powers Act and the Trading with the Enemy Act, and through executive actions such as Executive Order 13664 issued by Barack Obama. She confirmed that sanctions were imposed against the petitioner by OFAC on 16th December 2019, pursuant to that Executive Order. Counsel asserted that the aforesaid instruments are neither rules of international law nor treaties ratified by Kenya within the meaning of Articles 2(5) & (6) of the Constitution, and as such, they cannot have legal force within Kenya. To buttress these submissions, Counsel relied on the Supreme Court case of Ingang’a & 6 others v James Finlay (Kenya) Limited [2023] KESC 22 (KLR).
22. Ms Bubi contended that the respondent’s reliance on OFAC sanctions to compel him to close his US dollar account and to block certain transactions was unconstitutional and contrary to Kenyan law governing banking operations. She submitted that the respondent’s actions violated several provisions of the Constitution including his right to equality and freedom from discrimination under Article 27, and his right to dignity under Article 28, arguing that after the OFAC sanctions were issued, officers of the respondent declined to engage with him, compelled him to close his US dollar account, and denied him the ability to conduct cross-border transactions solely on account of the sanctions imposed by the United States Government. She cited the case of Mutuku Ndambuki Matingi v Rafiki Microfinance Bank Limited [2021] KEHC 9059 (KLR), and stated that the said restrictions were not imposed on other customers, and that their imposition against the petitioner, amounted to discriminatory treatment.
23. Counsel relied on the case of Allianz Savings v Attorney General & 2 others [2022] KEHC 13239 (KLR), and submitted that the respondent’s continued withholding of the sums of Kshs.1,000,000/= and Kshs.2,250,000/= violated his right to property protected under Article 40 of the Constitution. She maintained that the respondent cannot rely on foreign sanctions’ laws to justify depriving the petitioner of access to his funds, particularly, where no Kenyan statute authorizes such action.
24. Ms Bubi argued that the respondent violated the petitioner’s consumer rights under Article 46 of the Constitution and breached the contractual terms governing the banking relationship. She further submitted that the respondent’s General Terms and Conditions expressly provide that the relationship between the respondent and its customers is governed by the laws of Kenya, and that Kenyan law prevails in the event of any conflict.
25. She referred to the Court of Appeal case of National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & another [2001] KECA 362 (KLR), and contended that reliance on the OFAC Rules constituted both a breach of contract and a violation of the consumer’s right to information and protection of economic interests. Ms Bubi stated that the respondent violated the petitioner’s rights to fair administrative action under Article 47 of the Constitution and the Fair Administrative Action Act. She argued that the respondent made several administrative decisions including compelling the closure of the petitioner’s US dollar account, blocking two international transactions, and withholding the funds in issue without prior notice, without giving him an opportunity to be heard, and without providing written reasons as required by law.
26. Counsel urged this Court to find that the petitioner’s constitutional rights were violated and to grant the reliefs sought in the amended petition. In support of an award for damages for constitutional violations, Counsel referred to the cases of Moses Kipkoech Rotich v Kenya National Highways Authority & 7 others [2018] KEHC 2767 (KLR) and Eunice Nganga v Higher Education Loans Board & 2 others [2020] KEHC 2471 (KLR).
27. Mr. Wanga, learned Counsel for the respondent submitted that the petitioner’s grievance essentially arises from sanctions imposed on him by the OFAC of the United States Department of the Treasury on 16th December 2019. He stated that the sanctions were issued against the petitioner and Kuol Manyang Juuk, a former Defence Minister for South Sudan, for allegedly being responsible for, or being complicit to actions that prolonged the conflict in South Sudan or obstructed peace and reconciliation efforts. He asserted that the said sanctions had consequences for international financial transfers involving institutions subject to OFAC Regulations, which explains the challenges encountered in the two cross-border transactions that form the subject of this petition. Counsel denied that the respondent violated the petitioner’s rights under Article 2(4) of the Constitution or acted in contravention of any constitutional provisions.
28. He argued that the circumstances must be viewed within the context of the OFAC sanctions admitted by the petitioner, which resulted in his US dollar account being flagged by the OFAC and being rendered inoperable. Mr. Wanga maintained that the respondent acted strictly in accordance with the petitioner’s instructions by initiating two international transfers being Kshs.1,000,000/= to Nigeria through Western Union, and Kshs.2,250,000/= to Ghana through a SWIFT transfer. He submitted that these transactions involved international banking systems and intermediary institutions, including the correspondent bank Citibank N.A. Counsel explained that international funds transfers typically involve correspondent banking relationships and intermediary institutions and may be governed by multiple legal regimes. He stated that the cross-border payments are transmitted through SWIFT, a global messaging network used by banks to communicate payment instructions.
29. Mr. Wanga contended that the bank did not apply or enforce OFAC Regulations against the petitioner, as the transfers were blocked by intermediary institutions, namely the Western Union and the correspondent bank, Citibank, whose operations are governed by the United States law and OFAC Regulations. He asserted that the Western Union notified the respondent that the funds had been blocked in compliance with the OFAC Rules and that the petitioner could recover the funds by applying for an OFAC license, authorizing the release of the blocked funds. He stated that the respondent relayed this information to the petitioner, but he declined to follow the prescribed procedure and instead elected to pursue litigation.
30. Counsel submitted that the above mentioned intermediaries have legal obligations under international financial regulations to prevent transactions involving sanctioned individuals and to hold such funds in blocked accounts until regulatory authorization is obtained. He cited the case of B v Attorney General [2004] KEHC 2605 (KLR), and argued that Kenyan banks rely on such institutions to facilitate cross-border payments, and that declaring the OFAC Regulations unconstitutional would be futile because Kenyan Courts cannot compel foreign institutions governed by foreign laws to act contrary to those laws.
31. Mr. Wanga relied on the case of Jacqueline Okeyo Manani & 5 others v Attorney General & another [2018] KEHC 9395 (KLR), and submitted that the petitioner’s claims of discrimination and violation of dignity under Articles 27 & 28 of the Constitution are unfounded, since the petitioner voluntarily instructed the respondent vide a letter dated 24th December 2019, to close his US dollar account and transfer the funds to his Kenya Shillings account. In regard to the alleged violation of the right to property under Article 40 and the rights under Articles 46 & 47 of the Constitution, Mr. Wanga submitted that the respondent did not freeze the petitioner’s account or unlawfully withhold his funds. He submitted that the funds were blocked by intermediary institutions due to OFAC sanctions, and the petitioner was duly informed of the procedure required to recover the money.
32. He argued that the case of Allianz Savings v Attorney General & 2 others (supra), cited by the petitioner is distinguishable from this case, since in that case, the accounts had been frozen by Kenyan authorities despite the completion of investigations, whereas in this case the respondent merely initiated the transactions and the blockage occurred outside its control.
33. Mr. Wanga emphasized that international cooperation in combating money laundering and terrorism financing is recognized under Kenyan law, including the Proceeds of Crime and Anti-Money Laundering Act, which provides for international assistance in investigations and proceedings.
34. On the issue of fair administrative action under Article 47 of the Constitution, Counsel maintained that no administrative decision was taken against the petitioner, as it acted on the petitioner’s instructions and communicated promptly with him when intermediary institutions indicated that the transfers had been blocked. In submitting that fairness under Article 47 of the Constitution must be considered within the context of the applicable statutory and institutional framework, Mr. Wanga relied on the case of Dry Associates Limited v Capital Markets Authority & another; Crown Berger (K) Ltd [2012] KEHC 5568 (KLR) and the Court of Appeal case of Judicial Service Commission v Mutava & another [2015] KECA 741 (KLR).
35. In a rejoinder, Ms Bubi submitted that the relationship between the parties herein is purely contractual and governed by the General Terms and Conditions issued at the time the petitioner opened the bank accounts in question. She argued that those terms do not provide that the respondent’s intermediaries would be parties to the contract, and they do not entitle the petitioner to pursue such intermediaries in the event of breach. She asserted that the obligations arising from the banker-customer relationship rest solely between the parties herein. Relying on the doctrine of privity of contract and the Court of Appeal case of Savings & Loan (K) Limited v Kanyenje Karangaita Gakombe & another [2015] KECA 784 (KLR), Counsel stated that a contract affects only the parties to it and cannot be enforced by or against a non-party.
36. Ms Bubi submitted that the respondent’s reliance on intermediary institutions does not alter the contractual position, as such a relationship exists strictly between financial institutions and not between an individual customer and a correspondent bank. She contended that the relationship between the respondent and its intermediaries is based on separate and independent contracts to which the petitioner was not a party, and in respect of which he has no enforcement rights. She further argued that even if the respondent’s intermediaries are bound by the laws and regulations of the OFAC of the United States Department of the Treasury, such laws cannot automatically apply to the contractual relationship between the respondent and its customers unless expressly incorporated into their Agreement. She asserted that the respondent’s reliance on foreign regulations to justify withholding the petitioner’s funds merely to preserve business relationships with international intermediaries, amounts to the unconstitutional application of foreign law.
37. Ms Bubi referred to Part XII of the Proceeds of Crime and Anti-Money Laundering Act relied on by the respondent, and submitted that those provisions merely outline procedures for mutual legal assistance between Kenya and foreign states in the investigation of offences and do not incorporate or apply the laws of the United States of America or the OFAC regulatory regime. She further submitted that the OFAC framework was not established to combat global money laundering, but to enforce economic and trade sanctions in support of United States national security and foreign policy objectives.
ANALYSIS AND DETERMINATION.
38. I have carefully considered the petition herein, and the affidavit filed in support thereof. I have also considered the replying affidavit filed by the respondent and the written submissions by Counsel for the parties. The issues that arise for determination are –
i) Whether the respondent’s actions in closing the petitioner’s US dollar account, its alleged blocking of two international transactions amounting to Kshs.3,250,000/=, and withholding the said funds violated the petitioner’s constitutional rights under Articles 27, 28, 40, 46 and 47, including the requirement for fair administrative action;
ii) Whether the respondent was entitled to rely on OFAC sanctions issued by the United States Department of the Treasury in regulating its banking relationship with the petitioner in Kenya, and whether Part XII of the Proceeds of Crime and Anti-Money Laundering Act has any bearing in the application of such foreign sanctions;
iii) Whether the respondent acted in accordance with Kenyan banking law and the regulatory framework of the Central Bank of Kenya in handling the petitioner’s accounts and international transactions, including consideration of prior freezing orders by the Assets Recovery Agency; and
iv) Whether the petitioner is entitled to the reliefs sought.
Whether the respondent’s alleged actions in closing the petitioner’s US dollar account, its alleged blocking of two international transactions amounting Kshs.3,250,000/=, and withholding the said funds violated the petitioner’s constitutional rights under Articles 27, 28, 40, 46 and 47, including the requirement for fair administrative action.
39. The petitioner contended that the respondent’s actions amounted to discrimination, infringement of his right to dignity and property, and a violation of his right to fair administrative action. The respondent on the other hand averred that the actions complained of were undertaken in compliance with the petitioner’s own instructions and in accordance with lawful obligations imposed by intermediary institutions involved in the transactions, without any independent decision on its part to deny the petitioner his rights or to discriminate against him.
40. In instances where a bank acts in accordance with the express instructions of its customer, such conduct cannot amount to a violation of constitutional rights. Upon perusal of the evidence annexed to the respondent’s replying affidavit, the respondent produced a letter dated 24th December 2019 written by the petitioner instructing the respondent to close his US dollar account with immediate effect, and transfer all the proceeds therein, to his local currency account.
41. This Court notes that apart from alleging that he was coerced into closing his US dollar account, the petitioner has not adduced any evidence in support of the said assertion. Furthermore, the petitioner has neither disowned the letter dated 24th December 2019 nor alleged that the signature appearing on it, is not his. The petitioner has also not claimed that the funds held in the said account were not transferred to his Kenya Shillings account. In the absence of such evidence, the respondent’s actions in closing the petitioner’s US dollar account were plainly undertaken in compliance with the petitioner’s own instructions, and not at the whims of the respondent.
42. On the question of whether the respondent blocked two international transactions amounting to Kshs.3,250,000/= and withheld the funds, the said amounts where cross-border transactions involving international banking systems and intermediary institutions. Such transactions are ordinarily governed by multiple legal regimes. It is common knowledge that in international cross-border transactions, payments are transmitted through the SWIFT system, and the role of the local bank is generally limited to initiating the transfer, which the respondent duly performed in this case.
43. A review of the annexures to the respondent’s replying affidavit reveals an email dated 8th January 2021 from the Western Union addressed to the respondent. In that email, the Western Union informed the respondent that upon reviewing the transfer of Kshs.1,000,000/= to Nigeria, the transaction had to be placed on hold in accordance with the regulations of the Office of Foreign Assets Control. The Western Union further indicated that the applicable regulations required the funds to be blocked and deposited into a designated regulatory account. The Western Union also stated that it would notify the petitioner of the blockage and provide guidance on the procedure to be followed for the release of the funds. In their operations, financial institutions are required to comply with applicable regulatory obligations, including international sanctions and anti-money laundering requirements.
44. The evidence adduced by the respondent demonstrates that it communicated the information received from the Western Union to the petitioner. The petitioner however opted to pursue this matter before the Court. Under Article 47 of the Constitution of Kenya, the right to fair administrative action is not breached where an entity acts in accordance with statutory or contractual obligations and provides reasonable notice and information regarding the circumstances giving rise to the impugned action, as was done in this case.
45. This Court is ther
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2. The petitioner further seeks a declaration that the respondent’s refusal to provide reasons for blocking the transactions and its continued withholding of the sums in question infringed his constitutional rights, including his right to property and fair administrative action. He also seeks a declaration that the operation of his bank accounts is governed solely by Kenyan law and the regulatory framework of the Central Bank of Kenya, and not by the laws or administrative decisions of the United States Government or the OFAC. Additionally, he prays for a declaration that the respondent’s implementation of OFAC directives is both unconstitutional and a breach of the contractual relationship between the parties herein.
3. The petitioner also prays for an order of judicial review in the nature of mandamus, compelling the respondent to reimburse the withheld sums of Kshs.1,000,000/= and Kshs.2,250,000/= by crediting them into his account. He also seeks an order for compensation, for damages occasioned by the alleged embarrassment and inconvenience caused by the denial of access to his funds, the forced closure of his US dollar account, and the unexplained blocking and withholding of the transactions and interest on the awarded sums at Court rates from 22nd December 2020 until payment in full.
4. The petition herein is premised on the grounds on the face of it, and it is supported by an affidavit sworn on 6th October 2022 by Dr. Martin Elia Lomuro, the petitioner herein. Dr. Lomuro averred that he served as the Minister for Cabinet Affairs in the Government of South Sudan, having been appointed in July 2013 by the President of South Sudan, Salva Kiir Mayardit. Dr. Lomuro further stated that he is a Member of Parliament representing Lainya County, the Chairman of the South Sudan Democratic Forum Party and the Principal of the National Agenda Group of political parties.
5. Dr. Lomuro deposed that in 2017, he temporarily relocated his family to Nairobi, Kenya, to enable his wife, Rejah Keji Ladu Kenyi, to undergo specialized medical treatment and attend follow-up care at the Nairobi Hospital. He averred that since his official duties required him to remain in South Sudan, he opened two bank accounts in September 2017, a US dollar account and a Kenya Shillings account with the Co-operative Bank of Kenya Limited (respondent), to facilitate financial support for his family and for his personal use when visiting Kenya.
6. He further averred that he also maintained accounts with the Co-operative Bank of South Sudan in Juba, an affiliate of the respondent. He asserted that the said accounts were operated without difficulty until December 2019 when the Office of Foreign Assets Control (OFAC) of the United States Department of the Treasury imposed sanctions against him and General Kuol Manyang Juuk, alleging their involvement in activities that prolonged the conflict in South Sudan.
7. He denied the allegations and contended that the sanctions were politically motivated and intended to influence the governance of South Sudan. He stated that following the imposition of the said sanctions, he was unable to operate his US dollar account at the respondent’s Cooperative House branch in Nairobi and he was informed by bank officials that he could only transact through his Kenya Shillings account. He stated that he was further advised that the only way to access the funds in the US dollar account was to close it and transfer the funds into the Kenya Shillings account.
8. Dr. Lomuro averred that as a consequence thereof, he was compelled to close the US dollar account in December 2019, and he continued to operate the Kenya Shillings account until December 2020, when he initiated two transactions; being a transfer of Kshs.1,000,000/= to Nigeria through Western Union for the purchase of Christmas gifts, and a transfer of Kshs.2,250,000/= to Rev. Dr. Elizabeth Ann King in Ghana for the benefit of his daughter, Nyarju Lemi Lomuro. He further averred that although the said sums were debited from his account, the transactions were blocked without explanation and the funds were not credited back into his account.
9. He claimed that in February 2021, he was informed that he could not withdraw funds from the account due to an Order issued by the High Court of Kenya at the instance of the Assets Recovery Agency, freezing the account on allegations that the funds were proceeds of money laundering. The petitioner deposed that he challenged the said Order and that a consent recorded on 15th September 2021 confirmed that the Agency was satisfied with the legitimacy of the funds and lifted the freezing Order.
10. He stated that subsequently, his Advocates demanded that the respondent provides an explanation for the cancellation or failure to complete the two transfers, and to immediately credit the equivalent sums back into his account, but the respondent maintained that the transactions had been blocked by Western Union and its correspondent bank pursuant to OFAC Rules and that the funds had been placed in a blocked account pending authorization from the relevant regulatory agency before they could be released. Dr. Lomuro disputed this explanation, noting that only one of the transactions had been conducted through the Western Union, while the other was processed directly through the respondent bank to Zenith Bank (Ghana) Limited. He maintained that he was never informed of the reasons for the blocking or the procedure for the recovery of the funds, although a bank officer informed him that he was not authorized to carry out cross-border payments because he had been sanctioned by the United States Government.
11. Dr. Lomuro contended that the respondent’s actions contravened several provisions of the Constitution of Kenya, including Articles 2, 27, 28, 40, 46 and 47. He asserted that compelling him to close his US dollar account, blocking the transactions without explanation and withholding the debited funds on the basis of OFAC sanctions amounted to unconstitutional conduct, discrimination and an infringement of his dignity, property rights and consumer rights, as well as a violation of his right to fair administrative action. He further contended that the respondent’s actions contravened the Banking Act, which requires banks operating in Kenya to conduct their business in accordance with the laws of Kenya and under the regulatory authority of the Central Bank of Kenya.
12. Dr. Lomuro averred that the respondent’s reliance on OFAC sanctions and its refusal to release his funds without authorization from a foreign regulatory body, effectively subjected the operation of his Kenyan bank accounts to foreign regulations that have no legal application in Kenya.
13. In opposition to the petition, the respondent filed a replying affidavit sworn on 5th November 2022 by Mr. Lewis Mbae, a Branch Manager at the respondent’s Lavington Mall Branch. Mr. Mbae confirmed that the petitioner opened two accounts with the respondent on 7th September 2017 at the Cooperative House Branch in Nairobi, namely a US dollar account and a Kenya Shillings account. He averred that on 24th December 2019, the petitioner issued written instructions requesting for the closure of the US dollar account and for transfer of the proceeds therein to the Kenya Shillings account, which instructions the respondent executed. That thereafter, the petitioner continued to operate the Kenya Shillings account without difficulty. He stated that on or about 22nd December 2020, the respondent while acting on the petitioner’s instructions, initiated two international transfers of Kshs.1,000,000/= to Nigeria through Western Union for the purchase of Christmas gifts, and Kshs.2,250,000/= to Rev. Dr. Elizabeth Ann King in Ghana.
14. He explained that on 8th January 2021, the Western Union informed the respondent that it was required to comply with regulations issued by the Office of Foreign Assets Control of the United States Department of the Treasury, and that the petitioner’s name matched that of an individual on a sanctions-list, necessitating further verification and the temporary blocking of the transactions until authorization could be obtained from the regulatory authority.
15. He stated that the petitioner had acknowledged in his affidavit that sanctions had been imposed against him by the OFAC, which led to his US dollar account being flagged and may have prompted his decision to close that account. Mr. Mbae asserted that the respondent informed the petitioner of the position communicated by the Western Union and advised him to apply for an exemption license from the OFAC, so that the funds could be released and the transactions completed, but the petitioner declined to follow the said advice and instead threatened litigation against the respondent.
16. Mr. Mbae averred that before the issue could be resolved, the respondent was served on 4th June 2021 with an Order issued by the High Court of Kenya, Anti-Corruption and Economic Crimes Division, in proceedings initiated by the Assets Recovery Agency, freezing the petitioner’s Kenya Shillings account on allegations that the funds were proceeds of a complex international money laundering scheme. He stated that the bank complied with the Order and froze the account until 17th September 2021, when a consent Order recorded before the Court lifted the freezing Order, which the respondent also complied with.
17. Mr. Mbae further averred that the petitioner’s Advocates later issued a demand for the refund of USD 28,000.00 and damages for breach of contract, to which the respondent responded by clarifying that the USD 20,000.00 transaction had been processed through the Society for Worldwide Interbank Financial Telecommunication (SWIFT) system and had been blocked by the respondent’s correspondent bank pursuant to OFAC Regulations.
18. Mr. Mbae asserted that international money transfers involve intermediary institutions such as correspondent banks and money transfer platforms that are subject to international compliance obligations, including OFAC screening requirements. He maintained that the respondent repeatedly informed the petitioner that the transactions were blocked by the Western Union and the respondent’s correspondent bank due to OFAC sanctions, and that the relevant regulations require blocked funds to be held in a designated account until authorization is obtained from the regulatory authority.
19. Mr. Mbae maintained that the respondent acted lawfully, in good faith and in compliance with its legal and regulatory obligations, and that it cannot determine the legality or applicability of OFAC sanctions. He stated that the petitioner declined to obtain the exemption license that would have enabled the transactions to proceed, despite being advised to do so. He contended that the instant petition raises no valid constitutional issues and amounts to an abuse of the Court process.
20. The petition herein was canvassed by way of written submissions that were highlighted on 22nd September 2025 and 10th November 2025. The petitioner’s submissions were filed by the law firm of Kogweno & Bubi Advocates LLP on 18th January 2025 & 10th April 2025, whereas the respondent’s submissions were filed on 6th March 2025 by the law firm of Waweru Gatonye & Company Advocates.
21. Ms Bubi, learned Counsel for the petitioner submitted that the petitioner’s principal complaint is that the respondent unlawfully applied the sanctions regime administered by the OFAC of the United States Department of the Treasury to regulate its banker-customer relationship with him, in Kenya. She argued that the OFAC administers economic and trade sanctions pursuant to United States legislation, including the International Emergency Economic Powers Act and the Trading with the Enemy Act, and through executive actions such as Executive Order 13664 issued by Barack Obama. She confirmed that sanctions were imposed against the petitioner by OFAC on 16th December 2019, pursuant to that Executive Order. Counsel asserted that the aforesaid instruments are neither rules of international law nor treaties ratified by Kenya within the meaning of Articles 2(5) & (6) of the Constitution, and as such, they cannot have legal force within Kenya. To buttress these submissions, Counsel relied on the Supreme Court case of Ingang’a & 6 others v James Finlay (Kenya) Limited [2023] KESC 22 (KLR).
22. Ms Bubi contended that the respondent’s reliance on OFAC sanctions to compel him to close his US dollar account and to block certain transactions was unconstitutional and contrary to Kenyan law governing banking operations. She submitted that the respondent’s actions violated several provisions of the Constitution including his right to equality and freedom from discrimination under Article 27, and his right to dignity under Article 28, arguing that after the OFAC sanctions were issued, officers of the respondent declined to engage with him, compelled him to close his US dollar account, and denied him the ability to conduct cross-border transactions solely on account of the sanctions imposed by the United States Government. She cited the case of Mutuku Ndambuki Matingi v Rafiki Microfinance Bank Limited [2021] KEHC 9059 (KLR), and stated that the said restrictions were not imposed on other customers, and that their imposition against the petitioner, amounted to discriminatory treatment.
23. Counsel relied on the case of Allianz Savings v Attorney General & 2 others [2022] KEHC 13239 (KLR), and submitted that the respondent’s continued withholding of the sums of Kshs.1,000,000/= and Kshs.2,250,000/= violated his right to property protected under Article 40 of the Constitution. She maintained that the respondent cannot rely on foreign sanctions’ laws to justify depriving the petitioner of access to his funds, particularly, where no Kenyan statute authorizes such action.
24. Ms Bubi argued that the respondent violated the petitioner’s consumer rights under Article 46 of the Constitution and breached the contractual terms governing the banking relationship. She further submitted that the respondent’s General Terms and Conditions expressly provide that the relationship between the respondent and its customers is governed by the laws of Kenya, and that Kenyan law prevails in the event of any conflict.
25. She referred to the Court of Appeal case of National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & another [2001] KECA 362 (KLR), and contended that reliance on the OFAC Rules constituted both a breach of contract and a violation of the consumer’s right to information and protection of economic interests. Ms Bubi stated that the respondent violated the petitioner’s rights to fair administrative action under Article 47 of the Constitution and the Fair Administrative Action Act. She argued that the respondent made several administrative decisions including compelling the closure of the petitioner’s US dollar account, blocking two international transactions, and withholding the funds in issue without prior notice, without giving him an opportunity to be heard, and without providing written reasons as required by law.
26. Counsel urged this Court to find that the petitioner’s constitutional rights were violated and to grant the reliefs sought in the amended petition. In support of an award for damages for constitutional violations, Counsel referred to the cases of Moses Kipkoech Rotich v Kenya National Highways Authority & 7 others [2018] KEHC 2767 (KLR) and Eunice Nganga v Higher Education Loans Board & 2 others [2020] KEHC 2471 (KLR).
27. Mr. Wanga, learned Counsel for the respondent submitted that the petitioner’s grievance essentially arises from sanctions imposed on him by the OFAC of the United States Department of the Treasury on 16th December 2019. He stated that the sanctions were issued against the petitioner and Kuol Manyang Juuk, a former Defence Minister for South Sudan, for allegedly being responsible for, or being complicit to actions that prolonged the conflict in South Sudan or obstructed peace and reconciliation efforts. He asserted that the said sanctions had consequences for international financial transfers involving institutions subject to OFAC Regulations, which explains the challenges encountered in the two cross-border transactions that form the subject of this petition. Counsel denied that the respondent violated the petitioner’s rights under Article 2(4) of the Constitution or acted in contravention of any constitutional provisions.
28. He argued that the circumstances must be viewed within the context of the OFAC sanctions admitted by the petitioner, which resulted in his US dollar account being flagged by the OFAC and being rendered inoperable. Mr. Wanga maintained that the respondent acted strictly in accordance with the petitioner’s instructions by initiating two international transfers being Kshs.1,000,000/= to Nigeria through Western Union, and Kshs.2,250,000/= to Ghana through a SWIFT transfer. He submitted that these transactions involved international banking systems and intermediary institutions, including the correspondent bank Citibank N.A. Counsel explained that international funds transfers typically involve correspondent banking relationships and intermediary institutions and may be governed by multiple legal regimes. He stated that the cross-border payments are transmitted through SWIFT, a global messaging network used by banks to communicate payment instructions.
29. Mr. Wanga contended that the bank did not apply or enforce OFAC Regulations against the petitioner, as the transfers were blocked by intermediary institutions, namely the Western Union and the correspondent bank, Citibank, whose operations are governed by the United States law and OFAC Regulations. He asserted that the Western Union notified the respondent that the funds had been blocked in compliance with the OFAC Rules and that the petitioner could recover the funds by applying for an OFAC license, authorizing the release of the blocked funds. He stated that the respondent relayed this information to the petitioner, but he declined to follow the prescribed procedure and instead elected to pursue litigation.
30. Counsel submitted that the above mentioned intermediaries have legal obligations under international financial regulations to prevent transactions involving sanctioned individuals and to hold such funds in blocked accounts until regulatory authorization is obtained. He cited the case of B v Attorney General [2004] KEHC 2605 (KLR), and argued that Kenyan banks rely on such institutions to facilitate cross-border payments, and that declaring the OFAC Regulations unconstitutional would be futile because Kenyan Courts cannot compel foreign institutions governed by foreign laws to act contrary to those laws.
31. Mr. Wanga relied on the case of Jacqueline Okeyo Manani & 5 others v Attorney General & another [2018] KEHC 9395 (KLR), and submitted that the petitioner’s claims of discrimination and violation of dignity under Articles 27 & 28 of the Constitution are unfounded, since the petitioner voluntarily instructed the respondent vide a letter dated 24th December 2019, to close his US dollar account and transfer the funds to his Kenya Shillings account. In regard to the alleged violation of the right to property under Article 40 and the rights under Articles 46 & 47 of the Constitution, Mr. Wanga submitted that the respondent did not freeze the petitioner’s account or unlawfully withhold his funds. He submitted that the funds were blocked by intermediary institutions due to OFAC sanctions, and the petitioner was duly informed of the procedure required to recover the money.
32. He argued that the case of Allianz Savings v Attorney General & 2 others (supra), cited by the petitioner is distinguishable from this case, since in that case, the accounts had been frozen by Kenyan authorities despite the completion of investigations, whereas in this case the respondent merely initiated the transactions and the blockage occurred outside its control.
33. Mr. Wanga emphasized that international cooperation in combating money laundering and terrorism financing is recognized under Kenyan law, including the Proceeds of Crime and Anti-Money Laundering Act, which provides for international assistance in investigations and proceedings.
34. On the issue of fair administrative action under Article 47 of the Constitution, Counsel maintained that no administrative decision was taken against the petitioner, as it acted on the petitioner’s instructions and communicated promptly with him when intermediary institutions indicated that the transfers had been blocked. In submitting that fairness under Article 47 of the Constitution must be considered within the context of the applicable statutory and institutional framework, Mr. Wanga relied on the case of Dry Associates Limited v Capital Markets Authority & another; Crown Berger (K) Ltd [2012] KEHC 5568 (KLR) and the Court of Appeal case of Judicial Service Commission v Mutava & another [2015] KECA 741 (KLR).
35. In a rejoinder, Ms Bubi submitted that the relationship between the parties herein is purely contractual and governed by the General Terms and Conditions issued at the time the petitioner opened the bank accounts in question. She argued that those terms do not provide that the respondent’s intermediaries would be parties to the contract, and they do not entitle the petitioner to pursue such intermediaries in the event of breach. She asserted that the obligations arising from the banker-customer relationship rest solely between the parties herein. Relying on the doctrine of privity of contract and the Court of Appeal case of Savings & Loan (K) Limited v Kanyenje Karangaita Gakombe & another [2015] KECA 784 (KLR), Counsel stated that a contract affects only the parties to it and cannot be enforced by or against a non-party.
36. Ms Bubi submitted that the respondent’s reliance on intermediary institutions does not alter the contractual position, as such a relationship exists strictly between financial institutions and not between an individual customer and a correspondent bank. She contended that the relationship between the respondent and its intermediaries is based on separate and independent contracts to which the petitioner was not a party, and in respect of which he has no enforcement rights. She further argued that even if the respondent’s intermediaries are bound by the laws and regulations of the OFAC of the United States Department of the Treasury, such laws cannot automatically apply to the contractual relationship between the respondent and its customers unless expressly incorporated into their Agreement. She asserted that the respondent’s reliance on foreign regulations to justify withholding the petitioner’s funds merely to preserve business relationships with international intermediaries, amounts to the unconstitutional application of foreign law.
37. Ms Bubi referred to Part XII of the Proceeds of Crime and Anti-Money Laundering Act relied on by the respondent, and submitted that those provisions merely outline procedures for mutual legal assistance between Kenya and foreign states in the investigation of offences and do not incorporate or apply the laws of the United States of America or the OFAC regulatory regime. She further submitted that the OFAC framework was not established to combat global money laundering, but to enforce economic and trade sanctions in support of United States national security and foreign policy objectives.
ANALYSIS AND DETERMINATION.
38. I have carefully considered the petition herein, and the affidavit filed in support thereof. I have also considered the replying affidavit filed by the respondent and the written submissions by Counsel for the parties. The issues that arise for determination are –
i) Whether the respondent’s actions in closing the petitioner’s US dollar account, its alleged blocking of two international transactions amounting to Kshs.3,250,000/=, and withholding the said funds violated the petitioner’s constitutional rights under Articles 27, 28, 40, 46 and 47, including the requirement for fair administrative action;
ii) Whether the respondent was entitled to rely on OFAC sanctions issued by the United States Department of the Treasury in regulating its banking relationship with the petitioner in Kenya, and whether Part XII of the Proceeds of Crime and Anti-Money Laundering Act has any bearing in the application of such foreign sanctions;
iii) Whether the respondent acted in accordance with Kenyan banking law and the regulatory framework of the Central Bank of Kenya in handling the petitioner’s accounts and international transactions, including consideration of prior freezing orders by the Assets Recovery Agency; and
iv) Whether the petitioner is entitled to the reliefs sought.
Whether the respondent’s alleged actions in closing the petitioner’s US dollar account, its alleged blocking of two international transactions amounting Kshs.3,250,000/=, and withholding the said funds violated the petitioner’s constitutional rights under Articles 27, 28, 40, 46 and 47, including the requirement for fair administrative action.
39. The petitioner contended that the respondent’s actions amounted to discrimination, infringement of his right to dignity and property, and a violation of his right to fair administrative action. The respondent on the other hand averred that the actions complained of were undertaken in compliance with the petitioner’s own instructions and in accordance with lawful obligations imposed by intermediary institutions involved in the transactions, without any independent decision on its part to deny the petitioner his rights or to discriminate against him.
40. In instances where a bank acts in accordance with the express instructions of its customer, such conduct cannot amount to a violation of constitutional rights. Upon perusal of the evidence annexed to the respondent’s replying affidavit, the respondent produced a letter dated 24th December 2019 written by the petitioner instructing the respondent to close his US dollar account with immediate effect, and transfer all the proceeds therein, to his local currency account.
41. This Court notes that apart from alleging that he was coerced into closing his US dollar account, the petitioner has not adduced any evidence in support of the said assertion. Furthermore, the petitioner has neither disowned the letter dated 24th December 2019 nor alleged that the signature appearing on it, is not his. The petitioner has also not claimed that the funds held in the said account were not transferred to his Kenya Shillings account. In the absence of such evidence, the respondent’s actions in closing the petitioner’s US dollar account were plainly undertaken in compliance with the petitioner’s own instructions, and not at the whims of the respondent.
42. On the question of whether the respondent blocked two international transactions amounting to Kshs.3,250,000/= and withheld the funds, the said amounts where cross-border transactions involving international banking systems and intermediary institutions. Such transactions are ordinarily governed by multiple legal regimes. It is common knowledge that in international cross-border transactions, payments are transmitted through the SWIFT system, and the role of the local bank is generally limited to initiating the transfer, which the respondent duly performed in this case.
43. A review of the annexures to the respondent’s replying affidavit reveals an email dated 8th January 2021 from the Western Union addressed to the respondent. In that email, the Western Union informed the respondent that upon reviewing the transfer of Kshs.1,000,000/= to Nigeria, the transaction had to be placed on hold in accordance with the regulations of the Office of Foreign Assets Control. The Western Union further indicated that the applicable regulations required the funds to be blocked and deposited into a designated regulatory account. The Western Union also stated that it would notify the petitioner of the blockage and provide guidance on the procedure to be followed for the release of the funds. In their operations, financial institutions are required to comply with applicable regulatory obligations, including international sanctions and anti-money laundering requirements.
44. The evidence adduced by the respondent demonstrates that it communicated the information received from the Western Union to the petitioner. The petitioner however opted to pursue this matter before the Court. Under Article 47 of the Constitution of Kenya, the right to fair administrative action is not breached where an entity acts in accordance with statutory or contractual obligations and provides reasonable notice and information regarding the circumstances giving rise to the impugned action, as was done in this case.
45. This Court is ther
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