The Petitioner, a public interest litigant herein, filed a Petition dated 3 rd February, 2026 seeking the following reliefs;
A declaration that financial sector leadership positions are subject to Articles 10 and 73 constitutional integrity standards.
A declaration that the failure of industry leadership to foster governance accountability in banking-linked institutions violates constitutional principles of transparency and integrity.
A declaration that the Respondent's continued tenure undermines public confidence in financial sector governance.
An order that the Respondent steps aside pending sector governance review.
An order directing establishment of an independent financial sector governance audit framework.
An order compelling KBA to publish sector integrity and governance compliance guidelines.
An order requiring periodic public reporting on governance risk indicators within banking-linked institutions.
A declaration that financial industry bodies owe a constitutional duty to promote AML compliance culture.
An order directing adoption of sector-wide ethical oversight mechanisms.
Costs and any other orders in the public interest.
The Petition is supported by the affidavit of Francis Awino, sworn on the same date. The Petitioner avers that the Petition arose from systemic failures in financial governance and related matters at Kenya Bankers SACCO Society Ltd, which operated within an architecture influenced by the Kenya Bankers Association (KBA).
It is averred that the Respondent, as Managing Director of KBA, is responsible for promoting integrity, sound governance, risk management standards, ethical financial conduct, an anti-money laundering compliance culture, and sector accountability across Kenya’s banking ecosystem.
The Petitioner contends that between 2013 and 2025 the SACCO was embroiled in persistent financial irregularities, including the concealment of a KShs. 200,000,000 loan, off-book liabilities, impairment of projects exceeding hundreds of millions of shillings, fraudulent interest recognition, non-core investment losses, undisclosed guarantees, and financial misrepresentation affecting members' deposits and equity. The SACCO further engaged in single-sourced procurement, insider loan abuse, nepotism in employment, governance restructuring designed to suppress member oversight, discriminatory financial thresholds that barred ordinary members from leadership, and non-disclosure of audited financials to members.
The Petitioner further contends that the same occurred under the Respondent's leadership, during which the Respondent failed to raise sectoral red flags, issue governance advisories, promote compliance interventions, or publicly address emerging systemic governance risks affecting the institution.
It is his averment that the Respondent's continued tenure as Managing Director of KBA undermines public confidence in financial-sector leadership and is incompatible with the constitutional principles of integrity, accountability and responsible leadership, as set out in Articles 10 and 73 of the Constitution.
It is his contention that the Respondent violated Article 10 of the Constitution by failing to promote adherence to the constitutional values of integrity, transparency, accountability, good governance and sustainable economic management. He further contends that the Respondent also violated Article 73 of the Constitution by failing to actively safeguard institutional integrity despite glaring financial misconduct within the banking ecosystem. The Petitioner also argued that Articles 232, 46, 47 and 201(d) of the Constitution were violated.
It is his deposition that, by virtue of his actions and inactions, the Respondent ought to be removed or to step aside due to a loss of public confidence, failure of ethical stewardship, a breakdown of sector risk culture, institutional silence amid red flags, and incompatibility with the Article 73 leadership standards and the public interest imperative.
RESPONDENT’S REPONSE
The Petition was opposed by the Respondent, who filed a Replying Affidavit, sworn on 15th May, 2026, and Grounds of Opposition dated the same day.
In his Grounds of Opposition, the Respondent challenged the petition, arguing that it failed to disclose a cause of action against him in his personal capacity, as the alleged actions and omissions were committed by the Kenya Bankers Sacco Society Limited, a separate legal entity not party to these proceedings and to which the Respondent cannot be held personally liable.
That the Kenya Bankers Association and the Kenya Bankers Sacco Society Limited were separate and distinct legal entities, each with its own regulatory framework and governance structure, not intertwined, and that the petition was unsupported by any admissible evidence.
It was further stated that Articles 46, 73, 201(d) and 232 of the Constitution did not impose any enforceable legal duty or supervisory responsibility on the respondent in relation to the operations of the Kenya Bankers Sacco Society Limited. Accordingly, the reliefs sought for his removal or stepping aside were incompetent and could not be granted.
These sentiments were echoed in his Reply Affidavit. He reiterated that he was not a member, officer, director or employee of the SACCO and distinguished between the KBA and the SACCO, which were separate and distinct. He averred that the SACCO is governed by its own Board of Directors, CEO, AGMs, by-laws and membership register in accordance with the Cooperatives Societies Act and the Sacco Societies Act.
It was his averment that KBA is a private membership organisation, not a state organ, public body or authority, and that it has no constitutional or statutory duty to supervise, audit, sanction, advise, issue red flags or oversee the affairs of the cooperative societies. As the CEO of KBA, the petitioner failed to disclose any law that imposes upon him, in his personal capacity, the duty to perform those functions.
The Respondent also deposed that KBA and its leadership did not play any coordinating, policy-influencing or standard-setting role in relation to the SACCO's governance culture, compliance practices or ethical standards. He further deposed that, in relation to the alleged concealed Kshs 200 million loan, the transaction was between two cooperative sector entities (The SACCO and KUSCCO), and that KBA had no involvement, knowledge or oversight of the transaction.
Regarding the allegations of single-source procurement, insider loan abuse, employment nepotism, governance restructuring and discriminatory leadership, he averred that these were mandated by Sacco members at general meetings, not by KBA. He denied the existence of a financial sector ecosystem that KBA or he oversaw, and further that the allegations of large loans to politically exposed persons without enhanced due diligence, of transactions exceeding reporting thresholds without financial intelligence disclosures, and of AML compliance weaknesses fell within the ambit of SASRA, the Financial Reporting Centre under POCAMLA and the DCI.
It was deposed that the petitioner misapplied the constitutional provisions, as he was neither a state nor a public officer and was subject to a private employment contract; hence Article 73 did not apply to him. It was further deposed that Articles 201(d) and 232 relate to public money and public service, which KBA was not part of, and that Article 46 relates to the supply of goods and services to consumers, which KBA does not supply to the public or to members of the Sacco, but only to its institutional members.
The Respondent further averred that the documents attached to the petition were confidential and that the exhibits were filed in the Affidavit of one Davies Mbaabu Kajogu, sworn on 3rd November, 2025. The Petitioner cannot lawfully rely on them, and they are inadmissible because they are not sworn to by the Petitioner.
The Respondent averred that the petition is misconceived, frivolous, vexatious and an abuse of the court's process, and prayed that it be dismissed with costs.
The 3rd Interested Party also filed Grounds of Opposition dated 18th February, 2026. It was stated that the 3rd Respondent has the mandate to investigate corruption, economic crimes and unethical conduct upon receipt of a complaint or upon receiving information that warrants an investigation. It was further stated that the Petition herein was essentially a complaint which ought to have been reported to the relevant agencies for investigation and appropriate action, and that the Petitioner has not shown that this was done.
It was stated that the Petition offends the doctrine of exhaustion of available remedies and/or the doctrine of constitutional avoidance. It was further stated that no reasonable cause of action has been disclosed against the Respondent and the 1st Interested Party, and that the alleged breaches relate to a Cooperative Society regulated by the 2nd Interested Party.
It was also their averment that Chapter 6 of the Constitution and the laws enacted thereunder are intended to regulate the conduct of public officers, not private entities such as the Respondent, and, as such, the Petition is ill-advised and lacks merit.
The petition was canvassed by way of written submissions.
PETITIONER’S SUBMISSIONS
The Petitioner filed written submissions dated 13th July, 2026. He argued that the Petition raises broader constitutional questions about leadership accountability, integrity, public trust, stewardship obligations and governance responsibility within institutions that exercise significant influence over Kenya’s financial sector. He further argued that the Constitution confers locus standi to institute this suit under Articles 22 and 258, and relied on the cases of Trusted Society of Human Rights Alliance v Attorney General & 2 Others and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others.
He argued that Article 10 of the Constitution does not limit its application to government institutions but extends to all persons and entities whose actions influence governance, public policy, public confidence and constitutional implementation. He submitted that the constitutional significance of the banking sector cannot be overstated, and that the Respondent’s position carries substantial influence over industry governance norms, ethical standards, compliance culture, public confidence and sector-wide policy advocacy, thereby attracting constitutional responsibilities and justifying the application of Article 73 of the Constitution. He cited the case of Speaker of the Senate & another v Attorney General & 4 others , in which the Supreme Court emphasised that constitutional values must permeate all governance structures and inform the conduct of those who exercise authority and influence. He argued that the question was not whether the Respondent was a state officer, but whether he occupied a position of immense influence in a sector affecting the economic rights and interests of millions. He further argued that Articles 10 and 73 must be interpreted broadly and progressively to promote integrity, accountability, transparency and public confidence in all institutions that exercise significant influence over matters of public importance.
He argued that the constitutional concept of the public trust is not confined to holders of elective or appointive office. He cited the cases of Mumo Matemu (Supra) and International Centre for Policy and Conflict v Attorney General & 4 Others.
It was his submission that the Respondent, as CEO of KBA, an umbrella body representing commercial banks and financial institutions in Kenya’s financial sector, shapes industry norms, ethical expectations, governance culture, compliance frameworks and public confidence in the banking sector, none of which can exist in a constitutional vacuum.
He cited the case of Okiya Omtatah Okoiti v Attorney General & 5 others to support the proposition that constitutional responsibility may arise from both action and inaction.
The Court was thus urged to allow the Petition as requested.
RESPONDENT’S SUBMISSIONS
The Respondent filed their written submissions dated 18th July, 2026. They submitted that no reasonable cause of action has been disclosed against the Respondent, as the petitioner disclaimed direct personal wrongdoing, vicarious liability, agency, control and corporate attribution, every recognized bases on which one person may be held answerable for the conduct of another or of a separate entity.
The Respondent cited Anarita Karimi Njeru v Republic [1979] eKLR and Trusted Society of Human Rights Alliance v Attorney General & 2 others [2012] KEHC 2480 (KLR) to support the proposition that a party invoking the Constitution to allege a violation must, with reasonable precision, set out the provision said to be infringed and the manner of the infringement. Reliance was also placed on Origa v Vice Chancellor, University of Nairobi & 2 others [2018] KEHC 4861 (KLR), and it was argued that the Petition lacked particulars demonstrating how the Respondent violated the alleged provisions.
It was submitted that the Respondent is not a public or state officer within the meaning of Article 260 of the Constitution, as affirmed in the case of Katiba Institute & another v Attorney General & another [2020] KEHC 1213 (KLR) . It was further submitted that KBA is a private members' association funded exclusively by contributions from its 46 member banks; it is not funded by public revenue and is not subject to the Public Finance Management Act, 2012. The Respondent is remunerated under a private employment contract governed by the Employment Act, not from the Consolidated Fund.
The Respondent also argued that the Petitioner is, in essence, asking this Court to fashion a new category of constitutional liability against a person who is not a public officer, but whom the Petitioner variously describes as holding a position of substantial or immense influence, or an office that is not merely ceremonial, within a sector of national economic significance, yet no test for such identification is provided.
Having conceded that the Sacco and the KBA are distinct entities, it was submitted that the Respondent cannot be called to account for the decisions of an entity with its own organs, statutory obligations, and mechanisms of accountability merely because of his position or influence, absent proof of a direct constitutional or legal duty owed by him and a corresponding breach. Reliance was placed on Mugambi v H & M Co-operative Savings & Credit Society Limited & 4 others [2023] KECPT 57 (KLR) to support the proposition that a Sacco's obligations are governed by statute and exercised through the management committee and general meetings.
It was the Respondent’s further submission that where a party asserts that one entity owes a supervisory, regulatory, advisory or fiduciary duty to another, that party must identify the specific law or instrument creating the duty. The Petitioner has failed to do so in this case.
The Respondent also argued that the exhibits annexed to the Supporting Affidavit are inadmissible for contravening the provisions of Order 19 of the Civil Procedure Rules, 2010, and the Oaths and Statutory Declarations Act (Cap. 15), which require that exhibits be properly identified, marked and verified by the deponent of the affidavit to which they are annexed. The documents exhibit certificates referring to the affidavit of Davies Mbaabu Kajogu, sworn on 3rd November 2025, who is not a party to this case.
The Court was therefore urged to dismiss the Petition, with costs.
ANALYSIS AND DETERMINATION
I have carefully considered the Petition, the Responses thereto and the rival submissions. The two issues for consideration are:
Whether there is a proper Petition before the Court.
If the answer to the above is in the affirmative, whether the Petition is merited.
Whether there is a proper Petition before the Court
The Respondent challenges the Petition on the ground that he has been sued in his personal capacity, whereas the alleged actions and omissions were undertaken by the Kenya Bankers Sacco Society Limited, a separate legal entity not party to these proceedings, and to which the Respondent cannot be held personally liable.
In Isaiah Ondiba Bitange v & 3 others v Institute of Engineers of Kenya, another [2017] KEHC 7565 (KLR), the Court articulated what constitutes a cause of action as follows:
“ A cause of action was defined by Obi Okoye — Essays on Civil Proceedings,[1] thus —"By a cause of action is meant any facts or series of facts which are complete in themselves to found a claim or relief. ”[2] In the case of Drummond Jackson v. British Medical Associations & Ors.,[3] Lord Pearson stated as follows:-
“........... the expression “reasonable cause of action”[4] ....No exact paraphrase can be given, but I think “reasonable cause of action” means a cause of action with some chance of success when......... only the allegations in the pleading are considered, if it is found that the alleged cause of action is to fail, the statement of claim should be struck out.”
The Supreme Court of Nigeria in the case of Oshoboja v. Amuda & Ors;[5] held that a reasonable cause of action means a cause of action with some chances of success, when only the allegations in the Statement of Claim are considered. Our law is the law of the practitioner rather than the law of the philosopher. Decisions have to draw their inspiration and their strength from the very facts which framed the issues for decisions.”
At the heart of the Petition is the allegation that the Respondent, the Managing Director of KBA, has failed to promote integrity, sound governance, risk management standards, ethical financial conduct, an anti-money laundering compliance culture, and sector accountability across Kenya’s banking ecosystem. As a result, the SACCO was embroiled in persistent financial irregularities from 2013 to 2025.
In Anarita Karimi Njeru v Republic (1976-1980) 1 KLR 1272, the court stated that:
“We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”
Further, the Court in Trusted Society of Human Rights Alliance v Attorney General & 2 others, [2012] eKLR, also stated as follows;
We do not purport to overrule Anarita Karimi Njeru as we think it lays down an important rule of constitutional adjudication: a person claiming constitutional infringement must give sufficient notice of the violation to allow her adversary to adequately prepare her case and to save the court from embarrassment of adjudicating on issues that are not appropriately phrased as justiciable controversies. However, we are of the opinion that the proper test under the new Constitution is whether a petition as stated raises issues which are so insubstantial and so attenuated that a court of law properly directing itself to the issue cannot fashion an appropriate remedy due to the inability to concretely fathom the constitutional violation alleged. The test does not demand mathematical precision in drawing constitutional petitions. Neither does it demand talismanic formalism in identifying the specific constitutional provisions which are alleged to have been violated. The test is a substantive one and inquires whether the complaints against respondents in a constitutional petition are fashioned in a way that gives proper notice to the respondents about the nature of the claims being made so that they can adequately prepare their case.
The Supreme Court in Communications Commission of Kenya & 5 Others vs. Royal Media Services Limited & 5 Others [2014] eKLR stated as follows: -
“Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru vs. Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.”
In this case, the Petitioner alleges violations of Articles 10 and 73 of the Constitution, arguing that the Respondent leadership, as the MD of KBA, undermines public confidence in financial sector leadership and is incompatible with the constitutional principles of integrity, accountability and responsible leadership. In support of this allegation, the Petitioner further alleges that between 2013 and 2025, Kenya Bankers SACCO Society Ltd was embroiled in persistent financial irregularities, and that, as the MD of KBA, he failed to promote adherence to the constitutional values of integrity, transparency, accountability, good governance and sustainable economic management within the banking ecosystem.
This position was denied by the Respondent, who stated that KBA was a private entity, that he was not a state officer, that he was not in any way linked to the Kenya Bankers Sacco, and that he had no obligation to the Sacco.
Article 73 of the Constitution provides as follows;
73. (1) Authority assigned to a State officer—
is a public trust to be exercised in a manner that—
(i) is consistent with the purposes and objects of this Constitution;
(ii) demonstrates respect for the people;
(iii) brings honour to the nation and dignity to the office; and
(iv) promotes public confidence in the integrity of the office; and
vests in the State officer the responsibility to serve the people, rather than the power to rule them.
(2) The guiding principles of leadership and integrity include—
(a) selection on the basis of personal integrity, competence and suitability, or election in free and fair elections;
(b) objectivity and impartiality in decision making, and in ensuring that decisions are not influenced by nepotism, favouritism, other improper motives or corrupt practices;
(c) selfless service based solely on the public interest, demonstrated by—
i. honesty in the execution of public duties; and
ii. the declaration of any personal interest that may conflict with public duties;
(d) accountability to the public for decisions and actions; and
(e) discipline and commitment in service to the people.
In the case of Waititu v Mureithi (suing on his behalf and on behalf of the general public) & 2 others [2018] KECA 493 (KLR) , the Court of Appeal stated as follows;
54. Article 73 falls within Chapter six of the Constitution that deals with leadership and integrity and it is instructive to note that Article 79 empowers Parliament to establish an independent Ethics and Anti-Corruption Commission for purposes of ensuring compliance with the enforcement of provisions of Chapter six. Article 80 also empowers Parliament to establish procedures and mechanisms for the effective administration of Chapter six and for the application of Chapter six with necessary modifications to public officers. It is on the foundation of Article 79 and 80 that Parliament has enacted the Ethics and Anti-corruption Commission Act No. 2011, and the Leadership and Integrity Act No. 2012.
55. It was contended that the 1st respondent’s petition ought to have failed as it was not consistent with section 4(3) of the Leadership and Integrity Act , under which it is only the Ethics and Anti-corruption commission that can make an application for appropriate orders before a High Court judge where there has been non-compliance with or enforcement of Chapter 6 of the Constitution . This is not a novel argument. A similar argument was canvassed in this Court in the Mumo Matemu Decision (supra), in which a five (5) judge bench of this Court considered the jurisdiction of the High Court under Article 165(3)(d) and (5) vis a vis section 4(3) of the Leadership and Integrity Act . We reiterate the ruling made by the five (5) judge bench that the High Court has the jurisdiction to conduct a review of an appointment to a state or public office to ascertain the procedural soundness as well as to examine the appointment decision itself to determine if the constitutional threshold has been met.
From the above, for this Court to have exercised jurisdiction, the matter must relate to the appointment of a state or public officer. Under Article 260 of the Constitution, “public office” means an office in the national government, a county government, or the public service, where the remuneration and benefits are payable directly from the Consolidated Fund or directly out of money provided by Parliament; and a “public officer” means any (a) State officer or (b) any person, other than a State officer, who holds a public office.
The Petitioner in this case has not provided any material to the Court indicating what authority or mandate the Respondent had in relation to the Kenya Bankers Sacco Society Limited, how that authority or mandate was breached, or how the Respondent failed to perform the said obligations. Instead, the Petitioner has adopted a blanket approach, asserting that, as the Managing Director of KBA, the Respondent has failed in his leadership role in upholding integrity and accountability within the banking ecosystem.
However, before any such finding can be made, it must be established with sufficient precision that it was his mandate to do so. The Respondent has been identified as the Managing Director of the Kenya Bankers Association, a private entity under contract. As such, there is no doubt that he is not a state officer within the meaning of Article 260 of the Constitution.
The Petitioner has also acknowledged that the Kenya Bankers Association is a separate and distinct legal entity from Kenya Bankers SACCO Society Limited, which is established under the Cooperative Societies Act.
The Petition herein therefore fails to satisfy the test set out in the Anarita Karimi case and discloses no cause of action against the Respondent. Accordingly, the Petition is not properly before the Court. It will therefore not be necessary to delve into the merits of the Petition.
Accordingly, the Petition is hereby dismissed with costs to the Respondent.
Signed, Dated and Delivered Virtually on this 17 th Day of September 2026.
R.E. OUGO
JUDGE
In the presence of the:
Francis Awino/Petitioner
Miss Ahmed For the Respondent
1 st Interested Party- Absent
2 nd Interested Party- Absent
Mr. Oira For the3 rd Interested Party
Adan/ Minah - C/A
hcacec petition no e013 of 2026-judgment 2
A declaration that financial sector leadership positions are subject to Articles 10 and 73 constitutional integrity standards.
A declaration that the failure of industry leadership to foster governance accountability in banking-linked institutions violates constitutional principles of transparency and integrity.
A declaration that the Respondent's continued tenure undermines public confidence in financial sector governance.
An order that the Respondent steps aside pending sector governance review.
An order directing establishment of an independent financial sector governance audit framework.
An order compelling KBA to publish sector integrity and governance compliance guidelines.
An order requiring periodic public reporting on governance risk indicators within banking-linked institutions.
A declaration that financial industry bodies owe a constitutional duty to promote AML compliance culture.
An order directing adoption of sector-wide ethical oversight mechanisms.
Costs and any other orders in the public interest.
The Petition is supported by the affidavit of Francis Awino, sworn on the same date. The Petitioner avers that the Petition arose from systemic failures in financial governance and related matters at Kenya Bankers SACCO Society Ltd, which operated within an architecture influenced by the Kenya Bankers Association (KBA).
It is averred that the Respondent, as Managing Director of KBA, is responsible for promoting integrity, sound governance, risk management standards, ethical financial conduct, an anti-money laundering compliance culture, and sector accountability across Kenya’s banking ecosystem.
The Petitioner contends that between 2013 and 2025 the SACCO was embroiled in persistent financial irregularities, including the concealment of a KShs. 200,000,000 loan, off-book liabilities, impairment of projects exceeding hundreds of millions of shillings, fraudulent interest recognition, non-core investment losses, undisclosed guarantees, and financial misrepresentation affecting members' deposits and equity. The SACCO further engaged in single-sourced procurement, insider loan abuse, nepotism in employment, governance restructuring designed to suppress member oversight, discriminatory financial thresholds that barred ordinary members from leadership, and non-disclosure of audited financials to members.
The Petitioner further contends that the same occurred under the Respondent's leadership, during which the Respondent failed to raise sectoral red flags, issue governance advisories, promote compliance interventions, or publicly address emerging systemic governance risks affecting the institution.
It is his averment that the Respondent's continued tenure as Managing Director of KBA undermines public confidence in financial-sector leadership and is incompatible with the constitutional principles of integrity, accountability and responsible leadership, as set out in Articles 10 and 73 of the Constitution.
It is his contention that the Respondent violated Article 10 of the Constitution by failing to promote adherence to the constitutional values of integrity, transparency, accountability, good governance and sustainable economic management. He further contends that the Respondent also violated Article 73 of the Constitution by failing to actively safeguard institutional integrity despite glaring financial misconduct within the banking ecosystem. The Petitioner also argued that Articles 232, 46, 47 and 201(d) of the Constitution were violated.
It is his deposition that, by virtue of his actions and inactions, the Respondent ought to be removed or to step aside due to a loss of public confidence, failure of ethical stewardship, a breakdown of sector risk culture, institutional silence amid red flags, and incompatibility with the Article 73 leadership standards and the public interest imperative.
RESPONDENT’S REPONSE
The Petition was opposed by the Respondent, who filed a Replying Affidavit, sworn on 15th May, 2026, and Grounds of Opposition dated the same day.
In his Grounds of Opposition, the Respondent challenged the petition, arguing that it failed to disclose a cause of action against him in his personal capacity, as the alleged actions and omissions were committed by the Kenya Bankers Sacco Society Limited, a separate legal entity not party to these proceedings and to which the Respondent cannot be held personally liable.
That the Kenya Bankers Association and the Kenya Bankers Sacco Society Limited were separate and distinct legal entities, each with its own regulatory framework and governance structure, not intertwined, and that the petition was unsupported by any admissible evidence.
It was further stated that Articles 46, 73, 201(d) and 232 of the Constitution did not impose any enforceable legal duty or supervisory responsibility on the respondent in relation to the operations of the Kenya Bankers Sacco Society Limited. Accordingly, the reliefs sought for his removal or stepping aside were incompetent and could not be granted.
These sentiments were echoed in his Reply Affidavit. He reiterated that he was not a member, officer, director or employee of the SACCO and distinguished between the KBA and the SACCO, which were separate and distinct. He averred that the SACCO is governed by its own Board of Directors, CEO, AGMs, by-laws and membership register in accordance with the Cooperatives Societies Act and the Sacco Societies Act.
It was his averment that KBA is a private membership organisation, not a state organ, public body or authority, and that it has no constitutional or statutory duty to supervise, audit, sanction, advise, issue red flags or oversee the affairs of the cooperative societies. As the CEO of KBA, the petitioner failed to disclose any law that imposes upon him, in his personal capacity, the duty to perform those functions.
The Respondent also deposed that KBA and its leadership did not play any coordinating, policy-influencing or standard-setting role in relation to the SACCO's governance culture, compliance practices or ethical standards. He further deposed that, in relation to the alleged concealed Kshs 200 million loan, the transaction was between two cooperative sector entities (The SACCO and KUSCCO), and that KBA had no involvement, knowledge or oversight of the transaction.
Regarding the allegations of single-source procurement, insider loan abuse, employment nepotism, governance restructuring and discriminatory leadership, he averred that these were mandated by Sacco members at general meetings, not by KBA. He denied the existence of a financial sector ecosystem that KBA or he oversaw, and further that the allegations of large loans to politically exposed persons without enhanced due diligence, of transactions exceeding reporting thresholds without financial intelligence disclosures, and of AML compliance weaknesses fell within the ambit of SASRA, the Financial Reporting Centre under POCAMLA and the DCI.
It was deposed that the petitioner misapplied the constitutional provisions, as he was neither a state nor a public officer and was subject to a private employment contract; hence Article 73 did not apply to him. It was further deposed that Articles 201(d) and 232 relate to public money and public service, which KBA was not part of, and that Article 46 relates to the supply of goods and services to consumers, which KBA does not supply to the public or to members of the Sacco, but only to its institutional members.
The Respondent further averred that the documents attached to the petition were confidential and that the exhibits were filed in the Affidavit of one Davies Mbaabu Kajogu, sworn on 3rd November, 2025. The Petitioner cannot lawfully rely on them, and they are inadmissible because they are not sworn to by the Petitioner.
The Respondent averred that the petition is misconceived, frivolous, vexatious and an abuse of the court's process, and prayed that it be dismissed with costs.
The 3rd Interested Party also filed Grounds of Opposition dated 18th February, 2026. It was stated that the 3rd Respondent has the mandate to investigate corruption, economic crimes and unethical conduct upon receipt of a complaint or upon receiving information that warrants an investigation. It was further stated that the Petition herein was essentially a complaint which ought to have been reported to the relevant agencies for investigation and appropriate action, and that the Petitioner has not shown that this was done.
It was stated that the Petition offends the doctrine of exhaustion of available remedies and/or the doctrine of constitutional avoidance. It was further stated that no reasonable cause of action has been disclosed against the Respondent and the 1st Interested Party, and that the alleged breaches relate to a Cooperative Society regulated by the 2nd Interested Party.
It was also their averment that Chapter 6 of the Constitution and the laws enacted thereunder are intended to regulate the conduct of public officers, not private entities such as the Respondent, and, as such, the Petition is ill-advised and lacks merit.
The petition was canvassed by way of written submissions.
PETITIONER’S SUBMISSIONS
The Petitioner filed written submissions dated 13th July, 2026. He argued that the Petition raises broader constitutional questions about leadership accountability, integrity, public trust, stewardship obligations and governance responsibility within institutions that exercise significant influence over Kenya’s financial sector. He further argued that the Constitution confers locus standi to institute this suit under Articles 22 and 258, and relied on the cases of Trusted Society of Human Rights Alliance v Attorney General & 2 Others and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others.
He argued that Article 10 of the Constitution does not limit its application to government institutions but extends to all persons and entities whose actions influence governance, public policy, public confidence and constitutional implementation. He submitted that the constitutional significance of the banking sector cannot be overstated, and that the Respondent’s position carries substantial influence over industry governance norms, ethical standards, compliance culture, public confidence and sector-wide policy advocacy, thereby attracting constitutional responsibilities and justifying the application of Article 73 of the Constitution. He cited the case of Speaker of the Senate & another v Attorney General & 4 others , in which the Supreme Court emphasised that constitutional values must permeate all governance structures and inform the conduct of those who exercise authority and influence. He argued that the question was not whether the Respondent was a state officer, but whether he occupied a position of immense influence in a sector affecting the economic rights and interests of millions. He further argued that Articles 10 and 73 must be interpreted broadly and progressively to promote integrity, accountability, transparency and public confidence in all institutions that exercise significant influence over matters of public importance.
He argued that the constitutional concept of the public trust is not confined to holders of elective or appointive office. He cited the cases of Mumo Matemu (Supra) and International Centre for Policy and Conflict v Attorney General & 4 Others.
It was his submission that the Respondent, as CEO of KBA, an umbrella body representing commercial banks and financial institutions in Kenya’s financial sector, shapes industry norms, ethical expectations, governance culture, compliance frameworks and public confidence in the banking sector, none of which can exist in a constitutional vacuum.
He cited the case of Okiya Omtatah Okoiti v Attorney General & 5 others to support the proposition that constitutional responsibility may arise from both action and inaction.
The Court was thus urged to allow the Petition as requested.
RESPONDENT’S SUBMISSIONS
The Respondent filed their written submissions dated 18th July, 2026. They submitted that no reasonable cause of action has been disclosed against the Respondent, as the petitioner disclaimed direct personal wrongdoing, vicarious liability, agency, control and corporate attribution, every recognized bases on which one person may be held answerable for the conduct of another or of a separate entity.
The Respondent cited Anarita Karimi Njeru v Republic [1979] eKLR and Trusted Society of Human Rights Alliance v Attorney General & 2 others [2012] KEHC 2480 (KLR) to support the proposition that a party invoking the Constitution to allege a violation must, with reasonable precision, set out the provision said to be infringed and the manner of the infringement. Reliance was also placed on Origa v Vice Chancellor, University of Nairobi & 2 others [2018] KEHC 4861 (KLR), and it was argued that the Petition lacked particulars demonstrating how the Respondent violated the alleged provisions.
It was submitted that the Respondent is not a public or state officer within the meaning of Article 260 of the Constitution, as affirmed in the case of Katiba Institute & another v Attorney General & another [2020] KEHC 1213 (KLR) . It was further submitted that KBA is a private members' association funded exclusively by contributions from its 46 member banks; it is not funded by public revenue and is not subject to the Public Finance Management Act, 2012. The Respondent is remunerated under a private employment contract governed by the Employment Act, not from the Consolidated Fund.
The Respondent also argued that the Petitioner is, in essence, asking this Court to fashion a new category of constitutional liability against a person who is not a public officer, but whom the Petitioner variously describes as holding a position of substantial or immense influence, or an office that is not merely ceremonial, within a sector of national economic significance, yet no test for such identification is provided.
Having conceded that the Sacco and the KBA are distinct entities, it was submitted that the Respondent cannot be called to account for the decisions of an entity with its own organs, statutory obligations, and mechanisms of accountability merely because of his position or influence, absent proof of a direct constitutional or legal duty owed by him and a corresponding breach. Reliance was placed on Mugambi v H & M Co-operative Savings & Credit Society Limited & 4 others [2023] KECPT 57 (KLR) to support the proposition that a Sacco's obligations are governed by statute and exercised through the management committee and general meetings.
It was the Respondent’s further submission that where a party asserts that one entity owes a supervisory, regulatory, advisory or fiduciary duty to another, that party must identify the specific law or instrument creating the duty. The Petitioner has failed to do so in this case.
The Respondent also argued that the exhibits annexed to the Supporting Affidavit are inadmissible for contravening the provisions of Order 19 of the Civil Procedure Rules, 2010, and the Oaths and Statutory Declarations Act (Cap. 15), which require that exhibits be properly identified, marked and verified by the deponent of the affidavit to which they are annexed. The documents exhibit certificates referring to the affidavit of Davies Mbaabu Kajogu, sworn on 3rd November 2025, who is not a party to this case.
The Court was therefore urged to dismiss the Petition, with costs.
ANALYSIS AND DETERMINATION
I have carefully considered the Petition, the Responses thereto and the rival submissions. The two issues for consideration are:
Whether there is a proper Petition before the Court.
If the answer to the above is in the affirmative, whether the Petition is merited.
Whether there is a proper Petition before the Court
The Respondent challenges the Petition on the ground that he has been sued in his personal capacity, whereas the alleged actions and omissions were undertaken by the Kenya Bankers Sacco Society Limited, a separate legal entity not party to these proceedings, and to which the Respondent cannot be held personally liable.
In Isaiah Ondiba Bitange v & 3 others v Institute of Engineers of Kenya, another [2017] KEHC 7565 (KLR), the Court articulated what constitutes a cause of action as follows:
“ A cause of action was defined by Obi Okoye — Essays on Civil Proceedings,[1] thus —"By a cause of action is meant any facts or series of facts which are complete in themselves to found a claim or relief. ”[2] In the case of Drummond Jackson v. British Medical Associations & Ors.,[3] Lord Pearson stated as follows:-
“........... the expression “reasonable cause of action”[4] ....No exact paraphrase can be given, but I think “reasonable cause of action” means a cause of action with some chance of success when......... only the allegations in the pleading are considered, if it is found that the alleged cause of action is to fail, the statement of claim should be struck out.”
The Supreme Court of Nigeria in the case of Oshoboja v. Amuda & Ors;[5] held that a reasonable cause of action means a cause of action with some chances of success, when only the allegations in the Statement of Claim are considered. Our law is the law of the practitioner rather than the law of the philosopher. Decisions have to draw their inspiration and their strength from the very facts which framed the issues for decisions.”
At the heart of the Petition is the allegation that the Respondent, the Managing Director of KBA, has failed to promote integrity, sound governance, risk management standards, ethical financial conduct, an anti-money laundering compliance culture, and sector accountability across Kenya’s banking ecosystem. As a result, the SACCO was embroiled in persistent financial irregularities from 2013 to 2025.
In Anarita Karimi Njeru v Republic (1976-1980) 1 KLR 1272, the court stated that:
“We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”
Further, the Court in Trusted Society of Human Rights Alliance v Attorney General & 2 others, [2012] eKLR, also stated as follows;
We do not purport to overrule Anarita Karimi Njeru as we think it lays down an important rule of constitutional adjudication: a person claiming constitutional infringement must give sufficient notice of the violation to allow her adversary to adequately prepare her case and to save the court from embarrassment of adjudicating on issues that are not appropriately phrased as justiciable controversies. However, we are of the opinion that the proper test under the new Constitution is whether a petition as stated raises issues which are so insubstantial and so attenuated that a court of law properly directing itself to the issue cannot fashion an appropriate remedy due to the inability to concretely fathom the constitutional violation alleged. The test does not demand mathematical precision in drawing constitutional petitions. Neither does it demand talismanic formalism in identifying the specific constitutional provisions which are alleged to have been violated. The test is a substantive one and inquires whether the complaints against respondents in a constitutional petition are fashioned in a way that gives proper notice to the respondents about the nature of the claims being made so that they can adequately prepare their case.
The Supreme Court in Communications Commission of Kenya & 5 Others vs. Royal Media Services Limited & 5 Others [2014] eKLR stated as follows: -
“Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru vs. Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.”
In this case, the Petitioner alleges violations of Articles 10 and 73 of the Constitution, arguing that the Respondent leadership, as the MD of KBA, undermines public confidence in financial sector leadership and is incompatible with the constitutional principles of integrity, accountability and responsible leadership. In support of this allegation, the Petitioner further alleges that between 2013 and 2025, Kenya Bankers SACCO Society Ltd was embroiled in persistent financial irregularities, and that, as the MD of KBA, he failed to promote adherence to the constitutional values of integrity, transparency, accountability, good governance and sustainable economic management within the banking ecosystem.
This position was denied by the Respondent, who stated that KBA was a private entity, that he was not a state officer, that he was not in any way linked to the Kenya Bankers Sacco, and that he had no obligation to the Sacco.
Article 73 of the Constitution provides as follows;
73. (1) Authority assigned to a State officer—
is a public trust to be exercised in a manner that—
(i) is consistent with the purposes and objects of this Constitution;
(ii) demonstrates respect for the people;
(iii) brings honour to the nation and dignity to the office; and
(iv) promotes public confidence in the integrity of the office; and
vests in the State officer the responsibility to serve the people, rather than the power to rule them.
(2) The guiding principles of leadership and integrity include—
(a) selection on the basis of personal integrity, competence and suitability, or election in free and fair elections;
(b) objectivity and impartiality in decision making, and in ensuring that decisions are not influenced by nepotism, favouritism, other improper motives or corrupt practices;
(c) selfless service based solely on the public interest, demonstrated by—
i. honesty in the execution of public duties; and
ii. the declaration of any personal interest that may conflict with public duties;
(d) accountability to the public for decisions and actions; and
(e) discipline and commitment in service to the people.
In the case of Waititu v Mureithi (suing on his behalf and on behalf of the general public) & 2 others [2018] KECA 493 (KLR) , the Court of Appeal stated as follows;
54. Article 73 falls within Chapter six of the Constitution that deals with leadership and integrity and it is instructive to note that Article 79 empowers Parliament to establish an independent Ethics and Anti-Corruption Commission for purposes of ensuring compliance with the enforcement of provisions of Chapter six. Article 80 also empowers Parliament to establish procedures and mechanisms for the effective administration of Chapter six and for the application of Chapter six with necessary modifications to public officers. It is on the foundation of Article 79 and 80 that Parliament has enacted the Ethics and Anti-corruption Commission Act No. 2011, and the Leadership and Integrity Act No. 2012.
55. It was contended that the 1st respondent’s petition ought to have failed as it was not consistent with section 4(3) of the Leadership and Integrity Act , under which it is only the Ethics and Anti-corruption commission that can make an application for appropriate orders before a High Court judge where there has been non-compliance with or enforcement of Chapter 6 of the Constitution . This is not a novel argument. A similar argument was canvassed in this Court in the Mumo Matemu Decision (supra), in which a five (5) judge bench of this Court considered the jurisdiction of the High Court under Article 165(3)(d) and (5) vis a vis section 4(3) of the Leadership and Integrity Act . We reiterate the ruling made by the five (5) judge bench that the High Court has the jurisdiction to conduct a review of an appointment to a state or public office to ascertain the procedural soundness as well as to examine the appointment decision itself to determine if the constitutional threshold has been met.
From the above, for this Court to have exercised jurisdiction, the matter must relate to the appointment of a state or public officer. Under Article 260 of the Constitution, “public office” means an office in the national government, a county government, or the public service, where the remuneration and benefits are payable directly from the Consolidated Fund or directly out of money provided by Parliament; and a “public officer” means any (a) State officer or (b) any person, other than a State officer, who holds a public office.
The Petitioner in this case has not provided any material to the Court indicating what authority or mandate the Respondent had in relation to the Kenya Bankers Sacco Society Limited, how that authority or mandate was breached, or how the Respondent failed to perform the said obligations. Instead, the Petitioner has adopted a blanket approach, asserting that, as the Managing Director of KBA, the Respondent has failed in his leadership role in upholding integrity and accountability within the banking ecosystem.
However, before any such finding can be made, it must be established with sufficient precision that it was his mandate to do so. The Respondent has been identified as the Managing Director of the Kenya Bankers Association, a private entity under contract. As such, there is no doubt that he is not a state officer within the meaning of Article 260 of the Constitution.
The Petitioner has also acknowledged that the Kenya Bankers Association is a separate and distinct legal entity from Kenya Bankers SACCO Society Limited, which is established under the Cooperative Societies Act.
The Petition herein therefore fails to satisfy the test set out in the Anarita Karimi case and discloses no cause of action against the Respondent. Accordingly, the Petition is not properly before the Court. It will therefore not be necessary to delve into the merits of the Petition.
Accordingly, the Petition is hereby dismissed with costs to the Respondent.
Signed, Dated and Delivered Virtually on this 17 th Day of September 2026.
R.E. OUGO
JUDGE
In the presence of the:
Francis Awino/Petitioner
Miss Ahmed For the Respondent
1 st Interested Party- Absent
2 nd Interested Party- Absent
Mr. Oira For the3 rd Interested Party
Adan/ Minah - C/A
hcacec petition no e013 of 2026-judgment 2