Introduction
1. The Petition dated 15 th December 2023 is supported by the Petitioner’s affidavit in support of even date, Supplementary Affidavit dated 30 th May 2024 and Further Affidavit dated 15 th June 2025.
2. The Petition challenges the listing of the Petitioner’s Credit information with Credit Reference Bureaus.
3. However, according to the 1 st Respondent. the forwarding of the Petitioner’s credit information was on account of his failure to settle
a loan he owed to the bank. The Petitioner insists that he does not have any existing loan with the Bank hence his listing is erroneous.
4. The Petitioner seeks the following reliefs: -
i. Declarations to the effect that: -
a) The 1 st Respondent was constitutionally and legally obliged to warn and/or inform the Petitioner of its intention to adversely list his name with the 2 nd and 3 rd Respondents;
b) The Respondents are in breach of the Petitioner’s constitutional rights to fair hearing under Article 25(c) and 50, fair administrative action under Article 47, access to information under Article 35(1)(b) and (2), privacy under Article 31(c) and dignity under Article 28;
c) The Respondents’ actions towards the Petitioner are a breach of the Fair Administrative Actions Act;
d) The Respondents are in breach of Regulations 37(1), (5), (7), (10), and (11) of the Credit Reference Bureau Regulations 2020;
e) The Petitioner be compensated by way of damages for defamation.
f) The 1 st Respondent is barred by the Central Bank of Kenya from submitting credit information of its customers to the 2 nd and 3 rd Respondents or any other Bureau.
g) An order directing the respondents to immediately and unconditionally pay the Petitioner the sum of Kshs. 45million being damages or compensation for the estimated loss (including loss of income) harm and damage arising from the
infringement of the Petitioner’s fundamental rights and freedoms;
h) An order of mandamus compelling the respondents to:
i. Immediately and unconditionally purge all adverse information in their records concerning the Petitioner;
ii. Jointly issue an apology in a newspaper of country wide circulation, exonerating the Petitioner from any wrong doing and clarifying his name was provided to the Credit Reference Bureau erroneously, irregularly and unlawfully;
i) The costs of and incidental to these proceedings.
j) Interest on (g) above at court rates with effect from the date of filing the suit till the date of full and final settlement.
k) Such other, further, additional, incidental and/or alternative reliefs or remedies as the Honourable Court shall deem just and expedient.
5. In opposition to the petition, the 1 st respondent filed a Notice of preliminary Objection and Grounds of Opposition both dated 31 st May and a Replying Affidavit dated 30 th September 2024, the 2 nd respondent filed a Replying Affidavit dated 18 th April 2024 and 3 rd Respondent filed Grounds of Opposition and Replying Affidavit both dated 31 st May 2024.
The Petitioner’s Case
6. On 18 th May 2023, the Petitioner approached Kenya Commercial Bank Ltd (KCB) with a view of applying for a loan facility whereby the bank requested for his credit score from the Credit Refence Bureaus (CRB). Upon KCB receiving his credit score from the 2 nd and 3 rd Respondents, he was shocked to learn that he had been listed as a loan defaulter on account of information provided to the CRBs by the 1 st Respondent.
7. The Petitioner avers that he does not operate any bank account with the 1 st Respondent yet the 1 st Respondent had indicated that the Petitioner operates account number 01611007891700, 01631007891700 and 016F107891700 at Parliament Road Branch. The said accounts are reflected in the credit report by TransUnion dated 26 th May 2023, Metropol Credit Report dated 18 th May 2023 and Central Bank response letter dated 25 th September 2023. The Petitioner further avers that the 1 st Respondent, despite not having a bank account with him, forwarded his name to the 2 nd and 3 rd Respondents for listing as a loan defaulter without informing or notifying him in total breach of constitutional, statutory and
regulatory requirements particularly Article 25(c), 47, 50 of the Constitution, Section 26(1), (3), (9), (10) and 37(1), (7), (8), (10) of the Credit Reference Bureau Regulations 2020 and Section 4(3) of the Fair Administrative Action Act .
8. The Petitioner asserts that he had a legitimate expectation to be notified of the adverse report and to be given a chance to be heard before being adversely listed as a loan defaulter. Further, the 2 nd and 3 rd Respondents have adversely listed his name in their records as a loan defaulter without hearing him on the issue, in their investigations if any at all and in breach of constitutional, statutory and regulatory requirements. The 2 nd and 3 rd Respondents had a duty to independently investigate his complaint and also take reasonable steps to verify the accuracy of the credit information provided by the 1 st Respondent.
9. The Petitioner contends that the Respondents failed to supply him with the information and documents relied upon to list him as a loan defaulter as requested through his complaint which is in breach of Article 35 of the Constitution and Regulation 37(1) of the
Credit Reference Bureau Regulations 2020. The violation of his rights has resulted in him being denied financial facilities from banks in view of the access made available by the CRBs to the adverse information provided by the 1 st Respondent. Further upon the 1 st respondent submitting erroneous and inaccurate information to the 2 nd and 3 rd Respondents, they did not inform or communicate to him that such information that had been forwarded to the bureaus as required under Section 26(9) of the CRB Regulations 2020 . He averred that he lodged a formal complaint with the 1 st Respondent to correct the erroneous and adverse information in line with Section 26(6) of the CRB Regulations 2020 to no avail, despite several reminders. He further lodged a complaint with the 2 nd and 3 rd Respondents to investigate and provide information relied upon to make the adverse listing as required under Regulation 37(1), (5), (7) and (10) of the CRB Regulations 2020, however no communication was made to him to inform him of the status and outcome of the investigation save for the 2 nd respondent who merely reported that the 1 st Respondent had maintained that the information provided is accurate. The 2 nd and 3 rd respondents did not conclude their independent investigations as required and therefore ought to have deleted the disputed
information as required under Regulation 37(10) of the CRB Regulations 2020.
10. The Petitioner asserts that the Respondents actions complained of herein have adversely affected his personal, commercial and professional reputation. Due to the wrong listing, he was not able to secure a loan to finance a contract for a company where he is the sole director Kemo Import Supplies Ltd and the contract was terminated vide the letter dated 15 th June 2023. Kemo Import Supplies ltd had secured a contract on 4th April 2023 to supply Aluminium Class worth Kshs. 21,912,750/-. His character was further defamed in view of the negative, adverse and erroneous information forwarded to the 2 nd and 3 rd respondents and which information was accessed by KCB.
The 1 st Respondent’s Case
11. The Replying affidavit was sworn by John A. Nono, a Legal Officer working in the Company Secretary’s division of the 1 st Respondent. According to the 1 st Respondent, Kencom Sacco Society, in which the Petitioner was a member of, had a Memorandum of
Understanding (MOU) with the 1 st Respondent that allowed members of the said Sacco to access loan facilities at a favourable interest rate from the 1 st Respondent.
12. Through a loan Application dated 23 rd December 2004, the Petitioner applied for a personal loan of Kshs. 350,000/- from the sacco for home improvement. The Petitioner stated that he was then working as a clerk with KCB Bank Maralal Branch and provided his payslips and copy of his national ID as supporting documents. The loan was then approved and an amount of Kshs. 355,704.30/- which included the loan and all attendant charges, was disbursed by the 1 st Respondent to the Petitioner on 15 th February 2005. The loan amount was payable within four (4) years.
13. According to the 1 st Respondent’s records, the Petitioner only paid back an amount of Kshs. 191,364.75/; the last payment being made on 1 st November 2006. Thereafter, the Petitioner ignored all requests for repayment of the outstanding loan amount.
14. Since payments were not forthcoming and the Petitioner was unreachable, in February 2008, the 1 st Respondent hired an
investigator to trace the whereabouts of the Petitioner. The private investigator provided an investigation report on the Petitioner’s whereabouts and financial status.
15. On 26 th August 2010, in light of the mandatory provisions of the Banking (CRB) Regulation, 2008, the 1 st Respondent proceeded to list the Petitioner with the 2 nd and 3 rd Respondents. At the time, the Petitioner owed the 1 st Respondent Kshs. 299,306/-. On 27 th December 2013, the loan was written down.
16. The Deponent maintains adverse effects alleged to have been suffered by the Petitioner on the basis of listing of Credit Information have not been proved at all, and if any, they are a direct consequence of his own failure to service the loan facility.
17. Further, the 1 st Respondent asserts that the relationship between the Petitioner and the 1 st Respondent is contractual in nature hence any dispute arising from the relationship lies in commercial or civil proceedings. Furthermore, the 1 st Respondent contended that it was required by law to share credit information in the manner provided and thus compliance by the 1 st respondent with the requirements of
an applicable law cannot be said to be unconstitutional where the constitutionality of the laws has not been challenged at all.
18. Additionally, it was the 1 st Respondent’s position that the Petitioner has not demonstrated or shown the administrative action alleged to be taken by the 1 st Respondent and how compliance by the 1 st Respondent with statutory obligations set out in the CRB regulations amounts to an administrative action envisaged under the Constitution and any other law to justify the Petitioner’s claim under the Petition. Nevertheless, there is a legitimate expectation under a loan contract that the Petitioner would have honoured his obligations to repay the loan he took and owed to the 1 st Respondent as agreed under the terms of that loan.
19. The deponent further states that the Petitioner has not adduced any evidence to demonstrate that he applied for a loan with any financial institution and that such loan application was rejected for the specific reason that he was listed with the CRB. Further the alleged company named Kemo Import Supplies Ltd is a legal person that is not party to the instant proceedings and therefore all allegations purported to be made on account of the business of the said
company are not relevant to the present proceedings. Additionally, the petitioner has not placed anything before the court to demonstrate that he borrowed a loan from KCB and that KCB had solely rejected the alleged loan application solely on account of his credit.
20. The 1 st Respondent asserts that the Petition does not raise a proper constitutional issue for determination and thus the Court should decline to entertain the matter herein which is commercial and civil in nature. Further he argues that the Petition seeks a retrospective application of the CRB Regulations 2020 which were declared unconstitutional by the High Court. Additionally, the petition lacks locus before the court as the same is brought before the court prematurely before invoking or exhausting the dispute resolution mechanisms under the provision of the Fair Administrative Action Act. The petition further seeks for orders that are in itself in violation of the law particularly the order directing the Central Bank of Kenya to act outside the law in barring the 1 st Respondent from sharing its customers information to credit bureaus as required by law.
The 2 nd Respondent’s Case
21. The affidavit was sworn by Pahris Kiama, a Dispute Resolution Manager at the 2 nd respondent and he avers that the 2 nd respondent is licensed by the Central Bank of Kenya to operate as a credit reference bureau under the CRB Regulations 2020. It is licensed to obtain and receive customer information, store, manage, evaluate, update and disseminate customer information to subscribers in accordance to the Regulations and maintain database and generate reports from customer information database and credit scoring as per Regulation 15 of the Regulations. Under Regulation 18 of the Regulations, the 2 nd respondent is obligated to share customer information including information on none performing loans and any other negative information. Further, under the Banking Act, the 2 nd respondent as a licenced credit reference bureau is a medium through which institutions licensed under the Banking Act and the Microfinance Act exchange customer credit information.
22. The deponent asserts that the 2 nd respondent as a credit reference bureau only receives and does not generate customer information; such credit information is generated from the information providers which among others include financial institutions such as the 1 st
Respondent. Further, the customer information and reports on customers generated by the 2 nd respondent is only shared with subscribers mandated to do so by the Regulations. An institution such as the 1 st Respondent under the Regulations is under an obligation to submit and provide accurate customer information to the CRBs and in addition to update the said information in accordance to the Regulations. Furthermore, the information published by the 2 nd Respondent is information that is provided to all licensed CRBs in Kenya and is not localized to the 2 nd Respondent and the 3 rd respondent therefore is accessible from any bureau in Kenya.
23. The deponent states that the 2 nd respondent only listed account number 01631007891700 which was reported by the 1 st Respondent as a performing account without default history with its status as write off with no default. On 2 nd June 2023, the 2 nd Respondent received a duly filled dispute form from the Petitioner disputing the account status. On the same day, the 2 nd Respondent issued a notice of dispute to the 1 st Respondent and further instructed the 1 st Respondent to conduct an in depth investigation of the account and revert the findings. They then conducted their investigation in
light of the CRB Regulations 2020 which defines investigation as a formal inquiry to an institution or a third-party credit information provider on the authenticity of credit information submitted to the bureau. On 13 th June 2023, the 1 st Respondent wrote back to the 2 nd Respondent indicating that it had concluded its investigations and further confirmed that the disputed information was indeed accurate and thus should be maintained as is. The 2 nd Respondent wrote to the Petitioner on the same day informing him of the bank’s response and further advised him of the next steps to follow if dissatisfied with the response.
24. The deponent states that by listing the Petitioner in the CRB, the 2 nd Respondent was lawfully exercising its statutory duty of publishing the Petitioner’s credit information as shared by the 1 st Respondent as per Regulation 15 of the CRB Regulations. Further under Section 31(5) of the Banking Act and Regulation 20 of the CRB Regulations 2020 a suit against the 2 nd respondent is barred where such as in this case the 2 nd respondent has disseminated information under its statutory obligation to do so in good faith. Additionally, the only person or entity who can correct or amend information regarding a customer such as the Petitioner is the institution from which the
information emanates from, in this case, the 1 st Respondent and the 2 nd respondent cannot purport to correct or amend information by itself.
25. The deponent asserts that the 2 nd Respondent denies vehemently any infringement on the rights and freedoms of the Petitioner under the Constitution since its actions in relation to the Petitioner’s credit affairs were statutory obligations and were done within and in conformity to the law governing listing of credit defaulters and it has not in any way infringed the petitioner’s constitutional rights.
26. In rejoinder to the 2 nd respondent’s replying affidavit, the Petitioner filed a Supplementary Affidavit dated 30 th May 2024 and states that his case against the 2 nd and 3 rd respondents is that they both failed to supply him with the information relied upon to list him as a loan defaulter in line with Regulation 37(1) and 27(1) of the CRB Regulations 2020. Further, under Regulation 28(1)(g) and 37(7), the 2 nd Respondent has been given some investigative powers which it did not utilize at all. Under Regulation 28(1)(g), the 2 nd respondent was supposed to take reasonable steps or measures to verify the accuracy of the negative credit information supplied by the 1 st
Respondent and that would have included requesting for certain key documents from the 1 st Respondent to verify that which has been forwarded to it and also interrogate him on the same where necessary. Thus, the 2 nd respondent has infringed on his right to access to information under Article 35 of the Constitution.
The 3 rd Respondent’s Case
27. The affidavit was sworn by Esther Wanja Mungai an Associate Counsel, Group risk with the 3 rd respondent. She avers that the 3 rd Respondent is a credit reference bureau licensed under the Banking CRB Regulations 2013 and Section 31(4) of the Banking Act. She further avers that credit referencing provide for licenced CRBs to maintain a database through which institutions licensed under the Banking Act share amongst themselves prescribed credit information relating to their customers pursuant to Section 31(3) of the Banking Act. Regulation 23 of the Regulations 2013 allow CRBs to obtain credit information from third parties as is the case with the 1 st respondent on condition that third party disseminating the information ensures that it adheres to the provisions of the regulations.
28. The 3 rd Respondent states that pursuant to the Regulations, customers have rights in relation to information kept by the Bureau such as the right to know what information the institution has submitted to the Bureau; the right to access credit reports kept by the bureaus; the right to a free copy of the customers credit report once yearly and in the event of disputed information, the right to dispute the information under Regulation 35 of the Regulations 2013.
29. Upon a request by the petitioner through NIPASHE service, the 3 rd Respondent issued the Petitioner with his credit report on 26 th May 2023 in compliance with Regulation 35(1) & (2) of the Regulations 2013. Further, via email correspondence dated 26 th May 2023, the 3 rd Respondent expressly indicated that should the Petitioner have any inquiries regarding the credit report issued, he should send such complaint via email address of reports@transunion.com . Contrary to the directions indicated by the 3 rd respondent, the Petitioner proceeded to send its concerns to email address noreply@transunion.com and kereports@transunion.com , which emails are automated and do not serve the purpose of attending to customer complaints.
30. The 3 rd Respondent states that in view of the Petitioner’s negligence, the 3 rd Respondent was in the dark with regard to any complaint raised by the Petitioner until the 3 rd respondent was served with a letter dated 2 nd October 2023 by the Petitioner’s advocates and thus treated it as a dispute and immediately proceeded to act on it pursuant to Regulation 35(6) of the CRB Regulations 2013. Further, pursuant to Regulation 35(6) of the CRB Regulations 2013, the 3 rd Respondent, upon being issued with the Notice of the Dispute with regard to the accuracy of the Petitioner’s credit information proceeded to affix a note to the Petitioner’s credit information and further forwarded to the 1 st Respondent as the credit information provider and requested a confirmation of the accuracy of the credit information within 21 days. Pursuant to Regulation 35(7) of the Regulations 2013, upon receipt of a notice of dispute, the 3 rd Respondent in conducting its investigation is only obliged to forward such customer’s notice of dispute to the Credit Information Provider for purposes of ascertaining its accuracy and not to have the disputing customer to attend to a hearing during such investigation as alleged by the petitioner.
31. The 3 rd Respondent states that the 1 st Respondent carried out its investigation and reverted back ascertaining its position on the Petitioner’s non performing loan. The 3 rd Respondent then transmitted to the Petitioner the findings of the investigation via email dated 6 th October 2023 confirming the accuracy of the credit information and that it will maintain the disputed information unless advised by the bank pursuant to Regulation 35(8) of the CRB Regulations 2013.
32. The 3 rd Respondent maintains that it is not obliged to issue the Petitioner with a comprehensive report on the investigation given that it does not hold statements of accounts for the listed customer since such information is solely held by the reporting institution. Further, upon request or dispute by customers, the nature of reports issued by the 3 rd Respondent indicate the name of the reporting institution, account type, principal amount issued, the arrears, last payment date, account status and whether a dispute as to accuracy of such information has been raised. Thus, the Petitioner’s right to access such information was never violated by the 3 rd respondent.
33. The 3 rd Respondent contends that the Petition does not raise any constitutional issues and ought to have been filed as a commercial claim as the dispute arises out of contractual duties governed by terms and conditions of a loan facility advanced to the Petitioner by the 1 st Respondent. Further as per the Credit Regulations, a customer’s credit listing may not solely be used to deny the customer a loan but such other factors are used to inform the lender in determining the outcome of a customer’s loan application. As such, the 3 rd respondent argues that the Petitioner did not produce any evidence from KCB in support of his allegation that the bank denied him a loan facility as a result of his credit listing and thus any loss incidental thereto cannot be attributed to the 3 rd respondent’s listing.
34. In a rejoinder to the 1 st and 3 rd Respondent’s Replying affidavit, the Petitioner filed a Further Affidavit dated 15 th June 2025 . The Petitioner deposed that he is a stranger to the MOU by the 1 st Respondent as he was not a signatory to the agreement and he was also not privy to any dealings the 1 st Respondent may have had with Kencom Sacco. Further, he asserts that he has never applied for any loan from the 1 st Respondent for home improvements and in any
case, he was an employee with KCB Bank and he had financial facilities to access from his employer.
35. The Petitioner deposed that the 1 st Respondent has not demonstrated which mode of money transfer they sued to send the loan purportedly disbursed. Further, the 1 st Respondent authorised and opened a loan account number 016F107891700 without any source documents to initiate opening such an account as is required such as letter of offer, acceptance of offer, passport size photos of the Applicant and copy of the identity card. The 1 st Respondent being a financial institution, must obey the accounting/banking principles that require that every transaction has a double entry, specifically where a loan is being granted, there ought to be a generate loan account as a debit and a personal customer account as credit. The 1 st Respondent purportedly opened a loan account which is a debit account and there is no evidence money was disbursed to any of his accounts at all.
36. The Petitioner contends that even assuming he was a customer of the 1 st Respondent, the 1 st Respondent under the repealed CRB Regulations of 2008 still had an obligation pursuant to Section
28(1)(a) to notify him of the listing within 30 days of the first listing, which it failed to do. Thereby breaching his fundamental right under Article 47 of the Constitution and Section 4(2) of the Fair Administrative Action Act. The Petitioner reiterates that he has never had any financial dealings with the 1 st Respondent and therefore he has no contractual obligations with the 1 st Respondent. He argues that the matter before the court is not a civil or commercial matter as there has never been any valid contract between him and the 1 st Respondent.
37. The Petitioner contends that failure to supply him with the information relied upon to list him negatively made him feel less of a citizen of the country and injured his dignity and standing in society therefore violating Article 28 of the Constitution. He further states that the application of the CRB Regulations 2020 is not retrospective as the cause of action arose on 18 th May 2023 and the said regulations were and are still in force to date. Additionally, he depones that the Petition is properly before the court as he did everything possible to resolve the matter under the CRB Regulations 2020 and that the 1 st Respondent is only invoking the exhaustion
doctrine in an attempt to further frustrate the resolution of the dispute.
38. The Petitioner contends that his case against the 3 rd Respondent is that it failed to supply him with the information relied upon to list him as a loan defaulter in line with Regulation 37(1) and 27(1)(a) of the CRB Regulations 2020. Further, under Regulation 28(1)(g) and 37(7), the 3 rd Respondent has been given some investigative powers which it did not utilize at all. Under Regulation 28(1)(g), the 2 nd Respondent was supposed to take reasonable steps or measures to verify the accuracy of the negative credit information supplied by the 1 st Respondent and that would have included requesting for certain key documents from the 1 st Respondent to verify that which has been forwarded to it and also interrogate him on the same where necessary. Thus, the 3 rd respondent has infringed on his right to access to information under Article 35 of the Constitution.
39. The Petitioner asserts that the 3 rd Respondent did not comply with Regulation 37(5), (6) and (7) of the CRB Regulations 2020 as it ought to have notified the 1 st Respondent of the disputed credit report within five days and also investigate the same within seven
days which it never did. The 3 rd Respondent only responded much later on account of receiving a demand letter from his advocates. Further, on the 3 rd respondent’s allegation that the emails were automated and did not address customer complaints, the Petitioner states that the same is false as the demand letter dated 2 nd October 2023 was sent through kereports@transunion.com and the same was responded to.
40. The Petition was disposed of by way of written submissions.
Petitioner’s Submissions
41. The Petitioner identified four issues for determination as follows: whether the respondents breached or violated the petitioner’s constitutional rights ; whether the 1 st respondent breached Regulation 26(1), (3), (9) and 37(1) of the Credit Reference Bureau Regulations 2020 ; whether the 1 st respondent breached Section 4(3) of the Fair Administrative Action Act and whether the 2 nd and 3 rd Respondents have violated Regulation 37(1), (5), (7) and (10) of the Credit Reference Bureau Regulations 2020 .
42. On the first issue, the Petitioner submitted that the 1 st Respondent specifically violated his rights under Articles 25(c), 47 and 50 of the Constitution, by forwarding adverse credit information to the 2 nd and 3 rd Respondents for negative listing as a loan defaulter with respect to three different accounts without giving any notice as required under Regulation 26(1) of the CRB Regulations 2020. Thus, he was unable to defend himself. Further, the failure to supply him with the documents relied upon to list him negatively is a blatant breach of Article 35(1)(b) of the Constitution with regards to access of information. He argued that the 1 st respondent has never supplied a single document relied upon to list him which shows that the information relied upon is unavailable, malicious and defamatory in the circumstances. As such, the petitioner argued that he has a right to have the erroneous negative information corrected and deleted for being untrue and misleading as enshrined in Article 35(2) of the Constitution.
43. The Petitioner further argued that pursuant to Regulation 37(1) of the Regulations, the 2 nd and 3 rd Respondents has an obligation to supply or share information provided by the credit information provider when requested by a customer. He further asserted that
the 1 st Respondent violated his right to dignity and privacy under Article 28 of the Constitution for sharing the negative information with the 2 nd and 3 rd Respondents without according him a fair hearing. Further, the 3 rd Respondent is guilty of breaching Article 28 of the Constitution for failing to follow the laid down procedure once it received his complaint. The 3 rd respondent ought to have conducted investigations
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1. The Petition dated 15 th December 2023 is supported by the Petitioner’s affidavit in support of even date, Supplementary Affidavit dated 30 th May 2024 and Further Affidavit dated 15 th June 2025.
2. The Petition challenges the listing of the Petitioner’s Credit information with Credit Reference Bureaus.
3. However, according to the 1 st Respondent. the forwarding of the Petitioner’s credit information was on account of his failure to settle
a loan he owed to the bank. The Petitioner insists that he does not have any existing loan with the Bank hence his listing is erroneous.
4. The Petitioner seeks the following reliefs: -
i. Declarations to the effect that: -
a) The 1 st Respondent was constitutionally and legally obliged to warn and/or inform the Petitioner of its intention to adversely list his name with the 2 nd and 3 rd Respondents;
b) The Respondents are in breach of the Petitioner’s constitutional rights to fair hearing under Article 25(c) and 50, fair administrative action under Article 47, access to information under Article 35(1)(b) and (2), privacy under Article 31(c) and dignity under Article 28;
c) The Respondents’ actions towards the Petitioner are a breach of the Fair Administrative Actions Act;
d) The Respondents are in breach of Regulations 37(1), (5), (7), (10), and (11) of the Credit Reference Bureau Regulations 2020;
e) The Petitioner be compensated by way of damages for defamation.
f) The 1 st Respondent is barred by the Central Bank of Kenya from submitting credit information of its customers to the 2 nd and 3 rd Respondents or any other Bureau.
g) An order directing the respondents to immediately and unconditionally pay the Petitioner the sum of Kshs. 45million being damages or compensation for the estimated loss (including loss of income) harm and damage arising from the
infringement of the Petitioner’s fundamental rights and freedoms;
h) An order of mandamus compelling the respondents to:
i. Immediately and unconditionally purge all adverse information in their records concerning the Petitioner;
ii. Jointly issue an apology in a newspaper of country wide circulation, exonerating the Petitioner from any wrong doing and clarifying his name was provided to the Credit Reference Bureau erroneously, irregularly and unlawfully;
i) The costs of and incidental to these proceedings.
j) Interest on (g) above at court rates with effect from the date of filing the suit till the date of full and final settlement.
k) Such other, further, additional, incidental and/or alternative reliefs or remedies as the Honourable Court shall deem just and expedient.
5. In opposition to the petition, the 1 st respondent filed a Notice of preliminary Objection and Grounds of Opposition both dated 31 st May and a Replying Affidavit dated 30 th September 2024, the 2 nd respondent filed a Replying Affidavit dated 18 th April 2024 and 3 rd Respondent filed Grounds of Opposition and Replying Affidavit both dated 31 st May 2024.
The Petitioner’s Case
6. On 18 th May 2023, the Petitioner approached Kenya Commercial Bank Ltd (KCB) with a view of applying for a loan facility whereby the bank requested for his credit score from the Credit Refence Bureaus (CRB). Upon KCB receiving his credit score from the 2 nd and 3 rd Respondents, he was shocked to learn that he had been listed as a loan defaulter on account of information provided to the CRBs by the 1 st Respondent.
7. The Petitioner avers that he does not operate any bank account with the 1 st Respondent yet the 1 st Respondent had indicated that the Petitioner operates account number 01611007891700, 01631007891700 and 016F107891700 at Parliament Road Branch. The said accounts are reflected in the credit report by TransUnion dated 26 th May 2023, Metropol Credit Report dated 18 th May 2023 and Central Bank response letter dated 25 th September 2023. The Petitioner further avers that the 1 st Respondent, despite not having a bank account with him, forwarded his name to the 2 nd and 3 rd Respondents for listing as a loan defaulter without informing or notifying him in total breach of constitutional, statutory and
regulatory requirements particularly Article 25(c), 47, 50 of the Constitution, Section 26(1), (3), (9), (10) and 37(1), (7), (8), (10) of the Credit Reference Bureau Regulations 2020 and Section 4(3) of the Fair Administrative Action Act .
8. The Petitioner asserts that he had a legitimate expectation to be notified of the adverse report and to be given a chance to be heard before being adversely listed as a loan defaulter. Further, the 2 nd and 3 rd Respondents have adversely listed his name in their records as a loan defaulter without hearing him on the issue, in their investigations if any at all and in breach of constitutional, statutory and regulatory requirements. The 2 nd and 3 rd Respondents had a duty to independently investigate his complaint and also take reasonable steps to verify the accuracy of the credit information provided by the 1 st Respondent.
9. The Petitioner contends that the Respondents failed to supply him with the information and documents relied upon to list him as a loan defaulter as requested through his complaint which is in breach of Article 35 of the Constitution and Regulation 37(1) of the
Credit Reference Bureau Regulations 2020. The violation of his rights has resulted in him being denied financial facilities from banks in view of the access made available by the CRBs to the adverse information provided by the 1 st Respondent. Further upon the 1 st respondent submitting erroneous and inaccurate information to the 2 nd and 3 rd Respondents, they did not inform or communicate to him that such information that had been forwarded to the bureaus as required under Section 26(9) of the CRB Regulations 2020 . He averred that he lodged a formal complaint with the 1 st Respondent to correct the erroneous and adverse information in line with Section 26(6) of the CRB Regulations 2020 to no avail, despite several reminders. He further lodged a complaint with the 2 nd and 3 rd Respondents to investigate and provide information relied upon to make the adverse listing as required under Regulation 37(1), (5), (7) and (10) of the CRB Regulations 2020, however no communication was made to him to inform him of the status and outcome of the investigation save for the 2 nd respondent who merely reported that the 1 st Respondent had maintained that the information provided is accurate. The 2 nd and 3 rd respondents did not conclude their independent investigations as required and therefore ought to have deleted the disputed
information as required under Regulation 37(10) of the CRB Regulations 2020.
10. The Petitioner asserts that the Respondents actions complained of herein have adversely affected his personal, commercial and professional reputation. Due to the wrong listing, he was not able to secure a loan to finance a contract for a company where he is the sole director Kemo Import Supplies Ltd and the contract was terminated vide the letter dated 15 th June 2023. Kemo Import Supplies ltd had secured a contract on 4th April 2023 to supply Aluminium Class worth Kshs. 21,912,750/-. His character was further defamed in view of the negative, adverse and erroneous information forwarded to the 2 nd and 3 rd respondents and which information was accessed by KCB.
The 1 st Respondent’s Case
11. The Replying affidavit was sworn by John A. Nono, a Legal Officer working in the Company Secretary’s division of the 1 st Respondent. According to the 1 st Respondent, Kencom Sacco Society, in which the Petitioner was a member of, had a Memorandum of
Understanding (MOU) with the 1 st Respondent that allowed members of the said Sacco to access loan facilities at a favourable interest rate from the 1 st Respondent.
12. Through a loan Application dated 23 rd December 2004, the Petitioner applied for a personal loan of Kshs. 350,000/- from the sacco for home improvement. The Petitioner stated that he was then working as a clerk with KCB Bank Maralal Branch and provided his payslips and copy of his national ID as supporting documents. The loan was then approved and an amount of Kshs. 355,704.30/- which included the loan and all attendant charges, was disbursed by the 1 st Respondent to the Petitioner on 15 th February 2005. The loan amount was payable within four (4) years.
13. According to the 1 st Respondent’s records, the Petitioner only paid back an amount of Kshs. 191,364.75/; the last payment being made on 1 st November 2006. Thereafter, the Petitioner ignored all requests for repayment of the outstanding loan amount.
14. Since payments were not forthcoming and the Petitioner was unreachable, in February 2008, the 1 st Respondent hired an
investigator to trace the whereabouts of the Petitioner. The private investigator provided an investigation report on the Petitioner’s whereabouts and financial status.
15. On 26 th August 2010, in light of the mandatory provisions of the Banking (CRB) Regulation, 2008, the 1 st Respondent proceeded to list the Petitioner with the 2 nd and 3 rd Respondents. At the time, the Petitioner owed the 1 st Respondent Kshs. 299,306/-. On 27 th December 2013, the loan was written down.
16. The Deponent maintains adverse effects alleged to have been suffered by the Petitioner on the basis of listing of Credit Information have not been proved at all, and if any, they are a direct consequence of his own failure to service the loan facility.
17. Further, the 1 st Respondent asserts that the relationship between the Petitioner and the 1 st Respondent is contractual in nature hence any dispute arising from the relationship lies in commercial or civil proceedings. Furthermore, the 1 st Respondent contended that it was required by law to share credit information in the manner provided and thus compliance by the 1 st respondent with the requirements of
an applicable law cannot be said to be unconstitutional where the constitutionality of the laws has not been challenged at all.
18. Additionally, it was the 1 st Respondent’s position that the Petitioner has not demonstrated or shown the administrative action alleged to be taken by the 1 st Respondent and how compliance by the 1 st Respondent with statutory obligations set out in the CRB regulations amounts to an administrative action envisaged under the Constitution and any other law to justify the Petitioner’s claim under the Petition. Nevertheless, there is a legitimate expectation under a loan contract that the Petitioner would have honoured his obligations to repay the loan he took and owed to the 1 st Respondent as agreed under the terms of that loan.
19. The deponent further states that the Petitioner has not adduced any evidence to demonstrate that he applied for a loan with any financial institution and that such loan application was rejected for the specific reason that he was listed with the CRB. Further the alleged company named Kemo Import Supplies Ltd is a legal person that is not party to the instant proceedings and therefore all allegations purported to be made on account of the business of the said
company are not relevant to the present proceedings. Additionally, the petitioner has not placed anything before the court to demonstrate that he borrowed a loan from KCB and that KCB had solely rejected the alleged loan application solely on account of his credit.
20. The 1 st Respondent asserts that the Petition does not raise a proper constitutional issue for determination and thus the Court should decline to entertain the matter herein which is commercial and civil in nature. Further he argues that the Petition seeks a retrospective application of the CRB Regulations 2020 which were declared unconstitutional by the High Court. Additionally, the petition lacks locus before the court as the same is brought before the court prematurely before invoking or exhausting the dispute resolution mechanisms under the provision of the Fair Administrative Action Act. The petition further seeks for orders that are in itself in violation of the law particularly the order directing the Central Bank of Kenya to act outside the law in barring the 1 st Respondent from sharing its customers information to credit bureaus as required by law.
The 2 nd Respondent’s Case
21. The affidavit was sworn by Pahris Kiama, a Dispute Resolution Manager at the 2 nd respondent and he avers that the 2 nd respondent is licensed by the Central Bank of Kenya to operate as a credit reference bureau under the CRB Regulations 2020. It is licensed to obtain and receive customer information, store, manage, evaluate, update and disseminate customer information to subscribers in accordance to the Regulations and maintain database and generate reports from customer information database and credit scoring as per Regulation 15 of the Regulations. Under Regulation 18 of the Regulations, the 2 nd respondent is obligated to share customer information including information on none performing loans and any other negative information. Further, under the Banking Act, the 2 nd respondent as a licenced credit reference bureau is a medium through which institutions licensed under the Banking Act and the Microfinance Act exchange customer credit information.
22. The deponent asserts that the 2 nd respondent as a credit reference bureau only receives and does not generate customer information; such credit information is generated from the information providers which among others include financial institutions such as the 1 st
Respondent. Further, the customer information and reports on customers generated by the 2 nd respondent is only shared with subscribers mandated to do so by the Regulations. An institution such as the 1 st Respondent under the Regulations is under an obligation to submit and provide accurate customer information to the CRBs and in addition to update the said information in accordance to the Regulations. Furthermore, the information published by the 2 nd Respondent is information that is provided to all licensed CRBs in Kenya and is not localized to the 2 nd Respondent and the 3 rd respondent therefore is accessible from any bureau in Kenya.
23. The deponent states that the 2 nd respondent only listed account number 01631007891700 which was reported by the 1 st Respondent as a performing account without default history with its status as write off with no default. On 2 nd June 2023, the 2 nd Respondent received a duly filled dispute form from the Petitioner disputing the account status. On the same day, the 2 nd Respondent issued a notice of dispute to the 1 st Respondent and further instructed the 1 st Respondent to conduct an in depth investigation of the account and revert the findings. They then conducted their investigation in
light of the CRB Regulations 2020 which defines investigation as a formal inquiry to an institution or a third-party credit information provider on the authenticity of credit information submitted to the bureau. On 13 th June 2023, the 1 st Respondent wrote back to the 2 nd Respondent indicating that it had concluded its investigations and further confirmed that the disputed information was indeed accurate and thus should be maintained as is. The 2 nd Respondent wrote to the Petitioner on the same day informing him of the bank’s response and further advised him of the next steps to follow if dissatisfied with the response.
24. The deponent states that by listing the Petitioner in the CRB, the 2 nd Respondent was lawfully exercising its statutory duty of publishing the Petitioner’s credit information as shared by the 1 st Respondent as per Regulation 15 of the CRB Regulations. Further under Section 31(5) of the Banking Act and Regulation 20 of the CRB Regulations 2020 a suit against the 2 nd respondent is barred where such as in this case the 2 nd respondent has disseminated information under its statutory obligation to do so in good faith. Additionally, the only person or entity who can correct or amend information regarding a customer such as the Petitioner is the institution from which the
information emanates from, in this case, the 1 st Respondent and the 2 nd respondent cannot purport to correct or amend information by itself.
25. The deponent asserts that the 2 nd Respondent denies vehemently any infringement on the rights and freedoms of the Petitioner under the Constitution since its actions in relation to the Petitioner’s credit affairs were statutory obligations and were done within and in conformity to the law governing listing of credit defaulters and it has not in any way infringed the petitioner’s constitutional rights.
26. In rejoinder to the 2 nd respondent’s replying affidavit, the Petitioner filed a Supplementary Affidavit dated 30 th May 2024 and states that his case against the 2 nd and 3 rd respondents is that they both failed to supply him with the information relied upon to list him as a loan defaulter in line with Regulation 37(1) and 27(1) of the CRB Regulations 2020. Further, under Regulation 28(1)(g) and 37(7), the 2 nd Respondent has been given some investigative powers which it did not utilize at all. Under Regulation 28(1)(g), the 2 nd respondent was supposed to take reasonable steps or measures to verify the accuracy of the negative credit information supplied by the 1 st
Respondent and that would have included requesting for certain key documents from the 1 st Respondent to verify that which has been forwarded to it and also interrogate him on the same where necessary. Thus, the 2 nd respondent has infringed on his right to access to information under Article 35 of the Constitution.
The 3 rd Respondent’s Case
27. The affidavit was sworn by Esther Wanja Mungai an Associate Counsel, Group risk with the 3 rd respondent. She avers that the 3 rd Respondent is a credit reference bureau licensed under the Banking CRB Regulations 2013 and Section 31(4) of the Banking Act. She further avers that credit referencing provide for licenced CRBs to maintain a database through which institutions licensed under the Banking Act share amongst themselves prescribed credit information relating to their customers pursuant to Section 31(3) of the Banking Act. Regulation 23 of the Regulations 2013 allow CRBs to obtain credit information from third parties as is the case with the 1 st respondent on condition that third party disseminating the information ensures that it adheres to the provisions of the regulations.
28. The 3 rd Respondent states that pursuant to the Regulations, customers have rights in relation to information kept by the Bureau such as the right to know what information the institution has submitted to the Bureau; the right to access credit reports kept by the bureaus; the right to a free copy of the customers credit report once yearly and in the event of disputed information, the right to dispute the information under Regulation 35 of the Regulations 2013.
29. Upon a request by the petitioner through NIPASHE service, the 3 rd Respondent issued the Petitioner with his credit report on 26 th May 2023 in compliance with Regulation 35(1) & (2) of the Regulations 2013. Further, via email correspondence dated 26 th May 2023, the 3 rd Respondent expressly indicated that should the Petitioner have any inquiries regarding the credit report issued, he should send such complaint via email address of reports@transunion.com . Contrary to the directions indicated by the 3 rd respondent, the Petitioner proceeded to send its concerns to email address noreply@transunion.com and kereports@transunion.com , which emails are automated and do not serve the purpose of attending to customer complaints.
30. The 3 rd Respondent states that in view of the Petitioner’s negligence, the 3 rd Respondent was in the dark with regard to any complaint raised by the Petitioner until the 3 rd respondent was served with a letter dated 2 nd October 2023 by the Petitioner’s advocates and thus treated it as a dispute and immediately proceeded to act on it pursuant to Regulation 35(6) of the CRB Regulations 2013. Further, pursuant to Regulation 35(6) of the CRB Regulations 2013, the 3 rd Respondent, upon being issued with the Notice of the Dispute with regard to the accuracy of the Petitioner’s credit information proceeded to affix a note to the Petitioner’s credit information and further forwarded to the 1 st Respondent as the credit information provider and requested a confirmation of the accuracy of the credit information within 21 days. Pursuant to Regulation 35(7) of the Regulations 2013, upon receipt of a notice of dispute, the 3 rd Respondent in conducting its investigation is only obliged to forward such customer’s notice of dispute to the Credit Information Provider for purposes of ascertaining its accuracy and not to have the disputing customer to attend to a hearing during such investigation as alleged by the petitioner.
31. The 3 rd Respondent states that the 1 st Respondent carried out its investigation and reverted back ascertaining its position on the Petitioner’s non performing loan. The 3 rd Respondent then transmitted to the Petitioner the findings of the investigation via email dated 6 th October 2023 confirming the accuracy of the credit information and that it will maintain the disputed information unless advised by the bank pursuant to Regulation 35(8) of the CRB Regulations 2013.
32. The 3 rd Respondent maintains that it is not obliged to issue the Petitioner with a comprehensive report on the investigation given that it does not hold statements of accounts for the listed customer since such information is solely held by the reporting institution. Further, upon request or dispute by customers, the nature of reports issued by the 3 rd Respondent indicate the name of the reporting institution, account type, principal amount issued, the arrears, last payment date, account status and whether a dispute as to accuracy of such information has been raised. Thus, the Petitioner’s right to access such information was never violated by the 3 rd respondent.
33. The 3 rd Respondent contends that the Petition does not raise any constitutional issues and ought to have been filed as a commercial claim as the dispute arises out of contractual duties governed by terms and conditions of a loan facility advanced to the Petitioner by the 1 st Respondent. Further as per the Credit Regulations, a customer’s credit listing may not solely be used to deny the customer a loan but such other factors are used to inform the lender in determining the outcome of a customer’s loan application. As such, the 3 rd respondent argues that the Petitioner did not produce any evidence from KCB in support of his allegation that the bank denied him a loan facility as a result of his credit listing and thus any loss incidental thereto cannot be attributed to the 3 rd respondent’s listing.
34. In a rejoinder to the 1 st and 3 rd Respondent’s Replying affidavit, the Petitioner filed a Further Affidavit dated 15 th June 2025 . The Petitioner deposed that he is a stranger to the MOU by the 1 st Respondent as he was not a signatory to the agreement and he was also not privy to any dealings the 1 st Respondent may have had with Kencom Sacco. Further, he asserts that he has never applied for any loan from the 1 st Respondent for home improvements and in any
case, he was an employee with KCB Bank and he had financial facilities to access from his employer.
35. The Petitioner deposed that the 1 st Respondent has not demonstrated which mode of money transfer they sued to send the loan purportedly disbursed. Further, the 1 st Respondent authorised and opened a loan account number 016F107891700 without any source documents to initiate opening such an account as is required such as letter of offer, acceptance of offer, passport size photos of the Applicant and copy of the identity card. The 1 st Respondent being a financial institution, must obey the accounting/banking principles that require that every transaction has a double entry, specifically where a loan is being granted, there ought to be a generate loan account as a debit and a personal customer account as credit. The 1 st Respondent purportedly opened a loan account which is a debit account and there is no evidence money was disbursed to any of his accounts at all.
36. The Petitioner contends that even assuming he was a customer of the 1 st Respondent, the 1 st Respondent under the repealed CRB Regulations of 2008 still had an obligation pursuant to Section
28(1)(a) to notify him of the listing within 30 days of the first listing, which it failed to do. Thereby breaching his fundamental right under Article 47 of the Constitution and Section 4(2) of the Fair Administrative Action Act. The Petitioner reiterates that he has never had any financial dealings with the 1 st Respondent and therefore he has no contractual obligations with the 1 st Respondent. He argues that the matter before the court is not a civil or commercial matter as there has never been any valid contract between him and the 1 st Respondent.
37. The Petitioner contends that failure to supply him with the information relied upon to list him negatively made him feel less of a citizen of the country and injured his dignity and standing in society therefore violating Article 28 of the Constitution. He further states that the application of the CRB Regulations 2020 is not retrospective as the cause of action arose on 18 th May 2023 and the said regulations were and are still in force to date. Additionally, he depones that the Petition is properly before the court as he did everything possible to resolve the matter under the CRB Regulations 2020 and that the 1 st Respondent is only invoking the exhaustion
doctrine in an attempt to further frustrate the resolution of the dispute.
38. The Petitioner contends that his case against the 3 rd Respondent is that it failed to supply him with the information relied upon to list him as a loan defaulter in line with Regulation 37(1) and 27(1)(a) of the CRB Regulations 2020. Further, under Regulation 28(1)(g) and 37(7), the 3 rd Respondent has been given some investigative powers which it did not utilize at all. Under Regulation 28(1)(g), the 2 nd Respondent was supposed to take reasonable steps or measures to verify the accuracy of the negative credit information supplied by the 1 st Respondent and that would have included requesting for certain key documents from the 1 st Respondent to verify that which has been forwarded to it and also interrogate him on the same where necessary. Thus, the 3 rd respondent has infringed on his right to access to information under Article 35 of the Constitution.
39. The Petitioner asserts that the 3 rd Respondent did not comply with Regulation 37(5), (6) and (7) of the CRB Regulations 2020 as it ought to have notified the 1 st Respondent of the disputed credit report within five days and also investigate the same within seven
days which it never did. The 3 rd Respondent only responded much later on account of receiving a demand letter from his advocates. Further, on the 3 rd respondent’s allegation that the emails were automated and did not address customer complaints, the Petitioner states that the same is false as the demand letter dated 2 nd October 2023 was sent through kereports@transunion.com and the same was responded to.
40. The Petition was disposed of by way of written submissions.
Petitioner’s Submissions
41. The Petitioner identified four issues for determination as follows: whether the respondents breached or violated the petitioner’s constitutional rights ; whether the 1 st respondent breached Regulation 26(1), (3), (9) and 37(1) of the Credit Reference Bureau Regulations 2020 ; whether the 1 st respondent breached Section 4(3) of the Fair Administrative Action Act and whether the 2 nd and 3 rd Respondents have violated Regulation 37(1), (5), (7) and (10) of the Credit Reference Bureau Regulations 2020 .
42. On the first issue, the Petitioner submitted that the 1 st Respondent specifically violated his rights under Articles 25(c), 47 and 50 of the Constitution, by forwarding adverse credit information to the 2 nd and 3 rd Respondents for negative listing as a loan defaulter with respect to three different accounts without giving any notice as required under Regulation 26(1) of the CRB Regulations 2020. Thus, he was unable to defend himself. Further, the failure to supply him with the documents relied upon to list him negatively is a blatant breach of Article 35(1)(b) of the Constitution with regards to access of information. He argued that the 1 st respondent has never supplied a single document relied upon to list him which shows that the information relied upon is unavailable, malicious and defamatory in the circumstances. As such, the petitioner argued that he has a right to have the erroneous negative information corrected and deleted for being untrue and misleading as enshrined in Article 35(2) of the Constitution.
43. The Petitioner further argued that pursuant to Regulation 37(1) of the Regulations, the 2 nd and 3 rd Respondents has an obligation to supply or share information provided by the credit information provider when requested by a customer. He further asserted that
the 1 st Respondent violated his right to dignity and privacy under Article 28 of the Constitution for sharing the negative information with the 2 nd and 3 rd Respondents without according him a fair hearing. Further, the 3 rd Respondent is guilty of breaching Article 28 of the Constitution for failing to follow the laid down procedure once it received his complaint. The 3 rd respondent ought to have conducted investigations
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