When Wilson Nderitu Macharia walked into an I&M Bank branch, in March 2023, to open an account, he never imagined that what should have been a routine process would draw him into a legal battle with the lender that would last nearly two years.
Like any other customer, Mr Macharia expected the procedure to be straightforward: present his identification documents and be assisted in opening an account.
Instead, he was met with an unexpected demand — the bank required him to either provide a power of attorney or sign a deed indemnifying the lender as a precondition for opening and operating the account.
As a lawyer and adviser with the International Commission of Jurists (ICJ–Global), Mr Macharia immediately questioned the legality of this requirement and refused to comply.
He sued the bank and won when the High Court ruled that the treatment he received was unlawful and discriminatory. The court awarded him Sh2.5 million for violation of his rights.
Safaricom job
The case between Mr Macharia and the lender mirrors an earlier dispute he brought against Safaricom in 2019, after the company declined to hire him.
In that matter, the court found that although he had not proved discrimination on the basis of disability, Safaricom had violated his right to dignity under Articles 28, 41 and 54(1), as well as his right to fair administrative action under Article 47. He was awarded Sh6 million in damages.
Mr Macharia had been invited to attend an interview at Safaricom. He was then asked to sign a contract, only to be informed that the invitation letter had been sent to him in error.
The telco explained that Mr Macharia had not taken and passed the technical and oral interviews, and that he could not expect to be offered a position without having done so.
Safaricom also said that they could not employ him because they were unable to integrate their customer service platform with the specialised software required for the customer experience executive role at that time.
The court noted that the telecoms company had made diligent efforts to develop system integration software that would enable visually impaired people to work as customer experience executives.
Unfortunately, Safaricom explained that such software integration was not possible due to potential configuration conflicts.
The court held that the failure to provide reasonable accommodation for Mr Macharia was due to a lack of software, rather than his visual impairment, and as such there was no infringement of his right to equality.
“I find the respondent’s failure to provide reasonable accommodation to the petitioner, is a failure to afford an opportunity to the petitioner on account of lack of software but not on account of his visual disability and such there was no infringement on his rights to equality,” the judge ruled.
The father of three said that he did not take the two institutions to court for financial gain, but rather to set a legal jurisprudence (theory or philosophy of law) and challenge discriminatory practices.
“In the first case, I was looking for a job and I was denied the chance because of my disability. And in the second case, I had secured a job but the bank refused to take my money,” he said with a chuckle.
Wilson Nderitu Macharia is an advocate of the High Court.
Photo credit: Wilfred Nyangaresi | Nation Media Group
Banking ‘trauma’
In the I&M case, Mr Macharia said that he had been traumatised and had become reluctant to deal with financial institutions.
But, after the court ruled in his favour, he said, “No amount of compensation can restore the dignity that was lost during that incident, but it has given me the confidence that I can now go to a financial institution or service provider in the financial sector and know that they cannot violate my rights to control my financial affairs.”
The court ordered the lender to pay Mr Macharia Sh2.5 million in compensation for violating his constitutional rights by denying him access to banking services.
According to the court, the bank’s refusal to allow him to open and operate a personal account due to his blindness his disability constituted discrimination and a violation of his rights to equality, dignity and accessibility, as guaranteed under the Constitution and the Persons with Disabilities Act.
“Having considered the pleadings, arguments, the decisions relied on, the Constitution and the law, this court can only conclude that the respondent violated the petitioner’s rights guaranteed by Articles 27 and 28 of the Constitution by failing to accord the petitioner reasonable accommodation and allow him full access to services he required,” said the court.
The court added that the bank had placed impediments in Mr Macharia’s way, thereby denying him participation as an equal member of society and enjoyment of his legal capacity.
The court held that the bank’s demand for Mr Macharia to grant someone else authority to act on his behalf or indemnify the lender was unlawful and discriminatory.
“A declaration is hereby issued that the requirement by I&M Bank that Macharia donate a power of attorney or sign a deed of indemnity to open and operate a bank account was discriminatory and a violation of Article 27(4) of the Constitution,” the court declared.
Soft copy and left thumb
The court further ruled that the bank’s refusal to offer services to Mr Macharia on the grounds of his disability infringed his right to accessibility under Article 54(1)(e) of the Constitution and Sections 25(1)(b) and 25(3) of the Persons with Disabilities Act.
The visually impaired lawyer told the court that he had visited the bank’s Panari branch on Mombasa Road in March 2023 to open an account.
Although staff assisted him in completing the forms, he was not allowed to use a thumbprint signature.
Instead, the bank asked him to grant a power of attorney to someone else to operate the account on his behalf, a proposal he declined.
Later, on June 27, 2023, Mr Macharia met with officials from the bank’s legal department who suggested he sign a deed of indemnity as an alternative. When he asked whether this was standard policy, he was told it was not.
Feeling discriminated against, he filed a constitutional petition seeking declarations and remedies for the violation of his rights and fundamental freedoms.
He believed that demanding a power of attorney or deed of indemnity in order to open the bank account was discriminatory on the basis of his disability.
Wilson Nderitu Macharia says he felt discriminated due to his visual impairment.
Photo credit: Wilfred Nyangaresi | Nation Media Group
Despite demonstrating that he had operated bank accounts locally and abroad without a power of attorney or deed of indemnity, Mr Macharia said his request to provide the documents in soft copy and use his left thumb as his signature was declined.
He demonstrated that he could use his screen-reader-enabled phone or personal computer to read and communicate with the bank’s staff via email, but this did not persuade the bank to change its position.
In response, the bank, through an affidavit sworn by Andrew K Muchina, admitted that Mr Macharia had visited its branch, but said he was advised to execute a power of attorney or deed of indemnity in line with internal policy and the Central Bank of Kenya’s Risk Management Guidelines (2013).
These requirements, the lender said, are intended to safeguard customers’ interests while ensuring compliance with laws, regulations and industry practices governing the banking sector.
The bank argued that requesting for a power of attorney or deed of indemnity did not infringe Mr Macharia’s right to exercise legal capacity, but was a standard prerequisite for opening an account, enabling the institution to establish the necessary contractual framework. It added that declining to meet these requirements did not undermine a customer’s dignity, as one could choose to seek banking services elsewhere.
In Macharia’s defence
The Kenya National Commission on Human Rights supported Mr Macharia’s petition, arguing that the bank’s actions were intrusive and a denied him the right to exercise legal capacity.
The court dismissed the bank’s defence, ruling that its actions amounted to unjustified discrimination.
The High Court emphasised that banks and other service providers are required to make reasonable accommodations for persons with disabilities to ensure equal access to services.
In the earlier case, Safaricom defended itself, stating that all the shortlisted candidates, including Mr Macharia and other persons living with disabilities (PWDs), had been invited to attend the two-stage interview.
The PWDs were given fair treatment: they were given extra time for their aptitude tests and a lower pass mark was granted. The company said that it had eventually employed 11 people with disabilities.
However, the telco submitted that integration was not possible at that time due to conflicting software configurations. As such, it was not possible for Mr Macharia to undertake the technical interview. The company urged that adjustments needed to be made to allow for technological advancements to be integrated into the company's entire system.
Although Mr Macharia had volunteered to bring his own computer, the court was told that it was neither practical nor safe to allow him to do so in terms of company data and operations.
In the July 2021 judgment, the court awarded him Sh6 million in compensation for the violation of his rights.
