A Landmark Ruling on Non-Discrimination and Legal Capacity
We are proud to announce a significant legal victory achieved by our firm, under the expert leadership of Adv. Mokua Manyara and Fiddel Castro owino in the fight for the rights of persons with disabilities in Kenya. The High Court, in the case of Macharia v I & M Bank Limited; Mute & 3 others (Interested Parties) (Petition E443 of 2023) [2025] KEHC 14903 (KLR), delivered a decisive judgment on October 14, 2025, that reinforces the constitutional rights to dignity, non-discrimination, and accessibility.
Our client, a visually impaired person, sought to open a bank account with the Respondent (I & M Bank Limited). Instead of receiving standard customer service, he was met with an unlawful condition: the bank required him to either provide a power of attorney or sign a deed of indemnity to proceed.
This requirement, our firm argued, was not a generalized policy but a direct and discriminatory reaction to his disability, effectively denying him the ability to manage his own finances and exercise his legal capacity.
The Honourable Justice E C Mwita, sitting in the Constitutional and Human Rights Division, found unequivocally in our client’s favour. The court’s determination sends a clear message to all private institutions: constitutional rights apply to everyone, and discrimination will not be tolerated.
1. Violation of Non-Discrimination (Article 27(4)): The bank’s requirement was declared discriminatory and unconstitutional.
2. Injury to Dignity (Article 28): The requirement was found to be injurious to the Petitioner’s dignity as it disregarded his capacity and autonomy.
3. Denial of Legal Capacity: The bank’s action unlawfully denied our client the right to exercise his legal capacity, treating him as less capable than other citizens.
4. Breach of Accessibility (Article 54(1)(e)): The bank’s refusal to offer services without discriminatory conditions constituted a violation of the right to accessibility guaranteed under the Constitution and the Persons with Disabilities Act.
For the violation of his fundamental rights, the Petitioner was awarded Kshs. 2,500,000 in compensation against the Respondent, who was also ordered to pay the costs of the petition.
Under the guidance of Mokua Manyara, our legal strategy focused on three pivotal principles of constitutional law:
1. Horizontal Application of the Constitution
The Bill of Rights is not just a shield against the State; it binds all persons and private entities offering public services. The court emphasized that Article 27 explicitly prohibits any other person (not just the State) from directly or indirectly discriminating against another on the basis of disability. This principle of horizontal application is crucial for holding private institutions accountable.
2. Discrimination is Differential Treatment
The court quickly identified the bank’s action as a clear case of discrimination. Since the demand for a power of attorney or indemnity was not a general requirement for all customers, its application solely to our client due to his visual impairment constituted differential treatment on a prohibited ground.
Furthermore, by forcing him to involve a third party, the bank disregarded his capacity, autonomy, and preferences, a clear violation of his right to exercise legal capacity as guaranteed by the UN Convention on the Rights of Persons with Disabilities (CRPD).
3. The Positive Duty of Reasonable Accommodation
The most groundbreaking part of the judgment centered on the bank’s failure to provide reasonable accommodation.
The court affirmed that reasonable accommodation is a “substantive equality facilitator” and its denial is, in itself, a form of discrimination.
The judgment, drawing on international jurisprudence, stressed the necessity of dialogue with the disabled person to determine how to remove barriers, rather than dictating terms based on assumptions. By relying on internal policies and failing to demonstrate any legal justification for limiting the Petitioner’s rights, the bank failed its positive duty to ensure our client’s full access and participation as an equal member of society.
The Impact of the Judgment
This successful prosecution, is a resounding victory that re-affirms the primacy of the Constitution over internal policies of private entities. It sets a powerful precedent, compelling banks and other service providers to:
Recognize the full legal capacity and autonomy of persons with disabilities.
Proactively address barriers and provide reasonable accommodation.
Ensure their services are truly accessible to every Kenyan, without discriminatory conditions.
This case is a testament to our firm’s commitment to justice and equality. If you believe your constitutional rights have been violated, particularly on grounds of discrimination or disability, please contact our team to discuss your legal options.
https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14903/eng@2025-10-14
MNW & Advocates LLP