DIB Bank Kenya, a subsidiary of Dubai Islamic Bank of the United Arab Emirates, has lost a bid to reverse a decision by a magistrate court allowing the State to investigate its books as part of a probe into a suspected crime committed by one of its customers.
The bank argued that the account the police intend to investigate is based on confidential information about their customer.
The order was issued by the subordinate court on September 12, 2022.
It said the execution of the magistrate’s order would compromise its duty of confidentiality (privilege).
But Justice Justus Bwonwong’a dismissed the request and said the bank cannot claim confidentiality between it and its customers to evade disclosure of the information that is needed by the police in the course of their investigations.
He said investigations were lawful since they were being conducted after police investigators obtained a search warrant from the court.
Confidentiality
“Additionally, the bank cannot claim any confidentiality once there is an order of the court to carry out the search in respect of the books of accounts of the bank. DIB cannot claim privilege to avoid being investigated for suspected commission of crimes,” said Justice Bwonwong’a.
He said the allegation that the investigations would interfere with the confidentiality of the bank’s client falls away once the investigations are carried out according to a court order.
An affidavit filed by Police Constable Bonface Muli indicated that the police were investigating a case of conspiracy to defraud and forgery.
This followed allegations made by Mr Antony Mbithi Mutuku in respect of his property that was allegedly charged by the bank. The police, therefore, sought and were granted warrants to investigate the books of accounts of the bank in respect of the charged property.
Regarding the bank’s claim that the disputed order was issued without it being heard, the judge held that giving notice to the person to be investigated can easily jeopardise the incriminating evidence.
He added that the purpose of conducting investigations “ex parte” (without informing the other party) is to prevent suspects from escaping or destroying evidence.
Under investigation
It also protects innocent people from the public knowledge that they are under investigation.
“If disclosures were allowed during the investigation process, it will be prejudicial and distractive to the investigation process,” said the judge.
He said the order issued by the magistrate court was specific and the warrants issued were to facilitate investigations with a view of preferring charges.
“This court cannot interfere with the investigation processes of the police by granting the orders sought,” he ruled.
Stating that the fair trial rights under article 50 of the Constitution of an accused do not come into play during the investigation process, the judge found that the said rights are only applicable when a suspect has been charged in court.
He said the investigation and its outcome do not permit participation by the bank.
“The applicant has not provided any evidence to indicate that the court failed to satisfy itself of the matter sought to be investigated,” said the judge.
The bank through its legal officer, Farida Ghazi, had argued that the orders granted do not indicate or state the duration for which the order will remain in force.
Additionally, the trial court failed to give a return date to allow the bank to raise any issue it may have with the order.
It was argued that the impugned orders fall short of legality, correctness, and propriety and thus should be revised, set aside, or otherwise discharged. BY DAILY NATION