A petitioner has moved to the High Court seeking the temporary suspension of Co-operative Bank Chief Executive Officer and Managing Director Gideon Muriuki, days after the court stopped his prosecution pending the determination of a separate case.
Francis Awino wants the court to issue conservatory orders barring Muriuki from exercising the powers, duties and functions of Co-operative Bank CEO while a constitutional petition challenging his continued stay in office is heard and determined.
The application comes against the backdrop of orders issued by the High Court last week stopping Muriuki’s prosecution pending the hearing and determination of a case challenging the intended criminal proceedings.
In the fresh petition, Awino says the Office of the Director of Public Prosecutions had approved criminal charges against Muriuki following investigations into alleged economic crimes.
He claims Muriuki has been named in criminal proceedings concerning an alleged conspiracy to defraud while serving as the bank’s chief executive.
Awino, however, acknowledges Muriuki’s constitutional right to be presumed innocent, arguing that criminal culpability is separate from the constitutional standards of leadership and integrity raised in his petition.
“Although the 2nd Respondent, Gideon Muriuki, enjoys the constitutional presumption of innocence guaranteed under Article 50(2)(a) of the Constitution, the constitutional principles of leadership and integrity established under Chapter Six are independent of criminal culpability,” the court papers state.
The petitioner argues that Muriuki occupies a position of immense fiduciary responsibility involving the stewardship of billions of shillings belonging to depositors, investors, pension schemes, financial institutions and members of the public.
According to Awino, public confidence is particularly critical in the banking industry and is closely tied to confidence in the leadership of financial institutions.
“Public confidence is the cornerstone of the banking industry, and confidence in a financial institution is inseparable from confidence in the integrity, independence and credibility of its leadership,” he states.
Awino has also faulted the Co-operative Bank board, accusing it of failing to undertake what he describes as any “discernible governance action or suitability review” concerning Muriuki’s continued occupation of office following the approval of the criminal charges.
He argues that the alleged failure by the board amounts to a continuing omission capable of being subjected to constitutional scrutiny.
“Unless conservatory orders are granted, the 2nd Respondent shall continue exercising extensive executive authority over one of Kenya’s largest banking institutions while the constitutional questions raised in the Petition remain unresolved,” Awino argues.
The petitioner wants the court to direct the Co-operative Bank board to appoint an acting CEO, either the Deputy Chief Executive Officer or another senior officer, to ensure continuity of the bank’s operations should Muriuki be suspended.
He further wants the board restrained from renewing, extending, varying or affirming Muriuki’s appointment as CEO until the petition is determined.
The Central Bank of Kenya has been named as an interested party, with Awino asking the regulator to exercise its supervisory mandate to ensure the bank’s governance complies with the Constitution, the Banking Act and applicable prudential guidelines.
According to Awino, the case raises substantial constitutional questions touching on Chapter Six of the Constitution, national values and principles of governance, and integrity in the leadership of Kenya’s banking sector.
He maintains that the alleged constitutional violation is continuing because Muriuki remains in office and continues exercising the powers and responsibilities of CEO.
“Every day that passes without judicial intervention potentially deepens the alleged constitutional injury, diminishes public confidence in the governance of one of Kenya’s most significant financial institutions and undermines the effectiveness of the constitutional standards of leadership and integrity,” he argues.
Awino further wants the application dealt with urgently, warning that delaying its determination until after the court vacation could undermine the relief he is seeking.
“If the matter is deferred until the reopening of the Court after the vacation, the Application seeking conservatory orders shall have been substantially overtaken by events and the substratum of both the Application and the Petition may be irretrievably lost,” he states.
The petitioner insists that the suspension sought is not intended to punish Muriuki or determine whether he is guilty of the allegations underlying the proposed criminal charges.
“The conservatory orders sought are not punitive and do not constitute a determination of the 2nd Respondent’s criminal liability,” the court papers state.
Awino argues that Co-operative Bank already has governance structures capable of ensuring continuity of its operations should the court temporarily remove Muriuki from the helm.
The High Court is now expected to consider whether the constitutional and governance issues raised by Awino justify Muriuki’s temporary suspension, even as the separate court order stopping his prosecution remains in force.
