Family Bank CEO David Thuku has moved to court seeking to stop his intended prosecution over money laundering charges in relation to the NYS theft.
David Thuku and Company secretary Rebecca Mbithi told Justice Edward Muriithi the decision to charge them while no action has been taken against 27 other banks that handled or transacted the NYS funds is an infringement to the Constitution.
Lawyer Cecil Miller said the intended prosecution will cause panic among depositors and cause panic withdrawals and a run of deposits from which Family Bank will not recover.
“Our intended prosecution is creating unrest in the banking industry and among Family Bank's customers. It is vital that our application be quickly determined," they said.
Muriithi directed that the status quo be maintained, meaning they will not be arrested, detained or charged for failing to report suspicious transactions. He said he will give further directions tomorrow when the matter will be heard.
Court documents indicate that DPP Keriako Tobiko recommended their prosecution for failing to report suspicious financial transactions by customers. They said the DPP gave consent for their arrest and prosecution based on the unconstitutional advice and opinion of the Central Bank of Kenya.
The petitioners claimed they have a strong case with high chances of success in that the decision to charge them is based on the opinion or advice of the CBK.
They said it is in the public interest that the orders be issued so as to avoid panic among their customers, which may lead to instability in the banking industry.
“The DPP has now made a decision to prosecute the bank and its top officials based on the opinion and recommendation of the Governor of Central Bank of Kenya. In so far as the Central Bank of Kenya acts as a Bank for the government of Kenya, it is bound by the provisions of the proceeds of Crime and Money Laundering Act, 2009 with regard to monitoring and reporting of suspicious transactions and customer due diligence,” they said.
It was their argument that CBK acted beyond its duties by carrying out investigations and making recommendations with regard to the money allegedly stolen from the National Youth Service.
They now want the court to declare that their intended prosecution based on the advice, opinion or recommendation of CBK is illegal.
They also want court to declare that their intended prosecution is unconstitutional for being an infringement of article 27, 47 and 50 of the constitution.
Those sued are the Director of Public Prosecutions, Inspector General of the National Police Service and the Attorney General.