“I was cautioned that admitting such an allegation to the company director or even taking disciplinary action  would be tantamount to the bank admitting liability.” — Evans Murumba, former Absa Coast regional head, in sworn testimony

Four years into a lawsuit Absa Bank Kenya insists never should have existed, the lender’s own former regional executive has told a Mombasa court something no cross-examination has managed to shake loose: that when the bank’s internal investigators found what he considered clear evidence of a client-confidentiality breach, management’s stated concern was not whether the leak happened — but whether admitting it would cost the bank money.

That single exchange, buried inside a witness statement now formally adopted as evidence, is the quiet detonator at the centre of New Mega Africa Limited’s Sh1,512,533,679 claim against one of Kenya’s largest banking groups.

Filed as Civil Suit E068 of 2022 before the High Court’s Commercial and Admiralty division in Mombasa, it is a case that has already produced a default judgment, an emergency injunction freezing a prime Kitusuru property, a reinstated “rogue” witness the bank fought for two years to keep off the stand, and now, in its latest twist, the abrupt withdrawal of the bank’s own star witness a woman who says the case has cost her too much of her personal life to continue.

THE SH86 MILLION LOAN THAT BECAME A SH1.5 BILLION LIABILITY

New Mega Africa hauls clinker by road from Kenyan quarries to cement plants in Tororo, Uganda unglamorous cargo work that, by late 2022, had drawn the company roughly Sh86.4 million in Absa credit facilities: term loans, invoice discounting, an overdraft and guarantees, secured against a prime property in Kitusuru, Nairobi.

Court filings describe a banking relationship that soured when Covid-era payment delays from the firm’s key client, Tororo Cement, strained its cash flow and pushed it to seek a restructuring of its facilities.

What happened next is the crux of the case. New Mega Africa’s director, David Abai Omusala, alleges that in July 2021 a relationship manager inside Absa printed the company’s confidential account statements and disclosed its financial distress to outsiders including, the company says, business associates who were warned off dealing with the firm entirely. Insurance was reportedly cancelled. Financiers backed away. Trucks were grounded. The firm that had once been, in one former banker’s description, a strong-performing customer found its credit lines effectively poisoned by its own bank.

When Absa failed to file a defence within the required window, the High Court in Mombasa entered interlocutory judgment in November 2022. Justice Njoki Mwangi found the bank had breached a fiduciary and contractual duty to its client and awarded New Mega Africa the full Sh1.5 billion it sought, plus interest a figure roughly seventeen times the size of the original loan the dispute grew out of.

THE MANAGER, THE PHONE CALL, AND THE KENHA CONNECTION

The most granular account of what allegedly happened inside Absa comes from Evans Murumba, the bank’s former Coast Region sector head for business banking, who resigned in mid-2022 to pursue politics and has since testified for New Mega Africa.

According to his witness statement, the disclosure traces to a single phone call: relationship manager Wycliffe Makori allegedly telephoned Jared Makori, then a regional manager at the Kenya National Highways Authority, to warn him against entering into financial dealings with New Mega Africa disclosing that the firm was in distress and that the bank was weighing recalling its facilities and auctioning its security.

Jared Makori, called to testify himself, confirmed the conversation took place, though he said he had no recording of it and denied any business interest in New Mega Africa beyond knowing its director. Murumba’s account goes further: he says that when he confronted Wycliffe Makori, the relationship manager admitted making the call and that Murumba escalated the matter internally for investigation and possible discipline.

It is what happened after that escalation that gives the case its sharpest edge. Murumba testified that the bank’s internal review concluded there was no material risk arising from the disclosure and recommended no further action but that he was separately cautioned that formally admitting the breach to the client, or disciplining the staff involved, would amount to Absa conceding liability. In other words: the concern inside the bank, as Murumba describes it, was not principally about whether client confidentiality had been violated, but about the legal exposure that acknowledging it would create.

THE “SCHOOLMATES” DEFENCE AND THE QUESTION IT DOESN’T ANSWER

Absa’s account of Wycliffe Makori’s conduct rests on more than a denial that the disputed phone call happened. In sworn evidence, Makori has framed his personal financial dealings with Abai Omusala the M-Pesa transfers between the two men that New Mega Africa’s side has pointed to as evidence of an improperly close relationship as nothing more than the ordinary back-and-forth of old friends.

The two men, the bank’s evidence suggests, were schoolmates long before Absa entered the picture, and the transfers were personal loans and repayments unrelated to the bank’s handling of the account.

It is a defence built to neutralise one line of attack, but it opens another.

If Makori and Abai Omusala’s relationship long predates the banking facility, and by the bank’s own telling was cordial enough to involve personal money changing hands between them, that only sharpens the question New Mega Africa’s lawyers have yet to fully answer in public filings: what, then, explains a relationship manager allegedly moving within an hour of reassuring his friend face-to-face to warn a third party off doing business with that same friend’s company? A stranger’s carelessness with confidential data is one story. A schoolmate’s alleged betrayal, if that is what the evidence ultimately shows, is a considerably darker one and it is the version New Mega Africa’s camp has stopped just short of stating outright, even as it keeps the personal-ties allegation in play.

Absa has not addressed that tension directly. Its filings treat the schoolmate relationship purely as an innocent explanation for the M-Pesa trail and stop there, leaving unresolved why a bank employee with a personal history with the client would be the one accused of the disclosure in the first place a gap the case’s remaining witnesses, and New Mega Africa’s incoming auditor’s report, may yet be forced to address.

THE WITNESS THE BANK FOUGHT FOR TWO YEARS TO SILENCE

Murumba’s evidence very nearly never reached the court at all. He first sought to join the suit as a party in his own right a bid the court declined before applying to testify purely as a witness, framing his involvement as necessary to clear his name over the handling of the New Mega Africa relationship during his tenure.

Absa opposed his admission vigorously, telling the court his testimony would only “murk the waters” and serve as a proxy for the plaintiff’s case.

For a time, the bank won that argument.

But in a ruling delivered on 22 January 2025, Justice Julius Ng’arng’ar allowed a review application and reversed the earlier decision, permitting Murumba to file his statement and take the stand after all reopening an evidentiary door Absa had spent roughly eighteen months trying to keep shut.

The bank has separately failed to persuade the Court of Appeal to empanel a three-judge bench to overturn the injunction blocking it from auctioning the Kitusuru property, a defeat that left it fighting the case on every available front at once: liability, quantum, and its own collateral.

THEN, DAYS AFTER THE REOPENING: THE BANK’S OWN WITNESS WALKS AWAY

What has drawn less attention and deserves far more is what happened to Absa’s side of the witness list once Murumba’s testimony was back in play.

Sophie Omondi, the relationship manager who took over New Mega Africa’s account and was present at the internal meeting Murumba describes, has formally withdrawn as an intended witness for the bank. In a letter copied to all parties and the court, she said the litigation had taken a toll on her personal life and that she wished to move on a withdrawal she extended to a related case involving the same parties pending before a Nairobi court.

Taken alone, a witness stepping back for personal reasons is unremarkable.

Taken alongside the timeline Omondi was in the room for the disputed meeting Murumba describes, and her exit follows directly on the heels of his reinstated testimony implicating a colleague she worked alongside it leaves Absa’s account of events resting on progressively fewer first-hand voices, at precisely the moment New Mega Africa is moving to put a hard number on its losses.

THE AUDITOR WHO COULD PUSH THE BILL PAST SH1.5 BILLION

New Mega Africa has told the court it has now engaged an independent auditor to formally quantify the financial losses it attributes to the alleged breach lost financing, cancelled insurance, and the collapse of supplier and creditor confidence that followed the disclosure.

The company has asked for more time to file the auditor’s report, citing the auditor’s field assignments abroad.

Whatever figure that audit produces will likely anchor the next phase of a case that has already generated one Sh1.5 billion default judgment Absa is still fighting to have set aside meaning the bank’s ultimate exposure, rather than shrinking as the case matures, may be about to be recalculated upward with expert backing behind it.

A BANK FIGHTING ON TOO MANY FRONTS TO CONTROL THE NARRATIVE

The New Mega Africa suit does not sit in isolation. It lands inside a wider pattern of litigation and labour disputes that has followed Absa Kenya in recent years, including a separate Employment and Labour Relations Court order requiring the bank to settle unpaid bonuses and salary increments owed to a former branch manager.

Court-watchers following the Mombasa Commercial and Admiralty division have also noted the case’s path through a judiciary reshuffle ordered by Chief Justice Martha Koome affecting High Court judges nationally a routine administrative event that nonetheless means the matter has now been shepherded by at least three different judges since 2022, each inheriting a record already thick with procedural skirmishing.

Absa, for its part, has not wavered publicly. Through its filings the bank maintains that no leak occurred, that internal investigations found no wrongdoing by any employee, and that the suit is a calculated manoeuvre by a borrower seeking to escape a legitimate Sh86.4 million debt rather than a genuine data-protection grievance.

That defence will now be tested against a former insider’s sworn account of an internal culture that, on his telling, treated a confirmed disclosure less as a compliance failure to fix than a liability to manage.

WHAT IS ACTUALLY ON TRIAL

Kenyan banks hold some of the most sensitive financial data in the country, protected by a duty of confidentiality regulators and courts increasingly treat as inseparable from the Data Protection Act’s civil exposure.

If New Mega Africa’s account survives full cross-examination and if its auditor’s report lands where the company expects the case could become one of the costliest data-confidentiality judgments in Kenyan banking history, and a precedent-setting warning that the price of a single unauthorised phone call can run into the billions.

If Absa prevails, it will have done so only after a rare and uncomfortable spectacle: a former senior executive testifying, under oath, that his own employer chose silence over disclosure and a colleague who knew what happened choosing, this year, to simply walk away.

The case continues before the High Court’s Commercial and Admiralty division in Mombasa. Absa Bank Kenya did not respond to a request for comment on Murumba’s account of the internal caution against admitting liability by the time of publication.