The High Court in Eldoret declared the committal of a man to civil jail over a Sh788,961 debt unconstitutional and unlawful.
In a judgment delivered on March 19, Justice Reuben Nyakundi ordered the immediate release of Barnaba Ngeno, who had been detained at Eldoret GK Prison after the Small Claims Court in Eldoret committed him to civil jail for 30 days.
The court found that the process leading to Ngeno’s imprisonment was procedurally defective and violated his constitutional rights.
“The proceeding which were instituted to move and arrest and subsequently commit him to Civil Jail for 30 days were illegal, irregular, and unjust the best thing is to set them aside as being voidable abinitio,” ruled the court.
According to the court documents, Ngeno had moved to the Small Claims Court seeking to set aside an ex-parte judgment entered against him and to challenge the execution process.
However, despite that pending application, the matter proceeded before the trial court on February 16.
Although Ngeno’s advocate was present and the respondent’s lawyer was absent, the adjudicator directed that the matter proceed to ruling on March 6, and ordered that Ngeno be committed to civil jail.
Attempts by his lawyers to secure a stay of execution and his release pending the ruling were unsuccessful.
Aggrieved by the decision, Ngeno moved to the High Court, seeking to review the legality, correctness and propriety of the lower court’s orders.
In his decision, Justice Nyakundi held that the Small Claims Court failed to comply with the mandatory legal safeguards required before a person can be jailed for failure to pay a civil debt.
The judge held that Sections 38 and 40 of the Civil Procedure Act, which regulate the arrest and detention of judgment debtors were not properly followed.
He ruled that the lower court record did not show whether the committal was carried out in accordance with the law, including whether the decree-holder had paid the required subsistence allowance for the debtor while in custody.
The judge further faulted the court for failing to conduct a proper inquiry into whether Ngeno had the means to pay the debt and whether he had deliberately refused to do so.
Justice Nyakundi said such proceedings require a meaningful examination of the debtor’s financial position, including whether he has any movable or immovable property, income or receivables capable of satisfying the decree.
Without that inquiry, the court held, imprisonment becomes arbitrary and unlawful.
“Poverty Is Not a Crime” said the court
Justice Nyakundi warned against the casual use of civil jail orders, saying they must be exercised sparingly and in strict compliance with constitutional protections.
He said that the Constitution, together with international human rights principles incorporated into Kenyan law, protects individuals from arbitrary detention and indignity simply because they are unable to pay debts.
The judge stated that “poverty is not a crime” and cautioned that civil courts should not commit judgment debtors to jail “at whim, caprice and arbitrary.”
He added that detaining an honest but poor debtor amounts to a violation of fundamental rights and is inconsistent with the Constitution.
Justice Nyakundi also held that a debtor cannot be imprisoned merely for being poor unless there is proof of a wilful refusal to pay despite having the means.
The High Court found prima facie evidence that Ngeno’s rights had been violated under several provisions of the Constitution, including Articles 25(a), 26, 27, 28, 29, 47, 48 and 50, which protect, among other things, dignity, equality, liberty, fair administrative action, access to justice and fair hearing.
“I have always had the view that committal to Civil Jail of a Judgment Debtor is not a mechanism for debt recovery but a punitive measure for contumacious evasion of debt despite having the means to pay,” ruled the court.
He ordered Ngeno’s immediate release and directed that execution of the ex-parte judgment be stayed pending the hearing and determination of his application before the Small Claims Court.
Justice Nyakundi called for broader reform of the law on civil imprisonment.
He said the Legislature should urgently re-examine the statutory framework governing civil jail, ruling that its current application often results in constitutional violations.
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