By Andrew Kariuki
The High Court in Eldoret has issued a strong warning against the misuse of civil jail in debt recovery, declaring that poverty should never be criminalised under Kenyan law.
In a landmark ruling, Justice Reuben Nyakundi ordered the release of Barnaba Ng’eno, who had been detained over a civil debt, faulting the lower court for violating his constitutional rights.
“Poverty is not a crime,” the judge stated, emphasizing that imprisoning individuals solely for their inability to pay debts infringes on fundamental rights, including the right to liberty, human dignity and a fair hearing.
The case stemmed from Eldoret Small Claims Court Civil Case No. E612 of 2024, where Ng’eno had been committed to civil jail over a decree amounting to Ksh 788,961.81. However, the High Court found that the process leading to his detention was legally flawed and unconstitutional.
Justice Nyakundi ruled that the trial court failed to establish whether Ng’eno had the financial means to settle the debt but had willfully refused to do so, a key requirement before committing a debtor to civil jail.
The court further noted that Ng’eno was not accorded a proper opportunity to be heard prior to his detention, violating principles of procedural fairness.
In the ruling, the judge stressed that civil jail should only be applied sparingly and strictly as a last resort, particularly in cases where a debtor is deliberately evading payment despite having the capacity to pay.
The court warned that the growing practice of imprisoning debtors without due process risks undermining constitutional protections and disproportionately punishing economically vulnerable individuals.
Justice Nyakundi also criticised the lower court for failing to adhere to safeguards outlined under Section 38 of the Civil Procedure Act, which require courts to conduct a thorough inquiry into a debtor’s financial means before issuing committal orders.
As a result, the High Court declared the committal unlawful, irregular and unconstitutional, and set aside the orders that led to Ng’eno’s imprisonment.
The ruling is expected to have far-reaching implications for debt enforcement practices in Kenya, reinforcing the principle that civil processes must not be used to punish poverty.
