The High Court in Eldoret has drawn a firm line against the misuse of civil jail as a debt collection tool, ruling that courts cannot imprison individuals simply because they lack the means to settle outstanding financial obligations.
In a decision that is already reverberating across Kenya’s legal community, Justice Reuben Nyakundi ordered the immediate release of Barnaba Ng’eno, a man who had been locked up over an unpaid civil debt of Ksh. 788,961.81. The judge found that the lower court had stripped Ng’eno of his constitutional rights at virtually every stage of the committal process.
“Poverty is not a crime,” Justice Nyakundi stated plainly, adding that jailing individuals solely because they cannot pay a debt amounts to a direct violation of their fundamental freedoms, including the right to liberty, dignity, and a fair hearing.
How the Case Unfolded
The matter originated in Eldoret Small Claims Court Civil Case No. E612 of 2024, where Ng’eno was committed to civil jail after failing to settle the outstanding amount. On the surface, it may have appeared routine. But when the High Court examined the procedures that led to his detention, it found serious and compounding failures at every turn.
Justice Nyakundi noted that the trial court did not establish whether Ng’eno actually had the financial means to pay the debt or whether he willfully refused to do so. This distinction is critical. Under Kenyan law, civil imprisonment is not meant to punish people for being broke. It exists solely as a last resort against debtors who can pay but deliberately choose not to.
Worse still, Ng’eno was denied a meaningful opportunity to defend himself before the incarceration order was handed down, a procedural failure the High Court described as a fundamental breach of the right to a fair hearing.
A Warning to Lower Courts
In addition to ordering Ng’eno’s release, Justice Nyakundi used the ruling to convey a clear message to magistrates and small claims courts nationwide: the increasing trend of imprisoning debtors without due process is unconstitutional and will not be tolerated.
The court pointed specifically to Section 38 of the Civil Procedure Act, which sets out strict legal safeguards that must be followed before any debtor can be committed to civil jail. These include a mandatory inquiry into the debtor’s financial situation and procedural fairness throughout the process. The Eldoret Small Claims Court followed none of these steps.
Justice Nyakundi warned that skipping these protections does not just affect individual cases – it systematically and disproportionately punishes the poor, turning the justice system into an instrument of oppression rather than a guarantor of rights.
The High Court formally declared Ng’eno’s committal unlawful, irregular, and unconstitutional, setting aside all orders that had led to his imprisonment.
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