The High Court in Eldoret has found that poverty is not a crime and that imprisoning a debtor for a debt they cannot pay infringes on their constitutional right to liberty and freedom.
Justice Reuben Nyakundi of the Eldoret High Court found that it was illegal, irregular and unjust for the lower court to sentence Barnaba Ngeno for 30 days to the Eldoret GK Prison after the small claims division found him liable for Ksh.789,000.
Justice Nyakundi ruled that the provisions of sections 38 and 40 of the Civil Procedure Act on arrest and detention only apply where the debtor is likely to abscond from the jurisdictional limits of the court or has dishonestly transferred, concealed or removed any part of his property, or committed any other act of bad faith in relation to his property.
In Ngeno’s case, however, it was established that he was not party to the proceedings and judgment that saw him committed to jail for 30 days.
“Poverty is not a crime and civil courts should not issue such orders on committal to Civil Jail against Judgment Debtors at whim, caprice and arbitrary without having at the back of their mind the constitutional imperative on the Bureau of Rights,” Justice Reuben ruled.
“This provision can only be invoked as a form of execution and enforcement by the decree holder, among other things, if he/she can sufficiently demonstrate that the debtor is a person of means but has willfully refused or evades payment of the money due…”
