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If someone obtains a money judgment against you, they can cause you to be jailed for up to six months should you fail to pay up.
In 2010, then High Court judge Martha Koome declared this practice unconstitutional, arguing that it humiliates debtors, among other reasons. The decision generated considerable controversy.
Several other judges have since extensively deliberated the legality of civil jail, reaching the general consensus that it is not unconstitutional, because the law provides safeguards against imprisoning genuinely helpless defaulters.
For example, the court affords the debtor an opportunity to explain why they should not be jailed before sentencing. Their financial status is also considered.
Last month, Eldoret High Court judge Reuben Nyakundi opined in a ruling that only deceitful defaulters should be locked up. He relied on an Indian case where it was decided that there must be some element of bad faith beyond mere indifference to pay, to justify prison time.
“I have always held the view that committal to civil jail is not a mechanism for debt recovery but a punitive measure for evasion of debt despite having the means to pay”, the judge stated.
With respect, that position cannot be correct. First, while civil jail has evolved since the Victorian era when you could be detained for life unless you worked off what you owed, it is yet to shed its debt collection nature. This is why even today, the prisoner is released once the debt is paid.
Also, if such imprisonment were ‘punishment’ in the conventional sense, the government would bear its cost. Instead, the creditor has to foot the bill of keeping the debtor behind bars. Few would bother if there was no prospect of recovering their money.
Second, a debtor’s bad faith shouldn’t be a requirement for their incarceration. The Civil Procedure Rules dictate that one can be jailed if (s)he has the means, but refuses or neglects to pay. Here, “refusing or neglecting to pay’ should not be interpreted to mean only hiding money and property, but also not exerting oneself.
Should nothing be done about an able-bodied but unemployed defaulter who nonetheless refuses to find a job that would help them settle the debt, even if in instalments? Sure, they will not be able to work in prison, but may be motivated to borrow or fund-raise.
It is easy to understand the moral queasiness around civil jail—it deprives one of their right to freedom. Thus, in her 2010 verdict, Justice Koome recommended alternative methods of debt enforcement, such as seizure of assets. But even that would result in a denial of the debtor’s constitutional right to own property. More importantly, the creditor, too, has a no less right to enjoy the fruits of their judgment.
Newton Arori is an Advocate of the High Court of Kenya
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If someone obtains a money judgment against you, they can cause you to be jailed for up to six months should you fail to pay up.
In 2010, then High Court judge Martha Koome declared this practice unconstitutional, arguing that it humiliates debtors, among other reasons. The decision generated considerable controversy.
Several other judges have since extensively deliberated the legality of civil jail, reaching the general consensus that it is not unconstitutional, because the law provides safeguards against imprisoning genuinely helpless defaulters.
For example, the court affords the debtor an opportunity to explain why they should not be jailed before sentencing. Their financial status is also considered.
Last month, Eldoret High Court judge Reuben Nyakundi opined in a ruling that only deceitful defaulters should be locked up. He relied on an Indian case where it was decided that there must be some element of bad faith beyond mere indifference to pay, to justify prison time.
“I have always held the view that committal to civil jail is not a mechanism for debt recovery but a punitive measure for evasion of debt despite having the means to pay”, the judge stated.
With respect, that position cannot be correct. First, while civil jail has evolved since the Victorian era when you could be detained for life unless you worked off what you owed, it is yet to shed its debt collection nature. This is why even today, the prisoner is released once the debt is paid.
Also, if such imprisonment were ‘punishment’ in the conventional sense, the government would bear its cost. Instead, the creditor has to foot the bill of keeping the debtor behind bars. Few would bother if there was no prospect of recovering their money.
Second, a debtor’s bad faith shouldn’t be a requirement for their incarceration. The Civil Procedure Rules dictate that one can be jailed if (s)he has the means, but refuses or neglects to pay. Here, “refusing or neglecting to pay’ should not be interpreted to mean only hiding money and property, but also not exerting oneself.
Should nothing be done about an able-bodied but unemployed defaulter who nonetheless refuses to find a job that would help them settle the debt, even if in instalments? Sure, they will not be able to work in prison, but may be motivated to borrow or fund-raise.
It is easy to understand the moral queasiness around civil jail—it deprives one of their right to freedom. Thus, in her 2010 verdict, Justice Koome recommended alternative methods of debt enforcement, such as seizure of assets. But even that would result in a denial of the debtor’s constitutional right to own property. More importantly, the creditor, too, has a no less right to enjoy the fruits of their judgment.
Newton Arori is an Advocate of the High Court of Kenya
Follow The Standard
channel on WhatsApp
By Newton Arori