Eldoret High Court decision sets a new precedent on civil jail for debt Section 38 of the Civil Procedure Act and Order 22 of the Civil Procedure Rules, 2010 allow courts to detain
judgment debtors to compel payment of monetary decrees. The law sets clear safeguards including: a debtor must be given notice to show cause why they should not be committed to prison; the court must be satisfied that certain statutory conditions exist before ordering detention; and the reasons for committal must be recorded in writing. These provisions empower a court to enforce a monetary decree through arrest and detention, but only as one of several execution modes alongside attachment of property, sale, or appointment of a receiver.
Be that as it may, it is possible for a court to order detention as permitted by Section 38 of the Civil Procedure Act only if it is satisfied that: the debtor is likely to abscond or evade the court’s jurisdiction; the debtor has dishonestly transferred, concealed, or removed property to avoid payment; the debtor has the means to pay but refuses or neglects to do so; or the debt arises from a fiduciary obligation, meaning that the debtor was entrusted with funds and failed to account for them.
Internationally, Kenya is bound by Article 11 of the International Covenant on Civil and Political Rights (ICCPR), which provides: ‘No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation.’ Kenyan courts have consistently interpreted this to distinguish inability (protected) from refusal or misconduct (punishable). This aligns with constitutional rights under Articles 25, 27, 28, 29, 47, and 50 of the Constitution of Kenya 2010, covering equality, human dignity, freedom from arbitrary detention, fair hearing, and fair administrative action.
Looking at judicial precedents, courts have applied these rules in both upholding and limiting committal. For example:
The Marsabit High Court (2021) in Hussein Marshallo Guracha v Marhallo Guracha & Another [2021] KEHC 5424 (KLR), the applicant, an estate administrator, was committed to civil jail after failing to account for KES 751,500 received in a fiduciary capacity. The court upheld the committal, noting that the debtor had been served with a show-cause notice, offered no satisfactory explanation, and showed evidence of refusal despite apparent means. The application to set aside the detention was dismissed, reinforcing that breach of fiduciary duty and deliberate non-payment justify detention.
In a decision that has drawn widespread attention, Justice Reuben Nyakundi of the High Court at Eldoret delivered a significant ruling in Miscellaneous Civil Application No. E-039 of 2026 on March 19th 2026. The case involved debtor Barnaba Ng’eno, who had been committed to 30 days’ civil imprisonment at Eldoret G.K. Prison over a KSh 788,961.81 decree (originating from Eldoret Small Claims Court Civil Case No. E612 of 2024, related to compensation for trespass and tree cutting).
Justice Nyakundi reviewed the file and found critical procedural failures: no evidence that the debtor had the means to pay but willfully refused, and no meaningful opportunity for Ng’eno to be heard. The judge declared the committal order illegal, irregular, and unjust. He ordered Ng’eno’s immediate release, stating that “poverty is not a crime” and that it is “unfair and unconstitutional to punish a person for lacking money.”
The ruling clarifies that civil jail is not a routine debt-collection tool or shortcut for creditors. It must be a last resort, used only where deliberate refusal or misconduct is proven. The decision reinforces constitutional supremacy and echoes ICCPR Article 11 while cautioning lower courts against misapplying Section 38. It is important to note that this judgment does not strike down Section 38 itself but insists on strict proof of ability and refusal before any deprivation of liberty.
This judgment is in alignment with Order 22 Rule 34 of the Civil Procedure Rules, 2010, which provides that a debtor should not be detained if they demonstrate inability to pay due to poverty or other sufficient cause. The purpose is mainly to protect vulnerable debtors. The law demands procedural fairness, that is, notice, an opportunity to be heard, and written reasons to prevent arbitrary deprivation of liberty. It is a new precedent and a landmark in Kenya’s legal landscape. It firmly clarifies the constitutional limits of civil jail and reinforces the principle that inability to pay a debt cannot, on its own, justify deprivation of liberty.
The insistence in this article is that civil jail is still a lawful enforcement option in Kenya, but its use is now under sharper judicial scrutiny. It is justified only where there is clear evidence of willful refusal despite means to pay or misconduct, which includes asset concealment, absconding, or fiduciary breach. It is impermissible where non payment stems from genuine poverty or inability. The Eldoret ruling sends a strong message to creditors, financial institutions, SACCOs, and lower courts to prove capacity and intent or pursue alternative remedies such as asset attachment or garnishment.
This March 2026 Eldoret ruling draws a firm line against the criminalization of poverty.
~Written by Wangui Kinyua
