Courts should forthwith stop jailing people who cannot pay their debts

Five years ago, John Kibet Cherop was jailed because he owed National Bank of Kenya some money. He had proposed to pay in instalments of Sh10,000, but failed to do so. After his second week in prison he applied to the High Court at Eldoret to be released on the ground that he was ill.

He told the court that he suffered from peptic ulcers and hypertension and that his continued imprisonment would make his condition worse.

George Dulu, then an acting judge, told him it was up to him to convince the court that his condition warranted his release.

Mr Cherop produced two letters from Moi Teaching and Referral Hospital. But Justice Dulu said the letters were not signed by a doctor, nor did they show the seriousness of the illnesses and his unsuitability to continue staying in prison due to ill-health. He dismissed the application.

IN COURT LANGUAGE, MR CHEROP WAS A ‘judgment debtor’. According to lawyer Mwalimu Mati of Mars Group, there are many other judgment debtors who daily face the prospect of going to jail because they cannot pay their debts.

Creditors, especially banks, routinely resort to this line of debt collection, he says.

A judgment debtor is a person against whom a money judgment has been entered but not yet satisfied. A money judgment is subject to immediate execution.

The judgment debtor is held to be in contempt of court (civil contempt) if he fails to pay up. The usual punishment is confinement for up to six months.

The committal to civil jail is merely the execution of a court order. There is therefore no appeal. The civil litigation is deemed to have ended.

Mr Mati says the practice offends our laws on due process and the right to liberty as set out in Order 21, Rule 35, of the civil procedure rules and Section 72 of the Constitution.

The practice of jailing debtors where there is genuine inability to pay “belongs to the dark ages,” he adds.

The practice of jailing debtors goes back to the Roman times but it has largely been abandoned by other countries. England, from which we inherited most of our laws, abolished its debtor prisons with the Bankruptcy Act of 1869.

The United States abolished the practice in 1833. However, in some states people can still be jailed for debts relating to fraud, child-support, and alimony, as well as fines levied as part of a sentence, restitution and court costs.

In South Africa, the highest court ruled the practice unconstitutional on September 22, 1995. In his ruling, constitutional court judge Johann Kriegler said the practice was unconstitutional, arguing that it violated fundamental rights to personal freedom.

Kenya has ignored the international movement away from civil jail, which is liable to abuse. Creditors can get debtors imprisoned at their pleasure.