Goodbye to “Debtors' Prison”: High Court Declares Arrest and Committal to Civil Jail Unconstitutional in Small Claims Court
In a recent landmark judgment delivered by the High Court sitting at Eldoret (Consolidated Petitions No. E008 and E010 of 2024), Rule 25(1) of the Small Claims Court Rules was declared unconstitutional.
The impugned rule required that a decree or order of the Small Claims Court be executed in accordance with the Civil Procedure Act, which permits arrest and committal to civil jail.
However, the court found this provision to be in conflict with Section 37(1) of the Small Claims Court Act which expressly provides that orders for payment must be enforced strictly in accordance with the provisions of that Act.
The legal conflict (basis for the court’s finding)
The Small Claims Court Act contains specific provisions governing execution, particularly; Sections 39 and 40. Crucially, the Act does not expressly provide for arrest or committal to civil jail as a mode of execution.
By introducing Rule 25(1), the Chief Justice, exercising delegated powers under Section 50 of the Act effectively incorporated the Civil Procedure Rules by reference.
The High Court found this problematic for several reasons:
- Ultra Vires: While Section 50 allows the Chief Justice to make rules for the "better functioning" of the Court, subsidiary legislation cannot amend, contradict, or exceed the scope of the parent Act.
- Constitutional Limitation: Under Article 94(6)(b) of the Constitution, the authority to make rules is limited to bringing the provisions of the parent Act into effect.
- Constitutional Breach: The Court held that Rule 25(1) violated Article 24(2) of the Constitution of Kenya by overstepping the statutory limits and introducing a restriction not contemplated by the Act.
Impact of the decision on civil jail enforcement
It is important to note that the judgment does not abolish execution by committal to civil jail entirely in Kenya. Section 38 of the Civil Procedure Act still applies to other courts including; the Magistrate Courts, Environment and Land Court or the High Court.
In these jurisdictions, committal to civil jail remains lawful provided the same complies with established legal safeguards.
The law continues to require that a debtor cannot be jailed simply for an inability to pay; and the court must be satisfied that the debtor has the means to pay but has wilfully refused or neglected to do so.
Conclusion
The decision affirms the principle of statutory supremacy, specifically that subsidiary legislation cannot override or expand the scope of a parent statute.
By declaring Rule 25(1) unconstitutional, the Court has signaled that the Small Claims Court is intended to be a specialized, less technical forum.
The key takeaways are:
- For Small Claims Court matters: Execution is now strictly limited to the methods expressly listed in the Small Claims Court Act (such as attachment of property and garnishee proceedings), effectively eliminating the threat of civil jail for small-scale debtors.
- For General Civil Litigation: Arrest and committal remains constitutionaly valid in other courts, provided the "wilful neglect" of the debtor is established, preserving it as a remedy of last resort rather than a punitive tool against indigent debtors.
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Author
Binti Said
Pupil
Email: bsaid@cmadvocates.com
CM Advocates LLP
Contributor
Caroline Kendi
Debt Recovery Restructuring & Insolvency (DRRI) Unit
Email: ckendi@cmadvocates.com
CM Advocates LLP
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Disclaimer: This article is intended for informational purposes only. It does not constitute legal advice.