By Mandere Onyinkwa
The High Court in Eldoret criticised the decision of the Small Claims Court to commit Barnaba Ngeno to civil jail, ruling that the process was irregular and violated constitutional safeguards.
Justice R. Nyakundi who delivered the ruling held that the court acted without jurisdiction when ordering Ngeno’s incarceration in Eldoret GK Prison pending a ruling on his application.
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Ngeno, who was the respondent in Eldoret Small Claims Court Civil Case No. E612 of 2024, had sought to set aside an ex parte judgment awarding William Barmasai Kangogo Kshs 661,496 for trespass and destruction of trees on his land.
His lawyers argued that the application was unopposed after Kangogo’s advocate failed to attend court, yet the adjudicator declined to grant interim relief and instead fixed the matter for ruling on March 6, 2026.
Ngeno was then committed to civil jail despite no application being made by the claimant’s counsel.
“The order as made was done without jurisdiction,” Ngeno stated in his affidavit, adding that his right to liberty was being unlawfully curtailed.
Justice Nyakundi agreed, noting that the trial court had failed to comply with Section 38 of the Civil Procedure Act, which requires a proper inquiry into a debtor’s means and subsistence before committal.
“There is no evidence at all that an assessment of the subsistence payable in advance by the decree holder was made,” the judge observed.
He emphasised that civil jail should not be used as a debt recovery tool but only against debtors who have the means to pay and willfully refuse.
“Poverty is not a crime,” he wrote, warning against arbitrary incarceration that infringes on rights under Articles 26, 27, 28 and 29 of the Constitution.
The ruling also referenced past jurisprudence, including Justice Koome’s decision in Zipporah Wambui Mathara (2010) declaring civil jail unconstitutional, and Justice Mwita’s contrary view in Kasamani v Concord Insurance.
Justice Nyakundi concluded that the Small Claims Court had violated due process and constitutional protections, stressing that imprisonment for debt must be “screened through the lens of Article 24 of the Constitution” to ensure any limitation of rights is reasonable and justifiable.
“Detaining an honest debtor is a violation of fundamental rights,” Justice Nyakundi declared, ordering a stay of execution and Ngeno’s release from civil jail pending determination of the matter.
