KLR - Committal to civil jail goes against civil and human rights

Written by Njeri Githanga Kamau Saturday, 23 October 2010 12:13 - Last Updated Saturday, 23 October 2010 12:42

A party who is deprived of their basic freedom by way of enforcement of a civil debt through imprisonment is also curtailed of their ability to move and even seek ways and means of repaying the debt In Re the Matter of Zipporah Wambui Mathara [2010] eKLR High court at Nairobi M. K. Koome J. September 24, 2010

Imprisonment in civil jail goes against the International Covenant on civil and political rights that guarantee parties basic freedoms of movement and of pursuing economic social and cultural development; the High Court so held. Lady Justice Marth Koome made the orders in an application for stay of execution of order of committal to civil jail pending bankruptcy proceedings by Zipporah Wambui Mathara.

Mrs. Mathara had filed Bankruptcy proceedings where a receiving order was issued in respect of her estate on May 21, 2010. She had earlier been committed to serve a jail term due to her failure to satisfy a decretal sum of Kshs.339, 855.00 owed to the respondent one David Ndungo Mainapursuant to a judgment against her. It was Mrs. Matharas case that since a receiving order was issued against her in the matter, her estate vested upon the official receiver and therefore she had no capacity to pay the decretal amount.Secondly, she was required to appear before the official receiver in person to provide information on her estate for the proper administration of her estate by the official receiver; however she was not in a position to due to her incarceration.

Mrs. Matharas advocate submitted that under Article 2(6) of the Constitution of Kenya 2010, any Treaty or Convention ratified by Kenya formed part of the Laws of Kenya under the Constitution. It was contended that that provision imported the Treaties and Conventions that Kenya ratified, especially the United Nations International Covenant on Civil and Political Rights which Kenya ratified on 1st May 1972.According to Article 11 of that Convention, no one could be imprisoned merely on the ground of the inability to fulfill a contractual obligation. It was further submitted that due to the hierarchy of the laws, the Constitution was supreme therefore the Civil Procedure Act that provided for committal to civil jail as a means of forcing a debtor to satisfy a contractual obligation was against the spirit of the Constitution and, International Human Rights Law that protected and promoted basic freedoms.

Lastly it was argued that under Section 9 of the Bankruptcy Act after the receiving order was made, the Official Receiver was supposed to take over the property of the debtor which could

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KLR - Committal to civil jail goes against civil and human rights
Written by Njeri Githanga Kamau Saturday, 23 October 2010 12:13 - Last Updated Saturday, 23 October 2010 12:42

not be attached except with the leave of the Court.

On the other hand, the application was opposed by Mr. Maina the respondent who alleged that Mrs. Mathara the debtor was deliberately refusing to pay the debt as she had promised to pay the debt by installments of Kshs. 50,000/ and due to her failure to pay, execution was issued by way of committal to civil jail which was provided for under the Civil Procedure Act. On the application of the International law, Mr. Mainas counsel urged the court to consider the Civil Procedure Act which made the provisions for recovery of money and execution by way of committal of the judgment debtor to civil jail as one of the means of enforcing a judgment.

The court in arriving at its decision took note that under the Bankruptcy Act, it had the discretion to issue an order of stay of execution in order to give the official receiver the opportunity to consolidate and administer the estate of the debtor.The argument by counsel for Mr. Mwangi that the debtor was refusing to pay the debt did not hold because it was not an application to set aside the receiving order. As it was conceded that Mrs. Mathara could not appear before the official receiver to provide information for the composition and setting up of creditors meeting due to her incarceration the application was allowed and an order of stay of execution until the determination of the bankruptcy petition granted.

The court also concurred with the counsel for Mrs. Mathara that by virtue of Section 2(6) of the Constitution of Kenya 2010, International Treaties, and Conventions that Kenya had ratified, were imported as part of the sources of the Kenyan Law.Thus the provision of Article 11 of the International Covenant on Civil and Political Rights which Kenya had ratified was part of the Kenyan law.The Court noted that the covenant made provisions for the promotion and protection of human rights and recognized that individuals were entitled to basic freedoms to seek ways and means of bettering themselves. It therefore meant that a party who was deprived of their basic freedom by way of enforcement of a civil debt through imprisonment, their ability to move and even seek ways and means of repaying the debt was also curtailed.

In conclusion, the court emphasized that there were several methods of enforcing a civil debt such as attachment of property.An order of imprisonment in civil jail on the other hand was meant to punish, humiliate and subject the debtor to shame and indignity due to failure to pay a civil debt.The court opined that was indeed against the International Covenant on Civil and Political rights that guaranteed parties basic freedoms of movement and of pursuing economic social and cultural development.For the foregoing reasons the application was allowed, the costs of the application was however awarded to the respondent.

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