For decades, creditors in Kenya used a harsh tactic: after obtaining a money judgment, they would apply for a warrant of arrest and committal to civil jail for the debtor – allegedly for “failing to pay despite having means”. In practice, many small‑scale debtors with genuine inability to pay ended up in jail, sometimes for months. In a series of groundbreaking rulings in 2026, the Small Claims Court (SCC) in Machakos, upheld by the High Court, has effectively ended this practice for debts under KES 1 million. No one can now be imprisoned simply for being unable to pay a small civil debt. This article explains the new legal position and what it means for residents of Machakos County.
The Old Law – How Debtors Were Jailed
Under Order 22 Rule 31 of the Civil Procedure Rules, a judgment creditor could apply for examination of the debtor. If the debtor failed to attend or allegedly failed to disclose assets, the court could issue a warrant of arrest and commit the debtor to civil jail for up to six months. In practice, many debtors with no real ability to pay were jailed, creating a modern “debtors' prison”.
The 2026 Judicial Shift
Chief Justice Martha Koome issued practice directions in January 2026, and the Machakos SCC followed with several rulings:
- Requirement of proof of ability: Before issuing any committal warrant, the court must hear evidence and be satisfied that the debtor actually has the money or assets to pay and is intentionally hiding them. A mere allegation is insufficient.
- Burden of proof on the creditor: The creditor must prove the debtor's ability to pay – usually through bank statements, asset registers, or evidence of lifestyle inconsistent with the claimed inability.
- Alternatives to imprisonment: The court must first consider instalment orders, attachment of salary (garnishee), or seizure of assets. Imprisonment is only a last resort.
- Protection for unemployed, elderly, and sick debtors: The SCC has held that imprisioning a person who is genuinely destitute amounts to inhuman and degrading treatment (Article 29 of the Constitution).
What This Means for Creditors (Lenders)
If you have a judgment and the debtor is not paying, you can still enforce – but you must go through proper asset recovery methods. Options include:
- Garnishee proceedings against the debtor’s bank account or employer.
- Attachment and sale of moveable property (with court approval).
- Filing a bankruptcy petition (for debts above KES 200,000) – but this does not lead to imprisonment.
Threatening a debtor with jail without evidence of ability may now be considered harassment.
What This Means for Debtors (Borrowers)
If you are unable to pay, you cannot be jailed simply for that inability. However:
- You must attend court when summoned for a judgment debtor examination – failure to appear can still lead to a warrant, but the warrant is for contempt of court (not for the debt itself). Once you appear and explain your situation, you will not be jailed for poverty.
- Be honest about your assets. Deliberately hiding assets to avoid payment can still lead to contempt proceedings.
"Jailing a poor debtor does not put money in the creditor's pocket – it only adds suffering and violates human dignity. The Small Claims Court has finally aligned Kenyan law with modern human rights standards." — Faith Musyoka, Human Rights & Commercial Advocate
Musyoka & Mutinda represents both creditors and debtors in enforcement proceedings. We can help you pursue legitimate recovery without crossing constitutional lines, or defend against improper committal applications.