'Poverty not a crime': Businesswoman challenges Sh15m civil jail term

A businesswoman has sought the court’s protection from an imminent civil jail after defaulting on paying Sh15 million to Gulf African Bank.

Jacinta Mbithe Saku, in her case, filed before the High Court in Nairobi, claims that although she owes the lender the amount, she does not have the means to pay it back.

“The petitioner is genuinely unable to pay the decretal amount, and there is no evidence of contumacious refusal to pay or that the petitioner has the means but has assets,” her lawyer Gerald Gakaria argued.

The lawyer argued that it is unfair to punish poor debtors by jailing them. He further said that where a debtor, in good faith, proves that he or she cannot foot a debt, creditors should not resort to civil jail to enforce their demands.

According to Gakaria, keeping a person in jail cannot assist in recouping anything where there is nothing.

“If this matter is not heard on an urgent basis and the orders of stay of execution granted, the petitioner's continued incarceration in civil jail will render the main constitutional petition nugatory and academic, and cause the petitioner irreparable harm. This petition raises serious constitutional issues regarding the interpretation of Section 38 of the Civil Procedure Act regarding the use of civil jail for poor debtors, which requires the court's intervention,” argued Gakaria.

Gakaria said his client is at the Langata Women’s Prison, serving a one-month civil jail punishment after the bank went after her for not repaying the debt.

He stated that the magistrate’s court, which handed the sentence, failed to give her a chance to explain herself before deciding whether she ought to be a guest of the State until she repays the money. According to him, jail should not be a first resort to enforce debt payment unless it is proven that one is deliberately failing to pay back the money.

From the court record, the lender sued Rhino East Africa Limited and Mbithe, demanding a payment of Sh5.2 million. This was in 2019.

Mbithe indicated that she had been listed as Rhino’s guarantor.

After five years in court, the two were eventually ordered to pay Sh14.157 million.

However, Mbithe explained that she has nothing between herself and poverty.

“The petitioner has been unable to satisfy the decree due to poverty, lack of means, and economic hardships,” the court heard.

She further said that the bank went back to court on November 29, 2024, seeking a court’s nod to jail her as a way of forcing debt payment.

She said that following the new case, the court on March 26 this year issued a warrant of arrest against her, with an intention of handing her six months behind bars.

Two weeks ago, High Court Judge Reuben Nyakundi ruled that it is unfair for a person to languish in jail for being poor.

He was of the view that only a person of means should taste the wrath of the law if it is proved that he or she deliberately refuses to pay.

According to the judge, Kenyans who are unable to pay are languishing in jail, not because they have, but because the courts have failed to follow the law.

He was of the view that, despite a creditor being entitled to recoup a debt, judges and magistrates ought to consider the debtor’s ability to repay the amount and the pressing needs at play before deciding whether to forgive or send them to jail.

“What is the lacuna in this kind or proceedings that certain key limitations in the provisions are never adhered to by the trial courts. The execution court is mandated to follow the law and satisfy itself on any of the grounds set out in the respective provisions and commit to a detention of a judgment debtor,” said Nyakundi.

The judge was determining a debt row between Barnaba Ngeno and William Kangogo. Ngeno was pleading with him to intervene after small claims court adjudicator ordered that he should come on March 6, 2026, for a ruling on whether he should be jailed or not for failure to pay Kangogo.

In this case, he argued that the lower court had no power to issue such orders.