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Arresting A Judgement Debtor Without Sufficient Notice Unconstitutional

Tuesday, July 31, 2012 - 00:00 -- BY CORNELIUS WEKESA LUPAO
witness protection
AG Prof.Githu Muigai and minister for justice and constitutional affairs Eugene Wamalwa in a jovial mood after attending a workshop on witness protection at Hilton hotel in Nairobi.Photo/Charles Kimani

ARRESTING A JUDGMENT- DEBTOR WITHOUT SUFFICIENT NOTICE UNCONSTITUTIONAL, COURT DECLARES.

BY CORNELIUS WEKESA LUPAO.

Beatrice Wanjiku & another v Attorney General & 3 others (2012 eKLR).

High Court, at Nairobi

Petition No. 190 of 2011

D S Majanja J

July 23, 2012.

''…..Order 22 rule 7 is a cause for concern as it empowers the court to issue a warrant of arrest upon an oral application by the judgment creditor when passing the decree if the judgment debtor is within the court precincts. This provision in my view, does not entitle the judgment debtor to sufficient notice nor opportunity to pay the debt even where he has the means to do so. The rule as worded is an unnecessary infringement on the rights of the judgment-debtor. This renders this particular rule unconstitutional……..''

The High Court sitting in Nairobi has declared a section of the law that allows the arrest of a judgment debtor (a party decreed by a court of law to be owing another party, judgment creditor) without giving them sufficient notice or opportunity to repay the debt due unconstitutional. This ruling was delivered by D S Majanja J, in a petition in which the petitioners, judgment debtors, were challenging, among other things, the fact that the law allows their arrest and committal to civil jail within the court precincts upon a decree being issued by the court . Part of the sections of the law that the petitioners were challenging were the provisions of Order 22 rule 7 (1) of the Civil Procedure Act (Cap.21) which states as follows…'' 7. (1) Where a decree is for the payment of money the court may on the oral application of the decree-holder at the time of the passing of the decree, order immediate execution thereof by the arrest of the judgment-debtor, prior to the preparation of a warrant, if he is within the precincts of the court.

The brief facts of this case were that the petitioners, judgment debtors who had decrees against them in a lawsuit, petitioned the court stating that Kenya had ratified the United Nations International Covenant on Civil and Political Rights whose Article 11 disallowed civil jail for matters whose cause of action arose from contractual obligations; that Article 2(5) and 2(6) of Kenya's Constitution incorporates into Kenyan Law the above mentioned convention and thus civil jail for debtors would be unlawful; and that imprisonment of a debtor violates their rights as captured in the bill of rights including the right to liberty and movement. Among the respondents that the petitioners had sued was the Commissioner of Prisons, whom the petitioners argued, had continued to receive and detain debtors in various prisons in the country.

On the other hand, the first respondent, the Attorney General, argued that the fundamental rights and freedoms protected in the Bill of Rights are not absolute save for those protected under Article 25 thereof and that these are subject to the need to ensure that the enjoyment of these rights and freedoms by any individual does not prejudice the rights and fundamental freedoms of others. The Attorney General submitted that the court is required to balance the rights of the petitioner guaranteed under the Bill of Rights and the rights of the interested parties to recover their debts. The Attorney General further stated that Article 11 of the ICCPR which provides that, ..“No one shall be imprisoned merely on the ground of inability to fulfill a contractual obligation,” implies that a judgment debtor can be committed to civil jail if there are compelling reasons, and that it is the petitioners’ obligation to prove that reasons do not exist for such committal Similarly, one of the interested parties in the petition argued for civil, terming it as a ‘very useful device’ which ought not be outlawed as creditors have fundamental rights to recover their money and to be protected from debtors who borrow with no intention of paying up.

The issues for determination centered around two aspects, that is, whether there was a breach of the petitioners’ rights under Article 11 of the and whether enforcement of civil jail against the petitioners was a breach of their fundamental rights and freedoms as are protected under the Bill of Rights. On the first question, the court held that the fact that Article 11 of the Convention states that, “No one shall be imprisoned merely on the ground of inability to fulfill a contractual obligation…” meant that one could not be imprisoned for the sole reason of inability to fulfill a contractual obligation but where additional reasons other than inability to pay existed, then one would be imprisoned. The court went ahead to state that the said Article 11 recognizes that in fact there may be instances where imprisonment for inability to fulfill a contractual obligation may be permitted hence there is no inconsistency between Article 11 of the Convention and the general tenor of the committal regime under Civil Procedure Act and the Rules. It concluded that the provisions of Article 11 of the Convention are at best an interpretative aid.

On the second question as to whether the Civil Procedure Act is unconstitutional, the court analyzed section 38 of the Civil Procedure Act and Order 22 of the Rules and stated the they demonstrate the following:

a) The process of arrest and detention is not arbitrary. The debtor is given an opportunity to show a judicial officer makes cause before an order.

b) The Judgment-Creditor can only be committed to civil jail once it is demonstrated that he or she has refused or neglected to pay, is about to abscond or is intent on obstructing or delaying execution of the decree.

c) The burden of proof rests on the judgment-creditor to show prove the elements that are necessary for the arrest and committal of the judgment-debtor.

d) That arrest and committal is the last resort after other modes of execution have failed.

e) There is a right of appeal against the decision of ordering arrest and committal.

However, the court took issue with Order 22 section 7 of the Civil Procedure Act, which it stated, empowers the court to issue a warrant of arrest upon an oral application by the judgment creditor when passing the decree if the judgment debtor is within the court precincts. This provision, the court concluded, does not entitle the judgment debtor to sufficient notice nor opportunity to pay the debt even where he has the means to do so. It is thus an unnecessary infringement on the rights of the judgment-debtor hence unconstitutional, null and void.