‘Poverty not a crime’: Man in child support case escapes jail
Being poor is not a crime, the High Court has ruled, rejecting a request that could have seen a parent arrested and jailed over child support.
Being poor is not a crime, the High Court has ruled, rejecting a request that could have seen a parent arrested and jailed over child support.
The petitioner, identified in court records as MN, had challenged a reduction in child support payments from Sh15,000 to Sh10,000.
The applicant was also unhappy that a magistrate court in Garsen, Tana River County, had failed to provide an avenue for enforcing the order if the parent defaulted on payments.
MN, therefore, wanted the High Court to direct that the parent, identified as AM, be jailed if they failed to provide the money as directed by the magistrate court.
But Justice Reuben Nyakundi disagreed with MN, noting that in the execution of a civil decree, the nature and existence of an outstanding debt by itself may not be a factor in determining whether a person should be arrested and committed to civil jail.
The judge said that the law seems to suggest that imprisonment should be ordered only where a parent has the means to pay the debt but is unwilling to do so.
In this particular case, the judge argued, judicial officers should ascertain the debtor’s assets and income to determine whether they can pay the debt.
“Incarceration of individual debtors for failure to satisfy a money-decree without first satisfying the test above is a threat to the fundamental rights and freedom under the Bill of Rights,” he said.
, he said.
“There must be some element of bad faith, beyond mere indifference to pay, some deliberate or recusal disposition in the past or alternatively current means to pay the decree or a substantial part of it,” he said.
The judge added that the debtor’s other pressing basic needs and circumstances should also be considered.
Justice Nyakundi also held that it is appalling to send someone to prison because of their poverty and consequent inability to meet their legal or contractual obligations.
“It is not a crime to be poor and, therefore, recovery of debt or money decrees by procedures which deprive one of the right to liberty, dignity, and freedom is flagrantly violative of the law unless there is proof of the minimum conditions outlined under the law,” the judge said.
And with this, the judge ruled that he could not interfere with the magistrate’s judgment.
Because the matter was filed in the High Court before the case in the magistrate court could be concluded, Justice Nyakundi dismissed it and sent the applicant back to lower court.
“I direct the executing court to adjudicate over the matter taking into account the best interest of the children without compromising the right to life, liberty, dignity, and freedom of AM,” he said.
