Judgment debtor arrest Kenya: what the 2026 ruling actually changed
A High Court decision in January 2026 removed one route to civil arrest, and many people now think arrest is off the table completely. Here is what the ruling decided, what it didn’t, and how enforcement works.
Judgment debtor arrest Kenya is a topic that got a lot of attention after a High Court decision in January 2026, and many people took away the wrong lesson. If you hold a judgment for money and the other side isn’t paying, you may have heard that arrest and civil jail are no longer possible. That isn’t what the court decided.
This article explains what the ruling covered, what it left alone, and how arrest in civil debt actually works. If your case started in the Small Claims Court, our guide to the small claims court in Kenya explains how a claim is brought in the first place. This is general information as at October 2026.
Three points to start with
Judgment debtor arrest Kenya: what the 2026 ruling decided
In Gathaiya v Attorney General & 2 others [2026] KEHC 290 (KLR), decided on 22 January 2026, the High Court looked at Rule 25(1) of the Small Claims Court Rules. That rule brought civil arrest and committal to civil jail into the Small Claims Court. The court held it unconstitutional and beyond what the Small Claims Court Act, 2016 allows, because Parliament hadn’t given the court that power.
The decision is narrower than the headlines suggested. The court did not hold that civil arrest is unconstitutional across the board. It dealt with a rule of the Small Claims Court. For enforcement, the Act itself points to the court’s own tools: attaching property, attaching salary and execution against assets (sections 37, 39 and 40).
So there are two tracks. A small claims judgment is enforced through the Act, as we explain in our article on how to enforce a small claims judgment in Kenya. Judgments from other courts follow the Civil Procedure Act and its rules, which have their own safeguards, covered below.
Choosing your forum before you file
This is where the ruling matters for a business chasing an unpaid invoice. A claim under KSh 1 million can often go to either the small claims court Kenya or the Magistrates’ Court, depending on the type of dispute and the value. The choice changes what happens if the debtor doesn’t pay.
| Small Claims Court | Magistrates’ Court | |
|---|---|---|
| Process | A form you complete yourself, with a 60-day target | A more formal process, usually slower |
| Arrest for non-payment | Not through Rule 25(1), which was struck down | Available under the Civil Procedure Act, with safeguards |
| Other enforcement | Attachment of property and salary under the Act | Attachment and sale of property, garnishee orders and similar steps |
If you already hold a small claims judgment, don’t assume you can simply refile in another court. Repeating a claim that has already been decided can draw an objection. Whether and how a small claims decree can be moved for execution elsewhere is a question to put to an advocate against your own papers.
How judgment debtor arrest works in practice
A warrant of arrest is not the same as imprisonment, and the courts insist on a process before either. In Barre & another v Roble [2020] KEHC 427 (KLR), the High Court stressed that a judgment debtor is not committed to prison for inability to pay or to meet a contractual obligation. Committal for a money decree follows only after the debtor has had a chance to show cause and the court is satisfied on the statutory grounds, recorded in writing.
- Notice of entry of judgment.
Under Order 22 rule 20, as the court noted in Barre, the debtor is served with notice of the judgment. It gives them a chance to pay before execution begins.
- Notice to show cause.
The decree holder applies, and the debtor is called to court to explain why the decree hasn’t been satisfied (Order 22 rule 31(1)).
- The court asks about means.
The court looks at whether the debtor can pay and is refusing, or genuinely can’t. In Barre, a committal that rested only on a statement that the debtor was a man of means, without that inquiry, did not meet the section 38 threshold.
- Arrest and committal, if the grounds are made out.
Section 40 of the Civil Procedure Act, as quoted in Diamond Trust Kenya Ltd v Mulwa [2010] KEHC 284 (KLR), allows a judgment debtor to be arrested in execution of a decree and requires that they be brought before the court.
Courts also ask whether less drastic steps are available. In Diamond Trust, the judge stayed a warrant of arrest because the debtor had income from employment and a business, so the decree holder could use other ways to execute. The same decision recorded the tension between civil arrest and the International Covenant on Civil and Political Rights, which says no one should be imprisoned merely for inability to fulfil a contractual obligation. It is a 2010 ruling, so read it as background rather than the latest word.
Other ways to collect a judgment
Because arrest depends on proving means and following a process, many decree holders start with other steps. Depending on the court and the debtor’s situation, the options include attaching and selling movable property, attaching money held in a bank account or owed to the debtor, deductions from salary, and securing an order against land. Each has its own procedure and paperwork, and a court bailiff usually carries out the physical steps.
The choice often comes down to what you can show. A payslip, a bank name, a vehicle logbook or a land search tells the court where payment can come from. Without that, an application for arrest can look like pressure rather than enforcement, and the court may send you back to look for assets first.
It is also worth checking whether a settlement is realistic. A debtor who is willing to pay in instalments may give you more, sooner, than a long enforcement fight. If you reach that point, put the agreement in writing and ask that it be recorded as a consent order so you can enforce it if payments stop.
If you haven’t yet got a judgment, a written demand is often the step before filing.
If you are the decree holder
Keep your file in order: the judgment, proof of service of the notice, and anything showing the debtor’s income or assets. Arrest is a last step. Attachment of goods, salary and bank accounts are often more practical, and a court is more willing to consider arrest when other routes have been tried.
Judgment debtor arrest Kenya applications turn on evidence of means, so gather it early.
If you are the judgment debtor
Don’t ignore a notice to show cause. If you can’t pay, the right response is to attend, explain your circumstances and, where you can, propose payment in instalments. Inability to pay is treated differently from a refusal to pay.
If you have been served with a small claims claim and not yet a judgment, our guide to the small claims court Kenya explains how to respond.
The information in this article is provided for general informational purposes only and does not constitute legal advice. The law in this area is developing and its application depends on the facts of each case. If you are pursuing or defending a judgment debt, please consult a qualified advocate before taking action.
Frequently asked questions
Can a debtor still be arrested for not paying a judgment in Kenya?
Civil arrest powers under the Civil Procedure Act were not struck down. The January 2026 decision dealt with Rule 25(1) of the Small Claims Court Rules, which applied arrest and committal to that court’s orders. Arrest is subject to notice and a hearing on ability to pay.
Does judgment debtor arrest Kenya law require proof that the debtor can pay?
Yes. Courts distinguish refusal from genuine inability. In Barre v Roble the High Court said a debtor is not committed to prison for inability to pay, and the court must be satisfied on the statutory grounds, recorded in writing.
Can I enforce a small claims judgment by arrest?
Not through Rule 25(1), which the High Court held unconstitutional and beyond the Act. The Act provides for attaching property and salary and for execution against assets under sections 37, 39 and 40.
What is a notice to show cause?
It is an application that calls the debtor to court to explain why the decree hasn’t been paid. It comes before any committal under Order 22 rule 31(1).
Chasing an unpaid judgment?
Contact Waweru Nyambura & Company Advocates, Thika Arcade, Thika.
Leave a Reply