Five years ago, John Kibet Cherop was jailed because he owed National Bank of Kenya some money. He had proposed to pay in instalments of Sh10,000, but failed to do so. After his second week in prison he applied to the High Court at Eldoret to be released on the ground that he was ill.

He told the court that he suffered from peptic ulcers and hypertension and that his continued imprisonment would make his condition worse.

George Dulu, then an acting judge, told him it was up to him to convince the court that his condition warranted his release.

Mr Cherop produced two letters from Moi Teaching and Referral Hospital. But Justice Dulu said the letters were not signed by a doctor, nor did they show the seriousness of the illnesses and his unsuitability to continue staying in prison due to ill-health. He dismissed the application.

In court language, Mr. Cherop was a 'judgment debtor'. According to lawyer Mwalimu Mati of Mars Group, there are many other judgment debtors who daily face the prospect of going to jail because they cannot pay their debts.

Creditors, especially banks, routinely resort to this line of debt collection, he says.

A judgment debtor is a person against whom a money judgment has been entered but not yet satisfied. A money judgment is subject to immediate execution.

The judgment debtor is held to be in contempt of court (civil contempt) if he fails to pay up. The usual punishment is confinement for up to six months.

The committal to civil jail is merely the execution of a court order. There is therefore no appeal. The civil litigation is deemed to have ended.

Mr Mati says the practice offends our laws on due process and the right to liberty as set out in Order 21, Rule 35, of the civil procedure rules and Section 72 of the Constitution.

The practice of jailing debtors where there is genuine inability to pay "belongs to the dark ages," he adds.

The practice of jailing debtors goes back to the Roman times but it has largely been abandoned by other countries. England, from which we inherited most of our laws, abolished its debtor prisons with the Bankruptcy Act of 1869.

The United States abolished the practice in 1833. However, in some states people can still be jailed for debts relating to fraud, child-support, and alimony, as well as fines levied as part of a sentence, restitution and court costs.

In South Africa, the highest court ruled the practice unconstitutional on September 22, 1995. In his ruling, constitutional court judge Johann Kriegler said the practice was unconstitutional, arguing that it violated fundamental rights to personal freedom.

Kenya has ignored the international movement away from civil jail, which is liable to abuse. Creditors can get debtors imprisoned at their pleasure.

Judges can issue civil contempt charges regardless of the circumstances. Judges do not distinguish between those who can pay but won't, and those who cannot pay.

There must be more humane ways of collecting debts, such as attaching property or salary. Sending people to jail because they owe money is counter-productive.

It makes it impossible for the debtor to engage in any productive activity that could allow him to raise money to pay the debt. It also contributes to the overcrowding of prisons.

Civil jail is unconscionable and a shameful waste of resources. It criminalises poverty and violates the Bill of Rights and safeguards for a fair trial. It violates Article 11 of the International Covenant on Civil and Political Rights, which Kenya acceded to on May 1, 1972.

Article 11 states: "No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation."

Jackton Ojwang', a High Court judge, suggests that the law on civil contempt should be reformed.

In Dima v Arid Lands Resources Exploitation & Development, where one of the parties urged civil jail -- which he rejected -- he argued that courts should not resort to civil contempt where there are other methods of doing justice.

He copied his judgment to the attorney-general and chairman of the Kenya Law Reform Commission "to apprise them of the unsatisfactory state of the law relating to the exercise of the contempt jurisdiction of the courts in Kenya".

That was on January 28, 2005 -- two months before Mr Cherop applied to be released from civil jail on the ground of poor health -- but it has remained business as usual.