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Teitei v Fung Suxiang [2025] KIHC 90; Miscellaneous Application 08622 of 2025 (18 November 2025)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION
[VIRTUAL HEARING]

HELD AT KIRITIMATI ISLAND

Misc. Application No. 2025-08622

(Arises from High Court Civil Appeal No. 2025-06600 HC/CVA/ST)

Between:

Teretia Teitei Applicant

And:

Fung Suxiang Respondent

Counsel: Mr. Banuera Berina for the Applicant

RULING
“APPLICATION FOR RELEASE FROM CIVIL

IMPRISONMENT PENDING APPEAL”

I. Introduction

1. This ruling concerns an urgent application by Teretia Teitei for release from civil imprisonment pending the determination of her appeal against a decision of the Magistrates’ Court in case number 2025-01044 MC/CV/ST, delivered on 7 July 2025. The application also seeks an extension of time to appeal, which is granted below but will be substantively addressed in Tarawa where the appeal will be heard.
2. The Applicant is currently detained at Bairiki Prison pursuant to a civil enforcement order dated 23 October 2025. The application was heard ex parte due to the urgency of the Applicant’s incarceration and her circumstances, including that she has children to take care of. The Respondent shall have liberty to apply to vary or discharge any orders made herein.
3. The sole issue for determination is whether there are sufficient grounds to justify the Applicant’s release from civil imprisonment pending the outcome of her appeal.

II. Submissions of Counsel for the Applicant

7. Mr. Banuera Berina, appearing for the Applicant, submitted that the order of imprisonment made by the Magistrates’ Court was unlawful for failure to comply with the mandatory proviso to Rule 25 of the Magistrates’ Courts Rules.
8. Counsel argued that the Applicant was not present at the enforcement hearing and was not given notice or an opportunity to be heard. Nevertheless, the single magistrate issued a warrant of imprisonment in the absence of any evidence that the Applicant had the means to pay the debt but refused or neglected to do so.
9. Mr. Berina submitted that the burden of proof under Rule 25 lies with the creditor, and that the absence of the debtor does not relieve the court or the creditor of the obligation to establish the debtor’s means.

III. Legal Framework and Case Law

4. The legal framework governing civil imprisonment is well-settled. The following authorities underscore the mandatory nature of Rule 25’s proviso and the procedural safeguards it entails.
5. Rule 25 of the Magistrates’ Courts Rules permits imprisonment for non-payment of judgment debts. However, the proviso to Rule 25(1)(b) is mandatory and provides:

“Provided further that no order of imprisonment under this regulation shall be made unless it is proved to the satisfaction of the court that the person making default has, or has had since the date of the judgment, the means to pay the debt but refuses or neglects to do so.”

6. The Court of Appeal in Mekaio v Mekaio [1997] KICA 18 held that imprisonment under Rule 25 is unlawful unless the debtor’s means to pay are proven. The Court emphasized that co-ownership of land or financial support from family does not satisfy this requirement. The regulation is concerned with the debtor’s own means, and failure to prove this renders any imprisonment order invalid.
7. In Butiaua v Village Bank Kuria [2002] KIHC 20, Chief Justice Millhouse expressed concern about the outdated nature of Rule 25 and questioned its statutory basis. While the rule was not invalidated, the judgment underscored the need for restraint and procedural fairness in its application.
8. In Hauma v Tekeeu [2019] KIHC 119, Chief Justice Muria clarified that Rule 25 requires a three-step process: (1) application for enforcement, (2) proof of means and refusal to pay, and (3) only then, an order of imprisonment. The Court held that even in the debtor’s absence, the burden remains on the creditor to prove means. Imprisonment without such proof is unlawful.
9. In Asafo v Tekinene [2020] KIHC 29, the High Court condemned the practice of ordering imprisonment without compliance with Rule 25 and declared that such practice “must stop.” The Court reiterated that the proviso is mandatory and that imprisonment without proof of means is unlawful.
10. The jurisprudence of the High Court and Court of Appeal emphasizes that civil imprisonment is a coercive measure of last resort and must be exercised with strict adherence to procedural safeguards. In particular, the burden of proving the debtor’s means lies with the creditor, and the debtor’s absence from the enforcement hearing does not relieve the court of its obligation to be satisfied on evidence.

IV. Grounds for Interim Release

11. The Applicant has filed an affidavit asserting that she was unaware of the enforcement proceedings and did not attend the hearing. She contends that the order for imprisonment was made without any inquiry into her financial means and without notice or opportunity to be heard.
12. While the merits of the appeal are not for determination at this stage, the Court is satisfied that the Applicant has raised a serious question to be tried. The record discloses no evidence that the Magistrates’ Court undertook the inquiry mandated by Rule 25’s proviso. The warrant for imprisonment appears to have been issued in standard form, without reference to any findings on the Applicant’s financial capacity or refusal to pay.
13. The Applicant’s circumstances, being incarcerated and having children to care for, and the absence of any inquiry into her means, warrant judicial intervention to prevent potential injustice pending appeal. Continued detention in these circumstances risks undermining the procedural safeguards embedded in Rule 25 and may render any eventual appellate relief nugatory.

V. Decision

14. Without determining the merits of the appeal, the Court finds that the Applicant has demonstrated sufficient grounds for interim release pending its resolution. Her detention appears to have been effected without compliance with the mandatory requirements of Rule 25, and her appeal raises serious procedural concerns.
15. Accordingly, the Court orders:
    • The Applicant shall be released from civil imprisonment forthwith pending the determination of her appeal.
    • The Applicant shall file her substantive appeal within 14 days of this ruling.
    • The Respondent shall have liberty to apply to vary or discharge these orders within 14 days.
    • The Chief Registrar (or relevant Officer in Charge) shall notify the Officer in Charge of Bairiki Prison of this order without delay.
    • There shall be no order for costs.

DATED at Kiritimati this 18th day of November 2025.

THE HON. AOMORO T. AMTEN
Judge of the High Court