By Anderson Ojwang
In what could be a historic and hallmark ruling by a Nairobi High Court Judge, and precedent-setting, hospitals may no longer detain bodies of deceased persons while demanding full payment of medical bills incurred during hospitalization and treatment.
Instead, the hospitals will pursue the bill relating to hospitalization and treatment as a civil debt, while the bereaved will be required to pay the accrued mortuary bills.
Justice Prof. Nixon Sifuna, in his ruling dated September 23rd, 2025, ruled in a case where Moses Mutua had sued Mater Misericordiae Hospital for continued detention of the body of Caroline Nthangu Tito, demanding an accumulated medical bill of Ksh 3,345,784/11.
Justice Sifuna, in his ruling, granted a mandatory injunction and directed the hospital to release forthwith the body/remains of the late CAROLINE NTHANGU TITO for burial, upon the family paying the mortuary charges only.
That the rest of the bill, relating to hospitalization and treatment, be pursued as a civil debt.
The applicants, who are sons of the deceased, had moved to court on 19th August 2025 after the death of their mother on 2nd August 2025, who had been admitted and undergoing treatment at the hospital.
They sued the MATER MISERICORDIAE HOSPITAL, which is managed by the trustees of an organization known as THE SISTERS OF MERCY (KENYA), trading as and managing the said hospital.
In their application, they argued that at the time of their mother’s demise, she had been hospitalized at the facility for several months, in the course of which the hospitalization and treatment bill had accumulated to Ksh 3,345,784/11, which the hospital was claiming from her family.
They argued that the hospital had detained and refused to release the deceased’s body and continued to retain it at the hospital’s mortuary until the bill was settled.
They argued that mortuary charges for the preservation of the said body were Ksh 2,000 per day, and with the continued stay of the body at the mortuary, the charges continued to accumulate.
They sought orders vide their Plaint dated 19th August 2025 for:
- An injunction restraining the Defendant from continuing to detain the said body as security for payment of the said bill.
- An order directing the Respondent, by itself, its servants, and/or agents, to forthwith unconditionally release/deliver to the Applicants the remains/corpse of the late CAROLINE NTHANGU TITO for burial.
- A declaration that the Defendant’s remedy is by enforcement through civil suit for recovery against the deceased’s legal representatives.
- A declaration that it is contrary to public policy and health to detain a corpse or remains of the dead as security for payment of a debt, hospital bill, or mortuary fees.
That the 1st and 2nd Applicants were students at tertiary level, presently undertaking their higher education studies in college, and are therefore without a stable source of income as they had been relying on their late mother for financial support.
Analysis and Determination
Justice Sifuna said in his analysis and determination that in Kenya, there is no law providing for a hospital’s right of lien over patients or over their remains should they die while hospitalized or while undergoing treatment. This is an informal action that has become habitual and gained so much ground that it is almost becoming a practice, despite its lack of legal backing.
It is also a practice that is oppressive, unconscionable, and repugnant to justice and morality. And despite superior courts having held that there is no property in a dead body:
“There being no property in a dead body, I hold that correspondingly, there cannot be a right of lien on it.”
After a person has died, his or her body remains should be dealt with in accordance with the provisions of the Public Health Act (Cap 242 Laws of Kenya) and the protocols thereunder — one of which is that the body should be disposed of.
Socially, the detention of bodies by mortuaries and hospitals for debt claims traumatizes the bereaved families and disrespects the departed. It has, in many instances, been employed to blackmail, embarrass, traumatize, and coerce bereaved families into submitting to the monetary demands by the hospitals.
“I hold that debts related to treatment and mortuary charges are recoverable as civil debts and should be pursued as such, through demand and litigation if need be.”
In the premises, this Court finds that the detention and continued detention of the remains of the late CAROLINE NTHANGU TITO by the MATER MISERICORDIAE HOSPITAL is wrongful and without any legal or lawful justification. Apart from the mortuary charges, the part of the bill related to treatment and medication, and which the Plaintiffs have not contested, should be pursued through civil means as an ordinary debt, and through the lawful methods of debt collection.
While courts usually do not grant mandatory injunctions at the interlocutory stage, they do so in exceptional circumstances and in the clearest cases. This is one such case.
