High Court bans 'disgraceful' detention of bodies over medical bills

The High Court has declared the practice of detaining bodies over unpaid hospital bills illegal, unconstitutional, oppressive, and a violation of the dignity of the dead and their families.

Justice Nixon Sifuna, while delivering the ruling in a case involving Mater Misericordiae Hospital, ordered the immediate release of the body of the late Caroline Nthangu Tito, who died at the facility on August 2 this year.

The hospital had declined to release her remains, citing an outstanding medical bill of Sh3.3 million.

The case was filed by Ms. Nthangu’s two sons, Moses Mutua and his brother, who told the court they had been left orphaned, traumatised, and financially burdened by the hospital’s continued detention of their mother’s body.

In his ruling, Justice Sifuna found that detaining corpses as collateral for medical debt is an unlawful practice, stressing that it undermines the dignity of the deceased and inflicts further suffering on their families.

Justice Sifuna declared that no law in Kenya permits hospitals or mortuaries to place a lien on dead bodies to recover debts, terming the practice a “habit that has gained ground without any legal foundation.”

“There is in Kenya no law providing for a hospital’s right of lien over patients or over their remains should they die while hospitalised or undergoing treatment.This is an informal action that has gained so much ground that it is almost becoming a practice, despite its lack of legal backing,” Justice Sifuna said

Calling the detention of corpses “oppressive, unconscionable, and repugnant to justice and morality,” the judge emphasised that a deceased person’s body is not property and cannot be used as collateral for debt. The judge further observed that detaining corpses to compel debt payment traumatises families, disrespects the dead, and often amounts to blackmail.

“Socially, the detention of bodies by mortuaries and hospitals for debt claims traumatises the bereaved families and disrespects the departed. It has in many instances been employed to blackmail, embarrass, traumatise, and coerce bereaved families into submitting to monetary demands,” he added.

The court directed that medical debts should be pursued as civil claims through legal demand and litigation, not through the unlawful detention of bodies.

The Mutua brothers had informed the court that the hospital refused to release their mother’s remains until they cleared a medical bill of Sh3,345,784, accumulated over her two-month admission.

They argued that the continued detention was worsening their grief and compounding the debt, as the mortuary imposed an additional Sh2,000 per day preservation charge.

“Despite incessant pleas from the Applicants (Mutua brothers), who have sadly been left orphaned, the Respondent (Mater Misericordiae Hospital) maintained that the release of the remains of their late mother would only be granted upon full payment of the outstanding bills,” the brothers told the court through their lawyer.

In their application filed on August 19, the Mutua brothers sought injunctions restraining the hospital from holding their mother’s body as security for the debt.

Unnecessary trauma

They argued that such a practice was unconstitutional, violated the dignity of the deceased, and subjected the family to unnecessary trauma.

The court heard that the two had lost their father, Tillers Mutua Mutyane, in 2023 and had been relying solely on their mother for financial support. 

“That the 1st and 2nd Applicants are students at the tertiary level, presently undertaking their higher education studies in College and are therefore without a stable source of income as they have been relying on their late mother for financial support,” the brothers stated in an affidavit filed in court. 

According to evidence tendered in court, their mother was admitted to the Mater Misericordiae Hospital in Nairobi County on May 22, 2025, for treatment.

After receiving treatment for two months and twelve days, Mutua’s mother unfortunately passed away on August 2, 2025. “At the time of her demise, the hospital presented a medical bill of Sh3,315,784/11 in respect of which it demanded clearance from the Mutua’s before it could release the remains of their late mother to them,” the court papers state

Following her passing, they were left without a stable income and could not raise the millions demanded by the hospital. They stressed that while they were ready to engage the hospital in negotiating repayment terms, “such arrangements cannot be practically undertaken while the body of their deceased kin continues to be unlawfully withheld.”

Mater Misericordiae Hospital, run by the Sisters of Mercy (Kenya), argued that it was entitled to recover the pending bill before releasing the body. 

However, the court noted that the hospital’s remedy lay in pursuing the debt through civil processes rather than detaining a corpse.

In his ruling, Justice Sifuna said that the hospital’s actions had caused the sons of Nthangu to continue suffering irreparable harm, immense emotional distress, and severe financial hardship due to the escalating and accumulating mortuary charges  

He also cited the Public Health Act (Cap 242 Laws of Kenya), which requires that bodies be disposed of in a timely and dignified manner, underscoring that hospital debts should instead be pursued through normal civil recovery procedures.

“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,” the judge said 

Consequently, Justice Sifuna issued a mandatory injunction, directing Mater Hospital to release the body of the late Nthanguo to her family for burial upon payment of mortuary fees only.

Further, he directed that the remainder of the bill, relating to treatment and medication, must be pursued as a civil debt against her estate.