[2012] KEHC 2271 (KLR)
The court held that while the petitioner has a constitutional right to a dignified burial for his mother, this right must be balanced against the hospital's legitimate expectation to recover outstanding medical bills. Both parties agreed that the deceased's property could serve as security for the debt, and the...
Source-derived case information.
- Citation
- [2012] KEHC 2271 (KLR)
- Parties
- Petitioner: Isaac Ngugi; Respondent: The Nairobi Hospital; Respondent: The Attorney General; Respondent: The Minister for Medical Services
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Petition 407 of 2012
- Procedural Posture
- Constitutional Petition / Ruling on Chamber Summons for Release of Deceased's Body
- Outcome
- Conditional release of deceased's body upon payment and provision of security for hospital bill.
- Judges
- DAS Majanja
- Legal Topics
- Right to Dignity, Hospital Liens, Security for Debt, Burial Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaac Ngugi
Petitioner
The Nairobi Hospital
Respondent
The Attorney General
Respondent
The Minister for Medical Services
Respondent
Procedural Posture
Constitutional Petition / Ruling on Chamber Summons for Release of Deceased's Body
Legal Issues
- 1 Whether the petitioner is entitled to the release of the deceased's body for burial despite outstanding hospital bills.
- 2 Whether the hospital is entitled to withhold the body as security for unpaid medical bills.
- 3 What security or conditions should be imposed to balance the rights of the petitioner and the hospital.
Ratio Decidendi
The court held that while the petitioner has a constitutional right to a dignified burial for his mother, this right must be balanced against the hospital's legitimate expectation to recover outstanding medical bills. Both parties agreed that the deceased's property could serve as security for the debt, and the petitioner undertook to make a substantial payment within a specified period. The court therefore issued a prohibitory order over the property to secure the hospital's claim, directed payment of Kshs.2,000,000 within four days as a condition for the release of the body, and provided for further directions to resolve the outstanding balance. This approach ensures respect for the...
Court Disposition
Conditional release of deceased's body upon payment and provision of security for hospital bill.
Orders
- A prohibitory order is issued over LR No. 330/354 in the name of Elizabeth Mary Wamaitha Ngugi to secure Kshs.6,700,000 due to Nairobi Hospital, taking priority over other encumbrances.
- The petitioner or his agents shall pay Nairobi Hospital Kshs.2,000,000 within four days, upon which the hospital shall release the body of Elizabeth Mary Wamaitha Ngugi.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA ATNAIROBI (MILIMANI LAW COURTS)
Petition 407 of 2012
ISAAC NGUGI.................................................................................................................PETITIONER
AND
THE NAIROBI HOSPITAL..................................................................................1ST RESPONDENT
THE ATTORNEY GENERAL..........................................................................2ND RESPONDENT
THE MINISTER FOR MEDICAL SERVICES..................................................3RD RESPONDENT
RULING
1. The Chamber Summons coming up for hearing today is dated 14th September 2012 and it seeks an order that the cadaver of Elizabeth Mary Wamaitha Ngugi (the deceased) be released by the Nairobi Hospital.
2. It is not in dispute that the deceased was ailing, prior to her death and had been hospitalised for some time. It is also not in dispute that the hospital bill had accumulated to a sum of at least Kshs.6,728,077/= as at 21st June 2012.
3. I have read the various depositions filed by the parties and heard the various concerns raised by each party and in my view the death of a loved one is always a sensitive matter. In this case, I have to balance the rights of the petitioner to have his mother accorded a dignified burial within a reasonable time and the right of the hospital to expect payment of hospital bills which the petitioner had undertaken to settle.
4. Both parties agree that the deceased’s property namely LR No. 330/354 is a suitable security for the bill that is due. The petitioner’s advocate has also indicated that a sum of Kshs.2,000,000/= will be paid within the next four days to secure the release of the body of the deceased.
5. I have taken all these issues into account in fashioning appropriate relief as required by Article 23 of the Constitution. In the circumstances, I now make the following order:
(1)A prohibitory order be and is hereby issued by this court in respect of LR No. 330/354 in the name of Elizabeth Mary Wamaitha Ngugi to secure the sum of Kshs.6,700,000/= due to the NAIROBI HOSPITAL and the said order shall take priority over any other encumbrances on the suit property and any dealings of the property shall be subject to the orders /directions of this court.
(2)The petitioners or any of his agents shall pay to the Nairobi Hospital a sum of Kshs.2,000,000/= within the next four days whereupon the Hospital shall release the body of Elizabeth Mary Wamaitha Ngugi to the petitioners or his appointed representatives.
(3)Either party shall have liberty to apply for further and other orders.
(4)The parties shall agree on the final sum due to the hospital within the next 21 days.
(5)There shall be a mention on 26th October 2012 for further orders, directions or record a settlement.
DATEDat NAIROBI this 20th day of September 2012.
D.S. MAJANJA
JUDGE
Mr N. Kibanya with him Mr Kamau instructed by Kibanya and Kamau Associates Advocates for the petitioner.
Mr K. Kimani instructed by Hamilton Harrison and Mathews for the 1st respondent.
Mr S. Wamotsa, Litigation Counsel, instructed by the State Law Office for the 2nd and 3rd respondent.