https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8953

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISII** **MISCELLANEOUS CIVIL APPLICATION NO. E041 OF 2026** **JONATHAN ONDIEKI NYAMANYA.........................APPLICANT** **=VERSUS=** **BOSONGO MEDICAL CENTRE..............................RESPONDENT** **RULING** 1. This ruling is on the Application dated 16th February 2026. By which the Applicant is seeking the following orders: 2. *(Spent)* 3. *(Spent)* 4. *An injunction restraining the Respondent by itself, its servants and/or agents or otherwise from detaining or continuing with the detention of the remains/body of JANET BARONGO NUBI (DECEASED) as lien for her unpaid hospital bill.* 5. *The costs of this Application.* 6. The Application which is by way of a Notice of Motion, has stated that it is brought pursuant to Articles 28 and 29 of the Kenya Constitution, Section 137 of the Penal Code (Cap 63 Laws of Kenya), Sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21 Laws of Kenya), and Order 51 Rule 1 of the Civil Procedure Rules. 7. The Application has stated that the deceased JANET BARONGO NUBI was admitted at the Respondent Hospital for emergency care, after being involved in a road traffic accident. That she succumbed to her injuries while hospitalized and undergoing treatment. That at the time of her death, she had accumulated a hospital bill that was unpaid, and for which the hospital has detained her body instead of releasing it to her kin for burial. Through this Application, the Applicant JONATHAN ONDIEKI NYAMANYA who is the deceased’s husband, is seeking the release of her body to him for burial. 8. The Respondent has opposed the Application through the Replying Affidavit of LILIAN MOMANYI, its Administrator. In which she has maintained that the bill should be settled. The Respondent further contends that the Application has not met the legal threshold for the orders it is seeking. It has also raised a Preliminary Objection on the same ground and also the ground that the Application is defective. 9. In the Preliminary Objection, the Respondent has stated that the procedure for seeking a Mandamus order, and that, which is prescribed in Order 53, has not been followed. Also, that even the injunction order the Applicant is seeking cannot be granted, as that there is no suit. ***Analysis and Determination*** 1. First and foremost, I note that this matter has been instituted through a Miscellaneous Application instead of , for instance a Plaint or Petition. The Application is brought by way of a Notice of Motion. 2. Which motion has stated that it is brought pursuant to Articles 28 and 29 of the Kenya Constitution, Section 137 of the Penal Code (Cap 63 Laws of Kenya), Sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21 Laws of Kenya), and Order 51 Rule 1 of the Civil Procedure Rules. 3. The jurisdiction of this Court in judicial review matters or in matters seeking the prerogative orders of Mandamus, Certiorari and Prohibition, is a special jurisdiction in which the Court is neither exercising the civil jurisdiction or the criminal jurisdiction. 4. Notably, in judicial review, even the proceedings are instituted in the name of the Republic. With the Applicant being designated as the Ex Parte Applicant. The procedure for applying for these prerogative orders is stipulated in Order 53 of the Rules; and which has to be strictly followed. 5. As regards the prayer for interlocutory injunction, this Application is a stand alone. As there is no pending suit. Therefore, this is a case where an interlocutory injunction cannot issue. The Application has not been filed in a suit and it is not in a pending suit. Contrary to what is contemplated and prescribed by Order 40 Rule 1 of the Rules. Which begins as follows: *Cases in which temporary injunction may be granted (Order 40 Rule 1)* **“When in any suit it is proved by affidavit or otherwise-** 1. **………….”** 2. For the reasons, this Application is not only misconceived, but also incompetent. Hence it is hereby struck out. With no order as to its costs. **DATED and DELIVERED at KISII on this 22nd day of June 2026.** **PROF (DR) NIXON SIFUNA** **JUDGE**