https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6870

Kigera v Umash Funeral Services (Civil Case E054 of 2025) [2026] KEHC 6870 (KLR) (20 May 2026) (Ruling) Neutral citation: [2026] KEHC 6870 (KLR) Republic of Kenya In the High Court at Nakuru Civil Case E054 of 2025 JM Nang'ea, J May 20, 2026 Between Grace Ngima Kigera Plaintiff and Umash Funeral Services Defendant Ruling 1.By Notice of Motion dated 9/10/2025, the Plaintiff prays for reliefs as hereunder;-1.Spent.2.Spent.3.That pending the hearing and determination of this suit, an order be granted, directing the Defendant/Respondent by itself, its servants and/or agents to forthwith unconditionally release/deliver to the Plaintiff/Applicant the remains/corpse of the late Humphrey Kigera Mwai for burial.4.Spent.5.That pending the hearing and determination of this suit, an injuctive order be granted, restraining the Defendant/Respondent by itself, its servants and/or agents or otherwise from detaining or continuing with the detention of the remains/corpse of the late Humprey Kigera Mwai. 2.The Plaintiff (hereinafter referred to as ‘’the Applicant’’) swore an affidavit in support of the Motion. She deposes that her father named Humphrey Kigera Mwai (“the deceased”) died on 4/9/2021 while receiving treatment at Nakuru Nursing Home Hospital. Owing to non-payment of the hospital fees in the sum of Kshs. 5,000,000/=, the Hospital handed the deceased’s remains to the Respondent on 6/10/2021. Since then, the Applicant states that the Respondent has detained the body until settlement of the Hospital fees. The body’s detention is also said to have attracted further fees to the tune of Kshs. 2,463,000/= as at 28/7/2025 in mortuary charges. 3.The Applicant laments that the deceased’s family has no means of settling the medical bills. On advise of her advocate, she contends that continued detention of the deceased’s body is unlawful and against public policy. The Applicant was also adviced by Counsel that she and her other family members have the right of custody of the body as opposed to the Respondent whose only interest is payment of medical bills due to them. The court is told inter alia that the Respondent has the option of recovering its dues from the deceased’s Estate. 4.The Application is opposed vide the Respondent’s affidavit evidence provided by its Chief Executive Officer (Getrude Wanjira). She testified to existence of a Service Agreement between them and Nakuru Maternity & Nursing Home by which the Respondent was approved to collect human remains from the hospital facility for storage and preservation pending collection by the affected families. In line with the Agreement, the Defendant collected the body of the deceased herein on 6/10/2021. According to the witness, the Defendant is required to keep remains handed to the until the Hospital authorizes them in writing to release them. It is also deposed that the Defendant also charges the deceased’s family for the cost of storage and preservation of the body. 5.The Respondent through its witness therefore avers that it is bound by the Service Agreement and can only release the deceased’s remains with the permission of Nakuru Maternity and Nursing Home. In any event, the court is told inter alia that the Defendant is also entitled to its own costs of keeping the body. 6.The parties filed written submissions through their Advocates. Applicant’s Submissions 8.Learned Counsel submit that law allows detention of body for non-payment of medical costs. Referrence is made to Republic vs Kenyatta National Hospital Ex-parte Elizabeth Wambui Githinji and 2 Others (2019) eKLR (Mativo J as he then was ) where it was held that detaining a dead body in the circumstances as obtain herein is illegal and unconstitutional as it offends right to dignity under Article 28 of the Constitution. The court ordered release of the body and advised that the Hospital could employ other lawful civil recovery means. The same opinion was expressed in Re Estate of Benson Karanja Muchiri (Deceased) [2020] eKLR, in which it was underscored that detention of remains of a human being on account of failure to defray medical fees violates the dignity of both the deceased and the larger family involved. Learned Counsel for the Applicant cited other judicial determinations that reiterate the the same legal position. 9.It is further submitted on behalf of the Applicant that a case for grant of the mandatory and prohibitory injunction orders sought has established on prima facie case as required in law and irreparable harm. It is in particular observed that a mandatory injunction may be granted at the interlocutory stage of a suit where the Applicant’s case is clear and the Respondent’s act is a continuing violation, ( see case law in Kenya Breweries Limited vs Washington Okeyo (2002) eKLR alluded to by the Advocates). By dint of Article 23(3) of the Constitution the court is impressed upon to protect and enforce the Plaintiff’s fundamental rights as guaranteed by Article 28 supra. Respondent’s Submissions 10.The Respondent’s Advocates counter that the Hospital that offered medical services to the deceased is owed Kshs. 5 million as at the time of bringing this action. Citing the case of Kenya Hotels & Allied Workers Union vs Alfajiri Villas (Maguta Limited (2014) eKLR , Counsel submit that the Respondent is bound by the contract of service between it and Nakuru Nursing Home Hospital. 11.Placing reliance on Mutual vs Mater Misericordae Hospital (2025) KEHC 13266 (KLR), the Respondent urges the court order to order settlement of mortuary fees as a mark of good faith as a condition for release of the deceased’s remains and the balance of fees owed be pursued through the avenue of civil proceedings. Otherwise, the Respondent’s Advocates opine that the mandatory injunction relief is not proven. Determination 12.Determination of injunction applications including mandatory, prohibitory and permanent injunctions were long settled in the often quoted case of Giella vs Cassman Brown & Company supra cited in the 1st Defendant’s submissions. The principles are;“Firstly, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the Court is in doubt, it will decide an application on the balance of convenience." 13.Case law in Mrao vs First American Bank of Kenya Limited & 2 Others (2003) eKLR explains a prima facie case in civil cases as;“A case which on the material presented, the court or tribunal properly directing itself will conclude that there exists a right which had apparently been infringed by the opposite party as to call for explanation or rebuttal from the latter.” 14.The three limbs above are required to be surmounted sequentially (see Nguruman Limited vs Jan Bonde Nielsen & 2 Others [2014] eKLR). This means that the Applicant has to satisfy each of the three elements to obtain injunction orders. 15.In Showind Industries vs Guardian Bank Limited & Another [2002] 1 EA it was exhorted that temporary injunction pending trial is granted very sparingly, and only in exceptional circumstances such as where the Applicant’s case is very strong and straight forward. As an equitable remedy, injunction may be denied where there is misconduct by the Applicant or his equity has been defeated by laches. 16.As correctly noted in the Applicant’s submissions, a mandatory injunction is not normally granted at the interlocutory stage unless special factors are shown to exist as in a case where the violation complained of is continuous. Whereas the Respondent no doubt has the right to payment of its dues, it has the option of recovering the same by appropriate legal action from the deceased’s Estate. 17.Having considered the Application, I find the Applicant has made out a prima facie case for the remedies of mandatory and prohibitory injunction as prayed.. Detention of human remains for non-payment of Hospital dues causes untold mental anguish on the deceased’s family and is prima facie violation of the Constitution and the law as held in the cases referred to. Irreparable loss also results to the concerned relatives of a deceased person . The Respondent has not stated its costs including mortuary charges owed and so the court is unable determine what proportion of the debt ought to be paid at once. There is therefore no basis on which to make a conditional order for release of the body as proposed by the Respondent.. 18.The upshot is that the Application is allowed in terms of Prayers 3 and 5. The costs thereof shall be in the Cause. RULING DELIVERED VIRTUALLY THIS 20TH DAY OF MAY, 2026.J. M. NANG’EA, JUDGE.In the presence of:Mr. Kimaru Advocate for the Plaintiff/ApplicantMs Odago Advocate for Mr. Mwanza Advocate for the Defendant/RespondentThe Court Assistant (Jeniffer).