https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8541

**REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **PETITION NO. E260 OF 2026** **GRACE ADHIAMBO MIGWA (Suing as the next of Kin of the estate of the late Erick Anjenjo Maurice Migwa)............................................PETITIONER/APPLICANT** **VERSUS** **CANA HOSPITAL LIMITED..............................................1ST RESPONDENT** **UMASH FUNERAL SERVICES…......................................2NDRESPONDENT** **JUDGMENT** **INTRODUCTION** 1. Like others before her, the Petitioner seeks a judicial determination on the continued detention by a hospital of the body of her deceased husband. This is not a novel question in our courts; it is a well-travelled path, and the legal principles governing such disputes are well established in our jurisprudence. 2. Upon reviewing the pleadings, it became apparent that both the Petition and the accompanying Notice of Motion sought substantially identical reliefs. In the interest of efficiency and to avoid duplicative proceedings, I directed that the Petitioner serve both the Motion and the Petition upon the Respondents, with the intention that the Court would hear and determine them concurrently. **SUMMARY OF THE PETITIONER’S CASE** 1. The Petitioner, Grace Adhiambo Migwa, comes before the Court seeking relief from what she describes as a profound injustice: the continued detention of her late husband’s body by a hospital and funeral home acting at the hospital’s direction. As the Petition recounts, “the continued detention of the body of the deceased has caused considerable and immense emotional distress to the Petitioner and the family. The Petition situates this dispute not merely as a financial disagreement, but as a human story of grief compounded by institutional power exercised without lawful basis. 1. The facts, as pleaded, are stark. The deceased passed away on 18 March 2026 while receiving treatment at Cana Hospital. His body was transferred to Umash Funeral Home for preservation, but on the same day the hospital issued a directive instructing the funeral home not to release the remains until a medical bill of Kshs. 4,410,710 was fully settled. The family managed to raise only Kshs. 360,000. The Petition emphasises that the Respondents have refused to release the body despite repeated pleas, effectively holding the deceased’s remains as collateral for a debt. In the Petitioner’s telling, this practice is not only unlawful but morally untenable. 2. The Petition grounds its claims in the Constitution’s most fundamental protections. It invokes Article 28’s guarantee of dignity, Article 25’s protection from inhuman and degrading treatment, and Article 29’s shield against degrading conduct. The Petitioner argues that detaining a body as leverage for payment violates these rights both for the deceased, whose dignity persists beyond life, and for the living family members who are denied the ability to mourn, bury, and heal. The Petition further asserts that Article 43’s right to health is implicated, as access to medical services cannot be conditioned on surrendering a loved one’s remains as security. 3. Legally, the Petition relies on the long‑standing principle in Kenyan jurisprudence that “a dead body is not property capable of being detained as lien or security for a debt.” This rule, rooted in both common law and public policy, has been affirmed repeatedly by Kenyan courts. The Petitioner argues that hospitals have lawful avenues for debt recovery, civil proceedings, negotiation, or structured payment arrangements, but none of these authorises the coercive detention of a corpse. The Petition frames the Respondents’ conduct as a misuse of private power in a manner incompatible with constitutional norms. 4. Ultimately, the Petitioner seeks declarations that the detention is unlawful and unconstitutional, a mandatory injunction compelling immediate release of the body, and general damages for violation of constitutional rights. **SUMMARY OF THE 1st RESPONDENT’S CASE** 1. The Respondent’s affidavit presents a detailed account of the medical journey of the late Erick Anjenjo Migwa, emphasizing that Cana Hospital admitted him on “11th February 2026… where he remained under continuous medical care and treatment until his demise on 18th March 2026” . The deponent underscores that the hospital deployed extensive medical resources, including HDU and ICU services, in a sustained effort to preserve his life. By the time of his passing, the deceased had accumulated a substantial bill, leaving an outstanding balance of Kshs. 4,532,070, as reflected in the annexed inpatient bill marked TMA‑1. 2. The affidavit further recounts the hospital’s attempts to engage the family in good‑faith negotiations. According to the Respondent, several discussions were initiated to secure a structured payment plan, yet “none of the family members has come forward to assume responsibility or offer any reasonable proposal toward settlement” . Instead, the family’s advocates issued a demand for unconditional release of the body, a position the hospital characterizes as dismissive of its request for security or a payment plan. 3. The Respondent describes a pattern of unilateral demands from the Applicant’s side, including a letter from the area Chief insisting on release without security. The hospital asserts that it consistently reiterated its willingness to release the body upon provision of reasonable security, but these overtures were ignored. Matters escalated when the Respondent discovered a funeral announcement in the Daily Nation, suggesting burial plans were underway despite the unresolved debt and without further engagement from the family. 4. The affidavit frames the Applicant’s conduct as one of bad faith, arguing that the family has demonstrated the capacity to organize a funeral yet refuses to provide even minimal assurance toward settling the outstanding bill. The Respondent stresses that it does not know the deceased’s family structure and that no legally recognized personal representative has stepped forward, exposing the hospital to “a real risk of suffering irrecoverable financial loss” . As a private healthcare institution, the Respondent asserts that it relies on service payments to sustain its operations and safeguard its economic rights. 5. Finally, the Respondent urges the Court to balance the competing interests by ordering a conditional release of the body. It argues that unconditional release would set a harmful precedent, discouraging hospitals from offering emergency care without upfront guarantees. The affidavit concludes that the hospital is ready to release the body once reasonable security and a structured payment plan are provided, warning that without such safeguards, it stands to suffer substantial and unjust financial prejudice 6. Both parties filed submissions which I summarise below. **SUMMARY OF THE PETITIONER’S SUBMISSIONS** 1. The Petitioner submits that it is not disputed that the deceased died while undergoing treatment at the 1st respondent’s medical facility and that at the time of his death there was an outstanding medical bill. It is also not disputed that the 1st respondent has instructed the 2nd respondent not to release the body until the medical bill is settled. The bill at the time of his death was Kshs 4,410,710; the Petitioners have paid a total of Kshs 510000. The body has remained detained at the 2nd respondent’s morgue and is accumulating daily preservation charges and compounding the family’s hardship. 2. It is submitted that the actions of the 1st Respondent are in contravention of the Constitution’s explicit protections of dignity, freedom from degrading treatment, and the right to enforce fundamental rights under Articles 22, 23, 25, and 28. It is submitted that these protections do not evaporate at death; rather, they extend to the treatment of human remains and to the rights of surviving family members who bear the cultural and moral responsibility of burial. She further invokes the Public Health (Public Mortuaries) Rules, which contemplate prompt disposal of bodies, underscoring that the 1st Respondents’ conduct runs contrary to both constitutional and statutory frameworks. To support her position, she cites a consistent line of High Court authority; **Mutua v Mater Misericordiae Hospital [2025]eKLR**, **Catherine Juma Omari v Kenyatta University Teaching Referral Hospital** **[2025] eKLR**, and **Mary Nyang’sanyi Nyaigero & Anor v Karen Hospital Limited & Anor [2016] Eklr,** each holding that hospitals have no lien over a corpse, that “there is no property in a dead body,” and that debts arising from medical treatment must be pursued through lawful civil processes. 1. In her supplementary submissions, the Petitioner responds to the 1st Respondent’s reliance on three cases, noting that two of them; **Mutua (Supra)** and **Mary Nyang’sanyi Nyaigero ( Supra),** squarely support her position. The third, **Bibemi Okorodudu v Aga Khan University Hospital [2025] eKLR**, is distinguishable by its unique facts: the petitioner there had executed a written guarantee, held dual citizenship, and had already taken out letters of administration. Even in that exceptional context, the court reaffirmed that detaining a body to enforce payment is “legally impermissible.” 2. In closing, the Petitioner urges the Court to recognize that the Respondents’ actions violate constitutional rights, offend public policy, and perpetuate a practice that courts have repeatedly condemned as unlawful. She seeks a mandatory injunction compelling the immediate and unconditional release of the body. **SUMMARY OF THE 1ST RESPONDENT’S SUBMISSIONS** 1. The Respondent’s submissions frame the dispute not as a contest over whether the deceased’s body should be released, but over how that release should occur. They emphasise that Cana Hospital has never opposed releasing the body; rather, it has consistently maintained that release should be conditional upon the family providing reasonable security and a written undertaking to settle the outstanding medical bill. The Respondent argues that the Applicant seeks equitable relief while refusing to make any commitment toward a debt she does not dispute was incurred during the deceased’s treatment. 2. The Respondent contends that its request for security is justified by both the factual record and constitutional principles. It highlights that the deceased received extensive medical treatment at both the ICU and HDU , that the bill is substantial, and that multiple attempts to negotiate a structured payment plan were ignored. The Respondent invokes Article 40 of the Constitution, asserting that its proprietary rights and economic interests must be respected. It argues that compelling unconditional release without any assurance of repayment would expose it to irreparable financial loss and undermine its ability to continue providing medical services to the public. 3. Further, the Respondent submits that this Court must remain mindful of its constitutional obligation under Article 159(2)(a) and (b), which requires that justice be administered in a manner that is equitable and that appropriately balances the competing interests of the parties. In the Respondent’s view, this balancing exercise necessarily entails recognising not only the Petitioner’s interest in securing the release of the deceased’s body for burial, but also the Respondent’s legitimate proprietary and economic interests arising from the substantial medical expenses incurred. The Respondent therefore contends that an order for unconditional release, without any form of security or undertaking, would tilt the scales unfairly and undermine the equitable administration of justice contemplated by the Constitution. 4. In addressing the legal authorities, the Respondent acknowledges that Kenyan courts have consistently held that hospitals cannot detain bodies as collateral for debts. However, it argues that these precedents do not prohibit courts from imposing reasonable conditions to safeguard a hospital’s legitimate financial interests. The Respondent relies on **Nyaigero v Karen** Hospital (Supra) , **Mutua v Mater Hospital (Supra) , and Okorodudu v Aga Khan University Hospital (Supra)**, asserting that these cases demonstrate judicial willingness to balance competing rights by ordering conditional release where circumstances warrant it. In particular, the Respondent points to **Okorodudu case**, where the court required the petitioner to surrender passports or deposit Kshs. 8 million as security. 5. The Respondent further submits that the present case contains “peculiar and exceptional” circumstances that justify conditional release. These include the unusually high outstanding bill, the absence of any legally recognized administrator willing to assume liability, the Applicant’s refusal to provide even minimal security, and the real risk that the Respondent may be left without practical recourse for recovery once the body is released. The Respondent argues that these factors distinguish this case from the authorities relied upon by the Applicant and warrant a tailored remedy that protects both the dignity of the deceased and the Respondent’s right to recover its fees. 6. In conclusion, the Respondent urges the Court to decline the Applicant’s request for unconditional release. It proposes instead that the Court order release subject to three conditions: (a) a written undertaking by the Applicant or family representative, (b) provision of reasonable security, and (c) submission of a structured payment plan within a defined period. **ANALYSIS AND DETERMINATION** 1. Having carefully considered the Pleadings herein alongside the submissions and the relevant law, I find that the following are the issues for determination- 1. Whether the continued detention of the body of the deceased contravenes constitutionally guaranteed rights? 2. Arising from (a) above what are the consequential orders? ***Whether the continued detention of the body of the deceased contravenes constitutionally guaranteed rights?*** 1. As stated at the outset this is a matter well settled. In the celebrated decision of **Ludindi Venant and Another v Pandya Memorial Hospital Msa HCCC No. 63 of 1998 [1998] eKLR,** Waki J (as he then was ) stated, ***“For I think, with utmost respect to the hospital, that on any view it would be equally repugnant to public policy to sanction the use of dead bodies as objects in the game of commercial ping-pong. Dead bodies are for interment or cremation or other disposal without delay …The dispute is on a debt for medical services solicited for by someone who is still alive, not the deceased, and there are legal ways of binding such person to pay the debt owed. The dead body of the deceased ought not be part of that equation.*** ***…. [I]t is trite law that there is no property in a dead body. It cannot be offered or held as security for payment of a debt. It cannot be auctioned if there is default. It cannot be used to earn rental income in a cold-room. In sum, there is no legal basis for detaining it, and it would be callous and sadistic to hold otherwise.”*** 1. There is no ambiguity in our law. Courts in this jurisdiction have repeatedly and consistently affirmed that where a patient dies while undergoing treatment, the hospital must release the body to the family for burial and thereafter pursue any outstanding medical fees through the established civil recovery mechanisms. The law provides clear channels for such recovery, and none of them include the detention of a corpse as collateral. When, as in the present case, a hospital purports to hold the body as security for payment, that action constitutes a direct assault on the constitutionally guaranteed rights of the deceased’s family; rights to be treated with humanity and dignity under Articles 25(a) and 28 of the Constitution. It is conduct that our courts have described, without hesitation, as oppressive, unconscionable, and repugnant to justice and morality. To detain a body in this manner is not merely unlawful; it is callous and sadistic. 2. The Respondent’s reliance on **Okorodudu v Aga Khan University Hospital (supra)** is misplaced. In that case, the Court expressly framed two distinct issues for determination: (a) whether the body of the deceased could lawfully be withheld as a means of enforcing payment of a hospital bill, and (b) what orders, in light of the unique circumstances of that case, would best secure the ends of justice for both parties. On the first issue, the Court was unequivocal. At paragraph 31, it held that the question “need not be belaboured,” because courts in Kenya have “consistently held that this is legally impermissible and therefore unlawful.” That principle is settled and was not diluted. 3. The Court then turned to the second issue, how to balance the competing interests in that particular case, and it is here that the Respondent’s argument collapses. The Court ordered the body to be released immediately, reaffirming that detention of a corpse is unlawful. The additional conditions imposed were not an endorsement of detention, but a response to the exceptional facts of that case: the petitioner was not a Kenyan national, had executed a written guarantee of payment, had already obtained letters of administration, and posed a real risk of leaving the jurisdiction before the hospital could pursue civil recovery. 4. Those circumstances do not arise here. Properly understood, **Okorodudu** reinforces, rather than undermines the principle that the Respondent has no lawful basis to detain the body or to predicate its release on security. 5. Having found that the continued detention of the deceased’s body was unconstitutional, it follows that the Petitioner cannot be held liable for any mortuary charges accruing at Umash Funeral Home from the 18th March 2026, that is the date on which the 1st Respondent issued the directive prohibiting the release of the body. 6. In conclusion, therefore, this Petition succeeds. I find that the continued refusal by the 1st respondent to release the body of the deceased to the Petitioner for burial violates her rights not to be subjected to degrading treatment and her to be treated with dignity as guaranteed under Articles 25(a) and 28 of the Constitution respectively and make the following orders; 1. It is hereby declared that the continued detention of the deceased’s body from the date of the 1st Respondent’s letter to the 2nd Respondent directing that the body should not be released constituted an unlawful, unconstitutional and impermissible act. 2. A mandatory injunction is hereby issued compelling the 1st and 2nd Respondents, by themselves, their agents or servants, to forthwith and unconditionally release to the Petitioner the body of the late **ERICK ANJEJO MAURICE MIGWA** for burial and final rites. 3. For the avoidance of doubt, the release shall not be subject to any condition, security, undertaking, or structured payment plan, consequently, the Court declares that all mortuary fees accruing at the 2nd Respondent’s facility from the date of the 1st Respondent’s unlawful directive shall not be payable by the Petitioner or the estate of the deceased. 4. The Court awards the Petitioner (the widow) general damages in the sum of Kshs. One Million (1,000,000) for violation of her Article 25(a) and 28 rights. 5. The 1st Respondent remains at liberty to pursue any outstanding medical fees through lawful civil recovery mechanisms, including but not limited to filing a civil claim or initiating citation proceedings once letters of administration are taken out. 6. The Petitioner shall have the costs of the Petition. It is so ordered **SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 18TH DAY OF JUNE 2026.** **P .M NYAUNDI** **JUDGE** **In the Presence of** Fardosa Court Assistant Amuga for Petitioner/Applicant Ms. Nyabange for Respondent