[2019] KEHC 6696 (KLR)
The court found that the applicants had fulfilled their obligation by paying the mortuary charges as ordered in the judgment of 5.11.2018. There was no stay or challenge to the court's decree, and therefore, the respondent had no legal justification to continue detaining the deceased's body. The court ordered the...
Source-derived case information.
- Citation
- [2019] KEHC 6696 (KLR)
- Parties
- Appellant: Millicent Achieng Ombewa; Appellant: Lucia Abaja Otieno; Appellant: Janet Apel Otieno; Respondent: Medical Superintendent - Bondo Sub-County Hospital
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 11 of 2019
- Procedural Posture
- Miscellaneous Civil Application / Ruling
- Outcome
- application allowed
- Judges
- RE Aburili
- Legal Topics
- Burial Disputes, Enforcement of Court Orders, Mortuary Fees
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Millicent Achieng Ombewa
Appellant
Lucia Abaja Otieno
Appellant
Janet Apel Otieno
Appellant
Medical Superintendent - Bondo Sub-County Hospital
Respondent
Procedural Posture
Miscellaneous Civil Application / Ruling
Legal Issues
- 1 Whether the respondent is justified in detaining the deceased's body despite payment of mortuary charges.
- 2 Whether the applicants are entitled to immediate release of the deceased's body for burial as per the court's previous order.
Ratio Decidendi
The court found that the applicants had fulfilled their obligation by paying the mortuary charges as ordered in the judgment of 5.11.2018. There was no stay or challenge to the court's decree, and therefore, the respondent had no legal justification to continue detaining the deceased's body. The court ordered the immediate release of the body to the applicants for burial in accordance with the unchallenged decree.
Court Disposition
application allowed
Orders
- The respondent shall forthwith release the body of the deceased Charles Ombewa Otieno held at Bondo Sub-County Hospital to the applicants for interment in accordance with the decree of 5.11.2018.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
MISCELLANEOUS CIVIL APPLICATION NO. 11 OF 2019
(CORAM: R.E. ABURILI – J.)
MILLICENT ACHIENG OMBEGWA.........1ST APPELLANT
LUCIA ABAJA OTIENO..............................2ND APPELLANT
JANET APEL OTIENO................................3RD APPELLANT
VERSUS
MEDICAL SUPERINTENDENT-
BONDO SUB-COUNTY HOSPITAL..............RESPONDENT
RULING:
1. I have considered the Applicant’s application under certificate of urgency dated 26. 3.2019 and the supporting affidavit and annextures thereto.
2. I note that there is a clear order issued on 5. 11. 2018 for interment of the deceased Charles Ombewa Otieno. The Court made it clear that the Appellants bury the deceased and on mortuary charges, the Court ordered the Respondent to meet the same or the Appellant to pay the same and claims reimbursement from the Respondent.
3. There is a receipt dated 21. 3.2019 on record to show that the Medical Superintendent of Bondo Sub-County Hospital who is being Accused of detaining the deceased’s body was paid KShs.29,000/= being mortuary charges. That being the case, there is no reason why the deceased’s body is still being detained in the mortuary, in the absence of any Court order staying the judgment of this Court delivered on 5. 11. 2018.
4. Accordingly, I order that the Respondent do forthwith release the body of the deceased Charles Ombewa Otieno being held at Bondo Sub-County Hospital to the Applicants herein:
1. Millicent Achieng Ombewa,
2. Lucia Abaja Otieno and
3. Janet Apel Otieno
for interment in accordance with the decree of this Court of 5. 11. 2018 which has not been challenged or overturned by any superior Court.
5. Orders accordingly.
SIGNED, DATED AND DELIVERED AT SIAYA THIS 27TH MARCH, 2019.
R. E. ABURILI
JUDGE