REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. E334 OF 2025
ALEX GIBENDI INDAMANYWA…………………..PLAINTIFF/APPLICANT
VERSUS
COPTIC HOSPITAL (MAIN HOSPITAL) ……DEFENDANT/RESPONDENT
RULING
Background
1. This ruling relates to a dispute between the Plaintiff/Applicant (Applicant) and the Defendant/Respondent (Respondent) over the detention of the body of Rosemary Monyani Kisanya of Kenya National Identity Card No. 1171779 (the deceased). The deceased was admitted at the Respondent’s facility along Ngong Road, Nairobi on 14 th October 2025. She died on 25 th November 2025 while undergoing treatment.
2. The dispute involves an unpaid hospital bill amounting to Kenya Shillings Three Million, Seven Hundred and Twenty-Four Thousand, Seven Hundred and Eighty-Three (Kshs 3,724,783.00). The Respondent detained the body of the deceased for non-payment of the hospital bill. The Applicant was unable to settle this bill. The Respondent held onto the body of the deceased pending full settlement of the bill.
3. Consequently, the Applicant moved to this court and filed a Plaint dated 8 th December 2025 accusing the Respondent of failure to release the body of the deceased for burial and pursue payment of the hospital bill through a normal civil debt recovery process. In the suit, the Applicant seeks an injunctive order against the Respondent restraining it from continued detention of the body of the deceased and an order directed at the Respondent to release the body of the deceased for burial/interment.
4. Contemporaneously with the filing of the Plaint, the Applicant also filed a Notice of Motion Application seeking orders shown below:
The Notice of Motion
5. The Application is dated 8 th December 2025 and is brought under Order 51 Rule 1 and 4 of the Civil Procedure Rules, Section 3 and 3A of the Civil Procedure Act and any other enabling laws, seeking the following orders:
(a) Spent.
(b) That this Court be pleased to issue orders compelling the Respondent/Defendant by themselves, their servants or agents or otherwise to immediately and unconditionally release/deliver to the applicant the remains/corpse of the late Rosemary Monyani Kisanya to the Applicant for burial/interment.
(c) An injunctive order restraining the Respondent/Defendant by themselves, their servants or agents or otherwise from detaining or continuing with the detention of the remains/corpse of the late Rosemary Monyani Kisanya.
(d) That this court be pleased to issue orders compelling the Respondent/Defendant to immediately and unconditionally release the remains/body of the late Rosemary Monyani Kisanya to the Applicant to allow her interment pending the hearing and determination of this suit.
(e) That this Honourable Court be pleased to grant any other or further relief it deems fit in the circumstances.
(f) That costs of this Application be provided for.
6. The Application is supported by the grounds stated on the face of it and in the Supporting Affidavit sworn by the Applicant on 8 th December 2025.
7. In sum, the circumstances disclosed in the grounds supporting the application are that the deceased was admitted in the Respondent’s facility along Ngong Road, Nairobi for treatment on the 14 th October 2025 where she succumbed to the illness and passed away on 25 th November 2025 leaving behind a bill of Kenya Shillings Three Million, Seven Hundred and Twenty Four Thousand, Seven Hundred and Eighty Three (Kshs 3,724,783.00).
8. The Applicant has presented a case that the Respondent declined to release the body of the deceased to the Applicant, her son, for burial claiming for unpaid hospital bill. These actions by the Respondent necessitated the filing of the Plaint herein dated 8 th December 2025 and this instant application.
9. The Application is opposed by the Respondent through a Replying Affidavit sworn by George Salib, the Chief Executive Officer of the Respondent, on 15/12/2025. The Respondent has presented a case that the Applicant has not taken out letters of administration to allow him to sue the Respondent on behalf of the deceased. The deponent admitted that the deceased was admitted in the Respondent’s facility where she passed on leaving behind an unpaid bill amounting to Kshs 3,228,783.30 and mortuary fees of Kshs 18,000 as at 15/12/2025.
10. The deponent claims that the Applicant has not made any or any acceptable proposal for settlement of the outstanding bill; that the Respondent relies on payments made by its customers for sustenance and that it would be against public policy for this court to order release of the body without payment because the Respondent needs the funds in order to provide services.
11. The Applicant filed a Supplementary Affidavit sworn on 18 th December 2025 in which he has deposed that he has made efforts to negotiate settlement of the hospital bill but the Respondent, through its credit control office, insisted on payment of the full amount of the bill less a discount of Kshs 60,000 and that he also settled the deceased’s medical bill to the tune of Kshs 625,000. He has asserted that retaining bodies is not only against public policy but is also unlawful.
Parties’ Submissions
12. The Application was canvassed through oral submissions. Mr. Sabula, learned counsel for the Applicant, reiterated the grounds advanced in support of the application and submitted that the deceased filed hospital documents and fingerprinted them; that she was admitted in hospital and stayed there for 43 days but passed away while undergoing treatment; that the Applicant paid Kshs 625,000 towards the hospital bill and that after SHA contributed Kshs 500,000, the bill came down to the current amount.
13. Counsel submitted that the Applicant is not able to raise the whole hospital bill; that the Applicant is a Sergeant at the Kenya Defence Forces, earning a net salary of Kshs 30,000 and that the current hospital bill is not disputed or that the Respondent has declined to release the body as lien. Counsel relied on Mutua v Mater Misericordiae Hospital (Civil Case E220 of 2025) 2025 KEHC 13266 (Civ.) (23 September 2025) (Ruling) in which the Judge stated that there is no law in Kenya allowing hospitals the right to retain bodies of deceased as lien over outstanding bills. Counsel asked the court to find that the detention of the body is unlawful and has no justification under the Kenyan Law.
14. Counsel cited Article 28 of the Constitution on the right to dignity which he submitted that the right to dignity continues, even after death. He submitted that the Public Health Act provides that bodies should be disposed of immediately unless there are compelling reasons; that one of the legally accepted reason is whether there is a dispute as to where the deceased should be buried, which reasons does not apply in this case.
15. It was submitted that there is no value in the body of the deceased, except sentimental value; that public policy requires that the body be released to the kin as soon as possible and that debts in hospital and mortuary charges are recoverable as civil debts through litigation. Counsel relied on Civil Suit No. 448 of 2015 Mary Nyang’anyi Nyaigero & another v. Karen Hospital Limited & another (2016) KEHC 6882 (KLR) , to emphasize the point that this court ought to strike a balance between public policy and the hospital interests and order release of the body.
16. It was further submitted that the Applicant has met the threshold for grant of a mandatory injunction as shown in the two authorities relied on; that the Applicant has demonstrated a prima facie case; that there is no dispute as to where the deceased should be buried. Counsel submitted that the Applicant has engaged the Respondent without success because the terms set by the Respondent were beyond the Applicant as he could not afford to commit a higher figure than the one proposed.
17. The Respondent submitted that the Applicant voluntarily agreed to pay hospital charges in respect of the deceased, being her next of kin. Mr. Onderi submitted on behalf of the Respondent that the Applicant lacks locus standi to bring this suit and therefore the suit is void ab initio. Counsel cited Isaac Ngugi v Nairobi Hospital & 3 others 2013 KEHC 6023 (KLR) to support his submissions. He submitted that lack of locus standi is not a procedural lapse but jurisdictional issue incapable of cure and that this court ought to lay down its tools.
18. Mr. Onderi submitted that the Applicant was given a discount of Kshs 60,000 which was pegged on payment of the bill within a particular time, failing which the discount will be forfeited and the whole amount become payable. Counsel submitted that the Respondent has been willing to accept a reasonable offer from the Applicant which was not forthcoming.
19. In a rejoinder, Mr. Sabula submitted that the Respondent was raising the issue of locus standi at the wrong time and that that issue ought to have come as a preliminary objection; that the Law of Succession Act does not apply in this case; that the Applicant did not undertake to pay but make an offer and therefore he is not bound to settle the hospital bill.
Analysis and determination
20. I have considered this matter. The issue I want to determine is whether the Respondent is justified in detaining the body of the deceased. After careful consideration of the Application, the grounds in support thereof and the response by the Respondent in opposing the application as well as rival submissions, I find that there is no dispute that the deceased was admitted in the Respondent’s facility for treatment and that she passed on while undergoing treatment, leaving a huge hospital bill, as stated in the court papers, which the Applicant is unable to pay. Consequently, the Respondent has held onto the body of the deceased until the hospital bill is fully settled.
21. The Applicant has claimed that it is not his responsibility to settle that bill. The Applicant seems to be holding the stand that the contract to settle the hospital bill was between the deceased and the Respondent and that he is not privy to that contract. He has, nonetheless, offered to settle the bill by monthly instalments of Kshs 10,000, which is the amount he is able to afford.
22. On the other hand, the Respondent is willing to release the body of the deceased upon settlement of the entire sum owing less discount of Kshs 60,000, which discount, as argued by the Respondent, was conditional to the bill being settled within a given timeframe which has lapsed and therefore the entire amount is now due and payable.
23. The Respondent has also raised the issue of lack of locus standi on the part of the Applicant. This issue was raised at the submissions stage and is not captured in the Replying Affidavit of the Respondent. In my view, this was an ambush on the part of the Respondent and is therefore prejudicial to the Applicant.
24. I take the view that even if this court were to determine the issue of locus standi , I would be persuaded by the decision in Isaac Ngugi case , cited above, where the learned Judge stated that:
“There is not property right in a corpse and a claim for the body of the deceased cannot be sustained by the estate of the deceased. The withholding of the deceased’s body is not a cause of action that could be maintained by the deceased herself but one that can be sustained by the person affected or injured in his own right, in this case the petitioner… .”
25. My understanding of the reasoning in the above case is that if a claim for the body of the deceased cannot be sustained by the estate of the deceased because there is no property right in it, then the issue of locus standi in respect of the person bringing a claim for release of the body of the deceased, like in this case, does not arise. That claimant does not require letters of administration to do so. I wish, however, to distinguish this case with the Isaac Ngugi case , in that in the Isaac Ngugi case , the Petitioner had obtained Letters of Administration Ad Litem.
26. The Applicant has offered to settle the bill within his financial means. This offer was not acceptable to the Applicant for reasons that it will take a long time to settle the bill. I agree with the Respondent that it will take many years to settle that bill at Kshs 10,000 per month.
27. My considered view on this matter is that the Respondent is justified in seeking settlement of the bill incurred by the deceased. However, withholding the body of the deceased to force the payment of the bill is not the right thing to do. This is because there is not property in the body of the deceased. This stand has been taken by courts in various decisions, including Ludindi Venant and Another v Pandya Memorial Hospital Msa HCCC No. 63 of 1998 [1998] eKLR, where the Court (Waki J., as he then was) stated that:
“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.”
28. It is clear that the dispute between the parties in this suit relate to a debt arising from unpaid hospital bill. It has become a monetary debt. It is capable of being pursued through ordinary means like any other financial debt.
29. My careful analysis of this matter leads me to the conclusion that the proper thing to do in this case, just like in other similar cases already determined, is to allow the Applicant the opportunity to bury his mother. It is the lawful and moral thing to do, the huge hospital bill notwithstanding, for the reason that the Respondent will not gain anything by continued detention of the body of the deceased. The debt owing can be recovered through a civil suit. In so finding, I am persuaded by the case of Mary Nyang’anyi Nyaigero & another v. Karen Hospital Limited & another case where the learned Judge cited, with approval, the case of Masitza Mamadi & another v Mombasa Hospital Association t/a Mombasa Hospital (Unreported) Mombasa HCCC No. 153 of 2008 where the learned judge stated thus:
“The dispute between the plaintiffs and the respondent involves a dead body which must be disposed of at once. In that regard, I am of the view that this matter ought to be decided at once as special circumstances exist. The plaintiffs have demonstrated that they alone are interested in the release and burial of the remains of the deceased. I have also found that they have a right to receive those remains and bury them. The respondent does not claim such a right over those remains. Its primary interest is in its charges which it insists should be settled or a guarantee for payment of the same be made before the remains may be released. The respondent’s concern in my view should not delay the disposal of the remains of the deceased. The defendant’s claim is a charge on estate of the deceased. The deceased’s remains are not an asset that the respondent may hold as alien. The defendant cannot sell the same to recover its charges. It cannot pledge or otherwise use the remains as security. Indeed, the defendant acknowledges that there is no property in the remains of the deceased. So, the respondent has no basis for refusing to release the remains of the deceased at all. The estate of the deceased will in due course be advertised before its administration is undertaken. There is no impediment to the lodging of the respondent’s claim then. Alternatively, the respondent can take out a citation in the event that no one is ready to take out letters of Administration. As the respondent has not and will not at any time claim the remains of the deceased I find that in the circumstances that the injunction sought is directed at a simple and summary act, namely the release of the remains of the deceased for burial. The respondent’s interest in its charges does not lapse with the release and burial of the remains of the deceased. I therefore feel that at the trial it will appear that the injunction has been rightly granted.”
30. Likewise, I am persuaded that the Applicant has demonstrated that he has a right, as the son of the deceased, to claim the body of the deceased and accord the deceased a decent burial as custom and tradition demand. I am persuaded that the Applicant has demonstrated special circumstances to warrant the intervention of this court.
31. Among the orders sought in the Application is an injunction restraining the Respondent, either by themselves or through their servants, agents or otherwise, from detaining or continuing with the detention of the body of the deceased. This prayer is in the nature of mandatory injunction whose grant will affect the main suit. Granting that prayer will essentially dispose of the case at this interlocutory stage.
32. The Applicant has argued that he has met the threshold for the grant of the mandatory injunction. That threshold was enunciated in the Court of Appeal decision in Kenya Breweries Limited & another v Washington O. Okeyo [2002] KECA 284 (KLR) as follows:
The test whether to grant a mandatory injunction or not is correctly stated in Vol. 24 Halsbury’s Laws of England 4th Edn. para 948 which reads: “A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks it ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempted to steal a march on the plaintiff …….. a mandatory injunction will be granted on an interlocutory application”.
Also in Locabail International Finance Ltd. V. Agroexport and others [1986] 1 ALL ER 901 at pg. 901 it was stated:- “A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances, and then only in clear cases either where the court thought that the matter ought to be decided at once or where the injunction wa s directed at a simple and summary act which could be easily remedied or where the defendant had attempted to steal a march on the plaintiff. Moreover, before granting a mandatory interlocutory injunction the court had to feel a high degree of assurance that, at the trial it would appear that the injunction had rightly been granted, that being a different and higher standard than was required for a prohibitory injunction.”
33. Consequently, I hereby allow the Notice of Motion dated 8 th December 2025 in terms of prayers 2, 3, and 4 of that application. For the avoidance of doubt, I allow the application in the following terms:
(a) That the Respondent, whether by itself, its servants or agents or anyone acting on its behalf, is hereby compelled by the order of this court to immediately and unconditionally release to the Applicant, the remains/corpse of the late Rosemary Monyani Kisanya for burial/interment.
(b) That an injunctive order is hereby issued restraining the Respondent, whether by itself, its servants or agents or anyone acting on its behalf, from detaining or continuing with the detention of the remains /corpse of the late Rosemary Monyani Kisanya.
(c) That the Respondent is at liberty to pursue the settlement of the outstanding hospital bill through a civil claim or through a claim against the estate of the deceased in a Succession Cause.
(d) Each party shall bear own costs.
34. Orders shall issue accordingly.
Dated, signed and delivered this 29 th day of December 2025.
S. N. MUTUKU
JUDGE
In the presence of:
1. Mr. Sabula for the Applicant
2. Mr. Onderi holding brief for Mr. Makori for the Respondent
2 | Ruling in Nairobi HCCC E334 of 2025
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. E334 OF 2025
ALEX GIBENDI INDAMANYWA…………………..PLAINTIFF/APPLICANT
VERSUS
COPTIC HOSPITAL (MAIN HOSPITAL) ……DEFENDANT/RESPONDENT
RULING
Background
1. This ruling relates to a dispute between the Plaintiff/Applicant (Applicant) and the Defendant/Respondent (Respondent) over the detention of the body of Rosemary Monyani Kisanya of Kenya National Identity Card No. 1171779 (the deceased). The deceased was admitted at the Respondent’s facility along Ngong Road, Nairobi on 14 th October 2025. She died on 25 th November 2025 while undergoing treatment.
2. The dispute involves an unpaid hospital bill amounting to Kenya Shillings Three Million, Seven Hundred and Twenty-Four Thousand, Seven Hundred and Eighty-Three (Kshs 3,724,783.00). The Respondent detained the body of the deceased for non-payment of the hospital bill. The Applicant was unable to settle this bill. The Respondent held onto the body of the deceased pending full settlement of the bill.
3. Consequently, the Applicant moved to this court and filed a Plaint dated 8 th December 2025 accusing the Respondent of failure to release the body of the deceased for burial and pursue payment of the hospital bill through a normal civil debt recovery process. In the suit, the Applicant seeks an injunctive order against the Respondent restraining it from continued detention of the body of the deceased and an order directed at the Respondent to release the body of the deceased for burial/interment.
4. Contemporaneously with the filing of the Plaint, the Applicant also filed a Notice of Motion Application seeking orders shown below:
The Notice of Motion
5. The Application is dated 8 th December 2025 and is brought under Order 51 Rule 1 and 4 of the Civil Procedure Rules, Section 3 and 3A of the Civil Procedure Act and any other enabling laws, seeking the following orders:
(a) Spent.
(b) That this Court be pleased to issue orders compelling the Respondent/Defendant by themselves, their servants or agents or otherwise to immediately and unconditionally release/deliver to the applicant the remains/corpse of the late Rosemary Monyani Kisanya to the Applicant for burial/interment.
(c) An injunctive order restraining the Respondent/Defendant by themselves, their servants or agents or otherwise from detaining or continuing with the detention of the remains/corpse of the late Rosemary Monyani Kisanya.
(d) That this court be pleased to issue orders compelling the Respondent/Defendant to immediately and unconditionally release the remains/body of the late Rosemary Monyani Kisanya to the Applicant to allow her interment pending the hearing and determination of this suit.
(e) That this Honourable Court be pleased to grant any other or further relief it deems fit in the circumstances.
(f) That costs of this Application be provided for.
6. The Application is supported by the grounds stated on the face of it and in the Supporting Affidavit sworn by the Applicant on 8 th December 2025.
7. In sum, the circumstances disclosed in the grounds supporting the application are that the deceased was admitted in the Respondent’s facility along Ngong Road, Nairobi for treatment on the 14 th October 2025 where she succumbed to the illness and passed away on 25 th November 2025 leaving behind a bill of Kenya Shillings Three Million, Seven Hundred and Twenty Four Thousand, Seven Hundred and Eighty Three (Kshs 3,724,783.00).
8. The Applicant has presented a case that the Respondent declined to release the body of the deceased to the Applicant, her son, for burial claiming for unpaid hospital bill. These actions by the Respondent necessitated the filing of the Plaint herein dated 8 th December 2025 and this instant application.
9. The Application is opposed by the Respondent through a Replying Affidavit sworn by George Salib, the Chief Executive Officer of the Respondent, on 15/12/2025. The Respondent has presented a case that the Applicant has not taken out letters of administration to allow him to sue the Respondent on behalf of the deceased. The deponent admitted that the deceased was admitted in the Respondent’s facility where she passed on leaving behind an unpaid bill amounting to Kshs 3,228,783.30 and mortuary fees of Kshs 18,000 as at 15/12/2025.
10. The deponent claims that the Applicant has not made any or any acceptable proposal for settlement of the outstanding bill; that the Respondent relies on payments made by its customers for sustenance and that it would be against public policy for this court to order release of the body without payment because the Respondent needs the funds in order to provide services.
11. The Applicant filed a Supplementary Affidavit sworn on 18 th December 2025 in which he has deposed that he has made efforts to negotiate settlement of the hospital bill but the Respondent, through its credit control office, insisted on payment of the full amount of the bill less a discount of Kshs 60,000 and that he also settled the deceased’s medical bill to the tune of Kshs 625,000. He has asserted that retaining bodies is not only against public policy but is also unlawful.
Parties’ Submissions
12. The Application was canvassed through oral submissions. Mr. Sabula, learned counsel for the Applicant, reiterated the grounds advanced in support of the application and submitted that the deceased filed hospital documents and fingerprinted them; that she was admitted in hospital and stayed there for 43 days but passed away while undergoing treatment; that the Applicant paid Kshs 625,000 towards the hospital bill and that after SHA contributed Kshs 500,000, the bill came down to the current amount.
13. Counsel submitted that the Applicant is not able to raise the whole hospital bill; that the Applicant is a Sergeant at the Kenya Defence Forces, earning a net salary of Kshs 30,000 and that the current hospital bill is not disputed or that the Respondent has declined to release the body as lien. Counsel relied on Mutua v Mater Misericordiae Hospital (Civil Case E220 of 2025) 2025 KEHC 13266 (Civ.) (23 September 2025) (Ruling) in which the Judge stated that there is no law in Kenya allowing hospitals the right to retain bodies of deceased as lien over outstanding bills. Counsel asked the court to find that the detention of the body is unlawful and has no justification under the Kenyan Law.
14. Counsel cited Article 28 of the Constitution on the right to dignity which he submitted that the right to dignity continues, even after death. He submitted that the Public Health Act provides that bodies should be disposed of immediately unless there are compelling reasons; that one of the legally accepted reason is whether there is a dispute as to where the deceased should be buried, which reasons does not apply in this case.
15. It was submitted that there is no value in the body of the deceased, except sentimental value; that public policy requires that the body be released to the kin as soon as possible and that debts in hospital and mortuary charges are recoverable as civil debts through litigation. Counsel relied on Civil Suit No. 448 of 2015 Mary Nyang’anyi Nyaigero & another v. Karen Hospital Limited & another (2016) KEHC 6882 (KLR) , to emphasize the point that this court ought to strike a balance between public policy and the hospital interests and order release of the body.
16. It was further submitted that the Applicant has met the threshold for grant of a mandatory injunction as shown in the two authorities relied on; that the Applicant has demonstrated a prima facie case; that there is no dispute as to where the deceased should be buried. Counsel submitted that the Applicant has engaged the Respondent without success because the terms set by the Respondent were beyond the Applicant as he could not afford to commit a higher figure than the one proposed.
17. The Respondent submitted that the Applicant voluntarily agreed to pay hospital charges in respect of the deceased, being her next of kin. Mr. Onderi submitted on behalf of the Respondent that the Applicant lacks locus standi to bring this suit and therefore the suit is void ab initio. Counsel cited Isaac Ngugi v Nairobi Hospital & 3 others 2013 KEHC 6023 (KLR) to support his submissions. He submitted that lack of locus standi is not a procedural lapse but jurisdictional issue incapable of cure and that this court ought to lay down its tools.
18. Mr. Onderi submitted that the Applicant was given a discount of Kshs 60,000 which was pegged on payment of the bill within a particular time, failing which the discount will be forfeited and the whole amount become payable. Counsel submitted that the Respondent has been willing to accept a reasonable offer from the Applicant which was not forthcoming.
19. In a rejoinder, Mr. Sabula submitted that the Respondent was raising the issue of locus standi at the wrong time and that that issue ought to have come as a preliminary objection; that the Law of Succession Act does not apply in this case; that the Applicant did not undertake to pay but make an offer and therefore he is not bound to settle the hospital bill.
Analysis and determination
20. I have considered this matter. The issue I want to determine is whether the Respondent is justified in detaining the body of the deceased. After careful consideration of the Application, the grounds in support thereof and the response by the Respondent in opposing the application as well as rival submissions, I find that there is no dispute that the deceased was admitted in the Respondent’s facility for treatment and that she passed on while undergoing treatment, leaving a huge hospital bill, as stated in the court papers, which the Applicant is unable to pay. Consequently, the Respondent has held onto the body of the deceased until the hospital bill is fully settled.
21. The Applicant has claimed that it is not his responsibility to settle that bill. The Applicant seems to be holding the stand that the contract to settle the hospital bill was between the deceased and the Respondent and that he is not privy to that contract. He has, nonetheless, offered to settle the bill by monthly instalments of Kshs 10,000, which is the amount he is able to afford.
22. On the other hand, the Respondent is willing to release the body of the deceased upon settlement of the entire sum owing less discount of Kshs 60,000, which discount, as argued by the Respondent, was conditional to the bill being settled within a given timeframe which has lapsed and therefore the entire amount is now due and payable.
23. The Respondent has also raised the issue of lack of locus standi on the part of the Applicant. This issue was raised at the submissions stage and is not captured in the Replying Affidavit of the Respondent. In my view, this was an ambush on the part of the Respondent and is therefore prejudicial to the Applicant.
24. I take the view that even if this court were to determine the issue of locus standi , I would be persuaded by the decision in Isaac Ngugi case , cited above, where the learned Judge stated that:
“There is not property right in a corpse and a claim for the body of the deceased cannot be sustained by the estate of the deceased. The withholding of the deceased’s body is not a cause of action that could be maintained by the deceased herself but one that can be sustained by the person affected or injured in his own right, in this case the petitioner… .”
25. My understanding of the reasoning in the above case is that if a claim for the body of the deceased cannot be sustained by the estate of the deceased because there is no property right in it, then the issue of locus standi in respect of the person bringing a claim for release of the body of the deceased, like in this case, does not arise. That claimant does not require letters of administration to do so. I wish, however, to distinguish this case with the Isaac Ngugi case , in that in the Isaac Ngugi case , the Petitioner had obtained Letters of Administration Ad Litem.
26. The Applicant has offered to settle the bill within his financial means. This offer was not acceptable to the Applicant for reasons that it will take a long time to settle the bill. I agree with the Respondent that it will take many years to settle that bill at Kshs 10,000 per month.
27. My considered view on this matter is that the Respondent is justified in seeking settlement of the bill incurred by the deceased. However, withholding the body of the deceased to force the payment of the bill is not the right thing to do. This is because there is not property in the body of the deceased. This stand has been taken by courts in various decisions, including Ludindi Venant and Another v Pandya Memorial Hospital Msa HCCC No. 63 of 1998 [1998] eKLR, where the Court (Waki J., as he then was) stated that:
“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.”
28. It is clear that the dispute between the parties in this suit relate to a debt arising from unpaid hospital bill. It has become a monetary debt. It is capable of being pursued through ordinary means like any other financial debt.
29. My careful analysis of this matter leads me to the conclusion that the proper thing to do in this case, just like in other similar cases already determined, is to allow the Applicant the opportunity to bury his mother. It is the lawful and moral thing to do, the huge hospital bill notwithstanding, for the reason that the Respondent will not gain anything by continued detention of the body of the deceased. The debt owing can be recovered through a civil suit. In so finding, I am persuaded by the case of Mary Nyang’anyi Nyaigero & another v. Karen Hospital Limited & another case where the learned Judge cited, with approval, the case of Masitza Mamadi & another v Mombasa Hospital Association t/a Mombasa Hospital (Unreported) Mombasa HCCC No. 153 of 2008 where the learned judge stated thus:
“The dispute between the plaintiffs and the respondent involves a dead body which must be disposed of at once. In that regard, I am of the view that this matter ought to be decided at once as special circumstances exist. The plaintiffs have demonstrated that they alone are interested in the release and burial of the remains of the deceased. I have also found that they have a right to receive those remains and bury them. The respondent does not claim such a right over those remains. Its primary interest is in its charges which it insists should be settled or a guarantee for payment of the same be made before the remains may be released. The respondent’s concern in my view should not delay the disposal of the remains of the deceased. The defendant’s claim is a charge on estate of the deceased. The deceased’s remains are not an asset that the respondent may hold as alien. The defendant cannot sell the same to recover its charges. It cannot pledge or otherwise use the remains as security. Indeed, the defendant acknowledges that there is no property in the remains of the deceased. So, the respondent has no basis for refusing to release the remains of the deceased at all. The estate of the deceased will in due course be advertised before its administration is undertaken. There is no impediment to the lodging of the respondent’s claim then. Alternatively, the respondent can take out a citation in the event that no one is ready to take out letters of Administration. As the respondent has not and will not at any time claim the remains of the deceased I find that in the circumstances that the injunction sought is directed at a simple and summary act, namely the release of the remains of the deceased for burial. The respondent’s interest in its charges does not lapse with the release and burial of the remains of the deceased. I therefore feel that at the trial it will appear that the injunction has been rightly granted.”
30. Likewise, I am persuaded that the Applicant has demonstrated that he has a right, as the son of the deceased, to claim the body of the deceased and accord the deceased a decent burial as custom and tradition demand. I am persuaded that the Applicant has demonstrated special circumstances to warrant the intervention of this court.
31. Among the orders sought in the Application is an injunction restraining the Respondent, either by themselves or through their servants, agents or otherwise, from detaining or continuing with the detention of the body of the deceased. This prayer is in the nature of mandatory injunction whose grant will affect the main suit. Granting that prayer will essentially dispose of the case at this interlocutory stage.
32. The Applicant has argued that he has met the threshold for the grant of the mandatory injunction. That threshold was enunciated in the Court of Appeal decision in Kenya Breweries Limited & another v Washington O. Okeyo [2002] KECA 284 (KLR) as follows:
The test whether to grant a mandatory injunction or not is correctly stated in Vol. 24 Halsbury’s Laws of England 4th Edn. para 948 which reads: “A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks it ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempted to steal a march on the plaintiff …….. a mandatory injunction will be granted on an interlocutory application”.
Also in Locabail International Finance Ltd. V. Agroexport and others [1986] 1 ALL ER 901 at pg. 901 it was stated:- “A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances, and then only in clear cases either where the court thought that the matter ought to be decided at once or where the injunction wa s directed at a simple and summary act which could be easily remedied or where the defendant had attempted to steal a march on the plaintiff. Moreover, before granting a mandatory interlocutory injunction the court had to feel a high degree of assurance that, at the trial it would appear that the injunction had rightly been granted, that being a different and higher standard than was required for a prohibitory injunction.”
33. Consequently, I hereby allow the Notice of Motion dated 8 th December 2025 in terms of prayers 2, 3, and 4 of that application. For the avoidance of doubt, I allow the application in the following terms:
(a) That the Respondent, whether by itself, its servants or agents or anyone acting on its behalf, is hereby compelled by the order of this court to immediately and unconditionally release to the Applicant, the remains/corpse of the late Rosemary Monyani Kisanya for burial/interment.
(b) That an injunctive order is hereby issued restraining the Respondent, whether by itself, its servants or agents or anyone acting on its behalf, from detaining or continuing with the detention of the remains /corpse of the late Rosemary Monyani Kisanya.
(c) That the Respondent is at liberty to pursue the settlement of the outstanding hospital bill through a civil claim or through a claim against the estate of the deceased in a Succession Cause.
(d) Each party shall bear own costs.
34. Orders shall issue accordingly.
Dated, signed and delivered this 29 th day of December 2025.
S. N. MUTUKU
JUDGE
In the presence of:
1. Mr. Sabula for the Applicant
2. Mr. Onderi holding brief for Mr. Makori for the Respondent
2 | Ruling in Nairobi HCCC E334 of 2025