R U L I N G
1. By Notice of Motion application dated 12th May, 2025, supporting affidavit by affidavit of Janet Naliaka Kulembi sworn on the same date, the Petitioner/applicant seeks the following reliefs:
1. Spent.
2. That pending hearing of this application, the Honourable Court be pleased to issue a mandatory injunction compelling the respondents to immediately and unconditionally release the body of the deceased, Ramson Wekesa Aluta, to the applicant and/or her family for burial and final rites.
3. That pending the hearing and determination of the petition, this Honourable court be pleased to issue a mandatory injunction compelling the respondent to immediately and unconditionally release the body of the deceased, Ramson Wekesa Aluta, to the petitioner and/or her family for burial and final rites.
4. That Costs of this application be provided.
2. When the mater came up under certificate of urgency and this file placed before me on 14th May, 2025 on behalf of Justice Mwita who is on leave, I made the following orders:
a) That the application and petition be served by close of business today, 14th May, 2025.
b) That the responses be filed within 3 days.
c) That in view of the urgent nature of the proceedings, the matter be mentioned for further orders/directions on 19th May, 2025 virtually before Justice L N Mugambi.
3. It is apparent that from the affidavit of service, filed by Moses Masai sworn on 15th May, 2025, service was effected physically upon the respondents on 14th May, 2025.
4. Despite this, the respondents have not filed a memorandum of appearance, Notice of appointment or in any way responded to the application and petition as directed.
5. It is thus apparent that the application is unopposed.
6. The matter at hand relates to release of a dead body of which there is a plethora of authorities on the said issue.
7. This court has had the opportunity of dealing with a similar issue before in which it has denounced the practice of holding dead bodies in hospital for purposes of enforcing payment.
8. This court has previously stated in no uncertain terms that:
“A dead body is not a merchantable product, and holding it simply serves to cause distress to the family besides being a health hazard, releasing the body will never stop the hospital from pursuing alternative means of recovering the hospital/medical expenses from the estate of the deceased as payment cannot be enforced against the body of the deceased.”
9. In the circumstances, I see no reason why I should depart from this reasoning. This was also the reasoning of the court in Joan Akoth Ajuang & Another v Michael Owuor Osodo, the Chief Ukwala Location & 3 Others; Law Society of Kenya & Another [2020] KEHC 9788 (KLR).
10. In view of the foregoing, I grant the following orders:
1. That pending the hearing and determination of this petition, the court hereby orders the Respondent to immediately and unconditionally release the body of the deceased RAMSON WEKESA ALUTA to the petitioner and/or his family for burial and final rites.
2. Costs shall be in the cause.
Dated, signed and delivered virtually at Nairobi this 19th day of May, 2025.
………………………………..
L N MUGAMBI
JUDGE
1. By Notice of Motion application dated 12th May, 2025, supporting affidavit by affidavit of Janet Naliaka Kulembi sworn on the same date, the Petitioner/applicant seeks the following reliefs:
1. Spent.
2. That pending hearing of this application, the Honourable Court be pleased to issue a mandatory injunction compelling the respondents to immediately and unconditionally release the body of the deceased, Ramson Wekesa Aluta, to the applicant and/or her family for burial and final rites.
3. That pending the hearing and determination of the petition, this Honourable court be pleased to issue a mandatory injunction compelling the respondent to immediately and unconditionally release the body of the deceased, Ramson Wekesa Aluta, to the petitioner and/or her family for burial and final rites.
4. That Costs of this application be provided.
2. When the mater came up under certificate of urgency and this file placed before me on 14th May, 2025 on behalf of Justice Mwita who is on leave, I made the following orders:
a) That the application and petition be served by close of business today, 14th May, 2025.
b) That the responses be filed within 3 days.
c) That in view of the urgent nature of the proceedings, the matter be mentioned for further orders/directions on 19th May, 2025 virtually before Justice L N Mugambi.
3. It is apparent that from the affidavit of service, filed by Moses Masai sworn on 15th May, 2025, service was effected physically upon the respondents on 14th May, 2025.
4. Despite this, the respondents have not filed a memorandum of appearance, Notice of appointment or in any way responded to the application and petition as directed.
5. It is thus apparent that the application is unopposed.
6. The matter at hand relates to release of a dead body of which there is a plethora of authorities on the said issue.
7. This court has had the opportunity of dealing with a similar issue before in which it has denounced the practice of holding dead bodies in hospital for purposes of enforcing payment.
8. This court has previously stated in no uncertain terms that:
“A dead body is not a merchantable product, and holding it simply serves to cause distress to the family besides being a health hazard, releasing the body will never stop the hospital from pursuing alternative means of recovering the hospital/medical expenses from the estate of the deceased as payment cannot be enforced against the body of the deceased.”
9. In the circumstances, I see no reason why I should depart from this reasoning. This was also the reasoning of the court in Joan Akoth Ajuang & Another v Michael Owuor Osodo, the Chief Ukwala Location & 3 Others; Law Society of Kenya & Another [2020] KEHC 9788 (KLR).
10. In view of the foregoing, I grant the following orders:
1. That pending the hearing and determination of this petition, the court hereby orders the Respondent to immediately and unconditionally release the body of the deceased RAMSON WEKESA ALUTA to the petitioner and/or his family for burial and final rites.
2. Costs shall be in the cause.
Dated, signed and delivered virtually at Nairobi this 19th day of May, 2025.
………………………………..
L N MUGAMBI
JUDGE