The High Court has ordered a hospital to unconditionally release a body held as collateral for an unpaid medical bill.
Justice Patricia Nyaundi ruled that Cana Hospital’s directive to withhold the remains of Erick Anjenjo Maurice Migwa until his Sh4 million bill was settled violated the constitutional rights of his widow.
Migwa died on March 18, while undergoing treatment at the 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 bill of Sh 4,410,710 was fully settled.
The family had managed to raise only Sh360,000.
“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,” court documents show.
“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.”
Grace described the detention as a profound injustice and sought declarations the action was unlawful and unconstitutional, a mandatory injunction for immediate release and general damages for violation of her rights to dignity and freedom from degrading treatment under Articles 28 and 25(a) of the constitution.
Cana Hospital argued it had deployed extensive resources, including HDU and ICU care and the family had refused to engage in good faith.
“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 towards settlement,“ the court heard.
“Instead, the family’s advocates issued a demand for unconditional release of the body, a position the hospital characterises as dismissive of its request for security or a payment plan.”
The hospital further contended that unconditional release would expose it to “a real risk of suffering irrecoverable financial loss” and undermine its ability to continue providing services.
“… 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.”
Justice Nyaundi rejected the hospital’s defence, declaring the continued detention unconstitutional.
The judge held, “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.”
The court found the hospital’s conduct was an assault on constitutionally guaranteed rights.
“To detain a body in this manner is not merely unlawful; it is callous and sadistic,” the judge ruled.
“The law provides clear channels for such recovery and none of them include the detention of a corpse as collateral.”
Justice Nyaundi issued a mandatory injunction compelling both respondents to unconditionally release the body and ordered all mortuary fees accruing from the date of the hospital’s unlawful directive shall not be payable by the petitioner or the estate.
The widow was awarded general damages of Sh1 million for violation of her rights. The petitioner was also awarded costs of the petition.
