Court gravelThere is no right of lien providing for hospitals to detain patients or their bodies once they die while undergoing treatment, the High Court has ruled.
Justice Nixo Sifuna in a ruling dated September 23 said it is wrong for hospitals to detain bodies until their outstanding medical bills are met.
He ruled that such a move traumatizes the bereaved
family and disrespects the departed.
“There is in Kenya, no law providing for a hospital’s right of lien over patients or over their remains should they die while hospitalized or while undergoing treatment,” the judge said.
A right of lien is a creditor's legal claim or right to hold onto a debtor's property until a debt is repaid or an obligation is met.
Hospitals often detain bodies of the dead until their families clear the medical bills.
Justice Sifuna said this is an informal action that has become habit and gained so much ground that it is almost becoming a practice despite its lack of a legal backing.
“It is also a practice that is oppressive, unconscionable and repugnant to justice and morality,” Sifuna ruled.
The judge noted that superior courts have held that there is no property in a dead body.
“There being no property in a dead body, I hold that correspondingly, there cannot be a right of alien on it.”
The court said that once a person is dead, the body should be dealt with in accordance with the provision of the Public Health Act (Cap 242 laws of Kenya) and the protocols thereunder, one of which is that the body should be disposed.
“Socially, the detention of bodies by mortuaries and hospitals, for debt claims, traumatize the bereaved families and disrespects the departed. It has in many instances been employed to blackmail, embarrass, traumatize and coerce bereaved families into submitting to the monetary demands by the hospitals,” Sifuna said.
The court held that debts related to treatment and mortuary charges are recoverable as civil debts and should be pursued as such.
The court’s ruling was in a case where the sons of Caroline Nthangu Tito sued Mater Hospital seeking orders to compel the health facility to release the body of their mother for burial.
Caroline had been hospitalized at Mater Misericordiae Hospital in Nairobi for several months before she died. She had accumulated a medical bill of Sh3345784 which the hospital is claiming from her family.
Moses Mutua in his affidavit said their mother was admitted to the hospital on May 22, 2025 but passed away on August 2, 2025, after two months and 12 days.
The body was then taken to the mortuary section where charges are Sh2000 per day.
Arguing that him and his brother are college students without any stable source of income, the plaintiffs moved to court for orders to compel the hospital to release their mother’s body for burial.
They argued that the detention of the body on account of unsettled hospital bill continued to attract exorbitant mortuary charges which would only escalate the outstanding bill.
“In the premises, this court finds that the detention and continued detention of the remains of the late CarolineNthangu Tito by Mater Misericordiae Hospital is wrongful and without any legal or lawful justification,” the judge ruled.
“Apart from the mortuary charges, the part of the bill related to treatment and medication should be pursued through civil means as ordinary debt.”
The court ordered the hospital to immediately release Caroline’s body to her family for burial once the mortuary charges are paid.
“Consequently, a mandatory injunction is hereby granted directing the defendant (Mater Hospital) to release forthwith to the plaintiffs for burial, the body/remains of the late Caroline Nthangu Tito. That should be upon the payment of the mortuary charges only.”
