Case Review- Can a Hospital Detain the Deceased’s Body?

Mary Nyang’anyi Nyaigero and Benjamin Maoga Nyaigero Versus Karen Hospital Limited and Montezuma Monalisa Funeral Home Limited [2016] eKLR

Facts and Prayers

The Late Nyaigero Fred Chieff was in August 2015 admitted to the 1st respondent’s hospital and allocated an ICU bed no. 1050.  On the admission form, it was indicated, that one Mercy Chieff, the deceased’s kin would settle the patient’s medical bills.  The patient eventually passed on leaving an outstanding bill of Kshs. 17,500,250/=.  When the late Nyaigero Fred Chieff passed on, the 1st respondent decided to have his body preserved at the 2nd respondent’s morgue.

Mary Nyang’anyi Nyaigero and Benjamin Maoga Nyaigero (the applicants), mother and brother of the deceased sued the Karen Hospital Ltd and Montezuma Monalisa Funeral Home and asked court for intervention. They wanted court to do the following:

  1. Issue and injunction restraining the respondents from continued detention of the corpse/remains of the late Freddy Chief Nyaigero as security for payment of incurred Hospital bill and mortuary fees.
  2. Direct the defendants to immediately and unconditionally release/deliver to the applicants the remains/corpse of the late Freddy Chieff Nyaigero for burial.

Uncontested Issues

The 1st respondent never sought the approval of the applicants before making the decision to have the deceased’s body transferred to the 2nd respondent’s morgue.

The deceased’s body is being detained to force the deceased’s relatives and or kin make proposals on how to settle the bill left behind by the deceased.

No one has made an application for letters of administration of the deceased’s estate.

The deceased’s body has no monetary value.

The deceased’s estate owes the respondents outstanding bills more than ksh.17 million.

No law has been passed to authorise hospitals and health facilities to detain corpses as a lien over outstanding bills.

The applicants are by virtue by their kin relationship with the deceased are entitled and bound to the custody the deceased’s body for burial.


In their defence, the respondents argued that they have detained the body of the late Freddy Chieff Nyaigero to act as security or collateral for both the hospital and mortuary fees.

In rebuttal, the applicants argued that they are entitled to custody, control and possession of the deceased’s remains as opposed to the respondents whose only interest is the outstanding hospital and mortuary fees.  They also argued that Karen Hospital had transferred the deceased’s body to Montezuma without their consent or authority of the applicants and as such, their independent contractual understanding between the respondents was not binding on them, the applicants. More so, that the respondents were entitled to recover their money from the legal representatives of the deceased after they have taken our letters of administration.


whether the respondents are entitled to continue holding the deceased’s body pending payment of the outstanding debt?

Court’ Decision

Since there is no dispute that a dead body has no property value, it cannot be used as collateral to secure a debt.  The continued detention of the deceased’s body will continue to attract morgue charges, to the detriment of the deceased’s estate.

Since no one has so far applied for letters of administration in respect of the deceased’s estate the respondents are entitled to take out citation proceedings to enable them file recovery proceedings against the estate.

It doesn’t make sense for the respondents to continue detaining the deceased’s body.

However, the respondents are entitled to recover their debts from the estate of the deceased or from whoever executed the agreement pledging to settle the hospital bill.  It must be appreciated that the respondent incurred various expenses to treat the deceased and later by preserving the deceased’s body

Cases Relied on

R V Fox (1841) 2QB 246 in which it was held that “a creditor is not entitled to retain the dead body of his debtor as a security for his debt.”

Ludindi Venant & Another V Pandya Memorial Hospital 1998 eKLR where Justice P.N. Waki (as he then was) held that, “… Simply put, there is a veiled threat by the hospital that if it is forced to release the body of the deceased, it will not in future admit and treat poor persons in this country.  As a private commercial institution, there is nothing to stop the hospital from making good such threat.  And there is no denying that the effect would be devastating since most of the citizens of this country live below the poverty line and can hardly afford good medical services although they deserve them no less than the rich.  I am not oblivious to such consequences.  But my judicial conscience is troubled. 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 disposal without delay unless there is a dispute on where to dispose them or who should do it.  The dead ought to “REST IN PEACE” while those who are left alive struggle with the realities of life such as payment of debts”

Orders of Court

An order directing the respondents, Karen Hospital Ltd and Montezuma Monalisa funeral Home Ltd by themselves, their servants or agents to forthwith unconditionally release/deliver to the applicants the remains/corpse of the late Freddy Chieff Nyaigero for burial.

The law permits sharing.

Leave a Reply

Your email address will not be published. Required fields are marked *