Hannah Waithira Ndirangu v The Karen Hospital

unconditional release of the body of JUSTIN NJUGUNA MWANGI (Deceased) Applicant pending the to hearing the and determination of this Application inter partes. iii. THAT pending the hearing and determination of this suit, a temporary injunction be and is hereby issued restraining the Respondent, whether by itself, its servants or agents, from detaining or causing the continued detention of the body of JUSTIN NJUGUNA MWANGI(Deceased) as security for payment of any alleged hospital bill or others charges. iv. THAT pending the hearing and determination of this suit, the Respondent be restrained from making payment of any alleged hospital bill a condition precedent to the release of the Deceased’s body. v. 3. THAT costs of this application be provided for. The Application is supported by the supporting affidavit of even date of HANNAH WAITHIRA NDIRANGU who deposed that the Deceased was admitted to the 2

page 2 of 16

Respondent’s facility on 23rd of April 2026 and that the Respondent has unlawfully detained his body following his demise on 24th May 2026 with the remains at Montezuma Monalisa Funeral Home Ltd. 4. It is further deposed that at the time of the demise, the hospital bill stood at Kenya Shillings Four Million Ninety-Seven Thousand and Forty-Five (Kshs 4,097,045.00/=) and that the Social Health Authority (SHA) settled a sum of Kshs 421,120/= whilst the family and well-wishers paid Kshs, 1,181,620/= towards the outstanding balance leaving a balance of Kshs.2,494,305/=. 5. The Respondent in response to the Application filed a replying affidavit dated 29th July 2026 sworn by PENNINAH WAMBUI NDONGA, the financial controller, who agreed with the stated hospital bill and outstanding balance but denied ever unlawfully detaining the remains of the deceased. 6. The Respondent further deposed that upon the demise of the Deceased, his remains were transferred to Montezuma Monalisa Funeral Home Ltd, an independent third-party 3

page 3 of 16

mortuary facility and that the Respondent does not have physical custody or possession of the body. 7. The Respondent avers that there are financial obligations arising from a contractual agreement that must be honored or adequately secured. It is further deposed that the Respondent has never failed to cooperate in facilitating the release of the Deceased’s body subject to the Applicant providing a reasonable written proposal, undertaking or security for the settlement of the outstanding bill of Kshs.2,494,305.00/= and that the prayer of an unconditional mandatory injunction without offering any security or commitment to a structured payment plan would cause grave financial prejudice to the Respondent. 8. The Respondent further deposed that it is amendable to a consent order or direction facilitating the release of the body upon the Applicant providing a viable, legally binding commitment or security for the repayment of the outstanding balance. Parties’ Submissions 4

page 4 of 16

9. The Applicant in her submissions dated 30 th of July 2026 commenced by reminding the Court that sixty-seven is the number of days that the body of the Deceased has remained confined in the Respondent’s appointed funeral home, much to the anguish and distress of the family who continue being denied the right to bury their kin. 10. The Applicant’s issues for determination can be clustered into two: the Constitutionality of the continued detention of the remains of the Deceased and the threshold for an interlocutory injunction. 11. The Applicant submits that Respondent's continued detention of the body of the Deceased is unlawful, unconstitutional and devoid of any legal foundation. Stressing on Article 10 and 28 of the Constitution of Kenya, the Applicant submits that the right to dignity does not cease upon death. Citing case law including Ludindi Venant & Another v Pandya Memorial Hospital [1998] KEHC 88 (KLR) and Isaac Ngugi v Nairobi Hospital & 3 others [2013] KEHC 6023 (KLR) where the courts held that property rights does not exist in a 5

page 5 of 16

corpse and cannot be offered or held as security for payment of a debt. 12. On whether the application meets the threshold of an interlocutory injunction, the Applicant averred that she has established a prima facie case as the Respondent has admitted withholding the remains of the deceased on account of an alleged hospital bill, that the family continues suffering irreparable harm incapable of any award of damages and that the balance of convenience and the broader interests of justice overwhelmingly favour the grant of the orders sought. The Applicant further submits that this case has met the higher threshold for grating an interlocutory mandatory injunction and that the controversy before the Court is therefore not factual but purely legal. 13. The Respondent on its part filed written submissions dated 5th August 2026 and commenced with the maxim that “He who seeks equity must come with clean hands”. It is the Respondent’s submission that the Applicant has withheld material facts and cannot come under the shield of equity while repudiating a valid civil debt freely contracted 6

page 6 of 16

14. The Respondent averred that it does not have physical custody, possession, or control of the remains of the Deceased and that upon the demise, the body was preserved at Montezuma Monalisa Funeral Home Ltd. As such, the Respondent submits that the current Application is improperly framed and legally untenable for non-joinder of the funeral home, which is a necessary party required by law for the effectual and complete determination and execution of any court orders. 15. The Respondent clustered the issues for determination as two: Whether the Respondent has violated Article 28 of the Constitution and whether the Applicant is bound by contractual obligations under the Agreement dated 23rd April 2026. 16. On the first issue, the Respondent denies detaining the remains of the Deceased. It averred that physical custody of the body rests entirely with Montezuma Monalisa Funeral Home Ltd, an independent third-party entity. As such, the Respondent submitted that the Applicant’s prayer for a mandatory order operating in rem against the Respondent must fail for basic lack of subject-matter 7

page 7 of 16

control. It argued that a court will not issue an order in rem compelling a party to yield or release a physical subject matter over which it exercises neither de facto nor de jure physical custody. 17. On the second issue, the Respondent reiterated that the Applicant had failed to disclose that one Leah Wanjiru, who is listed as sister to the Deceased freely and voluntarily executed Agreement dated the 23rd admission April 2026 and Financial undertaking full financial responsibility for all medical costs. 18. The Applicant submitted that they are also entitled to property rights under Article 40 of the Constitution. Analysis and Determination 19. At this interlocutory stage, the Court is not called upon to conclusively determine whether the Respondent’s conduct violates Constitutional provisions, nor whether the contractual obligations asserted by the Respondent are enforceable. Those questions fall for determination upon a full hearing. The Court is only required to determine whether the Applicant has met the threshold for the interim relief sought. 8

page 8 of 16

20. I have considered the application, replying affidavit and the rival submissions. It is not in dispute that the Deceased received services from the Respondent and that there is a high outstanding bill. The Respondent in its Affidavit have confirmed that upon the demise of the Deceased, his remains were transferred to Montezuma Monalisa Funeral Home Ltd and that as much as it sympathizes with the Applicant, obligations arising from the services under the contractual agreement must be honoured. 21. The Respondent also argues that it does not physically possess the body since the remains are presently held at Montezuma Monalisa Funeral Home. The Court accepts that physical custody appears to lie with the funeral home. However, the question before the Court is not merely one of physical possession but whether the Respondent is insisting upon settlement of its debt as a precondition to facilitate the release of the Deceased. 22. The Respondent’s own affidavit reveals that it seeks either payment, security, or a structured repayment arrangement before facilitating the release of the body. 9

page 9 of 16

Such a position effectively ties the family’s burial rights to settlement of a civil debt. 23. The law has never recognized a deceased body as a chattel capable of being retained as security for a debt. In the celebrated common law authority of Williams v Williams (1882) 20 Ch D 659, the Court emphasized that there can be no property in a corpse in the ordinary legal sense. Consequently, a body cannot lawfully be converted into a form of collateral for recovery of civil debts. 24. This principle has received constitutional affirmation in Kenya. In the case of Omari v Kenyatta University, Teaching Referral and Research Hospital & another [2025] KEHC 4809 (KLR), the Court held that “A dead body is not a merchantable product and other than causing psychological distress to the family and being a health hazard, the Respondents stand to gain nothing from its continued detention. Further, the release of the body of the deceased will not extinguish respondent’s pursuit of any other legal remedies that may be available 10

page 10 of 16

including the payment of the outstanding bill arising from the deceased’s hospitalization.” 25. I am in agreement with Sergon J. who in the case of Mary Nyang’anyi Nyaigero & another v Karen Hospital Limited & another [2016] KEHC 6882 (KLR) reiterated that there is no property in a dead body and that hospitals have no legal basis detaining corpses as a lien over outstanding bills. 26. It is hence settled that a hospital debt constitutes a civil obligation recoverable through lawful legal processes. A hospital has recourse to contractual and statutory mechanisms for recovery of its dues. What it lacks, however, is a proprietary right over a deceased person’s remains. 27. This Court is by no means belittling the Respondent’s legitimate claim of its rights under Article 40. While the Court appreciates that the Respondent offered medical services to the Deceased and that they are entitled to be duly paid, the recovery ought to be through a humane process sanctioned under the law. The detention of a 11

page 11 of 16

corpse is most definitely not one of those options envisaged under the Law. 28. The Respondent has a legitimate interest in recovering monies lawfully due under a contractual arrangement, however, the existence of a debt does not create a legal basis for withholding a body or imposing payment as a condition precedent to burial. 29. This Court is in agreement with Matheka J. who observed in the case of Mutua v Westlands Specialist Hospital [2025] KEHC 17568 (KLR) that; “It appears to me that the parties herein appear to carry the mistaken view that release of the body to the applicant for burial would extinguish the appellant’s obligation to pay the bill and the Respondent’s right to recover it through available legal avenues. Clearly this is not the position. Each continues to bear their obligation and their respective right.” 30. I reiterate that the Respondent herein remains at liberty to pursue recovery of the outstanding amount through ordinary civil proceedings. The law does provide adequate 12

page 12 of 16

remedies for enforcement of contractual obligations. It does not however permit the use of a deceased person’s remains as leverage in debt recovery. 31. The Respondent has further argued that the funeral home is a necessary party because it currently has physical custody of the remains. Order 1 Rule 9 of the Civil Procedure Rules provides that no suit shall be defeated by reason of misjoinder or non-joinder of parties and that the Court may deal with the matter in controversy so far as regards the rights and interests of the parties before it. 32. The Supreme Court in Communications Commission of Kenya & 4 Others v Royal Media Services Ltd & 7 Others [2014] eKLR explained that a necessary party is one whose presence is required for the complete and effectual determination of issues before the Court. 33. In the present matter, the substantive complaint concerns the Respondent’s insistence on payment of a hospital debt before facilitating the release of the body. That issue can be determined as between the Applicant and the Respondent. 13

page 13 of 16

34. If subsequent directions become necessary concerning the funeral home, the Court retains power under Order 1 Rule 10 of the Civil Procedure Rules to order joinder at any stage of the proceedings. Consequently, non-joinder is not fatal to the present Application. 35. Does the Application therefore meet the threshold for the interim orders sought? The principles for granting of mandatory injunction at the interlocutory stage are well settled. In the case of Locabail International Finance Ltd vs Agroexpot & Others (1986) 1 A.KER 901, the Court of Appeal held that:“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 was directed at a simple and summary act which could be easily remedied or where the defendant had attempted to steal a match on the plaintiff. Moreover, before granting a mandatory injunction the court had to feel a high degree of 14

page 14 of 16

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.” 36. This Court has already found that the law does not sanction detention of a body or insistence on payment as a condition precedent to burial. The injury occasioned by delayed burial transcends monetary compensation. It affects the dignity of the deceased, the emotional wellbeing of surviving relatives, cultural obligations, and the family’s right to accord their loved one a decent burial. The Respondent’s loss is purely financial and remains recoverable through legal proceedings. 37. This Court therefore, in the prevailing circumstances around this case, finds that it merits the exception in granting a mandatory injunction at the interlocutory stage. Disposition 38. For the foregoing reasons, the Application is allowed in the terms that a mandatory injunction is hereby issued compelling the Respondent to facilitate the immediate and 15

page 15 of 16

unconditional release of the body of JUSTIN NJUGUNA MWANGI (deceased) to the Applicant for burial. 39. The outstanding hospital bill to be pursued as a civil debt through lawful recovery mechanisms available under the law. 40. The Costs of this Application shall be borne by each party. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 21st DAY OF AUGUST 2026. ANNE.M. OKUTOYI JUDGE In the presence of: Ms. Kinuthia for the Applicant. Ms. Njeri for the Respondent. Court Assistant: Ms. Mokeira. 16

page 16 of 16