By AMOS MUOKI
The practice of hospitals and mortuaries detaining dead bodies as leverage for unpaid medical bills has, regrettably, become normalized in Kenya. Yet this practice has no legal foundation and stands in direct violation of constitutional values of human dignity, justice, and the rule of law. Kenyan courts have now spoken with clarity: there is no right of lien over a dead body, and the detention of human remains for purposes of debt recovery is unlawful.
In Mutua v Mater Misericordiae Hospital [2025] eKLR, the High Court emphatically held that there exists no law in Kenya permitting hospitals to detain patients or their remains to secure payment of hospital bills. The Court observed that since there is no property in a dead body, there can be no corresponding right of lien over it. The practice, though widespread, was described as “oppressive, unconscionable, and repugnant to justice and morality".
Justice Sifuna further noted that upon death, the handling and disposal of human remains is governed by the Public Health Act (Cap 242) and applicable health protocols, which prioritize dignified disposal not commercial bargaining. The Court also confronted the human cost of this practice. It recognized that detaining bodies for debt recovery traumatizes bereaved families, disrespects the deceased, and is frequently used to embarrass, coerce, and emotionally blackmail families at their most vulnerable moment.
In condemning this conduct, the Court reaffirmed that hospital and mortuary charges are ordinary civil debts, recoverable through lawful mechanisms such as demand and litigation, not through the detention of bodies. On this basis, the Court issued a mandatory injunction, ordering the immediate release of the deceased’s body upon payment of mortuary charges only, with the balance of the hospital bill to be pursued through civil recovery.
This decision is consistent with Kenya’s broader constitutional jurisprudence on human dignity under Article 28 and the right to health under Article 43. Human dignity does not end at death, nor can it be suspended by a billing dispute.
Healthcare institutions exist to serve life and preserve dignity not to weaponize grief as a debt-collection tool.
The continued detention of bodies by hospitals is therefore not just unlawful; it is a moral failure and an institutional abuse of power.
The Judiciary has done its part by declaring the practice illegal. What remains is decisive action by regulators, hospital boards, and policymakers to ensure compliance and accountability. Kenya must put an end to this practice and reaffirm a simple but profound principle: the dead are not collateral, and grief is not a bargaining chip.
The writer is legal commentator on constitutional and human rights issues.
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Human dignity is paramount in any discussion in the Post 2010 Kenya .
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