The High Court in Nairobi has ordered Mater Misericordiae Hospital to release the body of a woman that had been detained for nearly two months over an outstanding medical bill of Ksh 3.3 million.
Justice Prof. Nixon Sifuna, in a ruling delivered on 23rd September 2025, held that the hospital’s continued detention of the remains of Caroline Nthangu Tito was unlawful, unconstitutional, and contrary to public policy. He emphasized that there is no legal provision in Kenya granting hospitals the right of lien over patients or their bodies after death.
The case was filed by Moses Mutua and his brother, the biological sons of the late Caroline Tito, who passed away on 2nd August 2025 while undergoing treatment at the hospital. The two brothers, both college students, told the court they had been left orphaned after losing their father earlier and were entirely dependent on their mother.
According to court documents, their late mother had been admitted to Mater Hospital on 22nd May 2025, where she received treatment for more than two months before her death. Upon her passing, the hospital presented the family with a bill amounting to Ksh 3,315,784, and demanded full payment before releasing her body for burial. Mortuary charges of Ksh 2,000 per day were also accumulating, further worsening the family’s plight.
The applicants argued that the hospital’s actions were oppressive and traumatizing, forcing them into financial distress while denying their mother a dignified burial. They asked the court to declare the detention of the body unlawful and to order its immediate release.
In his decision, Justice Sifuna condemned the widespread practice by hospitals of holding bodies as security for unpaid bills, terming it a form of blackmail and coercion against grieving families. He noted that debts related to medical treatment and mortuary services are recoverable as civil debts and should be pursued through lawful debt collection methods, not through the unlawful detention of corpses.
“There is no property in a dead body, and correspondingly there cannot be a right of lien on it,” the judge stated. He added that detaining bodies for debt claims disrespects the deceased, traumatizes families, and goes against the principles of justice and morality.
The court granted a mandatory injunction compelling Mater Hospital to release the body of the late Caroline Tito to her sons upon payment of only the accumulated mortuary charges. The rest of the outstanding bill, the judge ruled, should be pursued separately as an ordinary civil debt.
Each party was directed to bear its own costs in the application
