What the law says about detaining bodies

Dr Khasakhala and his wife Margaret contracted Covid in March 2021. [David Njaaga, Standard]

Senior Counsel and chair of the Senate Legal Affairs Committee Okong’o Mogeni says the matter of hospitals detaining bodies over hospital bills is long settled in law as illegal and hospitals should comply.

Mogeni, also a former President of Law Society of Kenya (LSK) says the onus now is on the hospitals' regulator, KMPDU, to enforce the settled fact that “there is no property in a dead body”; that is a dead body cannot be equated to a property.

He was reacting to a report by The Standard about late University of Nairobi don, Dr Lincoln Khasakhala, whose body is being held by a Nairobi hospital over Sh18 million hospital bill.

Speaking on KTN’s Standpoint show this morning, Omogeni said courts have severally outlawed the practice. Besides, he said, there is no law in the country sanctioning the practice or anything close to it.

“When one dies and they are not able to pay the hospital bill, you achieve nothing by detaining the body. A lifeless body has no value. The best thing to do is to sue the deceased’s estate (property, assets, liabilities and debts belonging to the person when they died) after the burial,” Senator Mogeni expressed his displeasure.

Then went on, “You cannot detain a dead body in a hospital over unsettled bills. I want to appeal to the hospitals’ regulator, KMPDU licensing board, to go hard on some of these hospitals and withdraw their licenses where need be”.

Mogeni recalls how, towards the end of last year, he intervened for two families residing in Nyamira County whose kin's bodies had been detained at Tenwek Hospital, Bomet and Moi Teaching and Referral Hospital, Uasin Gishu, over Sh1.6million and Sh1.2million unsettled bills respectively.

According to the lawmaker, most hospitals have detained bodies until the hospital bill is cleared, a move he says the courts have highly condemned in the past.

Kenya Medical Practitioners and Dentists Council (KMPDC) CEO, Daniel Yumbya, said families whose kins bodies are detained by hospitals should visit Council offices for help.

"Once they explain themselves and we satisfied with the facts of the matter, our legal department will issue them with a letter which they will serve the hospitals concerned," Yumbya said

However, public health policies require dead bodies to be interred in six months while on the other hand, Section 137 of the penal code criminalises hindering the burial of a dead body.

Past court cases have resulted in courts being ordered to release the bodies for burial, arguing that a dead body has no monetary value.

Some cases in the High Court have even suggested to the parties involved to make an arrangement on how to clear the payment after releasing the body to its family member for a proper sendoff.

On January 26, 2016,  Justice J. K. Sergon ordered the Karen Hospital and Montezuma Monalisa Funeral Home to release the body of the late Nyaigero Fred Chieff after weeks of detaining it.

This was after the deceased’s brother and sister, Mary Nyang’anyi and Benjamin Maoga filed a petition at the High Court seeking to have the hospital release their kin’s remains for burial.

At the time of his passing, the patient’s treatment had accrued a bill of Sh17.5 million.

“For the avoidance of doubt, this court issues an order directing the respondents Namely: The 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,” Justice Sergon directed.

The deceased fell ill and was admitted to the Karen Hospital in August 2015 where he was taken to the Intensive Care Unit (ICU).

Admission letters produced in court indicated that the deceased’s wife, Mercy Chief, had committed herself to settle the patient’s medical bills.

Sadly, the patient passed on and at the time, Karen Hospital decided to preserve the body at Montezuma Monalisa funeral home until his family was able to clear the outstanding bill.

In its court testimonies, the hospital did not deny failing to seek the approval of the applicants before making the decision to have the deceased’s body transferred to the said morgue.

“The continued detention of a dead body will continue to attract morgue charges instead to the utter detriment of the deceased’s estate.  It has been argued that if the body is released to the applicants, the respondents will suffer loss in that the applicants will not feel bound to settle the debt.  In my humble view I do not think the respondents will have lost the right to recover their debt,” Justice Sergon’s ruling read in part.

In his ruling, Justice Sergon concluded that the body was detained to force his kin to make proposals on how to settle the bill, the body had no monetary value, the deceased’s estate owed the bills and that the kin was entitled to the custody of the body for burial preparations.

Dr Khasakhala, a lecturer at the University of Nairobi, died on January 8, 2022, but a month later, his family has not received the body for interment.

The deceased’s younger brother, David, told The Standard that his brother had tested positive for covid-19 in March 2021. He was then admitted to the ICU in July, for two months.

He got better but remained in a vegetative state until his death, four weeks ago.

Since his demise, the hospital has refused to give the kin his body until the over Sh10million bill is settled.

Days ago, the National Assembly Health Committee chairperson, Sabina Chege told the Standard that the Health Amendment Bill is awaiting second reading and will be brought to the floor of the House on Tuesday, Feb 8.

“No hospital has the right to detain a body," she said. "the hospital should therefore release the body as alternative means to clear the bill are sought. This man was a medical doctor and it is sad because doctors are frontline workers. He deserved better,” Sabina said.