Legal ForumExample Category: LSK Kajiado ForumA Dead Body is Not a Merchantable …Post Reply

Post Reply: A Dead Body is Not a Merchantable Product

<blockquote><div class="quotetitle">Quote from <a class="profile-link highlight-moderator" href="https://lawguide.co.ke/understanding-law/legal-forum/profile/lawyer/">Lawyer</a> on April 28, 2025, 7:54 am</div><div id="pl-5090" class="panel-layout">
<div id="pg-5090-0" class="panel-grid panel-no-style">
<div id="pgc-5090-0-0" class="panel-grid-cell" data-weight="1">
<div id="panel-5090-0-0-0" class="so-panel widget widget_sow-editor panel-first-child panel-last-child" data-index="0" data-style="{&quot;background_image_attachment&quot;:false,&quot;background_display&quot;:&quot;tile&quot;,&quot;background_image_size&quot;:&quot;full&quot;,&quot;background_image_opacity&quot;:&quot;100&quot;,&quot;border_thickness&quot;:&quot;1px&quot;}">
<div class="so-widget-sow-editor so-widget-sow-editor-base">
<div class="siteorigin-widget-tinymce textwidget">
<div>
<p class="break-words" dir="auto">The ruling in <em>Omari v Kenyatta University Teaching Referral and Research Hospital &amp; Another</em> (Petition E198 of 2025) [2025] KEHC 4809 (KLR) provides a significant judicial affirmation of the principle that a deceased person's body is not a commodity to be detained for financial leverage. The court's reasoning, particularly in paragraph 24, underscores the ethical, legal, and humanitarian considerations surrounding the treatment of deceased persons' remains. The statement, <em>"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,"</em> serves as a cornerstone for the court's decision to grant a mandatory injunction for the immediate release of the deceased's body. This commentary explores the implications of this principle in the context of the case, its alignment with constitutional and human rights frameworks, and its broader societal impact.</p>

<h4 class="" dir="auto"><span style="text-decoration: underline;"><strong>Contextual Analysis of the Case</strong></span></h4>
<p class="break-words" dir="auto">In this case, the petitioner, Catherine Juma Omari, challenged the decision of Kenyatta University Teaching Referral and Research Hospital and its associated funeral home to withhold the body of her deceased aunt, Roselyn Mukoko Aura, due to an outstanding medical bill of Kshs. 561,502. The hospital's refusal to release the body, despite partial payments by the Social Health Insurance Fund and the family, as well as pleas supported by letters from local authorities, was deemed by the petitioner to violate the family's dignity and cause psychological distress. The court's ruling addressed three key issues: the petitioner's locus standi, the applicability of the doctrine of exhaustion of remedies, and the entitlement to the relief sought.</p>
<p class="break-words" dir="auto">The court's finding that the detention of the body was unjustifiable rested heavily on the principle that a body is not a merchantable product. This stance aligns with prior judicial precedents, such as <em>Akoth Ajuang v Michael Owour Osodo Chief Ukwala Location &amp; 3 Others</em> (2020) KEHC, which condemned the practice of detaining bodies to enforce payment as indefensible in law. The court in <em>Omari</em> emphasized that such detention serves no legitimate purpose beyond inflicting emotional harm and posing potential public health risks.</p>

<h4 class="" dir="auto"><span style="text-decoration: underline;"><strong>Legal and Ethical Implications</strong></span></h4>
<ol class="marker:text-secondary" dir="auto">
 	<li class="break-words">
<p class="break-words" dir="auto"><strong>Human Dignity and Constitutional Rights</strong>: The Kenyan Constitution, particularly Articles 22 and 258, provides a liberal framework for individuals to seek redress for violations of fundamental rights, either on their own behalf or for others who cannot act. The petitioner's claim that withholding the body violated the family's dignity and caused psychological, social, and spiritual harm was grounded in the constitutional protection of human dignity (Article 28). The court's dismissal of the respondents' preliminary objection—based on the lack of letters of administration under the Law of Succession Act—reinforced that constitutional petitions addressing human rights violations do not require adherence to succession law formalities. This liberal interpretation of locus standi ensures that families can seek justice in cases of indignity without being hindered by procedural technicalities.</p>
<p class="break-words" dir="auto">The court's recognition that detaining a body causes psychological distress underscores the intersection of legal and ethical obligations. By framing the body as non-merchantable, the court rejected the commodification of human remains, affirming that dignity extends beyond life. This aligns with international human rights principles, which emphasize respect for the deceased and their families.</p>
</li>
 	<li class="break-words">
<p class="break-words" dir="auto"><strong>Public Health Considerations</strong>: The court's reference to the detention of a body as a potential health hazard highlights a practical concern. Prolonged retention of human remains in hospital mortuaries, particularly when driven by financial disputes, can pose risks to public health, including the spread of disease or contamination. This observation strengthens the argument that such practices are not only ethically questionable but also contrary to public interest.</p>
</li>
 	<li class="break-words">
<p class="break-words" dir="auto"><strong>Exhaustion of Remedies and Institutional Accountability</strong>: The respondents argued that the petitioner failed to exhaust internal dispute resolution mechanisms, such as approaching the hospital's Credit Control Department for payment arrangements or a waiver. However, the court dismissed this contention, noting that the respondents provided no evidence of such a policy or efforts to communicate it to the family. This finding highlights the importance of transparency and accountability in institutional policies. Hospitals must ensure that mechanisms for addressing financial disputes are accessible and clearly communicated to affected families. The absence of such evidence in this case weakened the respondents' position and supported the court's decision to prioritize the family's rights.</p>
</li>
</ol>
<h4 class="" dir="auto"><span style="text-decoration: underline;"><strong>Broader Societal Impact</strong></span></h4>
<p class="break-words" dir="auto">The ruling in <em>Omari</em> has far-reaching implications for healthcare institutions, families, and policymakers in Kenya and beyond:</p>

<ol class="marker:text-secondary" dir="auto">
 	<li class="break-words"><strong>Challenging Hospital Practices</strong>: The detention of bodies to enforce payment is a widespread issue in many jurisdictions, particularly in resource-constrained settings where families struggle to settle medical bills. This ruling sets a precedent that such practices are not only legally untenable but also morally indefensible. It challenges hospitals to explore alternative mechanisms for recovering debts, such as legal action or negotiated payment plans, without resorting to coercive tactics that exploit grieving families.</li>
 	<li class="break-words"><strong>Empowering Vulnerable Families</strong>: The court's acknowledgment of the family's financial constraints, supported by letters from local leaders, reflects an understanding of the socio-economic realities faced by many Kenyans. By granting the mandatory injunction, the court empowered the family to perform burial rites, a culturally and spiritually significant act. This decision sends a message to vulnerable families that the legal system can protect their rights, even against powerful institutions.</li>
 	<li class="break-words"><strong>Policy and Legislative Reform</strong>: The case highlights the need for clearer regulations governing the treatment of deceased persons' remains in healthcare settings. Policymakers should consider enacting laws that explicitly prohibit the detention of bodies for financial reasons and establish mechanisms for resolving medical bill disputes. Additionally, strengthening social health insurance schemes, such as the Social Health Insurance Fund referenced in the case, could alleviate the financial burdens that lead to such disputes.</li>
</ol>
<h4 class="" dir="auto"><span style="text-decoration: underline;"><strong>Critiques and Considerations</strong></span></h4>
<p class="break-words" dir="auto">While the court's decision is commendable, it leaves some questions unanswered. For instance, the ruling does not address how hospitals can recover legitimate debts without resorting to unethical practices. The court's assertion that the release of the body does not extinguish the respondents' right to pursue other legal remedies (in paragraph 24) is reassuring, but practical guidance on alternative debt recovery methods would have strengthened the ruling's impact. Additionally, the respondents' failure to provide evidence of a dispute resolution policy raises concerns about institutional accountability. Future cases could benefit from courts imposing stricter requirements on institutions to demonstrate the existence and accessibility of such policies.</p>

<h4 class="" dir="auto"><span style="text-decoration: underline;"><strong>Conclusion</strong></span></h4>
<p class="break-words" dir="auto">The principle that a dead body is not a merchantable product, as articulated in <em>Omari v Kenyatta University Teaching Referral and Research Hospital &amp; Another</em>, is a powerful affirmation of human dignity and respect for the deceased. By condemning the detention of bodies to enforce payment, the court upheld constitutional protections and set a precedent that prioritizes ethical considerations over financial interests. This ruling serves as a call to action for healthcare institutions to adopt humane and transparent practices, for policymakers to address systemic gaps, and for society to recognize the inherent dignity of every individual, in life and in death. As Kenya continues to navigate the intersection of healthcare, human rights, and socio-economic challenges, this decision stands as a beacon of justice for grieving families.</p>
Read the full ruling <a href="https://lawguide.co.ke/wp-content/uploads/Omari-v-Kenyatta-University-Teaching-Referral-and-Research-Hospital-another-Petition-E198of2025-2025KEHC4809KLR-Constitutional-and-Human-Rights-23April2025-Ruling.pdf">here</a>

</div>
</div>
</div>
</div>
</div>
</div>
</div></blockquote><br>

Cancel

Legal Forums

Post Reply: A Dead Body is Not a Merchantable Product

Recent Posts

Crisis at Kenyatta National Hospital: Senators Demand Action on Overcrowding and Security Failures

Court Orders Equal Pay for UHC Nurses Amid Absorption Plan