Hurdles that prevent the dead from 'resting in peace'

Burial ceremonies are very important in African cultures.

They give families closure for the loss of their loved ones. Even in religious circles, the three most important ceremonies in one’s life are baptism, wedding and burial.

However, some families have found themselves mourning forever after the bodies of their departed ones were detained in hospitals for prolonged periods due to huge medical bills or mortuary fees as families contest burial rights in court.

It’s a predicament Beatrice Nditi Wanjiru, who buried her husband on October 17, knows only too well, having unsuccessfully pleaded with a hospital for almost two years to release the body.

Her husband, David Kahura Njenga, was admitted to AIC Kijabe Mission Hospital on September 15, 2017 where he was treated until he died almost three months later on December 1.

When her husband died, Wanjiru sought to have his remains released to her so that she could exercise her cultural right of burying him, as guaranteed in Articles 11, 29 and 44 of the Constitution.

She had, in the last 21 months, made several trips to the facility and despite her demands, the hospital refused to release the body due to pending medical bills.

NO PROPRIETARY VALUE

It was only after the family obtained the legal services of Kariuki Karanja & Co. Advocates that the hospital agreed to release the body to her.

“Your actions have subjected our client and her children to untold misery, psychological torture and prolonged periods of mourning. Your actions are not only immoral and inhuman but the same is unlawful and unconstitutional,” read the letter to the hospital dated October 2, 2019.

The law firm also reminded AIC Kijabe Mission Hospital that the High Court has, on several occasions, held that there is no proprietary value in a dead body, hence it cannot be used as collateral to secure a debt.

“It is clear that a dead body cannot be detained in order to force the family of the deceased or any contractee to pay pending medical bills. Our laws provide for civilised ways of demanding and recovery of civil debts like the one you are allegedly having against the estate of the deceased,” the letter further reads.

DEBT RECOVERY

The hospital — while giving in to the demands and in a response dated October 9, 2019 through Kimathi Wanjohi Muli Advocates — said it was Njenga’s family that abandoned his body at the mortuary and has not been visiting the facility as alleged or at all.

“Our client’s representatives have not been able to reach your client and her family since the David’s demise, and the case is among the bodies reported to Medical Board as abandoned as per the letter sent by our client in March, 2019,” the hospital said.

The facility was however adamant that it was demanding full payment of the medical bill and mortuary charges from Wanjiru and her family, or “a firm proposal on how to settle the same at the earliest”.

Such matters have been controversial as hospitals pursue monies owed to them in order to remain afloat.

Ministry of Health statistics presented to Parliament show that as at April, 391 bodies were detained in 216 of the 3,511 level three and five public and private health facilities for non-payment of bills.

LEGISLATION

Through the Health (Amendment) Bill 2019, MPs are now proposing to prohibit detention of patients, bodies and patients’ documents by hospitals for lack of payment of bills.

“No health institution in the country shall detain or otherwise cause, directly or indirectly, the detention of the body of a patient who died after or during treatment for reasons of non-payment, in part or in full, of hospital bills or any other medical expenses,” the proposed amendments read in part.

The changes are spearheaded by Nyando MP Jared Okelo.

In handling such cases, the courts have repeatedly been urged to balance the interests of the parties and direct relatives to make undertakings on how to settle the debts.

When called upon to rule on a dispute pitting a family against the Karen Hospital Ltd and Montezuma Monalisa Funeral Home Ltd, High Court Judge Joseph Sergon held that there is no dispute that a dead body has no proprietary value hence it cannot be used as collateral to secure a debt.

“The continued detention of a dead body will continue to attract morgue charges instead to the utter detriment of the deceased’s estate,” the judge ruled.

CULTURE

Justice Sergon added: “It is important to restate … that the hospital and the mortuary are entitled to recover their debts from the estate of the deceased or from whoever executed the agreement pledging to settle the hospital bill. It must be appreciated that they incurred various expenses to treat the deceased and later by preserving the deceased’s body.

“The hospital and the mortuary are under a mistaken view that they are entitled to hold the deceased’s body as a lien over the outstanding bills incurred by the deceased’s estate … It is further not in dispute that the bill due to them are civil debts, which can lawfully be recovered by following the civil process.”

Jarred Martin and Chesray Hans Arendse had — in a paper titled "Missing in Action: The Significance of Bodies in African Bereavement Rituals", which they presented at the University of Kwa Zulu Natal, South Africa — found that in African culture, there is a connection between the deceased and the bereaved members of his/her family.

There is a link between the availability of the body of the deceased for burial rituals with the psychological healing of the bereaved family.

This is evidenced by the difficulties that are experienced when people grieve without availability of the body of the deceased; some communities resort to burying a banana stem instead.

FOUL PLAY

Apart from the fees question, there is also the thorny issue of feuds derailing burial of the dead.

In March, the court concluded one of the most controversial burial disputes where third parties, fighting over property owned by a woman who died without children, had held her final burial rights at ransom.

Beatrice Syokau died at Kenyatta National Hospital on July 4, 2014, but her remains were kept in a mortuary in Machakos for five years, as persons not related to her fought over what killed her, who killed her, and who should bury her.

Her burial had been stopped by the court twice and an inquest formed to investigate the cause of death, following allegations that the ageing woman had been abducted and then poisoned.

Citing medical evidence, chief magistrate Heston Nyaga held that Syokau died of natural causes, and he had no reasons to doubt the opinions of the medical experts who testified in court.

“They made concurrent findings on the cause of death … There is no one to be held culpable for her death,” said the magistrate in the March 18 ruling.

He also urged all the parties in the case, “to let the deceased’s soul rest in peace”.

WEALTH

In the course of the trial, it became apparent that all manner of people were attracted to her with the belief that she was the ‘owner’ of a parcel of land at Embakasi, Nairobi.

This is a prime land neighbouring the Jomo Kenyatta International Airport, estimated to be worth billions of shillings by today’s valuation.

“That belief explains why the deceased, an elderly lady who died years ago, has never been laid to rest. Like vultures circle a carcass in the wild, people who are not even relatives of the deceased took centre stage in planning her burial, which was stopped twice by the court,” Magistrate Nyaga noted.