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MagistrateDismissedCriminal Case (Wamba Mobile Court) – charge of kidnapping from lawful guardianship in order to murder

Republic v Lololker (Criminal Case E023 of 2023) [2024] KEMC 48 (KLR)

Senior Principal Magistrate's Court (Wamba Mobile Court)
30 October 2024
TST. A. Sitati
2,899 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a parent cannot be charged with kidnapping their own child unless a court order restricted custody; the accused was instead freed to face a murder charge.

What this practically means

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Executive summary

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The accused, Sanatea Lololker, faced a charge of kidnapping from lawful guardianship in order to murder contrary to section 255 as read with section 258 of the Penal Code, the particulars alleging he took his two-year-old son, Loitalak Samali, from the custody of his estranged mother, Samali Lololker, on 2nd May 2023 at Ngokoiye village, Samburu East Sub-County, in order for the child to be murdered. The prosecution called five witnesses, including the mother, her brother, the local Chief, a Government Analyst who matched a recovered skull to the mother by DNA at 99.99%, and the investigating officer. The child was never found alive; the child's skull was recovered. The accused gave an unsworn statement admitting he took the child but claiming the child died of sickness en route to hospital and that he buried the body in the bush in line with Samburu custom. Before reaching the facts, the court found the charge-sheet's statement of offence defective (it cited 'abduction' rather than 'kidnap' from lawful guardianship) but held the defect cured by the particulars without prejudice. More fundamentally, following Margaret Wangechi Nyokabi v Republic and the equal parental responsibility principle in sections 32 and 33 of the Children Act 2022, the court held that a parent cannot in law kidnap his own child absent an express court order or parental responsibility agreement restricting custody; none existed here. The charges were dismissed as bad in law and the accused acquitted, with liberty to the DPP to charge him with infanticide, murder or manslaughter; he was subsequently charged with murder before the Maralal High Court vide HCCR E002 of 2024.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the DPP proved the charge of kidnapping from lawful guardianship in order to murder beyond reasonable doubt
  2. 2.Whether the charge-sheet's use of 'abduction from lawful guardianship' instead of 'kidnap from lawful guardianship' was a fatal defect
  3. 3.Whether a parent can in law kidnap his or her own child absent a court order or parental responsibility agreement

Key legal issues

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01

Defect in statement of offence – abduction vs kidnap from lawful guardianship

Holding

The statement of offence was defective but the particulars cured it; no prejudice to the accused.

Reasoning

Section 255 of the Penal Code defines kidnapping (not abduction) from lawful guardianship, so the statement of offence cited an offence that does not exist in that section. However, the particulars alleged kidnap from lawful guardianship, which substantially cured the defect, the two being cognate offences against liberty, and the accused suffered no prejudice.

p. 4
02

Whether a parent can kidnap his own child

Holding

No – absent a court order or parental responsibility agreement under section 33(5) of the Children Act 2022, a parent cannot be charged with kidnapping his own child.

Reasoning

Following Margaret Wangechi Nyokabi v Republic, the principle of equal parental responsibility under section 32 of the Children Act 2022 means neither parent has a superior claim to custody. Criminal liability for taking a child arises only where the parent breaches a court order or parental responsibility agreement. Here none existed, so the charge failed the legality test.

p. 5

Legal principles established

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  • A parent cannot in law kidnap his or her own child unless there is an express court order or parental responsibility agreement restricting physical custody.
  • A parent may nevertheless be charged with murder, infanticide or manslaughter for the unlawful killing of his or her own child.

Court orders

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  1. 1.The charges are dismissed as untenable and bad in law and the accused is acquitted
  2. 2.The accused shall be set at liberty after 24 hours to enable the DPP exercise the decision to charge him with infanticide, murder or manslaughter; if the DPP opts not to charge, he shall be set at liberty unless otherwise lawfully held
  3. 3.Right of appeal is 14 days

The bench

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One judgment of the whole court — no separate or dissenting opinions.

TS
majority

Wrote the judgment

Jurisdiction invoked
First-instance criminal trial under sections 255 and 258 of the Penal Code

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the result the court dismisses the charges as untenable and bad in law and acquits the accused person for in law a parent cannot kidnap his own child unless there is an express court order or parental responsibility agreement prohibiting or restricting his physical custody.
p. 6Acquittal – parent cannot kidnap own child
If the DPP opts not to charge him with any ofience, he shall be set at liberty unless otherwise lawfully held. Right of appeal is 14 days.
p. 6Final orders
Subject to the provisions of this Act, the parents of a child shall have parental responsibility over the child on an equal basis
p. 5Equal parental responsibility under section 32, Children Act 2022

Issues in the judgment

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minor

Charge-sheet terminology: the statement of offence says 'abducting from lawful guardianship' while section 255 creates 'kidnapping from lawful guardianship'; the court found the defect cured by the particulars.

minor

Evidence inconsistency on when the Chief received the report: defence noted 29/04/2023 versus 7th May 2023; also charge particulars state the offence occurred on 25th May 2023 while the testimony uniformly places the taking on 2nd May 2023.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v Lololker (Criminal Case E023 of 2023) [2024] KEMC 48 (KLR)", Case Analysis (2024). Criminal Case (Wamba Mobile Court) – charge of kidnapping from lawful guardianship in order to murder. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/48/eng@2024-10-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.