Albert Mochere Motanya v Director of Public Prosecutions

e. That the magistrate failed to address material gaps and discrepancies in the prosecution evidence f. That the testimony of the complainant (a minor) was not properly evaluated g. That the testimony of the minor and pw2 was unreliable and incapable of supporting a safe conviction h. That the sentence imposed was excessively harsh i. That the prosecution failed to prove the case beyond reasonable doubt j. That the court failed to consider the existence of a land dispute which could have motivated a false complaint k. That the appellant’s defence was dismissed as mere allegation without proper evaluation l. That undue reliance was placed on alleged “blood stains and bruises” as conclusive proof of defilement m. That the court failed to properly evaluate oral evidence vis-à-vis the medical evidence which did not establish penetration n. That the conviction and sentence were entered despite insufficient evidence o. That the magistrate failed to explain to the appellant his constitutional right to counsel p. That the magistrate misdirected himself in treating life imprisonment as mandatory q. That the sentence of life imprisonment was manifestly excessive and disproportionate. 4. The Appellant filed detailed written submissions in support of the appeal. The Appellant submitted that the learned trial magistrate erred in accepting the evidence of PW1 and PW2 despite what he describes as material inconsistencies and omissions. He contends that PW1’s account lacked clarity and detail on essential particulars such as the date, time, sequence of events, and circumstances surrounding the alleged incident. He further argues that PW2’s testimony confiicted with that of PW1, particularly on the timeline of events and the circumstances under which the minor was found. According to the Appellant, these inconsistencies were never resolved by the trial court and ought to have created a reasonable doubt in his favour. 5. The Appellant argued that the medical evidence did not support the allegations made by the prosecution. He relied heavily on the testimony of PW3, the clinical officer, who confirmed that the hymen was intact, that there were no tears, lacerations or signs of fresh penetration, and that the bruising on the labia majora could have resulted from non-sexual trauma. The Appellant contended that the trial court failed to reconcile the medical findings with the allegations of full penetration by PW1, and instead treated minor bruising as conclusive proof of sexual assault. He argues that the trial court misapprehended the medical findings, leading to an unsafe conviction. 6. The Appellant maintained that his sworn defence was not given proper or reasoned consideration. He reiterated that there existed a long-standing family or land dispute between himself and PW2, and that PW2 had previously threatened him. He contends that the trial court dismissed this defence summarily as “mere allegations” without assessing its plausibility or its potential effect on the credibility of the prosecution case. He argues that the existence of such a dispute offered a reasonable explanation for fabrication, which the trial court ought to have considered. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18516/eng@2025-11-20 2

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7. The Appellant contended that the trial court misdirected itself on the burden of proof by effectively requiring him to disprove the prosecution’s case and to substantiate his defence. He argued that this approach contravenes the established principle that the prosecution must prove all elements of the offence beyond reasonable doubt and that the accused bears no obligation to disapprove. He additionally contended that any failure to corroborate his defence was wrongly treated as a basis for adverse inference, thereby shifting the burden unlawfully. 8. The Appellant also submitted that, when the prosecution evidence is weighed against the medical findings, the inconsistencies in witness testimony, the unconsidered defence, and the misdirection on the burden of proof, the resulting conviction is unsafe. 9. On sentence, the Appellant submitted that the trial court imposed an unlawful and excessively harsh sentence. He asserts that having been convicted under section 11(1) (indecent act with a child), the applicable statutory minimum sentence is ten years’ imprisonment. He argued that the trial court erred in imposing a sentence of life imprisonment, which is not prescribed for the alternative charge. He further submitted that the sentence was imposed without proper consideration of mitigation, proportionality, or the nature of the evidence supporting the conviction. 10. In conclusion, the Appellant prayed that the conviction be quashed and the sentence be set aside, and urged the Court not to order a retrial on account of the evidential weaknesses apparent from the record. 11. The Respondent opposed the appeal and urged the Court to uphold both the conviction and the sentence. 12. The Respondent contended that the trial court correctly believed PW1 and PW2, emphasizing the trial magistrate’s advantage in observing the demeanour of the witnesses. The Respondent also argued that any inconsistencies identified by the Appellant were minor and did not go to the substance of the charge. The Respondent’s position is therefore that the evidence of the complainant was clear, direct and sufficient to sustain the conviction, and that the magistrate was entitled to place reliance on it. 13. The Respondent submitted that medical evidence is not a statutory requirement and that a conviction for a sexual offence may be sustained solely on the testimony of the victim. It is argued that the injuries observed by PW3 specifically the bruising on the labia majora supported the minor’s account and confirmed sexual interference. The Respondent maintains that the trial court was justified in relying on PW1’s testimony even in the absence of definitive signs of penetration. 14. The Respondent argued that the trial court considered the Appellant’s defence and rejected it for want of supporting evidence. It was submitted that the existence of a land dispute was not established, and that the Appellant offered no evidence beyond his bare assertion. The Respondent’s position is that the trial magistrate was correct to find that the defence did not raise reasonable doubt. 15. The Respondent maintained that the trial court applied the correct standard and did not shift the burden of proof. It is argued that the court merely found the Appellant’s version inadequate when weighed against the prosecution case, rather than requiring him to prove his innocence. The Respondent submitted that the conviction was based on the cumulative effect of the prosecution evidence and not on any failure by the Appellant to rebut it. 16. With regard to sentence, the Respondent maintained that the gravity of the offence and the age of the complainant justified the penalty imposed. The position taken is that courts retain wide sentencing discretion in sexual offences, and that the life sentence was neither unlawful nor excessive in the circumstances. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18516/eng@2025-11-20 3

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17. 18. I have carefully considered the record, the grounds of appeal and the submissions by the Appellant and the Respondent and the following issues arise for determination: 1. Whether the trial court properly evaluated the credibility and reliability of the prosecution witnesses, including the child complainant. 2. Whether the trial court correctly assessed and reconciled the medical evidence with the oral testimony. 3. Whether the trial court adequately considered the Appellant’s defence, including the alleged existence of a family or land dispute. 4. Whether the trial court misdirected itself on the burden and standard of proof. 5. Whether the conviction was safe. 6. Whether the sentence imposed was lawful and proportionate. As a first appellate court, this Court must re-evaluate the entire evidence and draw its own conclusions. The applicable principle is well established in Okeno v Republic [1972] EA 32, where the Court of Appeal held that an appellate court must reconsider and analyse the evidence afresh. Analysis And Determination 1) Whether the trial court properly evaluated the credibility and reliability of the prosecution witnesses 19. The complainant (PW1), aged six years, gave an unsworn statement in which she stated that the Appellant removed her clothes and inserted his penis into her vagina. Her evidence was clear, direct, and was not challenged in cross-examination. 20. PW2, the complainant’s mother, testified about the child’s disappearance, her return the following morning, and her report of pain. Her testimony supported the making of the complaint and the circumstances in which the matter was reported to the police. 21. The proviso to section 124 of the Evidence Act permits a court to convict on the sole evidence of a child victim of a sexual offence where the court believes that the child is telling the truth. The law does not require corroboration where the court is satisfied as to the child’s credibility. 22. In this case, the complainant’s evidence was coherent, unshaken, and consistent with the surrounding circumstances as narrated by PW2. The record shows that the trial court accepted her account, and nothing in the record suggests that such acceptance was misplaced. 2) Whether the trial court correctly assessed and reconciled the medical evidence with the oral testimony 23. PW3 examined the complainant and documented bruising and haemorrhage on the labia majora. The hymen was intact and there were no tears or lacerations. PW3 explained that the injuries were consistent with blunt trauma to the genital area and were consistent with the history given by the complainant. 24. PW3 clarified that the absence of hymenal tears does not exclude sexual interference, particularly in a child of tender years, and that the findings were compatible with contact or pressure applied to the vulval region. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18516/eng@2025-11-20 4

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25. Medical evidence is not a statutory requirement in sexual offences, and a court may rely on the complainant’s evidence even in its absence, provided it believes the complainant (see Kassim Ali v Republic [2006] eKLR). 26. Penetration, as defined in section 2 of the Sexual Offences Act, requires only the slightest degree of intrusion into the genital organs and the absence of hymenal injury does not negate penetration (see Mark Oiruri Mose v Republic [2013] eKLR). 27. In my considered view, bruising and haemorrhage on the labia majora support a finding of sexual interference even where the hymen is intact. From the foregoing, I find that the medical findings were compatible with the narrative given by the complainant, and the trial court’s reliance on them was consistent with established legal principles. 3) Whether the trial court adequately considered the Appellant’s defence 28. The Appellant gave a sworn defence in which he denied the allegations. He stated that there existed a land dispute between his family and that of the complainant, and suggested that this dispute could have motivated the complaint. 29. The record shows that the Appellant did not raise the alleged land dispute during cross-examination of PW1 or PW2, nor did he confront them with any suggestion of hostility or prior disagreement. 30. A trial court must consider the defence alongside the prosecution evidence and give reasons if it rejects it. However, a bare allegation of fabrication unsupported by evidence does not displace a consistent prosecution case. Where an accused alleges a grudge or fabrication, the allegation must be put to the relevant prosecution witnesses and supported by some evidentiary foundation. The allegation of a grudge was raised for the first time at the defence stage and having not been put to the prosecution witnesses nor supported by any evidence, it remained an unsubstantiated afterthought, and the trial court was entitled to reject it. 4) Whether the trial court misdirected itself on the burden and standard of proof 31. The Appellant argued that the trial court shifted the burden of proof by rejecting his defence regarding a land dispute. As noted earlier, this allegation was never put to the prosecution witnesses and was unsupported by evidence. 32. The record reveals that the trial court treated it as a bare assertion and weighed it against the prosecution case. 33. Throughout the proceedings, the prosecution bore the legal burden to prove the charge beyond reasonable doubt. The trial court stated this correctly in its judgment and indicated that it was satisfied the prosecution had proved its case. The burden of proof in criminal cases rests entirely on the prosecution and never shifts to the accused to prove innocence (see Sawe v Republic [2003] eKLR). 34. On review of the judgment and the record, there is nothing to suggest that the trial court required the Appellant to prove his innocence or otherwise shifted the burden of proof. The trial court evaluated the defence that was raised, found it unsubstantiated, and relied on the uncontroverted evidence of the complainant. 35. Accordingly, the Court finds that the trial magistrate did not misdirect himself on the burden or standard of proof. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18516/eng@2025-11-20 5

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5) Whether the conviction was safe 36. A conviction is considered safe where the evidence, taken as a whole, proved the offence beyond reasonable doubt. 37. The complainant’s evidence, as earlier analysed, was clear, consistent, and unchallenged. Her testimony described penile penetration, satisfying the statutory definition of penetration under section 2 of the Sexual Offences Act. 38. PW2’s evidence supported the fact of sexual injury and the circumstances in which the complaint arose. The child’s disappearance overnight and subsequent report of pain were consistent with the complainant’s narrative. 39. The medical findings of bruising and haemorrhage to the labia majora, although the hymen remained intact, did not negate penetration (See Mark Oiruri Mose v Republic (supra). 40. The complainant's testimony combined with the medical evidence sufficiently established the main defilement charge, making the trial court's acquittal on the same erroneous. However, since the Respondent did not file a cross-appeal, this Court cannot overturn that acquittal. 41. I accordingly conclude that the lesser indecent act charge was proven, since its constituent elements are all contained within and established by proof of the more serious defilement offence. 6) Whether the sentence imposed was lawful and proportionate 42. The Appellant was convicted of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The prescribed sentence for this offence is imprisonment for a term of not less than ten years. 43. Despite convicting the Appellant on the alternative count under section 11(1), the trial court imposed a sentence of life imprisonment. The record does not indicate that the court considered the statutory parameters or provided reasons for departing from them. 44. A sentence that exceeds the maximum or falls outside the statutory range is illegal and cannot be upheld on appeal. An appellate court may interfere with sentence where it is illegal, based on a misdirection, manifestly excessive, or the trial court acted on wrong principles. (See Bernard Kimani Gacheru v Republic [2002] eKLR.) 45. Where the law prescribes a minimum sentence, the trial court must comply with that minimum unless the statute expressly confers discretion to impose a higher penalty. 46. The sentence of life imprisonment imposed on the Appellant for an offence under section 11(1) was unlawful and cannot be allowed to stand. Disposition 47. Having re-evaluated the entire evidence, the grounds of appeal, and the applicable law, and having addressed each of the issues identified for determination, this Court makes the following orders: 1. The appeal against conviction on the alternative count of committing an indecent act with a child fails and is hereby dismissed. 2. The appeal against sentence succeeds. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18516/eng@2025-11-20 6

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3. The sentence of life imprisonment imposed by the trial court is set aside and substituted with the statutory minimum of ten (10) years imprisonment 4. The sentence of ten (10) years imprisonment shall run from the date of Appellant’s arrest on 13th January 2020 DELIVERED AT NYAMIRA THIS 20TH DAY OF NOVEMBER 2025 WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Hilda Appellant - Present For the Appellant- Ms. Nyaenya for Bosire Gichana & Co. Advocates For the DPP - Mr. Chirchir (SADPP) https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18516/eng@2025-11-20 7

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