Republic v Sagero (Criminal Case E004 of 2024) [2026] KEHC 13274 (KLR) (22 July 2026) (Judgment)

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NYAMIRA** **(CHERERE-J)** **HCCRC E004 OF 2024** **BETWEEN** **REPUBLIC ................................................................................ PROSECUTOR AND LAWRENCE GESORE SAGERO ................................................. ACCUSED** # JUDGMENT 1. Murder is the gravest offence known to our criminal law because it involves the unlawful taking of human life. Yet the seriousness of the charge cannot diminish the cardinal principle that every accused person is presumed innocent until the prosecution proves every essential ingredient of the offence beyond reasonable doubt. The court must therefore approach the evidence dispassionately, mindful that a conviction cannot rest upon suspicion or conjecture but only upon credible evidence satisfying the legal standard of proof. 2. The accused, Lawrence Gesore Sagero, is charged with the offence of murder contrary to section 203 as read together with section 204 of the Penal Code. The particulars of the charge are that on 18th April 2024 at about 9.00 a.m. at Borioba Village, Borangi Location, Nyamira North Sub-County within Nyamira County, he murdered Nancy Mongina. 3. The accused pleaded not guilty to the charge. Consequently, the prosecution assumed the burden of proving each ingredient of the offence beyond reasonable doubt. In discharge of that burden, it called six witnesses. Upon being placed on his defence, the accused gave sworn testimony but did not call any other witness. 4. The evidence began with the medical examination conducted upon the body of the deceased. Rodge Oganga, a Senior Registered Clinical Officer at Nyamira County Hospital, produced the post-mortem report prepared by Dr. Angela Ogendi, who had performed the examination on 23rd April 2024. The examination revealed that the deceased, an adult female aged about thirty-five years, had sustained two injuries on the occipital region of the head measuring approximately 2 by 2 centimetres and 3 by 3 centimetres. The scalp was depressed and the skull had sustained multiple fractures accompanied by extensive bleeding within the cranial cavity. The remaining body systems were normal. The pathologist concluded that death resulted from severe head injuries caused by blunt force trauma leading to cardiovascular arrest. Blood samples were collected for forensic analysis. 5. Attention then shifted to the events of the morning of 18th April 2024. Sergeant Tobias Odhiambo Odero, then attached to Magwagwa Police Station, testified that while on duty he received instructions from the Officer Commanding Station after Henry Sagero reported that he suspected his brother, the accused, had killed his wife. Henry explained that he had unsuccessfully attempted to gain access to the accused's house and had become concerned by the silence from within. Acting upon that report, Sergeant Odero proceeded to Borioba Village accompanied by other police officers. 6. Upon arrival, the officers found the accused seated outside his homestead together with Henry Sagero and other members of the public. When asked about the whereabouts of his wife, the accused led the officers to the house. The entrance was secured with a padlock from the outside. The accused unlocked the door and ushered the officers inside. The house comprised a sitting room, a kitchen and a bedroom. It was inside the bedroom that the officers encountered the lifeless body of the deceased lying on a bed beneath a blanket. She was clad in faded blue jeans while the upper part of her body was uncovered. Visible injuries were observed on her head. The accused was immediately taken into custody as the scene was preserved pending the arrival of officers from the Directorate of Criminal Investigations. 7. The identity of the deceased was confirmed by her cousin, Jolysylas Mose Makuti. He testified that while at Sondu Market he received information that a woman believed to be his relative had been killed at Borioba Village. He proceeded to the scene where he confirmed that the deceased was Nancy Mongina. A few days later he attended Nyamira County Mortuary and formally identified her body before the post-mortem examination was conducted. 8. The prosecution next led evidence concerning the documentation of the scene. Police Constable Martin Kiogora, a gazetted Scenes of Crime Officer, testified that he processed photographs taken at the scene and prepared the requisite certificate. The photographs depicted the approach to the homestead, the entrance to the house, the interior of the house, the deceased lying motionless on the bed, close-up views of the injuries to her face and head, and wooden sticks suspected to have been used in the assault. They also captured the body before the post-mortem examination and the extensive injuries visible on the deceased's face. The photographs and certificate were produced as exhibits. 9. The photographs portrayed a scene of considerable violence. They showed the deceased lying on a bed inside the matrimonial house, partially covered with a blanket, with obvious injuries to the head and face. Other photographs depicted broken wooden sticks recovered from the room, one of which resembled the handle of a jembe. Close-up images taken before the post-mortem examination revealed multiple blunt force injuries consistent with those later described by the pathologist. 10. The investigations thereafter moved from the scene to the laboratory. Polycap Lutta Kweyu, a Government Analyst attached to the Government Chemist at Kisumu, testified that he received from the investigating officer a blood sample taken from the deceased together with a wooden handle and three broken wooden sticks recovered from the bedroom where the body had been found. He explained that he had been requested to determine whether the stains on those exhibits were of human origin and whether the DNA profiles generated from them corresponded with that of the deceased. 11. The analysis established that all the recovered wooden exhibits were stained with human blood. The broken stick marked "C1" was heavily stained while the wooden handle and the remaining broken sticks were moderately stained. DNA profiles generated from the bloodstains on the three broken sticks were identical to the DNA profile generated from the blood sample of Nancy Mongina. The wooden handle generated a mixed DNA profile comprising that of the deceased and that of an unknown male person. Those findings were contained in the Government Analyst's report dated 24th June 2025, which was produced in evidence together with the accompanying exhibit memo form. 12. The prosecution concluded its case with the evidence of Police Constable Anthony Kamande, the investigating officer attached to the Directorate of Criminal Investigations, Nyamira North. He testified that upon receiving information of the suspected murder, he proceeded to the accused's homestead where police officers from Magwagwa Police Station had already secured the scene. He found the body of the deceased lying on a bed inside the bedroom of the house. She had sustained multiple injuries to the head and there were visible bloodstains in the room. 13. His examination of the bedroom led to the recovery of a wooden handle resembling that of a jembe together with three broken pieces of wood lying near the bed on which the deceased's body rested. All the recovered exhibits bore visible bloodstains. He photographed the scene, collected the exhibits, arranged for the removal of the body to Nyamira County Mortuary and commenced investigations. Upon completion of the post-mortem examination, he forwarded the blood sample obtained from the deceased together with the recovered exhibits to the Government Chemist for forensic examination. He subsequently received the analyst's report and caused the accused to be presented before court to answer the charge now before this court. 14. At the close of the prosecution case, the court found that the evidence disclosed a prima facie case requiring the accused to be placed on his defence. He elected to give sworn testimony and did not call any witness. 15. The accused admitted that the deceased was his wife and that they lived together in the house where her body was discovered. He stated that on the evening of 17th April 2024 he attended a funeral vigil at the home of a neighbour. According to him, he briefly returned to his house at about 8.00 p.m. to take supper before going back to the vigil at about 8.15 p.m., where he remained throughout the night. He stated that he participated in preparations for the funeral the following morning until police officers arrived and arrested him. It was his evidence that he only learnt of the deceased's death after his arrest. 16. He further testified that when he left for the funeral vigil, the deceased remained at home. He stated that she had consumed alcohol and was intoxicated but otherwise appeared normal. He denied that they had quarrelled and maintained that they enjoyed a cordial relationship. He denied assaulting the deceased, denied any knowledge of the wooden exhibits recovered from the bedroom and stated that he could not explain how the deceased sustained the fatal injuries. His position throughout was that he was away from home during the material night and that someone else could have entered the house and killed the deceased in his absence. 17. To secure a conviction for the offence of murder contrary to sections 203 and 204 of the Penal Code, the prosecution bears the burden of proving beyond reasonable doubt four essential ingredients. It must establish that the deceased is dead; that her death was caused by an unlawful act or omission; that it was the accused who committed the unlawful act or omission which caused her death; and that, in committing that act, he acted with malice aforethought within the meaning of section 206 of the Penal Code. That burden rests throughout upon the prosecution and never shifts to the accused. 18. The fact of the deceased's death admits of no controversy. Sergeant Tobias Odero and the investigating officer found her lifeless body lying on a bed inside the matrimonial house. Her cousin, Jolysylas Mose Makuti, subsequently identified the body before the post-mortem examination was conducted. The accused himself acknowledged that the deceased was his wife and did not dispute that she died on the material date. The first ingredient of the offence has therefore been proved beyond reasonable doubt. 19. The medical evidence equally leaves no room for doubt as to the cause of death. The post-mortem examination revealed multiple blunt force injuries to the occipital region of the head, depressed skull fractures and extensive intracranial haemorrhage. The pathologist formed the opinion that the deceased died from severe head injuries leading to cardiovascular arrest. That opinion was neither challenged nor contradicted by any other medical evidence and the court has no reason to depart from it. 20. The injuries described in the post-mortem report are entirely consistent with the photographs produced by the prosecution. Those photographs depict extensive injuries to the deceased's forehead and face, while the scene photographs show the body lying on the bed inside the house and the broken wooden sticks recovered from the bedroom. 21. The post-mortem findings, read together with the scene photographs and the forensic evidence, portray an egregious and brutal assault. The deceased did not die from natural causes, accident or any lawful justification recognised by law. She sustained multiple severe blunt force injuries to the head, resulting in fatal skull fractures and extensive intracranial haemorrhage. I therefore find that the prosecution has proved beyond reasonable doubt that her death resulted from an unlawful act. The remaining issue is whether the prosecution has also proved, beyond reasonable doubt, that it was the accused who perpetrated that unlawful act. 22. No witness testified to having seen the accused assault the deceased. The prosecution case therefore rests entirely on circumstantial evidence. The question for determination is whether the circumstances proved by the prosecution satisfy the legal threshold for sustaining a conviction. 23. The principles governing convictions founded on circumstantial evidence are well settled. In **Sawe v Republic [2003] KECA 182 (KLR)**, the Court of Appeal held that the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. There must also be no co-existing circumstances which would weaken or destroy the inference of guilt. Further, the chain of circumstances must be so complete that there is no escape from the conclusion that, within all human probability, the offence was committed by the accused and by no other person. The Court further cautioned that suspicion, however strong, cannot provide the basis for inferring guilt. 24. Guided by those principles, I now turn to examine the circumstances relied upon by the prosecution before considering whether, viewed cumulatively, they form the complete chain contemplated in the foregoing authorities. 25. The first circumstance is that the deceased met her death inside the matrimonial home occupied by the accused and the deceased. The evidence of Sergeant Tobias Odero and the investigating officer established that the deceased's body was found lying on a bed in the bedroom of that house. The accused himself admitted that he and the deceased lived there as husband and wife. This circumstance firmly establishes the place where the offence was committed, although it does not by itself identify the assailant. 26. The second circumstance concerns the condition in which the house was found. Sergeant Tobias Odero testified that when the police arrived, the entrance to the house was secured with a padlock from the outside. Upon being asked about the whereabouts of his wife, the accused unlocked the padlock and led the officers into the house where the deceased's body was found lying on the bed. This circumstance establishes that, when the police arrived, the accused was in possession of the key to the padlock and had access to the house. Although not conclusive on its own, it is a significant circumstance when considered together with the other proved facts. 27. The third circumstance arises from the accused's own evidence. He admitted leaving the deceased alive in the house on the evening of 17th April 2024 before returning to a funeral vigil. He further admitted that he and the deceased lived together in that house. Accordingly, on the evidence before the court, he was the last person known to have seen the deceased alive. That circumstance does not shift the burden of proof to the accused, but it is a relevant fact to be considered together with the rest of the evidence. 28. The fourth circumstance concerns the scene within the bedroom. The investigating officer recovered a wooden handle and three broken wooden sticks lying near the bed upon which the deceased's body was found. The Government Analyst established that the bloodstains on the three broken wooden sticks generated DNA profiles matching that of the deceased. Those findings corroborate the post-mortem evidence that the deceased sustained repeated blunt force injuries to the head and firmly establish that the fatal assault occurred in the bedroom where her body was discovered. 29. The fifth circumstance is that the evidence before the court disclosed no indication that the deceased had been assaulted elsewhere before her body was found inside the house she shared with the accused. The position in which the body was found, the bloodstained wooden sticks recovered from the bedroom and the medical evidence all point irresistibly to the conclusion that the fatal assault occurred therein. 30. The accused's defence was that after taking supper he returned to the funeral vigil where he remained until the following morning. That defence amounted to an alibi. The law is settled that an accused person who raises an alibi assumes no burden of proving it. The burden remains throughout upon the prosecution to disprove the alibi beyond reasonable doubt. As observed by the Court of Appeal in [**Wafula v Republic [2026] KECA 1161 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1161/eng%402026-06-12) citing **Victor Mwendwa Mulinge v Republic [2014] eKLR**, the burden of proving the falsity, if at all, of an accused's defence of alibi lies with the prosecution, although, in an appropriate case, the court may take into account the stage at which the alibi is raised in considering whether the prosecution had an opportunity to investigate it. 31. I have carefully weighed the accused's alibi against the prosecution evidence. The law requires the court to evaluate the defence alongside the entirety of the prosecution evidence and determine whether, notwithstanding the alibi, the prosecution has proved the accused's guilt beyond reasonable doubt. In [**Njoroge v Republic [2026] KECA 1193 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1193/eng%402026-06-26)**,** the Court emphasised that the evidence must be evaluated in its totality by weighing the prosecution case against the defence, considering all the probabilities and weaknesses, before determining whether the charge has been proved beyond reasonable doubt. 32. Applying those principles, I find that the accused's alibi is displaced by the prosecution evidence. The deceased was left alive in the matrimonial home occupied by her and the accused. She was subsequently found dead inside the bedroom of that house having sustained multiple blunt force injuries to the head. The fatal assault occurred within the bedroom where the bloodstained wooden sticks bearing the deceased's DNA were recovered. When the police arrived, the house was secured from the outside with a padlock, and it was the accused who unlocked it and led them to the deceased's body. The evidence disclosed no indication of forced entry or the involvement of any other person. Having considered the defence alongside the prosecution evidence in its entirety, I am satisfied that the alibi has been displaced by the prosecution evidence and does not raise a reasonable doubt as to the accused's guilt. 33. The final issue for determination is whether the prosecution proved that the accused acted with malice aforethought within the meaning of section 206 of the Penal Code. Malice aforethought is established where the evidence proves, among other things, an intention to cause death or grievous harm, or knowledge that the act causing death would probably result in death or grievous harm. 34. In [**Anthony Ndegwa Ngari v Republic [2014] KECA 424 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2014/424/eng%402014-07-30), the Court of Appeal observed that for a conviction for murder, the prosecution must prove not only that the accused committed the unlawful act which caused the death of the deceased but also that, in committing that act, he possessed the requisite malice aforethought contemplated under section 206 of the Penal Code. The Court further observed that whether malice aforethought has been established depends on the evidence adduced in each particular case. 35. Applying those principles to the present case, the medical evidence established that the deceased sustained multiple blunt force injuries to the occipital region of the head resulting in multiple skull fractures and extensive intracranial haemorrhage. The pathologist concluded that the cause of death was severe head injuries occasioned by blunt force trauma. Those findings were corroborated by the scene photographs and the forensic evidence linking the bloodstains on the recovered wooden sticks to the deceased. 36. The assault was neither accidental nor superficial. The assailant repeatedly struck the deceased on the head, one of the most delicate and vulnerable parts of the human body, with such force as to fracture her skull and cause extensive intracranial bleeding. From the nature of the weapon used, the repeated blows directed at the head, the severity of the injuries inflicted and the force employed, I have no difficulty inferring that the assailant intended to cause death or, at the very least, grievous bodily harm within the meaning of section 206(a) and (b) of the Penal Code. 37. I therefore find that the prosecution proved beyond reasonable doubt that the accused acted with malice aforethought. 38. In the final analysis, the prosecution proved beyond reasonable doubt that Nancy Mongina died as a result of an unlawful act; that it was the accused, Lawrence Gesore Sagero, who inflicted the fatal injuries that caused her death; and that, in doing so, he acted with malice aforethought. All the ingredients of the offence of murder contrary to sections 203 and 204 of the Penal Code have therefore been established. 39. Accordingly, I find the accused, **Lawrence Gesore Sagero, guilty** of the offence of murder contrary to section 203 as read with section 204 of the Penal Code and **convict him accordingly** under section 322(1) of the Criminal Procedure Code. **DELIVERED AT NYAMIRA THIS 23rd DAY OF July 2026**  **WAMAE.T. W. CHERERE** **JUDGE** **Appearances** **Court Assistant - Anita** **Accused - Present** **For Accused - Ms. Shilwatso Advocate** **For the DPP - Mr. Chirchir (SADPP)**