Davis Nzongo Liu v Republic [2004] KEHC 1028 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MACHAKOS

APPELLATE SIDE

HIGH COURT CRIMINAL APPEAL NO. 126 OF 2004 DAVIS NZONGO LIU :::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT VERSUS REPUBLIC ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

(From the Original Conviction(s) and Sentence(s) in Criminal Case No. 787 of 2001 of Chief Magistrate’s Court at Machakos: S.M. KIBUNJA on 15/7/04 R U L I N G By a Chamber Summons dated 24/7/04 the applicants Davis Nzongo Liu appellant in Criminal Appeal 126/04 and Elizabeth Mueni appellant in Criminal Appeal 128/04 pray that the court do admit them to bail and that the sentence be stayed upon such terms as are just pending appeal.

The two appeals 126/04 and 128/04 were consolidated to proceed as Criminal Appeal 126/04.

The grounds upon which the application is filed are that the appellants have high chances of success in their appeal; that the appellants stand to suffer irreparably if their appeals succeeds after serving sentence and the appeals would, therefore, be rendered nugatory;

that they are sole breadwinners for their families and always attended court during the pendency of the case in which they are serving sentence and they will be willing to provide any security that the court orders.

The applicants filed affidavits in support of this application in which the grounds are reiterated. The State did not oppose the application. I have noted that the case before the lower court took about 4 years before completion. The appellants were on bond. The court does not seem to have had any problem with their attendance.

The applicants were fined Ksh. 50,000/- each in default 2 years imprisonment. The sentence runs with effect from 15/7/2004 which is only 3½ months ago. I have had a chance to read part of the bulky proceedings of the lower court and in my view the applicants have an arguable appeal which would be rendered nugatory were they let to serve the prison terms and the appeal succeeds.

Accordingly I do order that each of them be released on bond of 100,000/- each with one surety of like sum. The appellants appear before this court for mentions during the pendency of the appeal. Dated at Machakos this 17th day of November 2004 R.V. WENDOH JUDGE