Patrick Paddy Ooko v Republic [1994] KECA 17 (KLR)

The full bench reviewed the single judge's exercise of discretion under rule 4. The applicant did not demonstrate where the judge went wrong in refusing extension of time and in confirming the superior court's refusal of a constitutional reference. Given that the intended appeal attacking the criminal charges would be futile - the constitutional complaints having no merit - there was no basis for reversing the ruling, and the reference was dismissed.

The applicant complained that his arrest and prosecution for obtaining money by false pretence contravened sections 72(1)(e) and 82(2) of the Constitution. The single judge held, and the full bench accepted, that arrest on suspicion is expressly provided for by section 72(1)(e), so there was no constitutional breach capable of founding a reference to a constitutional court or a stay of the criminal proceedings.

One of the applicant's complaints was whether a company subscriber can be criminally held responsible for the company's acts. The court endorsed the single judge's view that a subscriber responsible for management may personally be charged and may raise defences at trial. The conflicting decisions of Munene v Republic (No 2) and Anarita Karimi Njeru v Republic (No 2) were under consideration by a five-judge bench, but the court held their outcome irrelevant to the futility of the intended appeal.