Kenya Bureau of Standards acting managing director Benard Nguyo will be arrested if he fails to appear in court today to explain why he should not be punished for disobeying court orders.
Senior principal magistrate Kennedy Cheruiyot ordered that he appear, otherwise, an arrest warrant will be issued.
On March 6 the court issued a summons requiring his personal attendance after he defied orders directing fresh tests be conducted on fertiliser alleged to contain mercury.
But Nguyo sent lawyer Jotham Arwa who said the summons was not served on his client. He also said the MD is a public officer with many engagements and could not make it to court because of prior commitments.
The magistrate said even if the summons were not served, Nguyo was still aware that he was required in court yesterday. He also mentioned a letter by senior counsel Paul Muite that made him aware of summons was issued. The letter was sufficient notice, he said.
The magistrate also objected to the manner in which the prosecution handled the matter, saying it is not acting in the public interest and interest of administration of justice.
The investigating officer in the case said they had to wait for authority from the Director of Criminal Investigations to serve the summons.
“No officer of the court, be it advocates acting for parties or prosecutor or any police officer, should countenance disobedience of court orders. The IO in this case deliberately omitted to serve Nguyo with the summons,” magistrate Cheruiyot said.
"The mere fact that Nguyo is a public officer is not a reason at all. I find that the MD was aware of summons since he has sent counsel to represent him. I, therefore, order him to appear in court, in default, a warrant of arrest will be issued,” he said.
The court had directed that fresh samples be taken on February 20, and testing be conducted by Kebs on February 21. Muite said parties flew to Mombasa, ready for the testing but the MD was absent, thus halting the exercise. This led to the magistrate issuing the summons for the MD to explain why he defied the court orders.
In the case, OCP (K), a subsidiary of OCP- SA, a Moroccan fertiliser company whose directors face charges of attempted murder, said the tests conducted in June last year by a multi-agency team were done in their absence. They said that violated their rights to fair administrative action.
Through its lawyer Paul Muite, the company claims that the multi-agency team violated Kebs protocol and international standards when they conducted the tests in the absence of the accused persons. He said Bollore logistics warehouse was still holding 65,000 bags of the fertiliser and the facility was under police guard for 24 hours a day.
Ongwae and other government officials are accused of unlawfully releasing to OCP (K) Ltd, 5,846,000kgs of substandard compound fertiliser which contained mercury.
