The Kenya Revenue Authority has been directed to remove its seals on fertiliser alleged to contain mercury for the Kenya Bureau of Standards conduct fresh tests.
Senior Principal Magistrate Kennedy Cheruiyot issued the directive after Kebs managing director Bernard Nguyo told the court he was unable to conduct the tests as earlier ordered by the court due to the KRA seals.
Nguyo had been summoned to explain why he should not be punished for disobeying orders that they conduct fresh tests on the input alleged to contain mercury.
He told the magistrate he had no access to the warehouse in Mombasa and that there was also the issue of identifying the consignment.
“I am ready to comply with the court order but the consignment requiring us to retest is under seal by KRA and not Kebs. I need facilitation because we did not seal it. It's important KRA gives authority,” he said
He further said the reason the order was not complied with was because the order as framed was for retesting of the fertiliser imported in 2017.
Nguyo’s explanation prompted the magistrate to order the chief manager of customs at KRA in Kilindini, Mombasa, to facilitate access to the warehouse by removing the seals.
Cheruiyot further directed that the police should assist if necessary. Kebs will now be required to take fresh samples on March 26, and conduct fresh tests on 27th. Regional KRA manager Nicholas Kinoti will supervise the testing.
The magistrate said he is satisfied with the explanation to the extent that Nguyo was not aware of his role and that he had access concerns.
He, however, reiterated that court orders must be complied with unless set aside.
“Nguyo should know that as the MD he is responsible for all the operations of Kebs and conduct of all its affairs. It is also the mandate of Kebs to take inspections and testing of imports to conform to the international standards,” Cheruiyot said.
ATTEMPTED MURDER
The court had directed that fresh samples be taken on February 20, and testing be conducted by Kebs on February 21. Parties flew to Mombasa ready for the exercise 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 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 done in June last year by a multi-agency team, were conducted in their absence and against their right to fair administrative action.
Through lawyer Paul Muite, the company claims that the multi-agency team violated the Kebs protocol and the international standards, when they did the tests in the absence of the accused. He said Bollore logistics warehouse was still holding 65,000 bags of the said fertiliser and the facility was under 24-hour police guard.
Ongwae, together with other government officials, are accused of unlawfully releasing to OCP (K) 5,846,000 kgs of fertiliser which contained mercury.
