DPP wants mercury fertiliser testing dropped

The DPP wants orders directing the Kenya Bureau of Standards to conduct fresh tests on fertiliser alleged to contain mercury dropped.

In documents filed in court on March 18, prosecution counsel Wesley Nyamache says there is no guarantee that the consignment tested in February last year and released March last year is the same consignment impounded on June 16, last year.

On March 13, senior principal magistrate Kennedy Cheruiyot ordered the re-sampling for March 26, and re-testing of fertiliser consignment currently being held at a go-down in Mombasa for March 27.  

The magistrate issued the directive after Kebs acting managing director Bernard Nguyo told the court he was unable to conduct the tests as earlier ordered due to the Kenya Revenue Authority seals.

The MD, according to the documents filed in court, indicated to the magistrate that the subject consignments of fertiliser were released to the importer on March 1 last year for sale.

Therefore Kebs cannot with certainty tell whether the fertiliser currently held at a warehouse in Mombasa is the same consignment from which samples were taken on January 24 and re-sampled on February 15 last year.

“There is no reliable documentation so far provided to confirm that fertiliser impounded on June 2018, forms part of the consignment released in March 2018,” the DPP says.

Nguyo had been summoned to court to explain why he should not be punished for disobeying the orders to re-test the fertiliser. He appeared in court last week and said he had no access to the warehouse in Mombasa and that there was also an issue in identifying the consignment.

He also mentioned that the reason the order was not complied with was that the order as framed was for retesting of fertiliser described by a Bill of Lading (BL) number imported in 2017.

The DPP now says the consignment’s credibility cannot be ascertained following Nguyo’s testimony and the High Court should intervene by lifting the orders of the trial court.

Nyamache claims the identification of a consignment by BL of November 28, 2017, is impossible.

He says the said BL would not show whether the fertiliser currently being held by Benson Ngesa (an accused person in the case) is the same consignment imported with the BL of November 28, 2017, since there are no special marks that would connect the two.

“The consignment of fertiliser imported through the BL issued on November 28, 2017 was released at the port of entry as per the evidence of the acting MD and that there has been a broken chain of custody since Kebs handed over the fertiliser to Ngesa on March 1, 2018,” read the court documents.

The DPP believes there is manifest collusion between Ngesa, and three others as evidenced by the filing and withdrawal of an application for contempt against the acting MD.

It’s on that ground that the DPP says the credibility of the said fertiliser currently being held by Ngesa cannot be guaranteed since Karim Lofti, Malika Kirama and Younes Addou remain accused persons and any test sought for by Ngesa is meant to unlawfully aid his co-accused to evade justice.

The application by the DPP will be heard on Monday next week before Justice Daniel Ogembo.

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, was done in their absence which is against their rights to fair administrative action.

Through its lawyer Paul Muite the company claims that the multi-agency team violated the Kebs protocol and the international standards, when they conducted the tests in the absence of the accused persons.

Muite said Bollore logistics warehouse was still holding 65,000 bags of the said fertiliser and the facility was under police guard, for 24 hours.

Former Kebs MD Charles Ongwae with other government officials are accused of unlawfully releasing to OCP (K), 5,846,000kgs of substandard compound fertiliser which contained mercury.