Director of Public Prosecutions Noordin Hajji has agreed to have 3,500 bags of fertiliser alleged to contain mercury released.
The consignment, which is currently held at a godown in Mombasa, was impounded in June last year following allegations that it contained mercury.
Its release is part of a plea agreement entered into by the DPP, and senior counsel Paul Muite acting for Moroccan company OCP (K) Ltd, its directors Malika Karama and Younes Addou, and businessman Benson Ngesa.
“It was agreed between the parties and the DPP that the investigating officer shall concurrently release the impounded consignment of fertiliser held at Bollore warehouse in Mombasa to the OCP (K) Ltd,” the agreement read.
The DPP also withdrew the criminal charges facing Ngesa, OCP and its directors under section 87 (a) of the criminal procedure code.
Prosecutor Alexander Muteti said new facts were availed to them by the accused indicating that the decision to prosecute was made “without the benefit of the full factual scenario being provided to the investigators and the prosecution by all the accused persons in the matter”.
This new evidence was adopted by magistrate Kennedy Cheruiyot. OCP (K) and its directors have never pleaded to the criminal charges since they were out of the country.
“Following the recording of statements and new documentation availed, we reviewed the matter and decided to withdraw the charges,” Muteti added.
The plea agreement was made on condition that Ngesa unconditionally withdraws an application in which he sought for the retesting of the fertiliser.
Muite confirmed the accuracy of the agreement but said, “my only regret is I’m being denied an opportunity to enjoy this duel which was becoming very interesting.”
The agreement, however, does not affect former Kebs MD Charles Ongwae, Erick Kariuki, Peter Kinyanjui, Pole Mwangemi, and Martin Muswanya. They had been charged with the four.
Ongwae wants to be supplied with the new evidence or documentation that has led to the exoneration of his four co-accused.
“Since the exhibit can’t be accessed we don’t see how the prosecution can go forward. But we need time to peruse the plea agreement because there will definitely be ramifications towards the other accused persons,” his lawyer said.
Muteti said the prosecution will supply them with the statements and documents they need within seven days ahead of the hearing on May 23.
The agreement has effectively led to the withdrawal of an application by the DPP who sought the disqualification of Muite from the case.
The case has had its twists and turns since the order for the re-sampling and re-testing of the fertiliser was first issued in January.
The order has never been implemented. Kenya Bureau of Standard acting MD Bernard Nguyo had been summoned to explain why he should not be punished for disobeying orders directing him to conduct fresh tests on the fertiliser.
But Nguyo shifted the blame to the Kenya Revenue Authority, saying he was unable to conduct the tests as ordered due to the KRA seals. This then resulted in KRA officials being summoned. The summonses were discharged on Thursday following the plea agreement.
Ongwae and his co-accused were charged last year with attempted murder, abuse of office, commission of a felony and breach of trust.
They are also accused of unlawfully releasing to OCP (K) Ltd, substandard compound fertiliser, which contained mercury.
(Edited by R.Wamochie)
