DPP loses bid to stop retesting of fertilizer

The Director of Public Prosecutions (DPP) has lost a bid to stop fresh tests on fertiliser suspected to be laced with mercury.

Justice Daniel Ogembo yesterday ruled that the fertiliser should be subjected to another round of tests to confirm if it contained mercury.

Justice Ogembo said he did not understand why DPP Noordin Haji would oppose the retesting of the fertiliser when the outcome of the results was only aimed at helping the court reach a just determination of whether the consignment was contaminated.

The judge’s decision gave a lifeline to suspended Kenya Bureau of Standards (Kebs) boss Charles Ongwae and six individuals accused of attempted murder on claims that they released the contaminated fertiliser to farmers.

The seven have denied the charges.

“I am left wondering what harm would be occasioned by retesting the fertiliser. I do not see any prejudice the DPP will suffer since the report of the findings will be filed in court and the trial magistrate will determine the case based on evidence,” ruled Ogembo.

The judge ordered that samples of the contested fertiliser be taken today and the retesting be done by Kebs officials on Friday in the presence of all the accused persons and an independent expert.

Justice Ogembo noted that a test conducted in March 2018 had confirmed that the fertiliser met the required standards and that it was only after a multi-agency team conducted another test in June 2019 that it was found to contain mercury.

Another test

He stated that since the samples taken by the multi-agency team that showed traces of mercury had been destroyed, the only way to confirm the allegations was by conducting another test.

He also dismissed claims by the DPP that the consignment might have been replaced, ruling that the warehouse in Mombasa where 6,500 bags of fertiliser were kept had seals and could not be broken into.

“There are seals on the doors of the warehouse by Kebs and Kenya Revenue Authority and since there is no evidence that the seals have been broken. It is not possible that the consignment might have been interfered with,” ruled Ogembo.

Mr Ongwae was charged in the case alongside Kebs officials Eric Kiptoo, Peter Kinyanjui, Martin Nyakiamo, Pole Mwangeni, Erick Kirimi and Benson Oduor.

They contested the charges and applied for retesting of the fertiliser after the prosecution failed to produce the samples it used for testing, a request that was granted by trial magistrate Kennedy Cheruiyot.

But the DPP, through senior prosecutor Alexander Muteti, appealed the order, arguing that they were not sure if the fertiliser had been tampered with.

Senior Counsel Paul Muite contested the DPP’s opposition to the retesting, arguing that it was in the best interest of farmers and that the first test did not follow the right procedure.