Former Kenya Bureau of Standards Managing Director, Charles Ongwae with some of the accused persons before Nairobi Magistrate Court.

Fresh testing will be conducted on the fertilizer imported into the country last year, to confirm whether claims that it contains excessive mercury are true, court has ruled.

in a ruling senior principal magistrate Kennedy Cheruiyot said he was satisfied that the application by OCP Kenya Limited and nine others was merited.

Principal Magistrate Kennedy Cheruiyot declined order to have US based firm Thonton Laboratories testing and inspection services from participating in the fresh retesting of the fertilizer.

“Since one of the investigators has revealed that the initial fertilizer samples collected by KEBS on or about June 19 2019 have already been destroyed i can only allow fresh samples be collected and analysed,” ruled Magistrate.

He further ordered that any results and finding of the test be availed to prosecution and defence parties.

The magistrate said the fresh tests would assist during the trial and although the prosecution had opposed the application saying it was meant to aid the accused persons, the move would ensure fairness to all parties. He said the test will also ensure there was no miscarriage of justice because all the parties would get a fair opportunity.

“Consequently, I find and hold that the application is merited and direct that fresh samples be collected for testing,” he said adding that the test will be conducted by Kebs in the presence of all parties.

The court said scientific tests are provable by experiments and the experts should arrive at the same conclusion if the same methods are employed and the samples being tested are the same.

The accused persons facing charges relating to importation of substandard fertilizer last week applied for magistrate to order fresh testing on the fertilizer, which is alleged to contain mercury.

Through senior counsel Paul Muite, the accused persons sought the testing done by KEBS in the presence of an independent laboratories and also by Thornton laboratories testing and inspection services, which is a worldwide leading laboratory based in Florida in USA.

In the court papers, a clearing Agent at Bollore Transport Bernard Oduor Ngesa who charged alongside Kenya Bureau of Standards MD Charles Ongwae sought the fresh test on the fertilizer on grounds that the previous tests done by the importer and by independent laboratories, Bureau Veritas, Intertek and Cropnuts and also by KEBS did not reveal the presence of mercury.

Senior Counsel Muite told the court that according to a report of the test done on 2 of February,2018 there was no mention of sulphur in the fertilizer and the only complain according to the report was nitrogen and sulphur and no mercury at all.

He added that the fertilizer was released to the market from 1 of March until 19 of June and the first indication they heard there was concerns of mercury was on 22 of June when DPP issued a statement that the fertilizers had mercury.

“Where are the results of retesting ? They took a 100 kilograms on 19 of June , where are these results?,” Muite paused a question to the court.

Senior counsel told the court that in the replying affidavit by investigating office, prosecution confessed to have destroyed the samples which are supposed to be court exhibits.

“Prosecution in their replying affidavit by investigating officer said they have destroyed the samples. Where there is a criminal baseball the charge is attempted murder , these are nolonger samples , these are court exhibits. How can they prosecution resist the application when they are now telling the court they have destroyed court exhibit,” Lawyer Muite told the court.

According to the Oduor the charges they face were a result of tests undertaken by KEBs on the fertilizer imported into the country by OCP Kenya Limited, and which purport to reveal the excessive presence of mercury.

Oduor and Ongwae and eight others have since denied several charges among them attempted murder, in relation to the importation of 5,846,000 bags of substandard fertilizer. Other charges include abuse of office, conspiracy to defraud and aiding the commission of a felony and breach of trust.

The prosecution alleges that Ongwae and seven others on diverse dates between November 13, 2017, and June 7, 2018  KEBS officials they jointly with intent to unlawfully cause the death of people residing in Narok and Eldoret, released to OCP(K) 5,846,000 of substandard compound fertilizer which contained mercury that endangers human life.

The accused person are separately charged with procurement of fake standardization sticker marks worth Sh882 Million, aiding commissioning of felony, breach of trust and  abuse of office.

Prosecution also alleges that on diverse dates between December 9, 2014 and May 23, 2018 in Nairobi county jointly with others not before court conspired with intended to defraud the government of Kenya Sh 882 million by entering into a contract for the supply and delivery of KEBs quality markers to wit ISM stickers complete with traceability system, knowing that Madras Security Printers Private Ltd had no capacity to deliver.

‘ That in the view of variances in the test i believe that this court can only came to a conclusion and deliver justice to the parties, if an order is made for a fresh retesting of all the samples including the prosecution exhibits together with fresh samples from the consignment still in the Bollore’s warehouse 30,” reads the court papers.

The court heard that the initial test of the samples of the imported fertilizer unilaterally undertaken by KEBS on June 19, 2018 has never been released to OCP, Bollore or to Oduor.

The accused claims that he was surprised to be charged with the alleged offence of attempted murder on grounds that he was involved in the distribution and sell of fertilizer containing mercury. “That the charge of selling fertilizer contaminated with mercury is to say the least, perplexing has previous no test have been undertaken for the presence of mercury in the fertilizer,” he said.

He say that immediately after he was charged, OCP Kenya Ltd collected 96 different samples from the consignment still held at the Bollore’s warehouse and had them tested at Intertech. He said sample results dated July 1, 2018 show the presence of mercury to be less than 0.1 Mg / KG which is permitted threshold.

Muite in his submissions urged the trial magistrate Kennedy Cheruiyot to allow the application and order the reports to be tabled within 10 days. All other accused person charged alongside Odour have since supported the application to have the fresh rested conducted.

But Director of Public prosecution through Victor Owiti opposed the application and urged to dismiss the application on the reason that the subject consignment that was imported by OCP Kenya Ltd failed to meet at least the four of the thirteen parameters that were tested. The four parameters include nitrogen, sulfur and mercury which is the subject of this trial.

“That conclusion the consignment failed on at least those four parameters was reached after three test were done on February 2, 2018,  the second test was done for two days on February 19 and 21,2018 and it is important to know that the second test was done upon a request by the importer OCP Kenya Ltd and the finally the most important test regarding the matter before court was done on June 19,2018 in regard mercury, “ said Owiti.

“We submit the opposition to the application that KEBS is the only statutory recognized body for the conducting such test for purposes of release the feinten fertilizers in the market.

The court heard that only test that the only recognized is the one done by KEBS and prosecution urge the court to rely on while making a determination is that done by KEBS.

According to an affidavit filed by constable Peter Nderitu attached to investigation Bureau at DCI claims that despite the fertilizer failing the said Kenya standard the consignment carrying the said fertilizer was against the law released into Kenyan market hence endangering Millions of Kenyans.

Nderitu claims that the suggested test by Thornto laboratories Testing  and Inspection service or any other laboraties cannot be sustained as none of the firms applies the same Kenya standard requirements KS 158: Kenya standard Specifications for solid compound fertilizer.

In the case those charged alongside Ongwae and Oduor include Director of Quality Assurance Eric Cheshire Kiprono KEBS Inspection Manager Peter Kinyanjui, KEBS Coast Regional Director Martin Nyakiamo, Port Health Officer-Kilindini Port Pole Mwangeni and Supervisor of Customs KRA Erick Kariuki Kirimi.