BY NT CORRESPONDENT.
A Nairobi Court has ordered Kenya Bureau of Standards (Kebs)acting Managing Director Bernard Nguyo, to carry out fresh mercury tests on fertiliser shipped into Kenya two years ago.
This is after Bernard Nguyo escaped civil jail by a whisker. The Nairobi court pardoned him after he said he is willing to comply with court orders and he was not served with the court order and he learnt about the orders through a letter sent to him by senior counsel Paul Muite.
Nguyo failed to appear in court yesterday, and sent his lawyer Jotham Arwa to represent him.
The learned magistrate Cheruiyot ordered his lawyer to inform his client to appear in court today failure of which he will issue warrant of arrest against him.
Appearing before Milimani Principal Magistrate Kennedy Cheruiyot, Nguyo said that he was aware of the court orders but had not been personally served by the investigating officer in the matter.
The MD had been summoned last week after the court found out that he had repeatedly failed to obey court orders to conduct a fresh resting of the alleged mercury fertilizer said ordered by court on January 15,2019.
“I am satisfied with the explanation to the extent that Nguyo was not aware of his role and that he had access concerns. I will direct therefore that summons were necessary for the interest of the supremacy of the law, ” ruled Cheruiyot.
However the magistrate order Nguyo to carry out fresh mercury tests on fertilizer shipped by OCP Kenya Limited and stored Ballore Transport and Logistics warehouse in Mombasa.
Cheruiyot further order that the chief manager of customs at KRA in Kilindini port, Mombasa to facilitate to the access to the warehouse by removing the seals and that regional KRA Manger Nicholas Kinoti to supervise and facilitate the retesting.
The magistrate directed that police assistant be provided by the officer incharge of police operation in that region on March 26 and 27 when the sampling and the retesting is to be conducted.
“The court orders that Kebs to do sampling and retesting as earlier ordered by this court as Nguyo is willing to comply with the court orders and let him therefore know that what he is required to do is what the court had ordered and nothing more,’ ruled the magistrate.
Cheruiyot further noted that Nguyo and Kebs was not required to interpret the conditions the goods( fertilizer) maybe at the moment or the conditions or the results of the outcome of the retesting and sampling of the fertilizer.
“l have considered the submissions and I have heard the reason given by Nguyo, he should know as the MD director he is responsible for all the operations of KEBs and conduct of all it’s affairs. It is also the mandate of Kebs to take inspections and testing of import to conform with the international standards,” said Cheruiyot.
Nguyo while asked by the court the reason why the order was not complied with, he said it was because the order as framed for retesting of fertilizer described by a Bill lading number imported in 2017 said to be in a particular warehouse does not exist.
“I am aware of the orders but I have not been served. The orders touch on requirement by KEBS to undertake testing on fertilizer alleged to be containing mercury. The description of the court order, the consignment is not in existence. The order describes consignment with a different bill lading number, Said the Kebs acting MD.
The court heard that Bollore warehouse where the fertilizer is store is not sealed by KEBS but by the Kenya Revenue Authority and and Nguyo had no access to the premises.
But senior counsel Paul Muite acting for OCP-Kenya said the orders issued were specific.
Nguyo said he does not conduct testing and he does not have capacity to do so.
He also said he is ready to comply with court order but the consignment requiring them to retest is under seal by KRA and not KEBs.
The MD further said there was an issue in identifying the consignment. The bill of lading number has an issue or shipping documents. I need facilitation because we did not seal it. And ability to access warehouse. Its important KRA gives authority.
Earlier the accused persons said the initial test on samples of imported fertiliser unilaterally undertaken by Kebs on June 19, 2018, has never been released to OCP Kenya or to clearing agent of Bollore Transport Bernard Oduor.
They had argued that the charges they face are from test undertaken by KEBs on the fertilizer imported into the country by OCP Kenya Limited which purport to reveal the excessive presence of mercury in the fertilizer.
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.
In the case, Oduor is charged alongside Kebs MD Charles Ongwae and seven others over the importation of substandard fertiliser and circulation of fake Kebs stamp.
Others charged alongside Ogwae 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 a Clearing Agent Bollore Transport Bernard Oduor Ngesa.
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 by releasing to OCP(K) 5,846,000 of substandard compound fertilizer which contained mercury that endangers human life.
The accused person were also 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.
