BY SAM ALFAN.
Director of Public Prosecution wants a trial magistrate out of fertilizer case where former KEBS CEO Charles Ongwae and others are charged with attempted murder for allowing the importation of substandard fertilizer containing mercury.
Haji filed application through Senior Assistant Director of Public Prosecution Alexander Muteti seeking Milimani Principal Magistrate Kenneth Cheruiyot to recuse himself from hearing the criminal case.
Prosecution claims the magistrate has exhibited bias while he is handling the case.
“The magistrate had exhibited open bias and taken position that is prejudicial to the right of a fair impartial hearing”, said prosecution.
They claimed that the magistrate is on record admitting that he is handling other matters where accused are involved.
“SPM Kenneth Cheruiyot is on record pronouncing that he is aware of the Kenya Bureau of standards process as such the court has already formed its opinion and pronounced itself before witnesses and evidence is adduced”, said prosecution.
They claimed the magistrate is handling other two criminal matters which have similar issues as such it is in the interest of all parties that the trial magistrate recuses himself from criminal case Number 1151 of 2018.
The said criminal case was scheduled for hearing today and tomorrow and August 13 to15 2019.
Further the prosecution says that for the impartial trial will be highly and irreparably prejudiced if the instant application is not heard and determined before the hearing kicks off.
Investigating officer attached to DCI headquarters Police Corporal Peter Nderitu filed a supporting affidavit adding that on several occasions during the proceedings and specifically on the July 8 this year, trial magistrate Cheruiyot admitted in court and pronounced himself that he is handling other Kenya Bureau of Standards cases and he is aware if the procedures and processes at KEBS based on testimonies from witnesses he has taken their evidence in court.
Ongwae was charged afresh alongside KEBS officials namely Eric Chesire Kiptoo (Director, Quality Assurance), Peter Kinyanjui (Inspection Manager, Kilindini Port), Martin Muswanya Nyakiamo (Coast Region Manager, KEBS) and Pole Mwangeni (Port Health Officer Kilindini) and a KRA official Eric Karimi.
They denied several charges of attempted murder for allowing the importation of substandard fertiliser containing mercury.
The charges against their co-accused person were withdrawn following the plea bargain entered between suspects namely OCP (K) Ltd, its directors Malika Karama and Younes Addou and Benson Oduor Ngesa, a Clearing Agent Bollore Transport and Karimi Lofti Senhadji and the DPP.
On May 9, 2019 the DPP agreed to have the impounded consignment of 3,500 bags of fertiliser held at a godown in Mombasa released.
The fertiliser was impounded in June last year for allegedly containing mercury.
Its release is part of a plea agreement entered into by the DPP, and Senior Counsel Paul Muite acting for OCP (K) Ltd, a Moroccan company, 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,” reads the agreement.