Court varies order on re-testing of fertilizer in mercury case

February 15, 2019 3:42 pm
Former Managing Director Charles Ongwae and nine others who have been charged with attempted murder through their lawyers Paul Muite and Edward Oonge have objected to testing being carried out by the government in their absence/FILE

, NAIROBI, Kenya, Feb 15 – The Nairobi Chief Magistrate’s Court has modified its order over sampling and re-testing of fertilizer imported into the country last year and directed the Kenya Bureau of Standards to carry out the task.

Senior Principal Magistrate Kennedy Cheruiyot said for the avoidance of doubt its KEBS who are mandated by law to conduct tests unless otherwise directed.

The court further directed the testing be done in the presence of the accused persons. The samples will be taken on Wednesday and testing be conducted on February 21, 2019.

The matter will be mentioned on March 5, 2019 to confirm compliance.

Former Managing Director Charles Ongwae and nine others who have been charged with attempted murder through their lawyers Paul Muite and Edward Oonge have objected to testing being carried out by the government in their absence.

They applied to the trial court seeking an order for fresh testing of the fertilizer in their presence and the court allowed their application on January 15, 2019.

The order allowing the re-testing became a subject of controversy as to whether a proper order was served upon the DCI and KEBS. The DPP was aggrieved with court’s ruling and made an appeal to the High Court.

High Court Judge Daniel Ogemba dismissed the appeal and declined to stay the order of the trial magistrate, and further directed that parties comply with the order issued by trial court.

Justice Ogemba said the DPP would suffer no prejudice if the samples are taken from the fertilizer allegedly containing mercury.

The magistrate said the fresh tests would assist during the trial although the prosecution had opposed the application saying it was meant to aid the accused persons, and would ensure fairness to 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 company through senior counsel Muite told the court that the consignment of the fertilizer arrived in the country on January 23, 2018 but claims of mercury emerged sometimes in June.

He said the vessel carrying the consignment arrived at the Port of Mombasa and KEBS collected a sample of 50 kgs bag for testing but later ruled that the fertilizer did not comply with specifications on nitrogen and sulphur.

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