, NAIROBI, Kenya, Feb 4 – Senior Counsel Paul Muite wants the Director Of Criminal Investigation (DCI) and Chief Executive Officer Kenya Bureau of Standards (KEBS) summoned to court to offer an explanation as to why samples have not been taken from fertilizer imported to country last year.
Muite told Principal Magistrate Kennedy Cheruiyot, that the order issued on January 15 have not been complied by DCI and KEBS.
“It is now over twenty days since the court issued the order to have the fertilizer re-tested to ascertain the alleged excessive mercury,” the counsel told the court on Monday.
The prosecution through Alexander Muteti, said the defense did not extract the order authorizing the issuance of samples for fresh analysis.
He said that the DPP has since filed an application challenging the order requiring the fertilizer to be subjected to fresh testing.
The court had directed that the samples be taken by Monday next week for tests to be done on Tuesday.
The magistrate also directed that a report of the tests be availed to the trial court with the matter scheduled for mentioned on Friday next week to confirm compliance.
Cheruiyot said he was satisfied that the application by OCP (K) limited, former KEBS Managing Director Charles Ongwae and 9 others was merited to effect that fresh testing be done.
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 to be heard.
“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 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.
In the application, OCP (K), a subsidiary of OCP- SA, a Moroccan fertilizer company accused a multi-agency team of conducting the tests, which allegedly found the presence of mercury, in their absence.
The company through lawyer 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 on January 23, lats year 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.
The company told the court it appealed the initial finding and a re-testing was done after which the consignment was certified as compliant on March 3, last year.