, NAIROBI, Kenya, Mar 13 – Kenya Bureau of Standards Acting Managing Director Bernard Munene Nguyo has narrowly escaped civil jail, after a court re-ordered him to conduct sampling and testing of fertilizer alleged contain mercury.
Nguyo presented himself after fresh summons were issued by trial magistrate Kennedy Cheruiyot requiring him to explain why he should not be jailed for disobeying the court.
The court directed that sampling of the fertilizer be conducted on March 26 and testing be held on 27th with the assistance of Kenya Revenue Authority Coast Region Manager Nicholas Kinoti.
Police in charge of Kilindini Port should also accompany the team during the testing.
The magistrate gave the orders after Nguyo explained the difficulties he had in complying with orders issued on January 15, 2019.
He said that order was not specific which godown where the fertilizer were kept and that KEBS had no access to the warehouse.
The magistrate said instead of the MD appearing in court he chose to send his lawyer Joram Arwa, indicating that he was aware of the summons to appear.
He said that a letter done by Senior Counsel Paul Muite on the material day when the summons were issued and send to Nguyo is further clear indication of service of the court order.
The defence lawyers Muite, Edward Oonge and their colleagues raised concern over the manner in which investigations were carried out by extracting samples from which they allegedly established that the imported fertilizer contained mercury.
They asked the court to order for fresh testing in the presence of the accused persons.
The trial magistrate said this order has never been obeyed despite clear evidence that the MD is fully aware of the court decision, tests ought to have been carried out has specified in the ruling.
Cheruiyot said that MD instead of obeying the order went on to explain in a letter to the Director of Public Prosecutions that the fertilizer has gathered moisture and the mercury may have evaporated.
“The action by MD is completely unacceptable since the accused with their lawyers travelled to Mombasa only to find the MD and his team were absent” he said.
The sampling and testing was supposed to have been done on February 20 and 21 respectively.
The court had set time and dates to ensure compliance of the orders.
Muite said that the prosecution have made several attempts to have the orders not being executed by moving to the High Court and Appeals Court in which no stay has been granted or the order set aside.
“The court must hold to its authority by summoning KEBS MD to show cause why action should not be taken against him,” Muite told the court.
Former KEBS Managing Director Charles Ongwae and nine others who have been charged with attempted murder through their lawyers Muite and Oonge have objected to testing 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 the application on January 15, 2019.
High court judge Justice Daniel Ogemba dismissed the appeal by the DPP and declined to stay the order of the trial magistrate, and further directed that parties comply with orders issued by the lower court.
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 senior 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.