, NAIROBI, Kenya, May 24 – Former Kenya Bureau of Standards Managing Director Charles Ongwae has now filed a new application seeking access to the raw data of samples taken from fertilizer tested for mercury.
He says that the previous tests done by the importer, OCP Kenya, independent laboratory, KEBS and Cropnuts did not reveal the presence of mercury.
“The entire case of the prosecution hinges on whether the fertilizer was contaminated that was tested on June 19, 2019 which tests results have inexplicably never been availed to the court or him,” his lawyers say.
Ongwae was charged with the offence of attempted murder and the in the alternative, aiding in the commission of a felony.
The criminal charges stem from tests undertaken by KEBS on fertilizer imported into the country by OCP Kenya Limited which purports to reveal the presence of mercury.
He argues through lawyers Davis Osiemo and Edward Oonge that the samples which are the basis of the charges were extracted secretly and unilaterally tested by KEBS.
The lawyers content that the fertilizer in question has been held under seal at the Ballore warehouse in Mombasa from June 2018.
“The same is clearly labelled with the batch number as the one supposedly ‘tested’ in February 2018 giving rise to the criminal charges facing him and five others.”
The lawyers says that its now trite law that the prosecution has an obligation to supply all the evidence both incriminating and exculpatory to the accused persons.
They say the Director of Public Prosecutions having entered into plea bargaining with the importer of the fertilizer Patrick Egaza Oduor and ordered unconditional release of the fertilizer, it’s critical for the accused persons to know if the fertilizer in question contained any mercury in the first instance.
The DPP has always maintained that the fertilizer contained mercury and consequently unfit for human consumption and went on to release the same unconditionally to the importer.
“His action calls into question whether the DPP is exercising his powers under Article 157 (11) in the public interest or his prosecution is blatant abuse of the legal process which he obliged to prevent,” the lawyers say.
There will be no prejudice suffered by the prosecution should the re-testing and access to raw data of the samples taken is allowed by the court.
A similar application has also been filed by the second accused Eric Chesire who is jointly charged with Ongwae, Peter Kinyanjui, Martin Muswanya, Pole Mwangedni and Erick Kariuki.
The trial Magistrate Kennedy Cheruiyot said after hearing the parties, its directed that the prosecution and interested parties file their response within 14 days and the two applications be heard on June 19.