Ex-Kebs managers face trial for import of unsafe fertiliser

The High Court has declined to halt the prosecution of four people over the alleged importation of 5.8 million bags of substandard fertiliser containing mercury four years ago.

Justice Antony Mrima dismissed a petition filed by former Kenya Bureau of Standards Managing Director Charles Ongwae and ex-Coast regional manager Martin Muswanya Nyakiamo. They will now have to stand trial.

They have been charged alongside Bollore Transport and Logistics Company supervisor Benson Oduor Ngesa and warehouse manager Stephen Boaz Oloo.

The four wanted the court to declare their prosecution an infringement on their right to equality before the law. They also sought a declaration that their trial was oppressive, malicious and an abuse of the court, adding that it goes against the rules of natural justice.

But the judge said the termination of the criminal case would frustrate, instead of advancing, the rule of law.

“The petitioners still have constitutional safeguards in respect of their rights even when undergoing the trial. They will also be accorded an opportunity to challenge the veracity of the evidence, including whether such evidence was properly obtained,” said Justice Mrima.

Substandard fertiliser

He added that although the petitioners have a right not to be subjected to an illegal and unwarranted criminal process, the Director of Public Prosecutions (DPP) is also has the public duty to ensure that offences are prosecuted.

The petitioners, among other persons, were charged on June 25, 2018 in connection with the release of alleged substandard fertiliser, which posed danger to the public as it was reportedly contaminated with mercury.

The basis of their arrest and subsequent arraignment was a finding by investigators that the 5,846,000 bags imported from Morocco were approved for sale despite failing Kenyan standards specifications.

Out of 13 parameter tests, the imported fertiliser failed in mercury, nitrogen and sulphur tests.

The consignment was imported by OCP(K) Ltd and was received by Bollore as a custom agent on January 24, 2018.

After pleading not guilty to the charges, the petitioners lodged a petition at the High Court, arguing that they were unfairly charged. They also claimed that the decision of the DPP to drop charges against five other accused persons from OCP(K) was discriminative.

In questioning the plea-bargaining agreement of May 9, 2019 between the DPP and the five accused persons, the petitioners said the contentious consignment was later released to OCP(K) without conditions.

Mr Nyakiamo maintained that though proper conduct dictates that Kebs has an obligation to either reship the contaminated fertiliser back to the country of origin or destroy it, the agency released it to the importer.

He said it was the same consignment that was the subject matter of the criminal case that he was charged in. The court heard that on September 3, 2019, OCP(K), via a newspaper advertisement, published results of a retest that it had conducted and whose results confirmed that the consignment could be safely released to the Kenyan market.

The results were at a variance with the initial test conducted by Kebs. In the former, there were allegations of contamination of the fertiliser.

But the judge said the court was not persuaded that there was any form of discrimination against the petitioners in the plea-bargain entered by the DPP and the importer.

“Whereas the petitioners may still have reservations against the plea-bargain agreement between the DPP and the five accused persons, such do not crystallise into any form of discrimination,” said Justice Mrima.

The petitioners had argued that the plea agreement was improper since OCP(K) was the owner and importer of the alleged substandard consignment. However, Justice Mrima noted that at the time the plea deal was being adopted by the trial court, none of the petitioners objected to it.

The agreement discharged the accused persons under Section 87(a) of the Criminal Procedure Code on the basis that they had not been heard by the investigators and the prosecutor before the decision to charge them was made and on the basis of new evidence, which had emerged.

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