It was in November 2017 when OCP-K, through their customs agents Ballore Logistics, applied to import NSPB fertiliser in bulk.
As required, the company tested the fertiliser before loading, an exercise conducted by Bureau Veritas, the agents of Kenya Bureau of Standards (Kebs), and a certificate for conformity was issued on November 2, 2017.
OCP-K Ltd is a subsidiary of OCP-S. A, a Moroccan company founded in 1920, and has more than 50 affiliates across the world.
The vessel carrying the consignment arrived at the Port of Mombasa on January 23, 2018 and Kebs collected a sample of 50kg bag for testing.
It later ruled that the fertiliser did not comply with specifications on nitrogen and sulphur.
The company appealed and a few days later, a re-testing was done and samples collected confirmed that the fertiliser was okay and they were allowed to release it for sale, a process which started on March 3, 2018.
Only 40 per cent of the fertiliser was released to farmers due to the delays in testing and clearing.
All was well until June 22, 2018 when the Director of Public Prosecutions Noordin Haji authorised the charging of OCP directors, among other people, with attempted murder. It was then that the company was informed of mercury in the fertiliser.
And now, the directors of OCP-K, together with former Kebs managing director Charles Ongwae, want fresh tests to be conducted on the fertiliser alleged to contain excessive mercury.
The former government officials are accused of unlawfully releasing to OCP-K 5,846,000kg of substandard compound fertiliser which contained mercury, a substance that endangers human life. It is alleged that they committed the offence between November 13, 17 and June 7, 2018.
Making the application before senior principal magistrate Kennedy Cheruiyot, the accused maintained that previous tests done by the importer, independent laboratories and Kebs did not reveal the presence of mercury as alleged.
Through senior counsel Paul Muite, the company said the samples, which are the basis for the charges, were extracted and unilaterally tested by Kebs in their absence, which is against fair administrative action and the right to fair trial.
“At no time during the numerous discussions and exchanges with OCP-Kenya did Kebs raise any concerns whatsoever about the results of the analysis performed by Bureau Veritas on heavy metals, including mercury, despite numerous opportunities to do so,” Mr Muite said.
Mr Muite said since the entire case hinges on whether the fertiliser was contaminated, the best way for the court to come to a just decision is to allow for fresh tests to be carried out.
He said some 3,000 tonnes of fertiliser were still being held under seal at Bollore Warehouse in Mombasa.
The DPP, through prosecuting counsel Victor Owiti and assistant DPP Alexander Muteti, opposed the application, saying there was no legal basis for another test.
Mr Owiti said the application has been brought after undue delay and the results, if any, cannot be used to challenge the initial and original results by Kebs, which has already been destroyed.
Others charged in the case include Mr Eric Chesire Kiptoo- (director of quality assurance at Kebs), Mr Peter Kinyanjui (inspection manager at Kilindini Port), Mr Pole Mwangemi (regional manager of the Coast region), Mr Erick Kariuki (port health officer at Kilindini), Mr Karim Lofti and Mr Benson Oduor (supervisor with Bolore Transport and Logistics Kenya).
Other than attempted murder, they denied charges of abuse of office, commission of a felony and breach of trust.
Mr Cheruiyot will rule on the matter on January 15.