An importer and 11 suspects in a case in which fertiliser is alleged to contain mercury Monday urged the high court to dismiss an application by the Kenya Revenue Authority (KRA).
In the application, KRA is opposed to the court summoning its officers over alleged defiance of court orders.
Senior Counsel Paul Muite for the importer OCP (K) Limited urged Justice Pauline Nyamweya to throw out the KRA case since “ it is bad in law and abuse of the court process.”
Mr Muite stated that KRA has defied court orders four times and its application should not be heard before it complies.
“KRA has defied orders of High Court Judge Daniel Ogembo twice that it aides the retesting the 3,000 tonnes of fertiliser shipped into the country on November 2017 by OCP (K) Limited,” Mr Muite told Justice Nyamweya.
"And twice it has defied orders of Senior Principal Magistrate Kennedy Cheruiyot that it opens the seals it placed on containers storing the fertiliser,” argued Mr Muite.
Mr Muite wondered why KRA was finding it difficult breaking the seals for samples to be taken for retesting by an independent laboratory in the presence of government officials.
The order to retest the fertiliser was issued in January 2019 and to date it has not been implemented.
Lawyer Ken Nyauncho appearing for the suspects accused KRA as a proxy of the Director of Public Prosecutions whom he accused of disobeying court orders and “even lodging an appeal which is still pending.”
Mr Nyauncho want KRA application dismissed with costs.
“Why haven’t made this application before Mr Cheruiyot. Which law shall I be applying to issue the orders you are pressing,? Justice Nyamweya asked Mr George Ochieng for KRA.
“The court will invoke Article 165 of the Constitution which gives courts supervisory powers,” Mr Ochieng responded.
“Did you approach the lower court before filing this case?” Justice Nyamweya asked Mr Ochieng.
“That is a criminal case and I cannot be allowed to make representations,” he answered.
The lawyer asked the judge to grant the orders sought by KRA.
Before Mr Cheruiyot, Mr Muite for OCP (K) Ltd, former Kenya Bureau of Standards (Kebs) managing director Charles Ongwae and others who are facing attempted murder charges for releasing to farmers fertiliser with mercury had applied to have fresh samples of the fertiliser stored in Mombasa retested to affirm the States’ position that it was adulterated.
Mr Cheruiyot summoned two senior officers of KRA and Kenya Ports Authority (KPA) for defying court orders on retesting fertiliser alleged to contain mercury stored in godowns in the coast region.
Mr Cheruiyot summoned Mr Nicholas Kinoti, the coast regional KRA manager and Abdi Malik, the KPA officer in charge Kilindi Port.