Court declines to summon DCI Kinoti over 'mercury fertiliser' tests

Director of Criminal Investigations George Kinoti at Parliament buildings in Nairobi on August 29, 2018. PHOTO | DENNIS ONSONGO | NATION MEDIA GROUP

What you need to know:

  • Senior Counsel Paul Muite explained that parties appeared in Mombasa on Thursday, for collection of samples as directed, only for the DCI and Kebs bosses to refuse to participate in the process.
  • However, Milimani Principal Magistrate Kennedy Cheruiyot said the previous order for the officials to go for the tests was erroneous.
  • Mr Cheruiyot issued fresh orders for the tests, with sample collection on February 20 and the procedure on February 21.

A court on Friday issued a fresh order for the collection of samples and testing of fertiliser said to contain an excessive amount of mercury.

Milimani Principal Magistrate Kennedy Cheruiyot issued this order after saying that Director of Criminal Investigations George Kinoti and Bernard Nguyo, the acting managing director and chief executive of the Kenya Bureau of Standards (Kebs), would not be summoned.

He rejected the application by OCP-Kenya Limited for the two to be summoned.

PREVIOUS ORDER

The ruling on the summonses had been expected as Senior Counsel Paul Muite had explained that parties appeared in Mombasa on Thursday, for collection of samples as directed, only for the DCI and Kebs bosses to refuse to participate in the process.

Mr Muite noted that the Kenya Revenue Authority was ready to comply with the order and open seals at the Bollore Logistics godown in Mombasa.

In his ruling, however, the court said the previous order for the DCI and Kebs officials to go for the tests was erroneous. Mr Cheruiyot said the order was not properly extracted and therefore the DCI could not act on it.

The magistrate directed that samples be collected on February 20 and the tests to be conducted on February 21.

The parties will return to court on March 13 for confirmation of compliance with the orders.

'ANARCHY'

Mr Muite had told the court that the officials disobeyed a court order and that this was an affront to the law.

"They should come personally and explain to the court why they are disrespecting the order," he said.

He also noted that obeying a court order is not optional and that if not addressed, "anarchy" will follow.

The court heard that samples collected last year, and in which there was heavy presence of mercury, had been destroyed.

But Mr Muite argued that the tests in June 2018 were conducted by a multi-agency team in the absence of the accused persons and that this violated their rights.

APPEAL

Mr Muite further told the magistrate that the Director of Public Prosecutions (DPP) was buying time hoping his appeal would stop the process.

However, Senior Assistant DPP Alexander Muteti explained that the order had not been served on DPP Noordin Haji.

He also said there was an additional order which was not part of the directive given by the court.

High Court judge Daniel Ogembo rejected the application by the DPP to stop the fresh tests.

The samples were to be collected on Thursday and the tests carried out on Friday.

SECURITY

A Ballore warehouse, which was still holding 65,000 bags of the fertiliser, had been guarded by police round-the-clock.

The DPP doubts the credibility of the samples and says they could have been interfered with.

Regarding this, Mr Muite told the court that the General Service Unit officers guarding the premises were sent away but that the seals remained intact.

THE CHARGES

Former Kebs managing director Charles Ongwae and 10 other officials are facing charges of attempted murder over the importation of the fertiliser.

Mr Ongwae, through lawyers Ken Nyaundi and Edward Oonge, had said it was only fair for fresh tests to be conducted.

The other suspects in the case are Kebs former director of quality control Erick Kiptoo; Mr Peter Kinyanjui, the Inspection manager at the Kilindini Port; Mr Pole Mwangemi, the regional manager of the Coast region; and Mr Erick Kariuki, the Port Health officer at Kilindini.

The rest are Mr Karim Lofti; Mr Benson Oduor, a supervisor at Bollore; Malika Karama; Younes Addou and OCP-K.

They are facing charges of attempted murder, abuse of office, commission of a felony and breach of trust.

Mr Ongwae and several government officials are accused of unlawfully releasing 5,846,000 kgs of substandard compound fertiliser, which contained mercury, to OCP-K.

Additional reporting by Richard Munguti