A Nairobi court on Monday gave Kenya Bureau of Standards (Kebs) and the Directorate of Criminal Investigations (DCI) one week to conduct fresh tests on fertiliser alleged to be containing excessive mercury.
Senior principal magistrate further directed that a report to be filed in court on February 12.
The magistrate said there was no order stopping the tests even though the Director of Public Prosecutions (DPP) had indicated his intention of appealing the directive.
Through senior counsel Paul Muite, OCP (K), a company whose directors face charges of attempted murder together with former Kebs managing director Charles Ongwae, said the tests had not been done more than three weeks after the court gave the directive.
Mr Muite wanted the DCI director George Kinoti summoned to court and explain why the tests were yet to be conducted.
But senior assistant DPP Alexander Muteti told the court that the DCI and DPP were yet to be served with the court order. He said the two would comply with the order but that they had filed an appeal against the decision.
In his ruling, Mr Cheruiyot said the tests would be useful during the trial.
He added that although the prosecution had opposed the application, saying it was meant to aid the accused persons, the move would ensure fairness to all parties. He said the test will also ensure there was no miscarriage of justice because all the parties would get a fair opportunity.
“Consequently, I find and hold that the application is merited and direct that fresh samples be collected for testing,” he said adding that the test will be conducted by Kebs in the presence of all parties.
In the application, OCP (K), a subsidiary of OCP- SA, a Moroccan fertilizer company accused a multi-agency team of conducting the tests, which allegedly found the presence of mercury, in their absence.
Mr Muite told the court that the consignment of the fertilizer arrived in the country on January 23, 2018, but claims of mercury emerged sometimes in June.
He told the court that previous tests done by the importer, independent laboratories and Kebs did not reveal the presence of mercury as alleged.
Mr Ongwae and other government officials are accused of unlawfully releasing to OCP (K) Ltd, 5.846 million kilogrammes of substandard compound fertiliser, which contained mercury.
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