Directors of OCP (K) Ltd together with former Kenya Bureau of Standards Managing Director Charles Ongwae now want fresh tests conducted on the fertiliser alleged to contain excessive mercury.
Making the application before Senior Principal Magistrate Kennedy Cheruiyot day, the accused persons, who are facing charges of attempted murder, said previous tests done by the importer, independent laboratories and Kebs did not reveal the presence of mercury as alleged.
Through Senior Counsel Paul Muite they said the samples, which are the basis of the charges, were extracted and unilaterally tested by Kebs, in their absence against fair administrative action and the right to fair trial.
Mr Muite said the court will reach a just decision if it orders fresh tests on the fertiliser since the case hinges on whether it was contaminate or not.
He said some 3,000 tonnes of fertiliser were still being held under seal at Ballore Warehouse in Mombasa.
After the arrival of the consignment, Kebs informed the company that the samples collected did not comply with specifications in terms of nitrogen and sulphur.
The importer later appealed for retesting, a request that was granted by Kebs in February and the results showed that the consignment was complaint.
Mr Muite said the company was later allowed to release the fertiliser for sale and the issue of mercury did not arise until June 2018 when the Director of Public Prosecutions authorised suing of OCP directors, among other persons, with attempted murder.
The DPP, through Victor Owiti and Alexander Muteti, opposed the application saying there was no legal basis for another test.
Mr Cheruiyot will rule on the matter on January 15.
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