The High Court on Wednesday dismissed an application by Director of Public Prosecutions (DPP) Noordin Haji, seeking to stop fresh tests on fertiliser alleged to contain excessive mercury.
Justice Daniel Ogembo declined said the DPP would suffer no prejudice if the tests were done as directed by a Nairobi court. He added that there was no evidence, as submitted by Senior Counsel Paul Muite, that the fertiliser being held at a Ballore Transport and Logistics warehouse in Mombasa, had been interfered with.
Justice Ogembo said a multi-agency team had confirmed that the warehouse had been sealed in the presence of all parties, and there was no evidence that the seals had been broken.
He allowed for sampling and fresh testing saying that documents tabled in court showed that the tests earlier done were to confirm whether the fertiliser, which was imported by OCP (K) Ltd, met the standards of nitrogen and sulphur. He added that the prosecution had also informed the court that tests allegedly done to confirm whether the fertiliser contained excessive mercury, had been destroyed.
He directed that the samples be collected today (Thursday) and tests be conducted on Friday by Kenya Bureau of Standards and all parties in the case.
Eleven people, among them former Kebs managing director Charles Ongwae and OCP-K argued for fresh sampling and testing, saying earlier tests were carried out in their absence.
Mr Muite told the court that Bollore Transport Logistics warehouse was still holding 65,000 bags of the fertiliser and the facility was under police guard, for 24 hours.
The DPP through senior assistant DPP Alexander Muteti urged the court to stop the fresh tests, pending the determination of an appeal they will file.
He said the appeal would be rendered useless if the orders are not granted. “The duty of the court is to secure the ends of justice. We are seeking an order to preserve the subject matter until given an opportunity to argue our case,” he said.
Principal magistrate Kennedy Cheruiyot ordered Kebs to collect the samples from Ballore Logistics warehouse today and carry out fresh tests and report to him on February 15.