Lawyers in a case where seven people are charged with releasing fertiliser suspected to contain mercury now claim that the office of the Director of Public Prosecution is protecting cartels.
The lawyers argue that by opposing the retesting of tonnes of the impounded fertiliser, the Director of Public Prosecution (DPP) is helping cartels that thrive on exploiting farmers through sale of expensive fertiliser.
“Their aim is to assist cartels that have been benefiting from subsidised fertiliser, and that is the reason they are refusing to retest the consignment in clear disregard of court orders. We do not understand why they fear retesting if they believe it has mercury,” said lawyer Paul Muite.
The 3,500 tonnes of fertiliser packaged in 50-kilogramme bags has been under lock and key in a warehouse in Mombasa since June last year after investigators claimed that it had traces of mercury.
Former Kenya Bureau of Standards (Kebs) boss Charles Ongwae, Eric Kiptoo, Peter Kinyanjui, Martin Nyakiamo, Pole Mwangeni, Erick Kirimi and businessman Benson Oduor have been charged with attempted murder in connection with the release of the fertiliser to farmers.
The DPP informed the court that samples of the contested fertiliser taken by investigators that showed it had mercury had been destroyed.
Lawyer Muite, who is representing the businessman, then successfully applied to have fresh samples taken and retesting done.
Four court orders issued to this effect have so far not been executed after DPP opposed the retesting.
The fight to stop the retesting has intensified after both Kebs and the Kenya Revenue Authority (KRA) joined the DPP in opposing it.
But Muite, in his submissions, argues that the repeated disobedience of court orders confirms that the charges against the seven were fabricated to help cartels who reap billions out of fertiliser trade.
According to the senior counsel, the charges were nothing but a trade war between cartels who do not want cheap fertiliser to reach farmers and want to edge out OCP Kenya Ltd, which imports cheap fertiliser, from the market.
“The real fear is that OCP Kenya’s fertiliser is cheap and will retail at Sh2,500 with high productivity rate of up to 20 per cent. If it was to be used, there will be no need for subsidised fertiliser which retails at Sh3,500 per bag,” said Muite.
Senior Principal Magistrate Kennedy Cheruiyot was the first to issue two separate orders for the retesting. But instead of retesting, the DPP through, State Prosecutor Alexander Muteti, moved to the High Court to stop the exercise.
Mr Muteti’s argument was that the prosecution is not sure that the contested fertiliser has been tampered with, given that the case involves senior Kebs officials.
However, Justice Daniel Ogembo dismissed the claims, saying he did not understand why the DPP would oppose the retesting when the outcome would help the court reach a just determination.
“I am left wondering what harm would be occasioned by retesting the fertiliser. I do not see any prejudice the DPP will suffer since the report of the findings will be filed in court and the trial magistrate will determine the case based on evidence,” ruled Ogembo.
The judge issued a third order for the retesting of the contested fertiliser.
Again the order was ignored after Kebs officials argued that the consignment might have had chemical changes at the storage facility that interfered with suspected traces of mercury.
The accused persons then filed a contempt of court case against Kebs Managing Director Bernard Nguyo who was summoned and agreed to supervise the retesting.
Mr Cheruiyot then issued a fourth order for retesting. He ruled that there should be no difficulties in conducting the fresh tests and that the results would help the court make a just decision.
But instead of complying with the order, KRA filed the latest suit to scuttle the retesting, claiming that it was not party to the orders issued by the court and that opening the seals at the godown would interfere with the integrity of the contested consignment.
Lawyers for the accused submitted that KRA was aware of the court order for retesting but was mischievously trying to frustrate efforts at unraveling the truth.
“The question we keep asking is what they know about the fertiliser that makes them spend so much energy opposing the retesting. It is a clear demonstration of bad faith by the prosecution to use KRA to frustrate the court process,” said Muite.
He claimed that KRA is being used by the DPP’s office to delay the retesting after it failed to convince the Court of Appeal to stop the exercise.
Lady Justice Pauline Nyamweya is expected to rule on KRA’s application.