Director of Public Prosecutions Noordin Haji has dropped attempted murder charges against four people linked to the fertiliser said to contain mercury.
The consignment will also be released to the market and in exchange, the accused will not sue for wrongful prosecution after the case is withdrawn. They will also drop their pursuit for re-testing of the commodity.
After the court ordered that the fertiliser be re-tested to ascertain whether it was contaminated, the DPP and Kenya Revenue Authority sought to block the order at the High Court.
At the same time, senior KRA managers were summoned by court to explain why they ought not be jailed for defying orders.
The DPP, in a bid to scuttle re-testing, made an application seeking to have senior lawyer Paul Muite withdraw from the case, claiming he had been hired by Kenya Bureau of Standards (Kebs).
Mr Muite was representing four parties. He convinced court the fertiliser ought to be re-tested.
KRA, which was at the centre of the saga, also went to the High Court seeking to quash the orders by a magistrate, Kennedy Cheruiyot.
Cornered, as shown in the document filed in court, Noordin opted for a softer landing – he dangled freedom to the accused persons and in turn they would drop their pursuit for a re-test of the fertiliser.
Yesterday’s deal inked before the court means the fertiliser will not be re-tested and it will be released into the market for sale despite fears the State had raised over its safety.
Mr Haji dropped charges against businessman Benson Oduor, Karim Lofti, Malika Kirama, Younes Addou and OCP Kenya Limited on condition they will not pursue damages for malicious prosecution.
“The terms of plea agreement are that the seventh (Oduor), eighth (Lofti), ninth (Kirama) tenth (Addou) and eleventh (OCP) persons for re-testing of the fertiliser that is subject to the criminal trial pursuant to this agreement,” the agreement read.
It added: “It is agreed between parties and the DPP that the investigating officer shall concurrently release the impounded consignment of fertiliser held in Bollore Warehouse in Mombasa.”
Meanwhile, DPP now claims he has fresh information to continue pursuing Kebs boss Charles Ongwae, Eric Chesire, Peter Kinyanjui, Martin Muswany, Pole Mwageni and Eric Kariuki.
“The decision to charge them was made without the full benefit of the factual scenario being provided to the investigators and the prosecution by all the accused persons in the matter,” said Haji
He said the terms of the plea agreement are that parties will cooperate with him in seeking justice.
Haji said the parties undertook not to lay any claim for damages or any other relief as a result of the actions taken by the Government in pursuit of and related to investigations and prosecution of the case now or in the future, locally or internationally.
He told court the agreement was entered into freely without coercion, intimidation, promise or threats to any of the parties and shall be binding.
Mr Ongwae, former Kebs director of quality control Mr Erick Kiptoo, the inspection manager at Kilindini Port Mr Peter Kinyanjui, regional manager for Coast Mr Pole Mwangemi and Port Health officer at Kilindini Mr Erick Kariuki, are charged with attempted murder, abuse of office, commission of a felony and breach of trust.
They are accused of unlawfully releasing to OCP (K) Ltd, 5,846,000kg of substandard fertiliser, which contained mercury.
In the agreement signed by Muite for the importer and senior assistant DPP Alexander Muteti and adopted by senior principal magistrate Mr Cheruiyot, the parties agreed charges against the four be dropped.