KEBS MD in trouble for disobeying court order to retest fertilizer

Kenya Bureau of Standards top officials from left Bernard Nguyo. [Moses Omusula/Standard]

Kenya Bureau of Standards Managing Director Bernard Nguyo is in trouble for disobeying a court order to retest fertiliser said to contain mercury.

Senior Principal Magistrate Kennedy Cheruiyot summoned Mr Nguyo to appear before him on March 12 to explain why he should not be cited for contempt of court for his repeated refusal to sample the contested consignment.

“It is clear that the court orders have been deliberately disobeyed. There is no dispute that the Kebs managing director was served with the orders, but instead of complying, he allowed himself to be misled by his officers,” ruled Mr Cheruiyot.

Attempted murder

The magistrate said Nguyo could not claim he could not access the fertiliser when the consignment was in protected storage with seals on the doors.

If Nguyo is found guilty, he could be sentenced to six months in jail or be fined for his actions.

Senior Counsel Paul Muite told the court the refusal to test the fertiliser was an attempt to lock out one company, OCP Kenya, from the lucrative job of distributing the commodity to farmers during the planting season.

“Kebs is assisting some cartels who have been benefiting from subsidised fertiliser. That is why they are refusing to retest the consignment in clear disregard of the court order. We do not understand why they oppose retesting if they believe the fertiliser has mercury,” said Mr Muite.

The case involves former Kebs MD Charles Ongwae, who is facing attempted murder charges alongside Eric Kiptoo, Peter Kinyanjui, Martin Nyakiamo, Pole Mwangeni, Erick Kirimi and Benson Oduor on claims they released tainted fertiliser to farmers.

The prosecution told the court Kebs was reluctant to take fresh samples from the 3,500 tonnes of fertiliser following speculation that chemical changes at the storage facility might have interfered with the traces of mercury.

But Muite dismissed the claims, arguing that mercury was a heavy metal that could last for over 100 years without being destroyed.

“The reason they preferred attempted murder charges is because mercury can stay in the soil for many years, get into the maize crops and affect humans. It is not possible for the traces to get lost when the storage facility is under their custody,” he said.

Hidden motive

Muite claimed the prosecution’s spirited fight to stop the retesting of the fertiliser after admitting that they had destroyed previous samples showed they had a hidden motive.

He added that the refusal by Kebs to retest the fertiliser was in violation of the rights of the accused to challenge the prosecution’s evidence given that the alleged samples that had been taken had been destroyed.

“The real fear is that OCP Kenya’s fertiliser is cheap and will retail at Sh2,500 with a high productivity rate of up to 20 per cent. If it was to be used, there would be no need for subsidised fertiliser, which retails at Sh3,500 per bag,” said Muite.

The court had been informed that fertiliser samples taken by investigators who found the consignment had mercury, had been destroyed, thereby leaving the court with no exhibits to prove if indeed the fertiliser was contaminated.

The magistrate then ordered that fresh samples be taken and retested in an independent laboratory in the presence of all the accused persons.