Former Kenya Bureau of Standards (Kebs) Managing Director Charles Ongwae and others charged with attempted murder and illegally importing 5,846,000 bags of fertiliser worth Sh882 million that contained mercury have been dealt a major setback after the High Court refused to dismiss their criminal case.
In a ruling delivered by Justice Antony Mrima, the court denied an attempt to halt their prosecution, stating that ending the criminal proceedings would hinder rather than advance the rule of law.
Mrima dismissed a petition filed by former Kenya Bureau of Standards Managing Director Charles Ongwae and ex-Coast regional manager Martin Muswanya Nyakiamo.
He has been charged alongside Bollore Transport and Logistics Company supervisor Benson Oduor Ngesa and warehouse manager Stephen Boaz Oloo.
The four wanted the court to declare their prosecution an infringement on their right to equality before the law.
They also sought a declaration that their trial was oppressive, malicious and an abuse of the court, adding that it goes against the rules of natural justice.
But the judge said the termination of the criminal case would frustrate, instead of advancing, the rule of law.
“The petitioners still have constitutional safeguards in respect of their rights even when undergoing the trial.
They will also be accorded an opportunity to challenge the veracity of the evidence, including whether such evidence was properly obtained,” said Justice Mrima.
Ongwae and his co-accused had sought to have their criminal case terminated claiming that their right to fair trial had been violated by the DPP through malicious prosecution.
The accused persons are facing several charges among them attempted murder, aiding the commission of a felony, abuse of office, breach of trust and selling substandard fertiliser.
In May 2019, the DPP withdrew charges of attempted murder charges against Malika Karama and Younes Addou, the directors of a Moroccan company known as OCP (K) Ltd that imported fertiliser said to contain excess mercury.
In questioning the plea-bargaining agreement of the DPP and the five accused persons, the petitioners said the contentious consignment was later released to OCP(K) without conditions.
Nyakiamo maintained that though proper conduct dictates that Kebs has an obligation to either reship the contaminated fertiliser back to the country of origin or destroy it, the agency released it to the importer.
He said it was the same consignment that was the subject matter of the criminal case that he was charged in.
The court heard that in September 2019, OCP(K), via a newspaper advertisement, published results of a retest that it had conducted and whose results confirmed that the consignment could be safely released to the Kenyan market.
The results were at a variance with the initial test conducted by Kebs. In the former, there were allegations of contamination of the fertiliser.
But the judge said the court was not persuaded that there was any form of discrimination against the petitioners in the plea-bargain entered by the DPP and the importer.
“Whereas the petitioners may still have reservations against the plea-bargain agreement between the DPP and the five accused persons, such do not crystallise into any form of discrimination,” said Justice Mrima.
The petitioners had argued that the plea agreement was improper since OCP(K) was the owner and importer of the alleged substandard consignment. However, Justice Mrima noted that at the time the plea deal was being adopted by the trial court, none of the petitioners objected to it.
The agreement discharged the accused persons under Section 87(a) of the Criminal Procedure Code on the basis that they had not been heard by the investigators and the prosecutor before the decision to charge them was made and on the basis of new evidence, which had emerged.
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