Suspended Kenya Bureau of Standards (Kebs) boss Charles Ongwae and directors of a private firm now want fresh tests done on fertiliser alleged to contain excessive mercury.
Making the application before senior principal magistrate Kennedy Cheruiyot on Tuesday, the accused persons, who are facing charges of attempted murder, said previous tests done by the importer, independent laboratories and Kebs did not detect any mercury as alleged.
Through Senior Counsel Paul Muite, OCP Ltd said the samples, which form the basis of the charges against its directors were extracted and unilaterally tested by Kebs, in their absence.
"Why did they not invite us for testing against the protocols and procedure of Kebs? The court has the authority to make the orders we are seeking," Mr Muite said.
Since the entire case hinges on whether the fertiliser was contaminated or not, the best way for the court to come to a just decision is to allow for fresh tests to be carried out, he added.
The firm argues that after the arrival of the consignment, it was informed by Kebs that the samples collected did not comply with specifications in terms of nitrogen and sulphur.
The importer later appealed for retesting, a request that was granted by Kebs in February and the results showed that the consignment was compliant.
The company was later allowed to release the fertiliser for sale and the issue of mercury did not arise until June 22, 2018 when the Director of Public Prosecutions authorised the charging of OCP Ltd directors, among other persons with attempted murder, Mr Muite said.
The DPP through prosecuting counsel Victor Owiti and Assistant DPP Alexander Muteti opposed the application saying there was no legal basis for another test.
Mr Owiti further said the application has been brought after undue delay and the results, if any, cannot be used to challenge the original results that Kebs got after tests done on samples which have already been destroyed.
Other persons charged in the case include Mr Eric Chesire Kiptoo- a former director of quality assurance at Kebs, Mr Peter Kinyanjui- the Inspection manager at the Kilindini Port, Mr Pole Mwangemi, the regional manager of the Coast region, Mr Erick Kariuki, the Port Health officer at Kilindini, Mr Karim Lofti and Mr Benson Oduor a supervisor with Bolloré Transport & Logistics. Others are Malika Kirama and Younes Addou and OCP (K) Ltd.
Other than attempted murder, the accused persons denied charges of abuse of office, commission of a felony and breach of trust.
The former government officials are accused of unlawfully releasing to OCP (K) ltd, 5,846,000 kgs of substandard compound fertiliser which contained mercury, a sustenance that endangers human life. It is alleged that they committed the offence between November 13, 2017 and June 7, 2018.
Mr Cheruiyot will rule on the matter on January 15.