Eleven people facing attempted murder charges have questioned why the Director of Public Prosecutions Noordin Haji is opposed to fresh tests of the fertiliser, said to contain excess mercury.
The 11, among them former Kenya Bureau of Standards Managing Director Charles Ongwae, on Tuesday said it was in public interest that the tests be conducted to enable them prepare their defence.
Mr Ongwae, through lawyer Ken Nyaundi and Edward Oonge, accused the DPP of trying to suppress the truth. They also accused the DPP of trampling on their right to fair trial.
Mr Nyaundi said the DPP will suffer no prejudice if the court allows for fresh sampling and testing of the fertiliser, especially after it emerged that the samples tested last year, and which found heavy presence of mercury, had been destroyed. The lawyer said public fairness was about fairness.
Senior Counsel Paul Muite said that the tests conducted in June last year by a multi-agency team, was done in the absence of the accused persons against their rights.
Further, Mr Muite said the multi-agency team violated the Kebs protocol and the international standards, when they conducted the tests in the absence of the accused persons.
He said Ballore Transport logistics warehouse was still holding 65,000 bags of the said fertiliser. Mr Muite also asked High Court judge Daniel Ogembo to dismiss the application.
Senior assistant DPP Alexander Muteti urged the court to stop the fresh tests, pending the determination of an appeal they will file.
He said the appeal would be rendered useless if the orders are not granted.
"The duty of the court is to secure the ends of justice. We are seeking an order to preserve the subject matter until given an opportunity to argue our case," he said.
He said that the matter was of great public interest.
Principal Magistrate Kennedy Cheruiyot ordered Kebs to collect the samples from Ballore Logistics warehouse on Tuesday, carry out fresh tests and report to him on February 15.
But the DPP, who is doubting the credibility of the samples, says they could have been interfered with.
Mr Muite told the court that when the samples were collected on June 19, 2018 by a multi-agency team, each member signed a document confirming the locking or sealing of the warehouse and the premises which have since been put under 24-hour police surveillance.
BREACH OF TRUST
Other than Mr Ongwae, former director of quality control at Kebs Mr Erick Kiptoo, 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 Bolore Transport and Logistics Kenya ltd are facing charges. Others are Malika Karama, Younes Addou and OCP-K ltd.
Other than attempted murder, they denied charges of abuse of office, commission of a felony and breach of trust.
Mr Ongwae and other government officials are accused of unlawfully releasing to OCP (K) ltd, 5,846,000 kgs of substandard compound fertiliser which contained mercury. A ruling on the matter will be made tomorrow.