Eleven officials facing charges of attemptemurder on Monday questioned why the Director of Public Prosecutions Noordin Haji was opposed to fresh tests of the fertilizer alleged to contain excessive mercury.

The 11 among them former Kenya Bureau of Standards managing director Charles Ongwae said it was in public interest that the tests be conducted as quickly as possible to enable them prepare their defence.

Mr Ongwae through lawyer Ken Nyaundi said it was shocking to hear that the DPP was geared towards suppressing the truth and trampling on their rights to fair trial.

Mr Nyaundi said no the DPP will suffer no prejudice if the court allows for fresh sampling and testing of the fertilizer, 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 not public lynching but about fairness.

The sentiments were supported by Senior Counsel Paul Muite who 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 to fair administrative action.

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 logistics warehouse was still holding 65,000 bags of the said fertilizer and the facility was under police guard, for 24 hours.

Mr Muite also asked High Court judge Daniel Ogembo to dismiss the application saying the DPP has not of appeal because he was not appealing against an acquittal, refusal to admit a charge of the dismissal of a charge.
The DPP through 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, adding that the matter was of great public interest.

Justice Ogembo will rule on the matter on February 13.