Five people among the 11 charged with attempted murder in the case relating to the ‘mercury’ fertilizer have been acquitted.
The five, Benson Oduor Ngesa, Karim Lofti, Malika Kirama, Younese Addou and OCP Kenya Limited were acquitted by trial magistrate Kenneth Cheruiyot after a plea successful bargaining Agreement with the Director of Public Prosecution.
The DPP, through his Senior Assistant Director Alexander Muteti urged the court to adopt the plea agreement and discharge the five accused persons from the case owing to new facts availed.
“The plea agreement is made without prejudice to the criminal case 1151/2018 as against the other six accused persons and is made pursuant to new facts availed to the prosecution by the accused persons that clearly indicates that the decision to charge was made without the full benefit of the full factual scenario being provided to the investigators and the prosecution by all accused person in the matter,” states the DPP.
The court heard that Karim Lofti, Malika Kirama, Younese Addou and OCP not having been heard by the investigators before the decision to charge was made since they were out of jurisdiction, provided information and documents that have given a new dimensions to the matter prompting a review of decision to charge based on new facts and it is on that basis the charge against the parties have been withdrawn.
The terms of the plea bargaining agreement are that the acquitted persons shall unconditionally withdraw the application filed by Ngesa and supported by the other four accused persons for retesting of the fertilizer that is the subject of the criminal trial pursuant to this agreement.
The parties further agreed that the investigating officer shall concurrently release the impounded consignment of fertilizer held at Ballore warehouse in Mombasa to OCP (K).
The court heard that at the time of filing the plea agreement, the acquitted persons had recorded their statements and supplied the necessary supporting documentation, information and evidence to the investigating officer.
“The parties shall fully cooperate with the DPP in seeking justice in relation to this matter and the the parties undertake not to lay any claim for damages or any other relief as a result of the action taken by the government in pursuit of/or related to the investigations and prosecution of this case in future either locally or internationally,” states the agreement.
The other accused persons now left to fight their battle are former Kenya Bureau of Standards MD Charles Ongwae, Eric Cheshire Kiptoo, Peter Kinyanjui Ndung’u, Martin Muswanya Pole Mwangeni and Eric Kariuki Kirimi.
They have alleged to have allowed into the country a shipment of fertilizer that contained excess mercury.
It is alleged that the fertilizer did not meet the Kenyan standard specifications but was still released to the market, endangering the lives of Kenyans.