The office of the Director of Public Prosecution now wants the court to disqualify Senior Counsel Paul Muite in ‘mercury’ fertilizer case.
In an affidavit sworn by the investigating officer CPL Moses Gituathi, there will be a conflict of interest in the case if Muite continues acting for Benson Oduor Ngesa and OCP (K) limited.
This according to the state is because Muite appears in the Kenya Bureau of Standards (KEBS) list of long-term retained counsel including in High Court judicial review No. 316/2018.
KEBS is said to have an interest in the current matter whereby the court ordered it to retest the fertilizer alleged to contain excessive mercury.
“Having acted for KEBS and will being retained by Ngesa and OCP is a classic case of conflict of interest which warrants the intervention of the court,” swears the IO in his affidavit.
According to the documents, the learned Counsel has had access to the statements of witnesses lined up by the prosecution hence his knowledge of the victims is now clear.
“The continued representation by the Counsel for the 7th (Ngesa) and 11th (OCP) accused persons in this case with the apparent conflict of interest is an affront to the administration of justice in this case,” adds the officer.
Trial magistrate Kenneth Cheruiyot directed that the application be heard on 24th April.
At the same time, the court issued summons to the Chief Manager customs KRA at Kilindini port, Abdi Malik for disobedience of court orders.
The court directed Malik on 13th March 2019 to facilitate the access to the warehouse where the fertilizer is stored by removing the seals.
The sampling was to be done on 25th and the retest was to be done on 26th March.
This however, was not done since they were not granted access by Malik after travelling all the way for the exercise.
In the case, the accused persons are former KEBS MD Charles Ongwae, Erick Cheshire, Peter Kinyanjui, Martin Muswanya, Pole Mwangeni, Benson Oduor Ngesa, Karim Lofti, Malika Kirama, Younes Addou and OCP (K) limited.
They are charged with attempted murder and abuse of office for allowing substandard fertilizer into the country.