The ghost of 10,000 bags of substandard brown sugar, irregularly released into the Kenyan market in 2018, has returned to haunt importers and a port health officer five years later.
This is after the High Court quashed their acquittal and directed them to return to court to explain why they released the consignment.
On Tuesday, they were arraigned at a Mombasa court, which directed that they return on September 2.
Justice Ann Ong'injo had ruled that being importers and agents of importers and exporters, the five people must have been conversant with the requirements that they ought to have been issued with documents that allowed them to have their goods released from the port and a document to show that they were fit for consumption.
The judge further noted that there ought to have been an explanation as to how a document produced in court and dated September 4, 2018, related to the brown sugar that was released on July 11, 2018.
“There was no better person to give that explanation other than the respondents by being placed on their defence. This court finds that the evidence that was tendered against the respondents established a prima facie case for purposes of finding that they have a case to answer,” said Justice Ong'injo.
However, the Judge noted that the magistrate court will determine whether the said evidence on record will meet the threshold for convicting the respondents at the end of the trial.
“This appeal has merit and is hereby allowed. The matter is remitted to the trial court for the hearing of the defence case and determination,” said the judge in her June 27 ruling.
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Port Health Head Peter Nzui Chidenge, Air Menzies International company director Ali Abdi Mohamed and his Flora Bakers Ltd counterparts Hassan Abdi Mohamed and Abdulahi Abdi Mohamed were in 2019 acquitted by the magistrate court for lack of sufficient evidence to put them on their defence.
However, the Office of the Director of Public Prosecution (ODPP) appealed to the High Court, lamenting that the five were acquitted despite overwhelming evidence of their participation in the irregular release of the brown sugar into the market.
“The trial magistrate erred in law and facts in acquitting the respondents despite the evidence placed before it,” the ODPP said in its appeal.
The ODPP relied on the testimony of Public Health officer Florence Kamula, who stated that the results of the analysis had not been received at the Port Health office by the time Mr Chidenge stamped and authorized the release of substandard sugar on July 11, 2018.
The state argued that the act of releasing goods without having received the results from the government chemist constituted a clear case of abuse of office by Mr Chidenge.
“This fact alone ought to have justified Mr Chidenge being put on his defence by the trial court to give an account of the circumstances that led to the release of the substandard sugar in the absence of its results. That is a clear disregard of the prosecution’s evidence,” said ODPP.
Flora Bakers Ltd imported the goods in question into the country. It then engaged Air Menzies International to serve as its clearing agent after the cargo arrived at Kilindini Port.
Samples were taken and subjected to various analyses to confirm whether the consignment complied with the requirements set by Kebs and East African Standards for brown sugars.
This was after a red alert of importation of sub-standard sugar had been issued. But the court heard Mr Chidenge authorized the release of the consignment before the results from samples taken were out.
The goods were also released without a release order, considering that the consignments were held following the issuance of a seizure notice.
Kebs later claimed that the consignment was substandard, leading to the arrest and prosecution of several of its employees alongside others from Kenya Revenue Authority (KRA), Port Health, the importer and the clearing company that was involved in the transaction.
Those charged include Ms Vivian Moraa Rioba (KRA Custom Head Verification Officer), verification officers Ms Monica Waceke and Stephen Ochieng, Mr Samuel Onjolo, Daniel Samuel Musta and Mr Chidenge.
The state accused them of releasing the sugar with high moisture content into the country, willful disobedience of statutory duty, abuse of office and breach of trust.
They were accused of willfully causing to be released to the public 10,000 bags of 50kgs bags of Egyptian brown sugar that failed to comply with the requirements of Kenya standards that ought to have been destroyed.
However, Senior Resident Magistrate Christine Ogweno heard the case and found that there was no point pressing charges against the importer, its directors and Mr Chidenge and the clearing agent when results had shown the consignment was not substandard and acquitted them.
However, following the High Court ruling, they must return to the magistrate court to defend themselves.
