A court has denied Kirinyaga Women Representative Wangui Ngirici’s brother access to suspected poisonous contraband sugar confiscated by police from his godown.
Police seized the sugar in June, from the facility along the Eastern by-pass in Nairobi County. Suspecting that it was contaminated and unfit for human consumption, they took to the headquarters of the Directorate of Criminal Investigations (DCI).
Ms Ngirichi’s brother, Patrick Kuria Njiru, wanted permission to collect samples of the sugar for an independent analyst to test its safety.
In his application, Mr Njiru complained that he was in the dark since he did not know whether if samples had been collected or taken to an analyst.
He said the Anti-Counterfeit Agency (ACA) and the Director of Public Prosecution (DPP) had not communicated the results, so he did not know whether testing had been done.
The businessman, who trades as Paleah Stores Limited, added that he was apprehensive about the possibility of the mixture of his sugar with others.
Mr Njiru also noted that the agency that tests products for safety is the Kenya Bureau of Standards yet sugar analysis is being done by the Government Chemist, which is used in penal investigations, not quality assurance.
However, Justice Lucy Gitari, of the High Court in Kerugoya, ruled that the DCI has power to seize the commodity and conduct analysis to determine whether a crime had been committed.
She said the DCI has powers to test sugar for fitness for human consumption.
“This a mandate he has and performs independently, without direction or interference from any quarters. This was in the interest of the public. I hold that the sugar was properly seized. The applicant should therefore let the DCI do the analysis like it has done with sugar seized from other traders,” said Justice Gitari.
“In this case, the rights of the applicant and the larger public interest must be balanced. It is in the public interest that independent public bodies inform the public on the status of the commodity.”
The judge concurred with the DPP on the likelihood of chaos if every trader opts for independent testing and insists on the good quality of his commodity.
“This would erode public confidence in the process. That is why there are government agencies that do the analysis and file reports,” she explained.
“There is no confirmation that the sugar has been tested. It is premature for the applicant to apply for samples. The need for him to do analysis would depend on the outcome of the analysis by government agencies,” she said regarding Mr Njiru’s request for parallel analysis.
The court also heard that a number of business people whose sugar was confiscated have co-operated with agencies for testing and have received their results.
Mr Njiru said his problem concerned the manner in which the sugar was confiscated. He claimed procedures were flouted.
The businessman moved to court because Section 27 of the Anti-Counterfeit Act requires confiscators to keep the products in safe custody in their depots. He noted the requirement for the analysis to be done within five days.
The trader is also challenging his arrest and prosecution over the case that will be mentioned on November 26.