Nairobi — A plan to build cottages on part of land considered a traditional shrine, or kaya, has pitted two government agencies in what is promising to be a bruising legal battle.
Digo Kaya elders in Kwale district have vowed to resist attempts by private developers to sub-divide and develop the forest, warning that the move would destroy their cultural heritage.
Besides, Kaya Chale on Chale Island, about 20 kilometres from Diani on the south Coast, had been gazetted under the Antiquities and Monuments Act and was also part of the Diani Chale Marine Park, said the elders.
The controversy surrounding Kaya Chale has sucked in the National Museums of Kenya, which gazetted it in 1992 and the National Environment Management Authority (Nema), which has given a go-ahead for a cottages to be built on the land.
The museums curator in charge of the Coast forests conservation unit in Kwale, Mr Matano Abdulrahman said the area should be left intact because of its historic, cultural and scientific importance.
"The natural vegetation on the island is very unique ... it has a mixture of marine and terrestrial ecology with the presence of very old mangrove species whose size has never been sighted anywhere else in Kenya. There are also numerous Digo cultural shrines that are scattered all over the island," he said in a letter to Nema.
The environmental impact assessment for the cottages, which Nema approved, should be reviewed because it was done in full knowledge that the area was a gazetted monument, said Mr Abdulrahman.
But Nema said it was acting on the strength of documentation available from the Ministry of Lands and Settlement, which declares Chale Island as a settlement scheme.
In a letter to the museums dated September 18, 2006, the agency said it had conducted an official search and confirmed that plots 146,119,103 and 118, whose owner conducted the assessment to build cottages, was private land.
Kaya claims denied
Nema's argument is supported by a letter from former Kwale district commissioner Nathan Hiribae to the Cabinet secretary and head of civil service in February 19, 1999, quoting 15 elders denying that Chale Island was a kaya.
"It is my strong recommendation that degazettement be done as soon as possible so as to settle the squatters of Kinondo-Chale area," said Mr Hiribae at the time.
"It would be wrong for Nema to judge the title deeds issued by a government ministry as illegal and the individual who bought the land as unscrupulous. It is on this background that Nema has no reasons to totally reject the application but to grant the conditional approval," the letter signed by a Mr M O Mbegera for the Nema director-general reads in part.
In a letter dated August 28, 2006 to the developer, Kalsi Beach Cottages Chale Island, Nema gives its approval for the cottages with 12 conditions to be met by the developer.
But elders, led by the Kwale district elders' committee chairman, Mr Abdalla Ali Mnyenze, said the declaration of the island as a settlement scheme was suspect because there were no squatters in the area to benefit from such a programme.
Mr Mnyenze, who led a team of Digo elders to the site, said land adjudication in the areas around the island was done in the 1970s and would not understand why some people wanted to have a settlement scheme on such a rocky area.
"What we know is that some 15 acres of the land were allocated before the gazettement in 1992 but the remaining 41 acres are supposed to be intact and this is the area that we want to preserve through an integrated eco-tourism project," he said.
The controversy comes at a time when reviewers from Unesco are in the country to assess the Mijikenda Kayas, which have been nominated for listing as world heritage sites.
The elders have now threatened to invoke the wrath of their ancestors. They said anyone who would tamper with the kaya would face misfortunes from the curse of the ancestors.
Sulphur-rich mud-bath attracts tourists
Chale Island, which is currently steeped in controversy over whether it is a kaya (Mijikenda sacred forest) or a settlement scheme for squatters, is famous for its sulphur-rich mud-baths, and is a haunt for tourists due to its medicinal value.
Measuring about 50 acres, part of the island was allocated to a private developer before it was gazetted and an exotic tourist resort put up in the area.
It is home to rare species of mangroves, birds and the colobus monkeys, which are a great attraction to foreign and local visitors.
Although the local elders, who are opposed to its further development, believe the remaining area is intact, there is evidence that the island has been subdivided although the National Museums of Kenya gazetted it as a national monument in 1992.
A source told the Nation that people who benefited from the settlement scheme have sold their plots to private developers.
But the Kaya elders stress the area's cultural and religious significance, saying that all the investors who have put up properties gave sacrifices following a spate of misfortunes.
"The first investor who was allocated 15 acres of land and built the exclusive resort had to plead with the elders and had to slaughter several animals as sacrifice to appease the ancestors," they say.
"If this was not a sacred place, why did they have to do that?" Mzee Mnyenze wonders.