Mugumo Munene
11 July 2009
Nairobi — A British millionaire who wants to build luxury apartments at the Kenyan coast has lost the first round of a battle seen as key to the future of local marine life.
The developer, operating under two companies Medina Residence Ltd and Medina Palms Ltd has lost the right to put up 50 luxury apartments at the tourist resort of Watamu in Malindi after the National Environment Tribunal cancelled licences issued by the National Environmental Management Authority.
The case was brought before the tribunal by seven property owners who live in the neighbourhood of the disputed six-acre site. They are Richard Evans, Melinda Rees, Joseph Maseland, William Gorman, Nigel C. Watson, Lau Larsen and Rodney Kendal Evans.
The developer has since filed a case in the High Court challenging the tribunal's decision.
In its ruling, the tribunal, a quasi-judicial body set up to arbitrate environmental disputes, cited numerous risks to the environment and breaches of law, as well as the lack of a sewerage system in the area. It ruled that the development, which has been widely advertised internationally through the Internet, would endanger marine and wildlife in the adjacent Watamu Park and block access to the beach contrary to the law.
The development targeted wealthy overseas potential holiday homebuyers who are invited to buy "a piece of paradise in Kenya". The Kenyan coastal resorts have in the past attracted wealthy businessmen and celebrities such as Formula One boss Flavio Briatore and British supermodel Naomi Campbell.
They are among the fabulously rich foreigners and Kenyans who own dream holiday homes on beachfronts. The advert on the website promoting the Medina development reads:
"Welcome to Kenya -a land famed for its natural beauty, incredible scenery and abundance of rare and amazing wildlife. Kenya has long been a favourite destination for exotic holidays. On the Indian Ocean, Medina Palms offers you a chance to own a piece of paradise.
Exclusive collection
"Located on the Kenyan coast, Medina Palms is an exclusive collection of beach villas, penthouses and apartments all with direct access to the powder white sandy beaches of the Watamu National Marine Park. The warm turquoise waters of the Indian Ocean provide world-class deep-sea fishing, scuba diving, kite surfing and many other exciting water sports. Kenya offers some of the best and most accessible game viewing in the world."
But the road to paradise and the Watamu development has been blocked, at least for now.
"It should be noted that where an environmentally inappropriate development is allowed to proceed, that tends to send a message that even development projects that have actual and potential negative impacts on the environment are acceptable," the tribunal said in its judgment, delivered on May 29, 2009.
The tribunal raises questions about how Nema the official agency established to protect Kenya's environment -- has been discharging its mandate. Nema is, for instance, expected to balance development interests and environmental conservation before it can issue such licences.
In the Watamu case, the tribunal found that Nema had erred in law by issuing two licences to two different companies on the same day for the same development.
The developer had also failed to fully and accurately disclose the scope of the project as required by law, said the tribunal chaired by Donald Kaniaru.
Other members of the tribunal are Dwasi Jane, Joseph Njihia and Stanely Waudo.
The team found that the developer, or at least one of the companies sponsoring the project, had not obtained approvals from the Malindi Municipal Council. The Kenya Wildlife Service which runs the neighbouring marine park was not properly consulted, said the tribunal.
But the lion's share of the blame has been placed at Nema's doorstep.
"Clearly, Nema approved the development without critical information about its exact nature and magnitude," the tribunal ruled. "Another critical fact that was not disclosed was the developer's intention to sell the buildings to private owners upon completion."
Watamu beach, ranked amongst the top 10 beaches in the world, falls within the Watamu Marine Park, a world-famous biosphere located 20 km south of Malindi on the Kenyan coast. It represents a fragile breeding ground for turtles as well as black-tipped sharks.
The Watamu Marine Park lies adjacent to Mida Creek, a world-famous bird sanctuary that attracts scientists, orinthologists and other nature enthusiasts from all over the world.
The area was designated a protected marine park in 1968 and is now under the control of the KWS.
It has since been recognised as a World Biosphere Reserve. Offshore, this marine reserve is part of the migratory route for whale sharks, blue and striped marlin, tuna and swordfish. The area is also a breeding ground for Indian Ocean sailfish.
The British developer obtained licences from Nema to build a residential housing estate on Turtle Bay on a plot adjoining the marine park in 2007. A number of residents who felt the project would affect them appealed to the tribunal in August 2008, arguing that the developer had failed to provide the true nature of the proposed development in his application to Nema.
The hearing of the case took place between December 2008 and April 2009 and included visits by the tribunal to the proposed site and appearances by witnesses and experts in Malindi and Nairobi Nema appeared before the tribunal as the first defendant. Evidence was also adduced by witnesses for the developer the second defendant but not the developer himself.
The ruling follows a similar one in which the tribunal recently stopped a proposed development on a coral headland in Blue Bay lagoon, to the north of Turtle Bay, and revoked its Nema licence.
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