Tourism and Wildlife Cabinet Secretary Najib Balala has suffered a blow after a Mombasa court barred the newly formed Mama Ngina Waterfront board from taking over the management of the public park, which was refurbished at a cost of Sh460million.
High Judge Patrick Otieno Monday issued orders restraining the board that had been put in place by Mr Balala from taking over the management of the park from the Mombasa County government.
The judge certified an application by Haki Africa, Institute for Land Governance and Human Rights and five others as urgent and directed that it be served on the Tourism and Wildlife Ministry and Attorney-General Kariuki Kihara.
The court also ordered the applicants to serve the Mombasa County government, the National Museums of Kenya (NMK) and the National Land Commission (NLC), who are listed as interested parties in the case, with the documents pending inter partes hearing.
“The applicant to file and serve the notice of motion within seven days and serve the same upon respondents and the interested parties within three days after service,” the judge ordered.
The petitioners argue that if the board is allowed to take over the management of the park, a number of local traders at the waterfront will be rendered destitute and will be unable to maintain their families.
“The current locals who are conducting businesses at the waterfront may be locked out from trading at the facility and licenses maybe issued to an exclusive group of affluent non-residents, companies and individuals who have the ability to pay huge [fees] to operate,” the applicants argued.
The petitioners also expressed fears that the park may be set aside exclusively for tourists and lock out locals from freely, and without payment of any fees, accessing the waterfront.
They want the takeover by the Tourism ministry be stopped arguing that it (the ministry) has no legal capacity to seek to manage the facility, which they argue is under the care of the NMK by provisions of the law.
The lobby groups and four Mombasa residents moved to court under a certificate of urgency to seek to have the gazette notice containing the appointment of the board quashed, citing illegality.
They are also seeking a permanent order prohibiting Mr Balala from appointing a management board to run the Mama Ngina Waterfront.
The applicants argue that the facility is on public land as described under Article 62(1) (a) and or (b) of the Constitution of Kenya and that it is vested and held by the Mombasa County government in trust on behalf of residents.
They say that the facility being public land held by the county, its administration is under the NLC and not the Tourism and Wildlife ministry.
“The Mama Ngina Waterfront includes historical sites and monuments that captures our heritage and for the said reason, its management was vested on the National Museums of Kenya by operation of the law,” the say.
Further, the petitioners argue that the park is under the county government, which is obliged by law to ensure that citizens within Mombasa participate in the planning of its development, which was not done.
“The CS Tourism and Wildlife ministry has no legal, constitutional and, or policy basis to seek to manage the Mama Ngina Waterfront in Mombasa,” Haki Africa Executive Director Hussein Khalid said.
Mr Balala has already appointed the board chaired by Kenya Ports Authority Managing Director Brown Ondego to manage the facility.
Literally, the CS’s move meant that the Ministry of Tourism and Wildlife had taken over the management of the waterfront, which has rubbed the applicants in the court case the wrong way.