Court rejects bid to declare Ruto’s foreign traders directive unlawful

The High Court has declined to declare President William Ruto's pronouncement on foreign nationals operating small businesses in Kenya unlawful, ruling that there was insufficient evidence that the remarks resulted in unconstitutional enforcement measures.

Justice David Mburu dismissed a constitutional petition challenging the President's September 2, 2026 remarks, finding that the petitioner had not demonstrated that the government enforced restrictions contained in proposed legislation before it became law.

The petitioner, Benedict Wandeto, had argued that Ruto directed government agencies to begin enforcing restrictions against foreign nationals operating certain businesses within five days, despite the proposed Local Content Bill 2025 still being before Parliament.

The Local Content Bill, 2025 is a proposed law intended to ensure that foreign companies operating in Kenya give priority to Kenyan businesses, workers, suppliers and locally produced goods.

He sought declarations that the presidential pronouncement was unconstitutional, null and void, as well as orders prohibiting government agencies from implementing the alleged directive.

However, in his judgment delivered on Thursday, Justice Mburu said a Bill pending before Parliament could not be enforced through executive or administrative action.

"I agree with the petitioner that a bill pending before Parliament has no force of law and cannot, without an independent existing legal basis, be enforced through executive or administrative actions," the judge observed.

The Executive, he added, could not anticipate the enactment of proposed legislation and impose restrictions whose legal foundation depended exclusively on that legislation.

Nevertheless, the judge found that Wandeto had not established that the government actually enforced provisions of the pending Bill or issued a binding administrative instrument to implement the proposed restrictions.

"The petitioner has not identified a prohibition of the pending local content bill 2025 that was actually enforced against an identifiable person or business pursuant to the impugned pronouncement," Justice Mburu said.

The respondents, through the Attorney General, had maintained that the President was expressing government policy intentions and that any enforcement measures would be undertaken under existing immigration, licensing and business laws.

They also argued that the government had introduced a 90-day regularisation period to allow foreign nationals operating businesses in Kenya to comply with immigration requirements, work permits and business registration rules.

The court noted that the government had subsequently issued clarifications and assured affected persons that enforcement would be conducted under existing laws.

Justice Mburu further rejected claims that the presidential remarks violated constitutional protections against discrimination, freedom of movement, property rights and the right to fair administrative action.

He observed that although foreign nationals are protected against unlawful discrimination, the petitioner had not demonstrated that any identifiable person had suffered an adverse administrative decision solely because of their nationality.

"The petitioner has not proved the alleged violations of articles 27, 39, 40, and 47 of the Constitution to the required standard," he ruled.

The petitioner had also argued that the pronouncement violated Kenya's obligations under the East African Community Treaty, the Common Market Protocol and the African Charter on Human and People's Rights.

However, the judge found no sufficient evidence that the government had implemented a prohibition or undertaken mass expulsions or deportations contrary to the regional and international instruments.

Although the judge agreed that the petition raised constitutional issues that deserved the court's consideration, he declined to grant the orders sought, including one to quash the alleged directive.

The directive triggered anxiety among foreign traders, with hundreds of Burundian nationals flocking to their embassy in Nairobi seeking travel documents amid fears of harassment and possible closure of their businesses.

Some traders also reported intimidation and attacks, prompting the government to clarify its position.

On September 8, State House announced a 90-day window for foreign nationals to regularise their immigration status, work permits, business registration and licences before strict enforcement of existing laws.

The government also warned against harassment and intimidation of foreign nationals.