Why court dismissed petition against Ruto’s foreign traders announcement

President William Ruto’s controversial remarks on foreign nationals running small businesses in Kenya have survived a constitutional challenge after the High Court found no evidence that his proposed restrictions were put into force by government agencies.

In a judgment delivered on Thursday, Justice David Mburu dismissed a petition by Benedict Wandeto, who wanted the President’s September 2, 2026 pronouncement declared unlawful, ruling that the alleged directive had not been shown to result in any unconstitutional government action.

Wandeto had accused Ruto of directing state agencies to begin restricting foreign nationals from operating certain businesses within five days, even though the Local Content Bill 2025, which contains the proposed restrictions, had not been approved by Parliament.

The proposed legislation seeks to protect local enterprises by giving Kenyan businesses, workers, suppliers and locally manufactured products priority in commercial activities involving foreign companies.

The petitioner asked the court to invalidate the President’s remarks and stop government agencies from enforcing the restrictions before Parliament passed the Bill.

In considering the case, Justice Mburu agreed that the Executive had no authority to implement provisions of proposed legislation before they acquired the force of law.

"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.

He explained that government agencies could not rely on a Bill still undergoing the legislative process to introduce restrictions whose legal authority depended on its eventual enactment.

However, the judge said the petition fell short of establishing that such action had actually taken place.

Wandeto had not presented evidence of a foreign trader or business that had been subjected to the proposed restrictions, nor identified an official government instrument directing agencies to enforce the pending legislation.

"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 Attorney General, appearing for the respondents, maintained that Ruto was outlining the government's policy intentions rather than announcing an immediate enforcement of the proposed Bill.

The government further argued that any action involving foreign nationals would be based on existing immigration, licensing and business regulations.

It also told the court that authorities had introduced a 90-day window to give foreign traders time to regularise their immigration status, work permits and business registration requirements.

Justice Mburu noted that subsequent government statements had clarified the position and assured affected traders that enforcement would follow existing laws.

The court also examined claims that the President's remarks violated constitutional guarantees on equality, freedom of movement, property rights and fair administrative action.

While acknowledging that foreign nationals are protected against unlawful discrimination, the judge said the petitioner had failed to demonstrate that any identifiable person suffered an adverse administrative decision 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 petition also raised concerns over 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 court found no sufficient evidence of government action involving prohibited restrictions, mass expulsions or deportations that would amount to a breach of the regional and international agreements.

Although Justice Mburu acknowledged that the case raised important constitutional questions, he declined to grant the declarations sought or issue orders stopping the alleged directive.

Ruto's September announcement had triggered anxiety among foreign nationals operating businesses in the country, with hundreds of Burundians turning up at their embassy in Nairobi to seek travel documents over fears of harassment and possible closure of their enterprises.

Reports of intimidation and attacks against some foreign traders also emerged, forcing the government to clarify the President's position.

On September 8, State House announced a 90-day grace period during which foreign nationals were expected to regularise their immigration status, work permits, business registrations and licences before stricter enforcement of existing laws.

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