LEGAL OPINION FOR MS. MUNA IN CHALLENGING NUDA’S ACTIONS AND
SEEKING LEGAL REDRESS.
My name is Omondi Elseba Akinyi, legal advisor to Ms. Muna who’s the owner of Muna
Beauty Supplies. Ms. Muna’s enterprise was shut down by County enforcement Officers
claiming to act on instructions from NUDA [National Urban Development Authority] for not
complying to the Nationwide Urban Compliance Directive [NUCD] that was issued by them.
However, the shutting down of her business was done in a way that violated her
constitutional rights and additionally NUDA’S actions during the whole process were
procedurally flawed.
This opinion therefore identifies the legal issues, evaluates the constitutionality and legality
of NUDA’S conduct and recommends remedies available under Kenyan Administrative and
constitutional law.
FACTS OF THE CASE.
Kenya established the National Urban Development Authority (NUDA) through an
amendment to the Urban Areas and Cities Act. Although NUDA was only mandated to
coordinate national urban planning standards, it issued a Nationwide Urban Compliance
Directive (NUCD) requiring all small and medium businesses in designated urban centres to
obtain a new Urban Operating Certificate (UOC) within 60 days and to pay a new 3% urban
efficiency levy. NUDA also ordered the immediate closure of any non-compliant business.
The directive was not gazetted, not subjected to public participation, and not developed in
consultation with county governments. NUDA published it only on its website and social
media pages. County enforcement officers, claiming to act on NUDA’s instructions, began
shutting down businesses, including Muna Beauty Supplies, a small, women-owned business
in Nakuru. NUDA officials refused to provide reasons for the closure or any avenue for
appeal. Around the same time, journalists exposed that NUDA officials had been holding
private meetings with multinational retail corporations seeking entry into Kenya. Leaked
emails suggested that the NUCD was intended to push out local traders to create space for
these corporations.
These facts however raise certain issues and they include:
1. Whether NUDA acted ultra vires its statutory mandate by issuing a nationwide urban
compliance directive despite lacking regulatory or licensing powers under the Urban
Areas and Cities Act.
2. Whether NUDA violated mandatory procedural requirements by failing to gazette the
directive, conduct public participation, or consult county governments and other
affected stakeholders prior to issuing the NUCD.
3. Whether county enforcement officers acted unlawfully by shutting down non-
compliant businesses on the basis of NUDA’s directive, despite NUDA lacking any
lawful enforcement authority.
4. Whether NUDA violated Article 47 of the Constitution and the Fair Administrative
Action Act by refusing to provide reasons for the closure of businesses and by failing
to offer any avenue for review or appeal.
5. Whether NUDA’s private meetings with multinational retail corporations, and the
alleged intention to displace local traders, constitute bad faith, abuse of power, and
exercise of administrative authority for an improper purpose.
, My client hereby seeks to challenge NUDA’S actions and to seek legal redress for violation
of his constitutional rights in regard to the following issues:
1. ULTRA VIRES EXERCISE OF POWER BY NUDA
Ultra vires is a latin term that means “beyond the powers”.
In law, it refers to a situation where a public body or government authority, acts outside the
legal powers given to it by the constitution or statute.
Normally, public bodies are creatures of statute thus they only have the powers the law gives
them. If they go beyond those power, their actions become invalid and unconstitutional with
the capability of being quashed by judicial review. This can be affirmed in the case of
1
Keroche Industries Ltd V K.R.A. [2007] eKLR where the High Court sided with Keroche,
quashing the assessment notices and finding K.R.A’S actions amounted to an abuse of power,
stating K.R.A must act within the law and not by “impression or perception”
In addition, 2Article 2 [1] of the constitution of Kenya 2010 states that all state organs and
persons are bounded by the constitution which is the supreme law.
Therefore, NUDA acting beyond its statutory mandate which was to coordinate national
urban planning standards by issuing a regulatory directive despite lacking licensing or
enforcement powers was ultra vires. All the directives they issued are therefore to be
considered illegal and void ab initio.
NUDA might however argue that they were working under the Implied powers doctrine or
the Curative provisions and De minis doctrine which are limitations of Ultra vires. This
defence would however not be sufficient as the doctrines state that a public body may
exercise powers reasonably necessary to carry out its express mandate but the implied
powers: cannot contradict the statute, cannot create new taxes, penaltis or licenses. Simply,
courts allow implied powers only when they are necessary and not convenient.
In conclusion, NUDA’S actions were ultra vires violations that cannot be excused or cured.
2. PROCEDURAL IMPROPRIETY: FAILURE TO FOLLOW MANDATORY
LEGAL PROCEDURES.
Under Article 10 [2] [a] of the Kenyan Constitution 2010, it is stated that the national vaues
3
and principles of governance incude: patriotism, national unity, sharing and devolution of
power, the rule of law, democracy and participation of the people.
In addition, the public service principles are listed in 4Article 232 [1] [c] and [d] of the
Kenyan Constitution 2010, they include: responsive, prompt, effective, impartial and
equittable provision of services and also involvement of the people of Kenya in the prcess of
policy makng.
These articles therefore highlight the importance of public participation.
Apart from the constitution, Kenya has several statutes that regulate how authorities issue
directives too, they include: 5Section 2 of the Statutory Instruments Act 23 of 2013, which
defines statutory instruments and in addition 6Section 22 [1] of the same act that states that
subject to subsection [2], every statutory instrument shall be published in the Kenya Gazette
and shall be assigned a serial number as the year in which it is made which shall be printed
1
Keroche Industries Ltd V Kenya Revenue Authority [2007] eKLR.
2
Constitution of Kenya 2010, art 2 (1).
3
Constitution of Kenya 2010, art 10 (2) (a).
4
Ibid, art 232(1) (C)-(d).
5
Statutory Instruments Act (No 23 of 2013), s2.
6
Ibid, s22 (1).
SEEKING LEGAL REDRESS.
My name is Omondi Elseba Akinyi, legal advisor to Ms. Muna who’s the owner of Muna
Beauty Supplies. Ms. Muna’s enterprise was shut down by County enforcement Officers
claiming to act on instructions from NUDA [National Urban Development Authority] for not
complying to the Nationwide Urban Compliance Directive [NUCD] that was issued by them.
However, the shutting down of her business was done in a way that violated her
constitutional rights and additionally NUDA’S actions during the whole process were
procedurally flawed.
This opinion therefore identifies the legal issues, evaluates the constitutionality and legality
of NUDA’S conduct and recommends remedies available under Kenyan Administrative and
constitutional law.
FACTS OF THE CASE.
Kenya established the National Urban Development Authority (NUDA) through an
amendment to the Urban Areas and Cities Act. Although NUDA was only mandated to
coordinate national urban planning standards, it issued a Nationwide Urban Compliance
Directive (NUCD) requiring all small and medium businesses in designated urban centres to
obtain a new Urban Operating Certificate (UOC) within 60 days and to pay a new 3% urban
efficiency levy. NUDA also ordered the immediate closure of any non-compliant business.
The directive was not gazetted, not subjected to public participation, and not developed in
consultation with county governments. NUDA published it only on its website and social
media pages. County enforcement officers, claiming to act on NUDA’s instructions, began
shutting down businesses, including Muna Beauty Supplies, a small, women-owned business
in Nakuru. NUDA officials refused to provide reasons for the closure or any avenue for
appeal. Around the same time, journalists exposed that NUDA officials had been holding
private meetings with multinational retail corporations seeking entry into Kenya. Leaked
emails suggested that the NUCD was intended to push out local traders to create space for
these corporations.
These facts however raise certain issues and they include:
1. Whether NUDA acted ultra vires its statutory mandate by issuing a nationwide urban
compliance directive despite lacking regulatory or licensing powers under the Urban
Areas and Cities Act.
2. Whether NUDA violated mandatory procedural requirements by failing to gazette the
directive, conduct public participation, or consult county governments and other
affected stakeholders prior to issuing the NUCD.
3. Whether county enforcement officers acted unlawfully by shutting down non-
compliant businesses on the basis of NUDA’s directive, despite NUDA lacking any
lawful enforcement authority.
4. Whether NUDA violated Article 47 of the Constitution and the Fair Administrative
Action Act by refusing to provide reasons for the closure of businesses and by failing
to offer any avenue for review or appeal.
5. Whether NUDA’s private meetings with multinational retail corporations, and the
alleged intention to displace local traders, constitute bad faith, abuse of power, and
exercise of administrative authority for an improper purpose.
, My client hereby seeks to challenge NUDA’S actions and to seek legal redress for violation
of his constitutional rights in regard to the following issues:
1. ULTRA VIRES EXERCISE OF POWER BY NUDA
Ultra vires is a latin term that means “beyond the powers”.
In law, it refers to a situation where a public body or government authority, acts outside the
legal powers given to it by the constitution or statute.
Normally, public bodies are creatures of statute thus they only have the powers the law gives
them. If they go beyond those power, their actions become invalid and unconstitutional with
the capability of being quashed by judicial review. This can be affirmed in the case of
1
Keroche Industries Ltd V K.R.A. [2007] eKLR where the High Court sided with Keroche,
quashing the assessment notices and finding K.R.A’S actions amounted to an abuse of power,
stating K.R.A must act within the law and not by “impression or perception”
In addition, 2Article 2 [1] of the constitution of Kenya 2010 states that all state organs and
persons are bounded by the constitution which is the supreme law.
Therefore, NUDA acting beyond its statutory mandate which was to coordinate national
urban planning standards by issuing a regulatory directive despite lacking licensing or
enforcement powers was ultra vires. All the directives they issued are therefore to be
considered illegal and void ab initio.
NUDA might however argue that they were working under the Implied powers doctrine or
the Curative provisions and De minis doctrine which are limitations of Ultra vires. This
defence would however not be sufficient as the doctrines state that a public body may
exercise powers reasonably necessary to carry out its express mandate but the implied
powers: cannot contradict the statute, cannot create new taxes, penaltis or licenses. Simply,
courts allow implied powers only when they are necessary and not convenient.
In conclusion, NUDA’S actions were ultra vires violations that cannot be excused or cured.
2. PROCEDURAL IMPROPRIETY: FAILURE TO FOLLOW MANDATORY
LEGAL PROCEDURES.
Under Article 10 [2] [a] of the Kenyan Constitution 2010, it is stated that the national vaues
3
and principles of governance incude: patriotism, national unity, sharing and devolution of
power, the rule of law, democracy and participation of the people.
In addition, the public service principles are listed in 4Article 232 [1] [c] and [d] of the
Kenyan Constitution 2010, they include: responsive, prompt, effective, impartial and
equittable provision of services and also involvement of the people of Kenya in the prcess of
policy makng.
These articles therefore highlight the importance of public participation.
Apart from the constitution, Kenya has several statutes that regulate how authorities issue
directives too, they include: 5Section 2 of the Statutory Instruments Act 23 of 2013, which
defines statutory instruments and in addition 6Section 22 [1] of the same act that states that
subject to subsection [2], every statutory instrument shall be published in the Kenya Gazette
and shall be assigned a serial number as the year in which it is made which shall be printed
1
Keroche Industries Ltd V Kenya Revenue Authority [2007] eKLR.
2
Constitution of Kenya 2010, art 2 (1).
3
Constitution of Kenya 2010, art 10 (2) (a).
4
Ibid, art 232(1) (C)-(d).
5
Statutory Instruments Act (No 23 of 2013), s2.
6
Ibid, s22 (1).
