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Court of AppealPartially AllowedCivil Appeal Nos. 595 of 2023, 602 of 2023 and 615 of 2023 (Consolidated)· [2024] KECA 1152 (KLR)

Samasource EPZ Limited t/a Sama v Meta Platforms, Incorporated & 186 others; Kenya Human Rights Commission & 8 others (Interested Parties) (Civil Appeal E595 of 2023) [2024] KECA 1152 (KLR)

Court of Appeal of Kenya
20 September 2024
10,592 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~42 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal overturned sweeping interim orders against Meta, ruling judges cannot decide contested facts before a full hearing.

What this practically means

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Executive summary

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This consolidated judgment of the Court of Appeal (Musinga, P, Asike-Makhandia and Mativo, JJA) determines three appeals against an interlocutory ruling of Ongaya, J. in the ELRC constitutional petition by Facebook content moderators against Samasource EPZ Limited, Meta Platforms Incorporated, Meta Platforms Ireland Limited and Majorel Kenya Limited. The trial court had granted sweeping interim orders, including injunctions restraining implementation of a redundancy, extension of expiring contracts, provision of medical and psychiatric care, regularization of moderators' immigration status, and directions to interested parties to review law and policy. The Court of Appeal held that the learned judge impermissibly made conclusive findings of fact and law at the interlocutory stage - including determining that Meta entities were the principal employers and that content moderation work had caused mental illness - effectively writing a final judgment. Applying Zweni and the principle that effect predominates over form, the Court found the orders were final in substance. It further held that the mandatory injunctions failed the heightened threshold requiring special circumstances, and that the Article 23 power to fashion remedies is not an open licence and cannot override the right to a fair trial. The Court also held that no appeal lay against findings striking out affidavits where no order issued. The appeals were allowed in their entirety: the ruling of 2nd June 2023 was set aside together with all consequential orders, the moderators' application dated 17th March 2023 was dismissed, and each party was ordered to bear its own costs. The main petition remains pending before the trial court.

Key legal issues

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01

Whether a trial judge may make conclusive findings of fact and law at the interlocutory stage

Holding

The learned judge impermissibly delved into contested issues of fact and law, including the existence of an employer/employee relationship and alleged mental harm, effectively writing a final judgment instead of an interlocutory ruling.

Reasoning

At the interlocutory stage the legal right and its alleged violation are both contested and uncertain until trial. The trial judge analysed contracts, made findings on principal employment, and found mental ill-health established. Even though some findings did not appear in the final orders, the danger of prejudicing or embarrassing a fair trial made the error grave. Such definitive determinations are reserved for after a full trial on evidence tested by cross-examination.

p. 20
02

Whether orders framed as interim can be final in effect

Holding

Orders such as the blanket extension of contracts, provision of medical care, and review and reporting on law and policy were final in effect and disposed of substantial portions of the relief claimed.

Reasoning

Applying the Zweni attributes of a finality and the principle that effect predominates over form, the Court found that the extension order automatically extended any expiring contract before the validity of the contracts was determined; the medical-care order was granted before hearing evidence on the alleged sickness and its cause; and once the law and policy review orders were complied with, nothing would remain for adjudication at the hearing.

p. 22
03

Whether the tests for mandatory interlocutory injunctions were met

Holding

The trial judge did not address the heightened threshold for mandatory injunctions; the issues he identified disclosed contested facts, not exceptional circumstances.

Reasoning

A mandatory injunction goes beyond preserving the status quo pendente lite and is particularly disfavoured, requiring a strong case for trial of a higher standard than a prima facie case, necessity to prevent irreparable injury, and balance of convenience. The judge instead deployed his energy determining the existence of an employment relationship and interpreting contracts as if writing a final judgment, none of which supports exceptional circumstances.

p. 22
04

The scope of Article 23 power to fashion remedies in constitutional litigation

Holding

Article 23 does not confer unlimited power; it must be exercised to effect substantive and procedural fairness, and the non-derogable right to a fair trial under Article 50 applies to both parties.

Reasoning

While courts may fashion appropriate relief, including interim relief, to redress violations of fundamental rights, the power is not merely a licence to unleash orders whenever a breach is alleged. Procedural fairness includes the right not to have definitive findings made, or final orders granted, at the interlocutory stage before hearing both parties on merits.

p. 22
05

Whether an appeal lies against findings striking out affidavits

Holding

No appeal lies; the findings striking out the affidavits were not a decree or order, and no orders emanated from them.

Reasoning

Under sections 2 and 66 of the Civil Procedure Act, an appeal lies from decrees and orders of the High Court. The findings striking out the affidavits appeared in the body of the ruling, no orders issued from them, and following Smt. Ganga Bai, an appeal does not lie against mere findings unless they amount to a decree or order.

p. 23

Legal principles established

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  • When determining an interlocutory application, a court must confine itself to the applicable tests and must not make definitive findings on contested issues of fact or law, which are reserved for the full hearing.
  • The threshold at the interlocutory stage, whether in constitutional or private-law settings, requires only a very limited analysis of the facts, carefully avoiding definitive findings on any contested issue.
  • A mandatory injunction ought not be granted on an interlocutory application absent special circumstances, and requires a higher degree of assurance than a prohibitory injunction.
  • An appeal does not lie against mere findings recorded by a court unless the findings amount to a decree or order.
  • The inherent power under Article 23 of the Constitution is not an open licence for unlimited discretion; a final order granted before a merit hearing is an affront to substantive and procedural fairness.
  • In deciding whether an order is final or interim, a court considers predominantly the effect, not merely the form, of the order.

Court orders

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  1. 1.The ruling delivered by Ongaya, J. on 2nd June 2023 is set aside in its entirety together with all consequential orders arising therefrom
  2. 2.The 4th to 187th respondents' application dated 17th March 2023 is dismissed
  3. 3.Each party shall bear its own costs for this appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 22
  • Constitution of Kenya, 2010Article 23 (including 23(3))
  • Constitution of Kenya, 2010Article 28
  • Constitution of Kenya, 2010Article 43
  • Constitution of Kenya, 2010Article 48
  • Constitution of Kenya, 2010Article 50
  • Employment Act, 2007Section 2
  • Employment Act, 2007Section 40
  • Occupational Safety and Health Act, 2007various provisions
  • Civil Procedure ActSection 2
  • Civil Procedure ActSection 66
  • Evidence ActSection 88
  • Oaths and Statutory Declarations ActSections 5 and 8
  • Civil Procedure RulesOrder 19 rule 7
  • Civil Procedure RulesOrder 9 rule 17
  • Employment and Labour Relations Court RulesRule 9

Cases cited (20)

  • Lucy Wangui Gachara vs Minudi Okwemba Lore
    [2015] eKLR
  • Ashock Kumar Bajpai vs Dr. (Smt) Ranjama Baipai
    AIR2004, ALL 107, 2004(1) AWC 88
  • Esso Kenya Limited vs Mark Makwata Okiya
    Civil Appeal No. 69 of 1991
  • Cables & Wires PLC vs Muscat
    [2006] EWCA Civ 220; [2006] ICR 975
  • Giella vs Cassman Brown and Co. Ltd
    [1973] E A 358
  • Barclays Bank of Kenya Ltd & Another vs Gladys Muthoni & 20 Others
    [2018] eKLR
  • Nguruman Limited vs Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Mitu-bell Welfare Society vs Kenya Airports Authority & 2 Others; Initiative for Strategic Litigation in Africa (Amicus Curiae)
    (Petition 3 of 2018) [2021] KESC 34 (KLR)
  • David Waruiru Ngotho vs Betty Abonyo Oyugi & 10 Others
  • Attorney General vs George Bala
    [2023] KECA 117 (KLR)
  • Pastificio Lucio Garofaio SPA vs Security & Fire Equipment Co & Another
    [2001] eKLR
  • Gatirau Peter Munya vs Dickson Mwenda Kithinji & Two Others
    [2014] eKLR
  • American Cyanamid Co. v. Ethicon Ltd.
  • Zweni vs Minister of Law and Order
    1993 (1) SA 523 (AD)
  • South African Motor Industry Employers' Association vs South African Bank of Athens Ltd
    1980 (3) SA 91 (A)
  • Firestone South Africa (Pty) Ltd vs Genticuro AG
    1977 (4) SA 298 (A)
  • Locabail International Finance Ltd vs Agroexport and Others
    [1986] 1 ALL ER 901
  • Jagdish Prasad vs Shrawan Kumar & Anor
    AIR 1914 Born 42
  • Smt. Ganga Bai vs Vijay Kumar and Others
    1974 AIR 1126, 1974 SCR (3) 882
  • Daniel Motaong vs Samsasource & Meta (ELRC Constitutional Petition No. E071 of 2022)
On appeal from
Employment and Labour Relations Court
Nairobi ELRC Constitutional Petition No. E052 of 2023, Kiana Monique Arendse and 42 Others vs Meta Platforms, INC & 3 Others, Kenya Human Rights Commission & 8 Others (Interested Parties)
Jurisdiction invoked
Section 66 of the Civil Procedure Act (appeal from orders of the High Court to the Court of Appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Samasource EPZ Limited t/a Sama v Meta Platforms, Incorporated & 186 others; Kenya Human Rights Commission & 8 others (Interested Parties) (Civil Appeal E595 of 2023) [2024] KECA 1152 (KLR)", Case Analysis (2024). Civil Appeal Nos. 595 of 2023, 602 of 2023 and 615 of 2023 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1152/eng@2024-09-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.