Meta Platforms, Inc & 2 others v Motaung & 186 others; Kenya National Human Rights and Equality Commission & 14 others (Interested Parties) (Civil Appeal E232 & E445 of 2023 (Consolidated)) [2024] KECA 1262 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed Meta's attempts to escape the content moderators' case, ruling that questions about who employed them must be decided at a full trial.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court of Appeal's jurisdiction must be determined in limine / whether the appeals were moot
- 2.Whether once the ELRC held it had not assumed jurisdiction over the appellants, it was duty bound to 'down its tools' and strike out the petition against them
- 3.Whether the ELRC properly assumed jurisdiction over the appellants, foreign corporations allegedly not carrying on business in Kenya
- 4.Whether the appellants' applications before the trial court, unsupported by affidavits, were competent and whether they raised pure points of law capable of being preliminary objections
- 5.Whether the 1st respondent required leave to serve the appellants outside the court's jurisdiction
- 6.Whether the trial court was justified in failing to strike out the petition
- 7.Whether the 3rd to 186th respondents concealed material facts from the ELRC in obtaining the ex parte orders of 20th March 2023
- 8.Whether the ELRC erred in law in extending the ex-parte interim orders issued on 20th March 2023 beyond the period allowed by rule 17 of the ELRC Rules
Key legal issues
#Whether the ELRC's jurisdiction over the foreign appellants could be determined on an interlocutory application without evidence
The jurisdictional challenge collapsed because it rested on contested factual issues - whether the appellants carry on virtual business in Kenya, whether the violations occurred in Kenya, and whether they employed the petitioners - which can only be determined at a full hearing.
The court noted that rule 19 of the Mutunga Rules is not mandatory ('may be supported by an affidavit'), but litigants must put their best foot forward. The questions of virtual presence, territorial occurrence of violations and employment relationships are questions of fact requiring proof to the requisite standard and could not be resolved interlocutorily. The appellants' jurisdictional objection therefore lacked foundation at this stage of the proceedings.
Whether the appellants' application converted into a preliminary objection raised pure points of law
The matters raised were not pure points of law; whether the appellants were the employers of the 3rd to 186th respondents and whether there was material non-disclosure are issues of fact, so the preliminary objection failed the Mukisa Biscuits test.
Applying the classic definition of a preliminary objection from Mukisa Biscuits and the Supreme Court's restatement in Aviation & Allied Workers Union, the court held that a preliminary objection assumes all facts pleaded by the other side are correct and cannot be raised where facts must be ascertained. The contested employment and non-disclosure issues required ascertainment of fact at trial.
Whether the ELRC erred in extending the ex parte interim orders beyond the 14-day limit in rule 17 of the ELRC Rules
The extension was proper and within jurisdiction. The petition was brought under Article 23, which permits a court to frame appropriate reliefs not limited to those in Article 23(3)(a)-(e), to vindicate rights under threat of infringement.
The court found the ELRC had jurisdiction to issue ex parte orders and that rule 7 of the ELRC Rules channels constitutional petitions to the Mutunga Rules. Relying on Mitubell Welfare Society and Gitobu Imanyara (adopting Dendy), it held the primary purpose of constitutional remedies is to vindicate rights and deter future infringement; extending the interim orders was an appropriate remedy protecting the respondents' rights pending the hearing of the application.
Whether the appellate court should interfere with the trial court's discretionary interlocutory decisions
No improper exercise of jurisdiction or misdirection by the learned judge was found, so the appellate court would not interfere with the discretionary rulings.
Citing Mbogo v Shah, the court reiterated that an appellate court will not interfere with the exercise of discretion unless the judge misdirected himself or the decision is clearly wrong resulting in misjustice. Granting or refusing striking-out prayers and setting aside ex parte orders entail judicial discretion; the trial court considered all relevant facts and principles.
Whether the Court should comment on the merits pending trial
The Court declined to delve into the merits of the pending dispute, restraining itself to the interlocutory questions.
Both appeals arose from interlocutory rulings, and the parties' submissions digressed into matters touching on the merits pending before the ELRC. The court cautioned against findings that might prejudice the full hearing and declined to traverse that 'forbidden path', preserving the trial court's role in determining the dispute on the merits.
Legal principles established
#- A preliminary objection must rest on pure points of law; contested issues of fact cannot be determined on an interlocutory preliminary objection.
- Contested matters of fact cannot be resolved on interlocutory applications and must be reserved for a full hearing.
- The jurisdiction to strike out suits must be exercised sparingly, with circumspection, and only in the clearest of cases where a suit is vexatious, frivolous, scandalous or hopeless.
- An appellate court will not interfere with the exercise of a trial court's discretion unless it misdirected itself or the decision is clearly wrong resulting in misjustice.
- In constitutional petitions under Article 23, a court may grant appropriate relief, including interim orders, to vindicate rights threatened with infringement, and such reliefs are not limited to those specified in Article 23(3)(a) to (e).
Court orders
#- 1.Civil Appeal No. E232 of 2023 is dismissed
- 2.Civil Appeal No. E445 of 2023 is dismissed
- 3.Costs of both appeals to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court, Nairobi
- ELRC Petition E071 of 2022 and ELRC Petition E052 of 2023
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over interlocutory rulings of the ELRC (not expressly stated in the judgment; appeals against interlocutory rulings under the Court of Appeal's ordinary appellate jurisdiction)
- Consolidated with
- Civil Appeal No. E445 of 2023
Relief refused
#Striking out of the petitions against the appellants
The matters raised were contested issues of fact reserved for full hearing, not pure points of law; striking out is a draconian remedy to be exercised sparingly
Setting aside of the ex parte interim orders issued on 20th March 2023 and their extension
The extension was an appropriate remedy within the judge's jurisdiction under Article 23 to protect threatened constitutional rights pending hearing of the application
Setting aside the trial court's finding on leave to serve outside jurisdiction
The appellants argued no cross-appeal lay to disturb the finding that leave was required, but the appeals failed on the substantive jurisdictional question
Costs
Both appeals are dismissed with costs to the respondents.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot of our above findings is that the appellants’ appeals numbers E232 of 2023 and E445 of 2023 are devoid of merit and both appeals are hereby dismissed with costs to the respondents.
A preliminary objection must be premised of pure points of law, not contested issues of fact.
Contested matters of fact are best resolved in a full hearing as opposed to an interlocutory application.
The jurisdiction to strike out suits must be exercised sparingly and with circumspection and only where a suit is vexatious, without substance, frivolous or scandalous.
We find no improper exercise of jurisdiction or misdirection by the learned judge in the impugned rulings.
The primary object of constitutional relief was not compensatory but to vindicate the fundamental rights infringement and to deter their future infringement.
Issues in the judgment
#Internal inconsistency in dates: paragraph 11 refers to the ex parte orders of 20th March 2023, but paragraph 15 of the memorandum of appeal refers to 'the ex-parte orders of 20th April 2023' as based on the notice of motion dated 17th March 2023; the extension of orders is also referred to as 20th April 2023 in the list of issues.
Inconsistent numbering of respondents: the 3rd to 46th respondents are said to have filed the petition, yet the judgment variously refers to the 3rd to 185th, 3rd to 186th and 3rd to 187th respondents after joinder of 133 petitioners.
The case title is not expressly stated as a formal caption in the judgment; the parties and appeal numbers are only assembled from the body of the judgment, which also contains typographical errors (e.g., 'E445 of 223', '10th Interested Party' appearing alongside a '2nd interested party').
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Meta Platforms, Inc & 2 others v Motaung & 186 others; Kenya National Human Rights and Equality Commission & 14 others (Interested Parties) (Civil Appeal E232 & E445 of 2023 (Consolidated)) [2024] KECA 1262 (KLR)", Case Analysis (2024). Civil Appeal Nos. E232 of 2023 and E445 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1262/eng@2024-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.