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ELRCOtherPetition (filed March 20, 2023), Nairobi· [2023] KEELRC 921 (KLR)

Arendse & 182 others v Meta Platforms, Inc & 12 others (Constitutional Petition E052 of 2023) [2023] KEELRC 921 (KLR)

Employment and Labour Relations Court
20 April 2023
6,371 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~25 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled it can hear over 200 Facebook content moderators' case against Meta, keeping the lawsuit alive despite the company's objections.

What this practically means

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Executive summary

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This ELRC ruling, delivered on April 20, 2023 by Mathews N Nduma J, determined preliminary objections by Meta Platforms, Inc and Meta Platforms Ireland Limited in a petition by over 200 Facebook Content Moderators recruited through Sama Source Kenya EPZ Limited. The petitioners alleged that an impending redundancy of 260 moderators was a sham retaliation for a colleague's constitutional petition, and pleaded violations of articles 27, 28, 29, 33, 36, 41, 43, 47, 50, 54 and 55 of the Constitution, seeking declarations, reinstatement, and substantial damages. The foreign respondents objected that the court lacked jurisdiction over them as foreign corporations not resident or trading in Kenya, that they were not the petitioners' employers, that leave to serve them out of Kenya was a nullity, and that the petitioners had failed to disclose material facts. Applying Mukisa Biscuits, the court held the objections were not pure points of law since the employment relationship and the pleaded facts required ascertainment at trial, and noted the motion was unsupported by any affidavit. Adopting the Mugendi line of authority, the court found it had jurisdiction under article 162(2)(a) and section 12(1)(a) of the ELRC Act over the employer-employee dispute and ancillary rights claims, distinguished the NSSF and Motaung decisions, held the violations alleged occurred in Kenya whether in physical or virtual space, and found that privity of contract is not essential to rights violations by a person in control. The preliminary objections were dismissed with costs in the cause, interim orders extended, and the matter referred to the Principal Judge for allocation to another judge for hearing on a priority basis.

Key legal issues

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01

Territorial and subject-matter jurisdiction over foreign corporations

Holding

The court has jurisdiction: the alleged violations were committed in Kenya, the foreign respondents were properly served and had entered appearance, and the dispute arises from employment and labour relations

Reasoning

The court reasoned that extra-territoriality concerns arise only where violations are committed outside the court's jurisdiction, which was not the case here since the alleged violations occurred in Kenya within a workspace provided by the 1st and 2nd respondents. The respondents had been properly served and were defending through advocates, placing them within the court's territorial jurisdiction. The dispute arose out of employment within section 12(1)(a) of the ELRC Act.

p. 19
02

Character of the notice of motion as a preliminary objection

Holding

The objection failed the Mukisa Biscuits test because it required ascertainment of facts, and it was improperly raised in a notice of motion unsupported by any affidavit

Reasoning

Applying Mukisa Biscuits, the court held a preliminary objection must raise a pure point of law assuming the truth of facts pleaded by the other side. Here the respondents disputed the pleaded employment relationship without filing a replying affidavit, meaning factual matters required judicial inquiry. The court also observed that preliminary objections should properly be raised by a notice of preliminary objection or defence to avoid argument over form.

p. 18
03

Whether foreign parent companies are proper parties

Holding

Yes; any person alleged to have infringed or threatened to infringe fundamental rights may be joined as a respondent; culpability is for trial

Reasoning

Relying on Rose Wangui Mambo, the court held that a petition cannot be defeated by misjoinder or non-joinder and that any person alleged to have infringed or threatened fundamental rights can be joined. Whether the 1st and 2nd respondents are the actual employers and whether they are liable for violations are matters to be determined at the hearing on the merits, not on a preliminary objection.

p. 19
04

Alleged non-disclosure of material facts at the ex-parte stage

Holding

The allegation was without merit; factual disputes will be ventilated at the full hearing

Reasoning

The court found the allegations of non-disclosure and concealment lacked merit, emphasising that disputes of fact raised by the 1st and 2nd respondents should be fully ventilated, considered and determined when the suit is heard on the merits rather than resolved at the interlocutory stage.

p. 22

Legal principles established

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  • A preliminary objection must be a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised if any fact has to be ascertained
  • The ELRC has jurisdiction to determine alleged unlawful termination and to enforce fundamental rights and freedoms where the violations arise from an employment and labour relations dispute, including violations occurring in virtual work spaces within Kenya
  • Privity of contract is not an essential element in establishing violations of fundamental rights by a person in control and authority over another

Court orders

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  1. 1.Preliminary objections raised by the 1st and 2nd respondents found to be without merit and dismissed with costs in the cause
  2. 2.Matter referred to the Principal Judge to allocate it to another judge within the Judicial Review and Labour Relations Division to hear and determine the pending application and the petition on the merits on a priority basis
  3. 3.Interim orders extended pending the hearing and determination of the notice of motion dated March 17, 2023

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 9, 20, 22, 27, 28, 29, 33, 36, 41, 43, 47, 50, 54, 55, 162(1), 162(2)(a), 162(3), 165(5)
  • Employment and Labour Relations Court Act, No 18 of 2014Section 12(1)(a)
  • Industrial Court Act, 2011Section 12
  • Civil Procedure RulesOrder 5 rule 21, Order 5 rule 22(A), Order 5 rule 22(B)
  • NSSF Act, 2013constitutional validity of provisions discussed

Cases cited (11)

  • Mukisa Biscuits Manufacturing Company Limited vs West End Distributors Limited
    (1969) EA
  • Attorney General and Another vs Andrew Maina Githinji and Another
    [2016]
  • Bashir Haji Abdulahi vs Adhan Mohamed Mooru & 3 others
    [2014] eKLR
  • Miguna Miguna vs Lufthansa Group operating as German Airlines & 6 others – KNCHR and another
    [2021] eKLR
  • Rose Wangui Mambo & 2 others vs Limuru County Club & 17 others
    [2014] eKLR
  • Professor Daniel Mugendi and Kenyatta University and 2 others
    [2013] eKLR
  • The National Social Security Fund vs Kenya Tea Growers Association and 14 others
    [2023] KCA A 80 KCR
  • Attorney General and 2 others vs Okiya Omtatah Okoiti and 14 others
    [2020] eKLR
  • United States International University (USIU) vs The Attorney General and others
    Petition No 170 of 2012
  • Gcaba vs Minister of Safety and Security & others
    CCT 64/08 (2009) ZACC 26
  • Daniel Motaung vs Sama Source Kenya EPZ Limited t/a Sama and 2 others
    Petition No E071 of 2022
Jurisdiction invoked
Article 162(2)(a) of the Constitution and section 12(1)(a) of the Employment and Labour Relations Court Act, No 18 of 2014

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Arendse & 182 others v Meta Platforms, Inc & 12 others (Constitutional Petition E052 of 2023) [2023] KEELRC 921 (KLR)", Case Analysis (2023). Petition (filed March 20, 2023), Nairobi. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/921/eng@2023-04-20

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