Arendse & 182 others v Meta Platforms, Inc & 12 others (Constitutional Petition E052 of 2023) [2023] KEELRC 921 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Territorial and subject-matter jurisdiction over foreign corporations
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
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.
Character of the notice of motion as a preliminary objection
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
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.
Whether foreign parent companies are proper parties
Yes; any person alleged to have infringed or threatened to infringe fundamental rights may be joined as a respondent; culpability is for trial
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.
Alleged non-disclosure of material facts at the ex-parte stage
The allegation was without merit; factual disputes will be ventilated at the full hearing
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.
Legal principles established
#- 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
#- 1.Preliminary objections raised by the 1st and 2nd respondents found to be without merit and dismissed with costs in the cause
- 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.Interim orders extended pending the hearing and determination of the notice of motion dated March 17, 2023
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#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.