Arendse & 42 others v Meta Platforms, Inc & 3 others; Kenya Human Rights Commission & 8 others (Interested Parties) (Constitutional Petition E052 of 2023) [2023] KEELRC 1398 (KLR)

The Court found the futuristic jurat went to the root of the affidavit — whether the deponent ever appeared before the notary — and that the slip rule cannot cure an affidavit because affidavits are not pleadings. Foreign affidavits from outside the Commonwealth require proof of authentication under section 88 of the Evidence Act. Affidavits commissioned by an advocate without a practising certificate constitute a substantive irregularity that Article 159(2) and Order 19 rule 7 cannot cure.

Applying the statutory definitions in section 2 of the Employment Act and the control/integration/remuneration tests from Cable & Wireless v Muscat and Everret Aviation, the Court found the work of content moderation, the SRT digital workspace, operational requirements, performance metrics and the funds for pay all belonged to the 1st and 2nd respondents. The outsourcing contract relied on by the respondents was not disclosed, so no allocation of employer obligations shifting liability away from the owners of the work was established.

The 3rd respondent's accounts of why the redundancy occurred (own business pivot versus loss of the Meta contract) contradicted each other, and extension of the last working day to suit the incoming vendor showed the work was still available. Since the jobs provided by the 1st and 2nd respondents had not become superfluous or abolished, the redundancy definition in section 2 of the Employment Act was not satisfied prima facie.

The parties agreed the work is hazardous; a consultant psychiatrist's letter linked an applicant's insomnia to her work; and the 3rd respondent's provision of counsellors and one-year post-separation wellness support acknowledged the hazard. The Court held that in a constitutional petition, once violation or threat of violation is established, the Court must frame appropriate relief, even where OSHA regulations do not specifically cover digital work, and directed the interested parties to review law and policy for digital workspaces.

The cause of action in the present petition accrued long after that in the earlier petition, and even if the earlier petition were decided one way or the other, the present petition would still have to proceed to full hearing and determination. Allegations about safety and working conditions overlapping with the Motaung petition therefore did not disentitle the applicants.

Applying Giella v Cassman Brown sequentially as explained in Nguruman, the Court found the applicants' principal-employer case showed an apparently infringed right to fair labour practices under Article 41. Damages were not an adequate remedy because the acts complained of were prima facie unlawful, and separation would scatter foreign applicants beyond the Court's effective reach while exposing them to untreated occupational mental ill-health.