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ELRCDismissedPetition dated 17th March 2023; Notice of Motion dated 11th April 2023 and Notice of Motion dated 27th April 2023· [2023] KEELRC 3381 (KLR)

Arendse & 182 others v Meta Platforms, Inc & 3 others; Kenya Human Rights Commission & 8 others (Interested Parties) (Constitutional Petition E052 of 2023) [2023] KEELRC 3381 (KLR)

Employment and Labour Relations Court of Kenya
7 December 2023
12,469 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court refused to punish Meta and its partners for contempt over moderator terminations, but the workers' main case still goes to full hearing.

What this practically means

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Executive summary

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The Employment and Labour Relations Court at Nairobi (Nduma J) delivered a ruling on two contempt applications arising from interim orders issued on 20th March 2023 and extended on 28th March 2023, which injuncted the respondents from implementing a redundancy affecting 169 Facebook content moderators engaged by Sama (3rd respondent) under contract with Meta Platforms Inc and Meta Platforms Ireland Limited. The petitioners sought to have the respondents cited for contempt, the CEOs (including Mark Zuckerberg) summoned, denial of audience, and a daily fine of Kshs.10,000,000. The Court first dealt with evidentiary objections: the affidavits of Joanne Redmond sworn in Dublin were held properly authenticated and admitted, but the affidavits of Lilian Kiplagat for the 3rd respondent (commissioned by an advocate without a practising certificate, and a replacement filed without leave) and the 4th respondent's affidavit were struck out. On contempt, applying the Supreme Court's decision in Republic v Ahmad Abolfathi Mohammed and Carey v Laiken, the Court held that contempt proceedings are quasi-criminal and require proof beyond the civil standard. Sending the moderators on compulsory paid leave was a constructive termination contrary to the order's preservation intent, but not willful disobedience; the purported termination by effluxion of time could not legally occur after the redundancy termination, yet was likewise not willful contempt. The CEOs could not be summoned without lifting the corporate veil. The twin applications dated 11th April 2023 and 27th April 2023 were dismissed with costs in the cause, substantive issues being reserved for the full hearing of the petition.

Key legal issues

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01

Authentication of affidavits sworn outside the Commonwealth

Holding

The affidavits of Joanne Redmond sworn in Dublin were properly authenticated by a notary public and admissible

Reasoning

The petitioners argued that affidavits notarised in Ireland (a non-Commonwealth country) required proof under Section 88 of the Evidence Act. The Court examined the affidavits and found the notary's signature, official stamp and seal (Cormac Brown, Dublin) clearly affixed, satisfying authentication, and admitted them.

02

Affidavits commissioned by advocates without practising certificates

Holding

The 3rd respondent's two affidavits sworn by Lilian Kiplagat and the 4th respondent's affidavit sworn before Nobert Jude Oduor Onyango were struck out

Reasoning

Following Pius Njogu Kathuri, affidavits commissioned by advocates without practising certificates are incurably defective. The replacement affidavit filed without leave of Court was also struck out on the authority of Flystar Limited and Caltex Oil, since the correct procedure is to seek leave to correct the mistake.

p. 23
03

Whether sending petitioners on compulsory paid leave breached the orders of 20th March 2023

Holding

No - the conduct, while a constructive termination in breach of the order, was not willful or contemptuous defiance

Reasoning

The Court found the 3rd respondent was constrained to balance its sustainability with compliance since the 1st and 2nd respondents no longer provided work. Though the paid leave constructively ended employment contrary to the order's intent to preserve the subject matter, willfulness was not proved; liability on the merits remains for the full hearing.

p. 26
04

Whether contracts could terminate by effluxion of time after termination on account of redundancy

Holding

The contracts could not terminate again by effluxion of time, but the conduct was not willful contempt

Reasoning

Applying the Federal Court of Australia's reasoning in Melbourne Stadiums Ltd, the Court held the contracts had already come to an end by the 28th March 2023 letter and could not terminate a second time by effluxion of time. However, the willful contempt standard was not met on the circumstances.

p. 16
05

Whether content moderation continued in defiance of orders (e) and (f)

Holding

The electronic evidence was admissible but insufficient to prove willful contempt by the 1st, 2nd and 4th respondents at the interlocutory stage

Reasoning

The affidavits of the 42nd and 169th petitioners relied on electronic evidence of content moderation continuing in the region. The Court accepted admissibility but held the evidence did not meet the high standard for contempt, contempt proceedings being quasi-criminal.

p. 29

Legal principles established

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  • Civil contempt requires proof that the order was clear and unequivocal, the contemnor had knowledge of it, and the breach was intentional, proved to a standard higher than balance of probabilities
  • A contract of employment cannot be terminated twice for different reasons
  • Directors/officers of a company cannot be cited for contempt without first lifting the corporate veil
  • A replying affidavit commissioned by an advocate without a current practising certificate is incurably defective

Court orders

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  1. 1.The replying affidavits sworn by Lilian Kiplagat on 10th May 2023 and 11th May 2023 for the 3rd respondent are struck off the record
  2. 2.The affidavit sworn by Sven Alfons A De Cauter and commissioned by an advocate without a current Practising Certificate is struck off the record for the 4th respondent
  3. 3.The replying affidavits of M/s Joanne Redmond for the 1st and 2nd respondents are admitted as properly authenticated
  4. 4.The application for summons to the named Chief Executive Officers (Mark Zuckerberg, Wendy Gonzalez, Thomas Mackenbrock) is refused, the persons not having been joined as parties and no application having been made to lift the corporate veil
  5. 5.The twin applications dated 11th April 2023 and 27th April 2023 are dismissed

Authorities

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Legislation

  • Judicature ActSection 5
  • Evidence Act, Cap. 80Section 88
  • Constitution of Kenya, 2010Article 159; Articles 27, 29, 32, 36 and 39
  • Employment Act2007
  • Contempt of Court Act2015 (declared unconstitutional)
  • Civil Procedure (Amendment No. 2) Rules 2012 (England)Part 81
  • Contempt of Court Act 1981 (England)

Cases cited (15)

  • Microsoft Corporation –vs- Mitsumi Computer Garage Limited & Another
    [2001]
  • Rene and Hans Advocates LLP –vs- Kiwipay (Kenya) Limited and 4 Others
    [2023] KEHC 2970 [KLR]
  • Pius Njogu Kathuri –vs- Joseph Muthura & 3 Others
    [2018] eKLR
  • Mutua -vs- Anwarali & Brothers Ltd.
    [2003]
  • Flystar Limited –vs- Delphis Bank Limited
    [2015] eKLR
  • Caltex Oil (Kenya) Limited –vs- New Stadium Service Station Limited & Another
    [2002] eKLR
  • Kenya Human Rights Commission –vs- Attorney General & Another
    [2018] eKLR
  • Carey -vs- Laiken
    2015 SCC 17
  • Sheila Cassatt Issenberg & Another –vs- Antony Macharia Kinyanjui
    [2021] eKLR
  • Republic –vs- CMC at Milimani Law Court Director of Public Prosecution & 2 Others (Interested parties); Exparte Applicant Pravin Galot
    [2020] eKLR
  • Katsuri Limited –vs- Kapurchand Depar Shah
    [2016] eKLR
  • Alken Connections Limited -vs- Safaricom Limited & 2 Others
    [2013] eKLR
  • Geofirey Kathuri Kisoni & 10 Others –vs- East African Cement Company Limited & 5 Others
    [2021] eKLR
  • Republic -vs- Ahmad Abolfathi Mohammed & Another
    [2018] eKLR
  • Melabourne Stadiums Limited –vs- Sautner
    [2015] FCAFC 20
Jurisdiction invoked
Article 162(2) of the Constitution and Section 5 of the Judicature Act (contempt jurisdiction of the ELRC as exercised in the petition; jurisdiction over termination of employment and human rights violations affirmed in the Court's ruling of 20th April 2023, under 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, "Arendse & 182 others v Meta Platforms, Inc & 3 others; Kenya Human Rights Commission & 8 others (Interested Parties) (Constitutional Petition E052 of 2023) [2023] KEELRC 3381 (KLR)", Case Analysis (2023). Petition dated 17th March 2023; Notice of Motion dated 11th April 2023 and Notice of Motion dated 27th April 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3381/eng@2023-12-07

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