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)
The bottom line
#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
#Executive summary
#Key legal issues
#Authentication of affidavits sworn outside the Commonwealth
The affidavits of Joanne Redmond sworn in Dublin were properly authenticated by a notary public and admissible
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.
Affidavits commissioned by advocates without practising certificates
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
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.
Whether sending petitioners on compulsory paid leave breached the orders of 20th March 2023
No - the conduct, while a constructive termination in breach of the order, was not willful or contemptuous defiance
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.
Whether contracts could terminate by effluxion of time after termination on account of redundancy
The contracts could not terminate again by effluxion of time, but the conduct was not willful contempt
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.
Whether content moderation continued in defiance of orders (e) and (f)
The electronic evidence was admissible but insufficient to prove willful contempt by the 1st, 2nd and 4th respondents at the interlocutory stage
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.
Legal principles established
#- 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
#- 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.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.The replying affidavits of M/s Joanne Redmond for the 1st and 2nd respondents are admitted as properly authenticated
- 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.The twin applications dated 11th April 2023 and 27th April 2023 are dismissed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.