Motaung v Samasource Kenya Epz Ltd t/a Sama & 2 others; Kenya National Human Rights and Equality Commission & 9 others (Interested Parties) (Petition E071 of 2022) [2024] KEELRC 7 (KLR)
The bottom line
#Kenya's Employment Court allowed a content moderator's petition to be served on Meta companies in the US and Ireland, meaning foreign firms can face Kenyan suits.
What this practically means
#Executive summary
#Key legal issues
#Authentication and admissibility of an affidavit sworn outside the Commonwealth
The certificate of notarization on the Replying Affidavit sworn in California contained the signature and seal of a Notary Public valid until 12th July 2024, making it prima facie proof of due notarization and the affidavit admissible.
Applying Section 88 of the Evidence Act as explained by Ringera J in Pastificio Lucio Garofalo, affidavits taken outside the Commonwealth must be proved to have been taken before a Notary Public with that Notary's signature and seal of attestation. The certificate here identified the deponent, the date of swearing, the Notary's signature, and a seal identifying him as a Notary Public in California with commission details. It therefore satisfied the required second limb and the petition was defended rather than considered as undefended.
Whether leave should be granted for service of the petition out of Kenya on the 2nd and 3rd Respondents
The Petitioner satisfied the requirements of Order 5 Rule 25: a good cause of action against the foreign corporations, their known principal offices in the USA and Ireland, non-Commonwealth status, and a proper case for service out of Kenya, as they were allegedly integral to the violations.
Leave is necessary for the court to assume jurisdiction over foreign corporations. The Petitioner pleaded specific constitutional violations and the 2nd and 3rd Respondents' alleged active involvement in the employment relationship; these are factual allegations to be tested at hearing. Rule 5(a) of the Mutunga Rules permits joining multiple respondents to determine liability as between all parties. The court rejected the demand for 'weighty evidence' as Order 5 Rule 25 prescribes no evidentiary character, and held the sovereignty arguments from S.S. Lotus inapplicable to corporations.
Privity of contract and liability of foreign parent/affiliate companies
The doctrine of privity of contract applies and a stranger to a contract cannot sue or be sued on it, but it is subject to exceptions which the Petitioner may establish by evidence at the hearing of the petition.
The Petitioner acknowledged his written contract with the 1st Respondent but alleged that the 2nd and 3rd Respondents were actively involved in the employment relationship and supervised his duties. The court accepted the privity doctrine as cited from Tweddle v Atkinson and Dunlop v Selfridge, but held that alleged violations beyond the written contract raise factual questions whose veracity can only be ascertained at the hearing, and the onerous burden of establishing an exception to privity lies on the Petitioner.
Legal principles established
#- A court assumes jurisdiction over a foreign defendant only upon grant of leave and service of summons outside its jurisdiction, not before.
- Order 5 Rule 25 requires the applicant for leave to serve out of Kenya to show a good cause of action, the location of the defendant, Commonwealth status and a proper case for service out of Kenya, without prescribing the nature or character of the evidence.
- An affidavit sworn outside the Commonwealth, where notarized by a Notary Public whose certificate bears the Notary's signature and seal, is prima facie admissible under Section 88 of the Evidence Act.
- The sovereignty-of-states reasoning applicable to nation states is less persuasive against foreign corporations, which are exposed to a wider spectrum of liability.
Court orders
#- 1.The Petitioner to serve the petition on the 2nd and 3rd Respondents at their Principal offices in the United States of America and Ireland respectively.
- 2.Service be effected through an internationally recognized Courier Services Provider and by Electronic Mail Services.
- 3.The 2nd and 3rd Respondents are at liberty to enter appearance within 21 days from the date hereof.
- 4.Costs of this application shall abide the outcome of the suit.
- Jurisdiction invoked
- Article 22(1) of the Constitution of Kenya, 2010 read with Order 5 Rules 21 and 25 of the Civil Procedure Rules, 2010; Section 3(1) and (2) of the Employment and Labour Relations Court Act, 2011
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.
- Kyalo v DT Dobie & Company (Kenya) Limited & 2 others (Cause E507 of 2024) [2025] KEELRC 2702 (KLR)[2025] KEELRC 2702 (KLR)3 Oct 2025applied
Cite this brief
#Cite this brief
Caselaw, "Motaung v Samasource Kenya Epz Ltd t/a Sama & 2 others; Kenya National Human Rights and Equality Commission & 9 others (Interested Parties) (Petition E071 of 2022) [2024] KEELRC 7 (KLR)", Case Analysis (2024). Notice of Motion dated 6th February, 2023 (Petition dated 9th May, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/7/eng@2024-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.