Constitutional Petition E052 of 2023

Case Metadata
Case Number:	Constitutional Petition E052 of 2023
Parties:	Arendse & 182 others v Meta Platforms, Inc & 3 others; Kenya Human Rights Commission & 8 others (Interested Parties)
Date Delivered:	20 Apr 2023
Case Class:
Court:	Employment and Labour Relations Court at Nairobi
Case Action:	Ruling
Judge(s):	Mathews Nderi Nduma
Citation:	Arendse & 182 others v Meta Platforms, Inc & 3 others; Kenya Human Rights Commission & 8 others (Interested Parties) (Constitutional Petition E052 of 2023) [2023] KEELRC 921 (KLR) (20 April 2023) (Ruling)
Advocates:	Kaplan & Stratton Advocates for 1st and 2nd respondents, Walker Kontos Advocates for petitioners
Court Division:	Employment and Labour
County:	Nairobi
Advocates:	Kaplan & Stratton Advocates for 1st and 2nd respondents, Walker Kontos Advocates for petitioners
Case Summary:	Jurisdiction of the Employment and Labour Relations Court in matters of alleged violation of human rights and fundamental freedoms by employers who were foreign companies Brief facts The petitioners were nationals of various countries engaged as Facebook Content Moderators. The petitioners averred that they were engaged by the 1^st and 2^nd respondents to work in Kenya and that the recruitment was done through the 3^rd respondent. The petitioners alleged that the 1^st, 2^nd and 3^rd respondents had embarked on an unlawful and unfair termination of their employment for the sole reason that one of the moderators formerly engaged by the 1^st and 2^nd respondents through the 3^rd respondent filed a constitutional petition challenging the gross violation of moderators’ rights by the 1^st, 2^nd and 3^rd respondents. The petitioners thus claimed that the 1^st and 2^nd respondents had orchestrated a sham redundancy to be undertaken by the 3^rd respondent. The petitioners alleged that their human rights and fundamental freedoms had been violated, continued being violated and were further threatened during the sham redundancy process. The 1^st and 2^nd respondents filed a notice of motion application seeking among other orders that the petition be struck out and/or dismissed as against them on among other grounds that the court lacked jurisdiction to entertain, hear and determine the petition. The 1^st and 2^nd respondents’ application was premised on among other grounds that; they were foreign corporations who were neither formally present, domiciled nor trading in Kenya over whom the court could not as a matter of right or law assume jurisdiction. Issues Whether the Employment and Labour Relations Court had jurisdiction in matters of alleged violation of human rights and fundamental freedoms by employers against employees. Whether privity of contract was an essential element in establishing violations of human and fundamental freedoms by a person in control and authority over another. What was the nature of a preliminary objection? Which was the appropriate way in which a party ought to raise a preliminary objection? Held A preliminary objection was one that raised a pure point of law argued on the assumption that all the facts pleaded by the other side were correct. It could not be raised if any fact had to be ascertained. The preliminary objection raised by the 1^st and 2^nd respondent fell short of the mandatory requirements of a preliminary objection – it did not constitute a pure point of law argued on the assumption that all the facts pleaded by the other side were correct. There was a plethora of facts raised by the petitioners in the petition and the supporting affidavits which were yet to be ascertained. For a court to be said to be acting extra territorially, the violations complained of by the petitioners must have been committed outside the jurisdiction of the court. That was not the case in the instant petition. The raft of alleged violations by the 1^st, 2^nd, and 3^rd respondents were said to have been committed in Kenya and within a work space provided by the 1^st and 2^nd respondents. Privity of contract was not an essential element in establishing violations of human and fundamental freedoms by a person in control and authority over another. The 1^st and 2^nd respondents had been properly served with the court processes and had rightly been placed within the territorial jurisdiction of the court to enable them to defend the case brought against them by the petitioners as they were already justly and effectively doing through a duly appointed firm of advocates. The jurisdiction of the court to hear and determine matters was founded under article 162(1) and (2) of the Constitution of Kenya, 2010. The jurisdiction of the court was in flux and a moving target. That had created uncertainty on what the jurisdiction of the court was and it was about time the Supreme Court rendered itself authoritatively on the matter. Almost every other matter before the court started with a challenge on the jurisdiction of the court due to the lingering uncertainty. That led to uneconomical use of the court’s time and to the case backlog. The court had jurisdiction to determine the matter of alleged unlawful and unfair termination of employment on grounds of redundancy by the 1^st, 2^nd and 3^rd respondents and also the court had jurisdiction to enforce alleged violation of human rights and fundamental freedoms by the 1^st, 2^nd, 3^rd and 4^th respondents against the petitioners as set out in the petition and the supporting documents. The dispute arose from an employer – employee dispute. The court would consider the nature and extent of liability with regard to the alleged breaches and violations of the Constitution arising and or related to employment and labour relations in Kenya. It was immaterial whether the alleged violations occurred in a physical or virtual space within the jurisdiction of the court in Kenya. The court distinguished its decision in Nairobi ELRC Petition No E071 of 2022 – Daniel Motaung v Sama Source Kenya EPZ Limited T/A Sama and 2 others where the court held that the petitioners in that case had not sought leave to serve summons on the 2^nd and 3^rd respondents in terms of order 5, rule 21 of Civil Procedure Rules and therefore the court found that it was not satisfied that it had assumed jurisdiction over the 2^nd and 3^rd respondents in that matter. The court however did not strike out the 2^nd and 3^rd respondents from the petition but gave the petitioners opportunity to comply with order 5 rule 22 of the Civil Procedure Rules. The alleged failure by the petitioners to disclose material facts was without merit. The dispute of facts alluded to by the 1^st and 2^nd respondents shall be fully ventilated, considered and determined upon hearing of the suit on the merits. Whereas pure points of law may be raised in any manner and the court may discern them from pleadings and raise the same suo moto, it was appropriate for a party who wished to raise a preliminary objection to do so by a notice of preliminary objection or in a statement of defence where appropriate to avoid unnecessary arguments on the manner in which the points of law had been taken up by the objectors.
Extract:	Cases Abdulahi, Bashir Haji v Adhan Mohamed Mooru & 3 Others (Civil Appeal 300 of 2013; [2014] KECA 707 (KLR)) — Explained Attorney General and 2 Others v Okiya Omtatah Okoiti and 14 Others (Civil Appeal 621 of 2019 (Consolidated with Civil Appeal 74 of 2020); [2020] eKLR) — Mentioned Attorney General & another v Andrew Maina Githinji & another (Civil Appeal 21 of 2015; [2016] KECA 817 (KLR)) Mambo, Rose Wangui & 2 others v Limuru Country Club & 17 others (Constitutional Petition 160 of 2013; [2014] eKLR) — Explained Miguna, Miguna v Lufthansa Group Operating as Lufthansa German Airlines & 6 others; Kenya National Commision on Human Rights &another; (Interested Parties) (Petition 47 of 2020; [2021] KEHC 1916 (KLR)) — Explained Motaung v Samasource Kenya EPZ Limited t/a Sama & 2 others (Petition E071 of 2022; [2023] KEELRC 320 (KLR)) — Distinguished Mugendi, Daniel N v Kenyatta University, Benson I Wairegi, Eliud Mathiu & Olive M Mugenda (Civil Appeal 6 of 2012; [2013] KECA 41 (KLR)) — Mentioned National Social Security Fund Board of Trustees v Kenya Tea Growers Association & 14 others (Civil Appeal 656 of 2022; [2023] KECA 80 (KLR)) — Mentioned United States International University (USIU) v The Attorney General and Others (Petition 170 of 2012; [2012] eKLR) — Explained Mukisa Biscuits Manufacturing Company Limited vs West End Distributors Limited ((1969) EA) — Explained Statutes Civil Procedure Rules, 2010 (cap 21 Sub Leg) — Order 5; Rule 21, 22A, 22B — Interpreted Constitution of Kenya, 2010 (Const2010) — Article 9, 20, 22, 27, 28, 29, 33, 36, 41, 43, 47, 50, 54, 55, 162(1) (2) — Interpreted Employment And Labour Relations Court Act, 2011 (Act No 20 of 2011) — Section 12 — Interpreted National Social Security Fund Act, 2013 (Act No 45 of 2013) — In general — Cited Advocates Kaplan & Stratton Advocates for 1st and 2nd respondents Walker Kontos Advocates for petitioners
Disclaimer:	The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

Arendse & 182 others v Meta Platforms, Inc & 3 others; Kenya Human Rights Commission & 8 others (Interested Parties) (Constitutional Petition E052 of 2023) [2023] KEELRC 921 (KLR) (20 April 2023) (Ruling)

Neutral citation: [2023] KEELRC 921 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Constitutional Petition E052 of 2023

MN Nduma, J

April 20, 2023

IN THE MATTER OF THE ALLEGED CONTRAVENTION OF ARTICLES 2, 19, 20, 21, 22, 23, 24, 27, 28, 29, 33, 36, 41, 43, 47, 50, 54, 55, 159, 165, 258, 259 AND 260 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF RULE 7(1) OF THE EMPLOYMENT AND LABOUR RELATIONS COURT (PROCEDURE RULES), 2016 AND IN THE MATTER OF CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES 2013 AND IN THE MATTER OF THE ALLEGED CONTRAVENTION OF SECTIONS 2, 3, 5, 9, 10, 11, 12, 13, 14, 15, 17, 20, 21, 30, 34, 35, 36, 40, 41, 43, 44, 45 AND 4 9 OF THE EMPLOYMENT ACT AND IN THE MATTER OF THE ALLEGED CONTRAVENTION OF THE ILO TERMINATION OF EMPLOYMENT CONVENTION, 1982 AND RECOMMENDATION 166 THEREOF; TERMINATION OF EMPLOYMENT RECOMMENDATION, 1982 (NO. 166) AND IN THE MATTER OF THE ALLEGED CONTRAVENTION OF SECTIONS 3 AND 4 OF THE FAIR ADMINISTRATIVE ACTION ACT AND IN THE MATTER OF ALLEGED CONTRAVENTION OF GUIDING PRINCIPLES 11, 12, 13, 14, 17, 18, 19, 22, 23, 29 1 AND 31 OF THE GUIDING PRINCIPLES ON BUSINESS AND HUMAN RIGHTS IMPLEMENTING THE UNITED NATIONS ‘PROTECT, RESPECT AND REMEDY’ FRAMEWORK AND IN THE MATTER OF THE ALLEGED CONTRAVENTION OF THE INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION AND IN THE MATTER OF THE ALLEGED CONTRAVENTION OF THE CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT AND IN THE MATTER OF THE ALLEGED CONTRAVENTION OF THE MIGRATION FOR EMPLOYMENT CONVENTION (REVISED), 1949 AND THE MIGRANT WORKERS (SUPPLEMENTARY PROVISIONS) CONVENTION, 1975

Between

Kiana Monique Arendse

1^st Petitioner

James Agada Mark

2^nd Petitioner

Meaza Shura

3^rd Petitioner

Mark Agaba

4^th Petitioner

Fasica Berhane Gebrekidan

5^th Petitioner

Cameron Rowan Corner

6^th Petitioner

Robel Khasay Gebru

7^th Petitioner

Abel Abrha Asgedom

8^th Petitioner

Ephrem Kirubel Mihreteab

9^th Petitioner

Dawit Birhane Berhe

10^th Petitioner

Trevin Brownie

11^th Petitioner

Lubega Pacific

12^th Petitioner

Naod Amanuel Gebrekidan

13^th Petitioner

Teamir Dellelegn

14^th Petitioner

Kauna Ibrahim Malgwi

15^th Petitioner

Tsidena Abadi Zemo

16^th Petitioner

Meseret Dinku Abdo

17^th Petitioner

Ayana Ephrem Geleta

18^th Petitioner

Alewiya Mohammed Musa

19^th Petitioner

Tikky Olang’o

20^th Petitioner

Khothamani Mhlongo

21^st Petitioner

Yona Bedasa

22^nd Petitioner

Thras Gidey

23^rd Petitioner

Samrawit Tekeste

24^th Petitioner

Zegeye Dawit Gebremariam

25^th Petitioner

Jason Ilovu

26^th Petitioner

Rosebellah Wakhu

27^th Petitioner

Caroline Njeri Muchangi

28^th Petitioner

Evelyn Naluwu

29^th Petitioner

Hassan Alkano

30^th Petitioner

Edinah Lumumba

31^st Petitioner

Palesa Gloria Kometsi

32^nd Petitioner

Mahat Abdullahi Sheikh

33^rd Petitioner

Mahlet Yilma

34^th Petitioner

Ciella Irambona

35^th Petitioner

Musa Abubakar

36^th Petitioner

Abdikadir Guyo

37^th Petitioner

James Irungu

38^th Petitioner

Haben Haile Yohanes

39^th Petitioner

Juanita Jones

40^th Petitioner

Odirile Moleboge

41^st Petitioner

Tessline Toni Kiewiet

42^nd Petitioner

Antian Jay-dean Moosa

43^rd Petitioner

Samuel Ebeniro

44^th Petitioner

Lielina Assefa

45^th Petitioner

Marion Imuya Muhanda

46^th Petitioner

Abdullateef Kehinde

47^th Petitioner

Bella Nininahazwe

48^th Petitioner

Magdalene Sila

49^th Petitioner

Sophia Daniels

50^th Petitioner

Ephrata Mamo

51^st Petitioner

Amerti Bayisa

52^nd Petitioner

Jean De Dieu Uwiduhaye

53^rd Petitioner

Tuyishimire Marie Irene

54^th Petitioner

Sibusiso Duma

55^th Petitioner

Ariane Hogoza

56^th Petitioner

Fayo Hussein Kadir…

57^th Petitioner

Ngarambe Chrysologue

58^th Petitioner

Uwamahoro Stella Carine

59^th Petitioner

Abdikhes Daar

60^th Petitioner

Esther Mukamana

61^st Petitioner

Cylia Skosana

62^nd Petitioner

Mugerwa Hamidah

63^rd Petitioner

Ismail Aliyu

64^th Petitioner

Lawal Mohammad Shuaibu

65^th Petitioner

Sonia Matete Kgomo

66^th Petitioner

Joda Bashir Sunday

67^th Petitioner

Dawit Birhane Berhe

68^th Petitioner

David Nkurunziza

69^th Petitioner

Nathan Nkunzimana

70^th Petitioner

Johnson Twagirimana

71^st Petitioner

Nasiru Aminu Madaki

72^nd Petitioner

Stephan Van Den Berg

73^rd Petitioner

Naledi Mkhize

74^th Petitioner

Alinoor Mohamed Abdullahi

75^th Petitioner

Wilberforce Apungu

76^th Petitioner

Naftali Andati Wambalo

77^th Petitioner

Raywine Mukonambi

78^th Petitioner

Iranyibutse Koffi

79^th Petitioner

Musa Aliyu Baffa

80^th Petitioner

Daniel Elias Yadeta

81^st Petitioner

Michael Melaku Walelign

82^nd Petitioner

Neo Nkwe

83^rd Petitioner

Busisiwe Egnecious Nkosi

84^th Petitioner

Phethile Bridget Dlamini

85^th Petitioner

Kwenzekile Ngidi

86^th Petitioner

Princess Nelisiwe Madlebe

87^th Petitioner

Antony Awuor

88^th Petitioner

Kidist Fantu Buzuneh

89^th Petitioner

Aschalew Seifu Husen

90^th Petitioner

Abdihamid Bulle

91^st Petitioner

Nakate Janat

92^nd Petitioner

Kame Tuye Badasa

93^rd Petitioner

Nyangaresi Dancan

94^th Petitioner

Umar Kabir

95^th Petitioner

Hijra Abdallah

96^th Petitioner

Hanan Abdi

97^th Petitioner

Beatrice Ani

98^th Petitioner

Innocentia Neo Mabaso

99^th Petitioner

Samrawit Markos Weldesenbet

100^th Petitioner

Minase Sisay

101^st Petitioner

Esther Emoshogwe Michael

102^nd Petitioner

Lawal Suwidi Mohammad

103^rd Petitioner

Tumwebaze Proscovia

104^th Petitioner

Kame Badasa

105^th Petitioner

Nahom Tekest

106^th Petitioner

Abdiazizi Hussein Adan

107^th Petitioner

Fredrick Amos Okumu

108^th Petitioner

Abdullahi Guliya Adan

109^th Petitioner

Shewit Mulugeta

110^th Petitioner

Mohamed Daud Abdi

111^th Petitioner

Riyan Ismael Ibrahim

112^th Petitioner

Halima Jillo

113^th Petitioner

Najma Ilyas Haji

114^th Petitioner

Gladys Atyang

115^th Petitioner

Teddy Odhiambo

116^th Petitioner

Sausepeter Ojiambo

117^th Petitioner

Lesego Motlanthe

118^th Petitioner

Passy Namyalo

119^th Petitioner

Adiam Gebrezgabher Beyin

120^th Petitioner

Tirhas Hailekiros Hailesilasse

121^st Petitioner

Botlhokwa Nondali Ditshepo Ranta

122^nd Petitioner

Mohamud Ahmed Haji

123^rd Petitioner

Henry Ntege

124^th Petitioner

Moipone Mmusi

125^th Petitioner

Abdiaziz Osman Adan

126^th Petitioner

Sandile Mkhabela

127^th Petitioner

Kelvin Magu Ngila

128^th Petitioner

Hellen Namuyanja

129^th Petitioner

Mercy Chimwani

130^th Petitioner

Ross Kagoshe

131^st Petitioner

Amir Ahmedmuz Adem

132^nd Petitioner

Sinidu Yohannes Joba

133^rd Petitioner

Yasmil Daud Ali

134^th Petitioner

Addna Haji

135^th Petitioner

Lonwabo Mtshengu

136^th Petitioner

Hamza Diba Tubi

137^th Petitioner

Felix Otieno Muruka

138^th Petitioner

Ibrahim Alio Galgallo

139^th Petitioner

Larson Abel Domjul

140^th Petitioner

Boru Hussein Jattani

141^st Petitioner

Mohamed Abdikadir Ibrahim

142^nd Petitioner

Hussein Kore Wako

143^rd Petitioner

Mohamed Guracha

144^th Petitioner

Jatani Hussein Jatani

145^th Petitioner

Molu Adan Golicha

146^th Petitioner

Felix Munde Ondigo

147^th Petitioner

Bongiwe Lamani

148^th Petitioner

Berisa Tesfaye

149^th Petitioner

Sharmake Said

150^th Petitioner

Caryn Pieterse

151^st Petitioner

Shukria Ali Tifow

152^nd Petitioner

Asha Abdullahi Abdirahim

153^rd Petitioner

Obsitu Aliyi Omer

154^th Petitioner

George Kipsang

155^th Petitioner

Keanan Lesley Jousten

156^th Petitioner

Elmi Osman

157^th Petitioner

Abdirizak Muktar Ahmed

158^th Petitioner

Ibrahim Roba Qampare

159^th Petitioner

Mariam Adhan Hassan

160^th Petitioner

Bigomba Lasto

161^st Petitioner

Kibirige Ivan Gaayi

162^nd Petitioner

Mawerere Eric

163^rd Petitioner

Frank Mugisha

164^th Petitioner

Endalew Shibabawe

165^th Petitioner

Retina Asfaw Tegegn

166^th Petitioner

Eunice Wanjiru Mwaura

167^th Petitioner

Ahmednoor Salat Osman

168^th Petitioner

Mustapha Mukhtar

169^th Petitioner

Sani Muhammad Faisal

170^th Petitioner

Stephen Koome

171^st Petitioner

Joshua Otieno Ooko

172^nd Petitioner

Ssengooba Allan Oswald

173^rd Petitioner

Esther Maingi

174^th Petitioner

Marvin Nkojo

175^th Petitioner

Iliyasu Abba Ahmed

176^th Petitioner

Muhammad Aliyu

177^th Petitioner

Emmanuel Sambo

178^th Petitioner

Fiyore Nugus

179^th Petitioner

Abdi Mohamed Ali

180^th Petitioner

Roba Dereje Amante

181^st Petitioner

Michael Nkoko

182^nd Petitioner

Ayub Hussein Gisho

183^rd Petitioner

and

Meta Platforms, Inc

1^st Respondent

Meta Platforms Ireland Limited

2^nd Respondent

Samasource Kenya EPZ Limited t/a Sama

3^rd Respondent

Majorel Kenya Limited

4^th Respondent

and

Kenya Human Rights Commission

Interested Party

Katiba Institute

Interested Party

Kituo Cha Sheria

Interested Party

Kenya National Human Rights and Equality Commission

Interested Party

Central Organization of Trade Unions Kenya

Interested Party

The Attorney General

Interested Party

Ministry of Labour, Social Security and Services

Interested Party

Ministry of Health

Interested Party

Ministry of Foreign Affairs

Interested Party

Jurisdiction of the Employment and Labour Relations Court in matters of alleged violation of human rights and fundamental freedoms by employers who were foreign companies

The petitioners in the instant case alleged that the 1st, 2nd and 3rd respondents had embarked on an unlawful and unfair termination of their employment. The 1st and 2nd respondents argued that the court lacked jurisdiction to determine the petition. The court held that it had jurisdiction to determine the matter of alleged unlawful and unfair termination of employment on grounds of redundancy and also the jurisdiction to enforce alleged violation of human rights and fundamental freedoms by the respondents. The court noted that its jurisdiction was in flux and a moving target and that had created uncertainty on what the jurisdiction of the court was and that it was about time the Supreme Court rendered itself authoritatively on the matter.

Reported by Kakai Toili

Jurisdiction - jurisdiction of the Employment and Labour Relations Court (ELRC) - jurisdiction in matters of alleged violation of human rights and fundamental freedoms by employers against employees - whether the ELRC had jurisdiction in matters of alleged violation of human rights and fundamental freedoms by employers who were foreign companies - whether privity of contract was an essential element in establishing violations of human and fundamental freedoms by a person in control and authority over another - Constitution of Kenya, 2010, articles 162(1) and (2).Civil Practice and Procedure - preliminary objections - nature of preliminary objections - what was the appropriate way in which a party ought to raise a preliminary objection.

Brief facts The petitioners were nationals of various countries engaged as Facebook Content Moderators. The petitioners averred that they were engaged by the 1^st and 2^nd respondents to work in Kenya and that the recruitment was done through the 3^rd respondent. The petitioners alleged that the 1^st, 2^nd and 3^rd respondents had embarked on an unlawful and unfair termination of their employment for the sole reason that one of the moderators formerly engaged by the 1^st and 2^nd respondents through the 3^rd respondent filed a constitutional petition challenging the gross violation of moderators’ rights by the 1^st, 2^nd and 3^rd respondents. The petitioners thus claimed that the 1^st and 2^nd respondents had orchestrated a sham redundancy to be undertaken by the 3^rd respondent. The petitioners alleged that their human rights and fundamental freedoms had been violated, continued being violated and were further threatened during the sham redundancy process. The 1^st and 2^nd respondents filed a notice of motion application seeking among other orders that the petition be struck out and/or dismissed as against them on among other grounds that the court lacked jurisdiction to entertain, hear and determine the petition. The 1^st and 2^nd respondents’ application was premised on among other grounds that; they were foreign corporations who were neither formally present, domiciled nor trading in Kenya over whom the court could not as a matter of right or law assume jurisdiction.

Issues

Whether the Employment and Labour Relations Court had jurisdiction in matters of alleged violation of human rights and fundamental freedoms by employers against employees.
Whether privity of contract was an essential element in establishing violations of human and fundamental freedoms by a person in control and authority over another.
What was the nature of a preliminary objection?
Which was the appropriate way in which a party ought to raise a preliminary objection?

Held

A preliminary objection was one that raised a pure point of law argued on the assumption that all the facts pleaded by the other side were correct. It could not be raised if any fact had to be ascertained. The preliminary objection raised by the 1^st and 2^nd respondent fell short of the mandatory requirements of a preliminary objection – it did not constitute a pure point of law argued on the assumption that all the facts pleaded by the other side were correct. There was a plethora of facts raised by the petitioners in the petition and the supporting affidavits which were yet to be ascertained.
For a court to be said to be acting extra territorially, the violations complained of by the petitioners must have been committed outside the jurisdiction of the court. That was not the case in the instant petition. The raft of alleged violations by the 1^st, 2^nd, and 3^rd respondents were said to have been committed in Kenya and within a work space provided by the 1^st and 2^nd respondents. Privity of contract was not an essential element in establishing violations of human and fundamental freedoms by a person in control and authority over another.
The 1^st and 2^nd respondents had been properly served with the court processes and had rightly been placed within the territorial jurisdiction of the court to enable them to defend the case brought against them by the petitioners as they were already justly and effectively doing through a duly appointed firm of advocates.
The jurisdiction of the court to hear and determine matters was founded under article 162(1) and (2) of the Constitution of Kenya, 2010. The jurisdiction of the court was in flux and a moving target. That had created uncertainty on what the jurisdiction of the court was and it was about time the Supreme Court rendered itself authoritatively on the matter. Almost every other matter before the court started with a challenge on the jurisdiction of the court due to the lingering uncertainty. That led to uneconomical use of the court’s time and to the case backlog.
The court had jurisdiction to determine the matter of alleged unlawful and unfair termination of employment on grounds of redundancy by the 1^st, 2^nd and 3^rd respondents and also the court had jurisdiction to enforce alleged violation of human rights and fundamental freedoms by the 1^st, 2^nd, 3^rd and 4^th respondents against the petitioners as set out in the petition and the supporting documents.
The dispute arose from an employer – employee dispute. The court would consider the nature and extent of liability with regard to the alleged breaches and violations of the Constitution arising and or related to employment and labour relations in Kenya. It was immaterial whether the alleged violations occurred in a physical or virtual space within the jurisdiction of the court in Kenya.
The court distinguished its decision in Nairobi ELRC Petition No E071 of 2022 – Daniel Motaung v Sama Source Kenya EPZ Limited T/A Sama and 2 others where the court held that the petitioners in that case had not sought leave to serve summons on the 2^nd and 3^rd respondents in terms of order 5, rule 21 of Civil Procedure Rules and therefore the court found that it was not satisfied that it had assumed jurisdiction over the 2^nd and 3^rd respondents in that matter. The court however did not strike out the 2^nd and 3^rd respondents from the petition but gave the petitioners opportunity to comply with order 5 rule 22 of the Civil Procedure Rules.
The alleged failure by the petitioners to disclose material facts was without merit. The dispute of facts alluded to by the 1^st and 2^nd respondents shall be fully ventilated, considered and determined upon hearing of the suit on the merits.
Whereas pure points of law may be raised in any manner and the court may discern them from pleadings and raise the same suo moto, it was appropriate for a party who wished to raise a preliminary objection to do so by a notice of preliminary objection or in a statement of defence where appropriate to avoid unnecessary arguments on the manner in which the points of law had been taken up by the objectors.

Preliminary objections dismissed.

Orders

Due to the nature of the matter and the interim orders in place, considering that the court had just commenced its leave, the matter was referred to the Principal Judge to allocate the matter to another judge within the Judicial Review and Labour Relation’s Division to hear and determine the pending application and the petition on the merits on a priority basis.
The interim orders were extended pending the hearing and determination of the notice of motion dated March 17, 2023.
Costs in the cause.

Citations Cases

Abdulahi, Bashir Haji v Adhan Mohamed Mooru & 3 Others (Civil Appeal 300 of 2013; [2014] KECA 707 (KLR)) — Explained
Attorney General and 2 Others v Okiya Omtatah Okoiti and 14 Others (Civil Appeal 621 of 2019 (Consolidated with Civil Appeal 74 of 2020); [2020] eKLR) — Mentioned
Attorney General & another v Andrew Maina Githinji & another (Civil Appeal 21 of 2015; [2016] KECA 817 (KLR))
Mambo, Rose Wangui & 2 others v Limuru Country Club & 17 others (Constitutional Petition 160 of 2013; [2014] eKLR) — Explained
Miguna, Miguna v Lufthansa Group Operating as Lufthansa German Airlines & 6 others; Kenya National Commision on Human Rights &another; (Interested Parties) (Petition 47 of 2020; [2021] KEHC 1916 (KLR)) — Explained
Motaung v Samasource Kenya EPZ Limited t/a Sama & 2 others (Petition E071 of 2022; [2023] KEELRC 320 (KLR)) — Distinguished
Mugendi, Daniel N v Kenyatta University, Benson I Wairegi, Eliud Mathiu & Olive M Mugenda (Civil Appeal 6 of 2012; [2013] KECA 41 (KLR)) — Mentioned
National Social Security Fund Board of Trustees v Kenya Tea Growers Association & 14 others (Civil Appeal 656 of 2022; [2023] KECA 80 (KLR)) — Mentioned
United States International University (USIU) v The Attorney General and Others (Petition 170 of 2012; [2012] eKLR) — Explained
Mukisa Biscuits Manufacturing Company Limited vs West End Distributors Limited ((1969) EA) — Explained

Statutes

Civil Procedure Rules, 2010 (cap 21 Sub Leg) — Order 5; Rule 21, 22A, 22B — Interpreted
Constitution of Kenya, 2010 (Const2010) — Article 9, 20, 22, 27, 28, 29, 33, 36, 41, 43, 47, 50, 54, 55, 162(1) (2) — Interpreted
Employment And Labour Relations Court Act, 2011 (Act No 20 of 2011) — Section 12 — Interpreted
National Social Security Fund Act, 2013 (Act No 45 of 2013) — In general — Cited

AdvocatesKaplan & Stratton Advocates for 1st and 2nd respondentsWalker Kontos Advocates for petitioners

Ruling

1.The petition was filed by the 1^st to 43^rd petitioners on March 20, 2023. The petitioners have been joined by 183 other petitioners pursuant to an application for joinder dated April 11, 2023 which application was not opposed by the respondents and interested parties herein. The court granted the order for joinder accordingly on April 13, 2023.

2.The petitioners are nationals of various countries engaged as Facebook Content Moderators. The petitioners have averred in the petition that they were engaged by the 1^st and 2^nd respondents being Meta Platforms, Inc, and Meta Platforms Ireland Limited to work in Kenya. That the recruitment was done through the 3^rd respondent, Sama Source Kenya EPZ Limited t/a Sama.

3.The petitioners allege that the 1^st, 2^nd and 3^rd respondents have embarked on an unlawful and unfair termination of their employment as Facebook Content Moderators for the sole reason that one of the moderators formerly engaged and by the 1^st and 2^nd respondents through the 3^rd respondent filed a constitutional petition in May, 2022 challenging the gross violation of moderators’ rights by the 1^st, 2^nd and 3^rd respondents.

4.That seemingly, in retaliation the 1^st and 2^nd and 3^rd respondents have decided that they do not want to deal in any manner with any moderators who were engaged through the 3^rd respondent as they are enlightened on their rights by association, and therefore a threat.

5.That the 1^st and 2^nd respondents have as a result orchestrated a sham redundancy to be undertaken by the 3^rd respondent to get rid of 260 Facebook Content Moderators engaged through the 3^rd respondent.

6.That the 1^st and 2^nd respondents thereafter partnered with the 4^th respondent to engage moderators through the 4^th respondent, on condition the 4^th respondent would not engage any of the content moderators that had been engaged through the 3^rd respondent. That this petition presents the clearest case of abuse of the redundancy process in Kenya.

7.The petitioners allege that their human rights and fundamental freedoms have been violated, continue being violated and are further threatened during the sham redundancy process.

8.The petitioners further detail the human rights violations they have suffered while working for the 1^st 2^nd and 3^rd respondents and how the work they have done has affected their mental health and their general well-being. That in return the 1^st, 2^nd and 3^rd respondents after exploiting them now want to dump them out and replace them with others.

9.That the petitioners are all currently based at the respondents’ premises in Nairobi Kenya though they come from different countries.

10.That the petition is brought in terms of articles 9, 20, and 22 of the Constitution.

11.Grounds of petition(a)That the redundancy is unlawful as it has no substantive justification and does not adhere to the principle of procedural fairness. That in conducting the redundancy, the 1^st, 2^nd and 3^rd respondent’s violated the moderators’ rights under article 41, 47, 28 and 55 of the Constitution.(b)That the refusal by the 1^st, 2^nd and 4^th Respondents to hire the content moderators engaged through the 3^rd respondents amounts to discrimination and is a violation of article 27 of the Constitution. The conduct of the respondents amounts to discrimination against the Facebook Content Moderators engaged through the 3^rd Respondents; and(c)That the 1^st, 2^nd and 3^rd respondent have violated the right to fair labour practices of the petitioners and those of other moderators through the period they were engaged and(d)The 1^st, 2^nd and 3^rd respondent’s failure to provide adequate psychosocial support to the moderators is a violation of their right to health and to reasonable working conditions.

12.The petitioners have pleaded that they are engaged on a complex Employment relationship by the 1^st, and 2^nd respondents through the 3^rd respondent.

13.That all the work known as Facebook Content Moderation belongs to the 1^st and 2^nd respondents. It is the 1^st and 2^nd respondents who are in charge of all factors of production including Content Moderation which takes place at the workplace and the digital work place (SRT) which are fully under the control of the 1^st and 2^nd respondents. The digital Workplace is fitted with Surveillance features which keep track of all the work done, the time spent on each assignment and movements of the Facebook Content Moderators. The amount of time spent at the digital workplace together with other metrics is computed and billed for each content moderator. Their performance is reflected on their payslip which shows there is a direct connection between their work and their pay.

14.The key tools of trade are the Facebook community standards which are wholly created and revised by the 1^st and 2^nd respondents. The work is queued directly from the 1^st and 2^nd respondents to the Facebook content moderators in the digital workplace and the 1^st and 2^nd respondents have set performance metrics which are used to assess the performance of each moderators for every part they review.

15.That the 1^st and 2^nd respondents’ partners such as the 3^rd and 4^th respondent are mere conduits used to record for Facebook Content Moderators and is an attempt to shield the 1^st and 2^nd respondents from liability. (emphasis added].

16.That the Content Moderation Centre, Nairobi serves the larger Eastern and Southern African Region. That considering the variety of language spoken in these regions moderations are drawn from different countries to moderate posts that are in each local language. As a result, a lot of the moderators engaged through the 3^rd respondent are foreigners on work permits. Some are refugees drawn from countries to which it is too dangerous to return at the moment.

Events Leading To The Suit.

17.The petitioners state that on January 9, 2023, an email was sent by Lilian Kiplang’at, the Program Director to all members of GPL8 (Facebook Content Moderators) informing them of an in-person Town-hall meeting to be held on January 10, 2023 at 10.am.

18.That on January 10, 2023 all the moderators attended the town-hall meeting where the 3^rd respondent’s top management including Lilian Kiplang’at, Clinton Odindo, Habel Kamau, Jennifer Kivuva and the Chief Executive Officer, Wendy Gonzalez were present.

19.That Lilian informed the moderators that the 1^st and 2^nd respondents did not want to renew their contracts with the 3^rd respondent. That as a result, all the Facebook Content Moderators would be losing their jobs and they would be declared redundant. That their last working day would be February 28, 2022. [Emphasis added]

20.The announcement destabilized the moderators a lot, many of whom had migrated to Kenya for the job. Many of the moderators needed counselling following the announcement. The moderators were denied a session with the counsellors. That considering the kind of work the moderators handle, access to mental health support is a vital requirement.

21.An email was shortly sent to members of the GPL 8 Team by Lilian titled “Important and Confidential: Redundancy notice for CO Business.” The notice indicated that the moderators’ positions would be declared redundant with effect from February 28, 2023. The notice was for 30 days. The notice provided a calendar of events which included:-(i)January 10, 2023, notification to the labour office.(ii)Consultation and immigration support period.(iii)10^th January, to February 9, 2023 – service package discussion.(iv)February 28, 2023 – last day of work and during the period the wellness team would be available to give additional wellness support. That wellness support would continue for 12 months after the last working day.

22.The specific violations of the Constitution by the 1^st, 2^nd 3^rd and 4^th respondents have been pleaded in greater detail in paragraphs 221 to 234 of the petition.

23.The petitioners prays for the following reliefs:-(a)A declaration that the respondents jointly and severally violated the petitioners’ constitutional rights and the constitutional rights of the Facebook Content Moderators engaged through the 3^rd respondent as guaranteed under articles 27, 28, 29, 33, 36, 41, 43, 47, 50, 54 and 55 of the Constitution of Kenya, 2010.(b)A declaration that the redundancy undertaken by the 1^st, 2^nd and 3^rd respondents is unlawful as it is without justification and is procedurally unfair.(c)A declaration that the termination of the moderators on account of redundancy amounts to unfair termination.(d)A declaration that the termination letters issued to the moderators on account of redundancy are null and void.(e)A declaration that the moderators engaged through the 3^rd respondent were subjected to unfair remuneration in that the pay they were offered was inadequate and incommensurate to the work they were doing and the risk they were exposed to.(f)A declaration that the Non-Disclosure Agreements the moderators signed are invalid for being unfair and for lack of consideration.(g)A declaration that the Non-Disparagement Agreements the moderators are being made to sign during the redundancy process are unlawful as they are unfair and lack consideration.(h)An order reinstating the moderators to the positions they were in.(i)An award of compensatory damages for unfair termination of employment equivalent to twelve months gross salary.(j)An order that the 1^st, 2^nd and 3^rd respondents jointly and severally pay to each moderator engaged through the 3^rd respondent an award for aggravated damages amounting to Kshs 10,000,000 per moderator with interest for unfair labour practices experienced while they were content moderators.(k)An order that the 1^st, 2^nd and 3^rd respondents jointly and severally pay each moderator engaged through the 3^rd Respondent an award of damages amounting to Kshs 20,000,000 per moderator with interest for violation of their constitutional rights under articles 27,28,29,33,36,41,43,47,50, 54 and 55.(l)An order that the 1^st, 2^nd and 3^rd respondents jointly and severally pay to each moderator engaged through the 3^rd respondent, current or former, an award of damages amounting to Kshs 20,000,000 per moderator with interest for the damage caused to their mental health and general well-being as a result of the constant exposure to toxic content with little to no mitigation measures.(m)An order that the 1^st, 2^nd and 4^th respondents jointly and severally pay to the moderators who they failed to recruit on account of them having been engaged through the 3^rd respondent an award of damages amounting to Kshs 1,000,000 per moderator with interest for violating their right of freedom from discrimination.(n)An order that the respondents jointly and severally cater for the costs of lifelong treatment for each moderator, current or former engaged through the 3^rd respondent for any mental health problems that they may have developed as a result of being Facebook Content Moderators.(o)An order that the moderators engaged through the 3^rd respondent deserved a higher salary to the tune of Kshs 400,000 per month (gross) with interest and that the same be applied retrospectively to each moderator beginning with the date of their engagement.(p)An order that the 3^rd respondent accounts for and pays back all the unlawful deductions made from each moderator’s salaries and that all the moderators be provided with their payslips from the date of employment to the date of termination of employment or to date.(q)An order of permanent injunction restraining the respondents either by themselves, their servants, agents, employees, or anyone acting under their authority, direction, control, or instruction from, whether by words or actions, making any threat to or in any way whatsoever retaliating against any of the moderators for bringing this petition or giving evidence herein.( r)An order that the respondents each prominently exhibit in the 2^nd respondent’s premises, the 4^th respondent’s premises, and on the 1^st and 2^nd respondent’s intranet workplace, a notice affirming that Facebook Content Moderators have the right to speak out about their working conditions and to form a union, and that the respondents will not interfere with these rights.(s)An order that the respondents jointly and severally implement at the 3^rd and 4^th respondents’ premises in Nairobi, a psychological and mental health support system for the moderators identical to that in the 1^st and 2^nd respondent’s Headquarters at Menlo Park and Dublin for as long as the 1^st and 2^nd respondents continue partnering with the 3^rd respondents for purposes of carrying out content moderation and all data annotation work.(t)An order awarding the costs of the petition together with interests to the petitioners.

24.The petition was accompanied by a notice of motion application on a certificate of urgency seeking various interim reliefs pending the hearing and determination of the application and the petition on the merits.

25.The court considered the application ex parte and granted an order in terms of prayers (a) (b) (c ), (e ), (i) and (k) of the notice of motion.

26.In terms of prayers (b) the court granted leave to the petitioners ex parte to effect service of the petition and of the application on the 1^st and 2^nd respondents at their principal offices in the United States and Ireland respectively in accordance with order 5, rule 22(A) (Internationally registered and recognized customer services) and order 5 rule 22(B) (Electronic Mail Services of the Civil Procedure Rules) and that such services be deemed adequate for the purpose of order 5.

27.The court notes that service was duly effected on the 1^st and 2^nd respondents who have since entered appearance in this matter through their appointed advocates.

28.The court further injuncted the Redundancy Notice issued to Facebook Content Moderators (GPL8 CO) on January 10, 2023 and by so doing restraining restrained the 1^st, 2^nd and 3^rd respondent from terminating the contract of the Facebook Content Moderators pending the hearing and determination of the application.

29.The court further injuncted the 1^st and 2^nd respondents from replacing the Content Moderators engaged through the 3^rd respondent pending the hearing and determination of the application.

30.The court further issued an interim prohibitory order restraining the 1^st, 2^nd and 4^th respondents from refusing to recruit qualified Content Moderators on grounds that they were previously engaged through the 3^rd respondent pending the hearing and determination of the application.

Response

31.In response to the petition and the Notice of Motion application aforesaid, the firm of Kaplan & Stratton Advocates for the 1^st and 2^nd respondents filed a notice of motion application dated March 24, 2023 seeking an order in the following terms:-1.Spent2.That pending the hearing and determination of the application herein, this honourable court be pleased to stay the orders made on March 20, 2023.3.That the application herein be heard on priority to any other application and/or other proceedings in this petition, to include the petitioner’s application dated March 17, 2023.4.That the petition herein be struck out and/or dismissed as against the 1^st and 2^nd respondents and the ex-parte orders made and issued as against the 1^st and 2^nd respondents on March 20, 2023 be set aside and/or discharged ex debito justitiae on the grounds:-a.This honourable court lacks jurisdiction to entertain, hear and determine the petition herein as against the 1^st and 2^nd respondents.b.The petition is in any event, unsuitable as against the 1^st and 2^nd respondents as it was filed in violation of the mandatory provisions of the Constitution of Kenya, (2010) and the law.c.The ex-parte orders issued by this court on March 20, 2023 as against the 1^st and 2^nd respondents are a nullity ab initio, as the said orders were made in excess of this court’s jurisdiction.d.The petitioners herein, at the ex parte stage of these proceedings, failed to make a full and fair disclosure of material facts within its knowledge germane to the dispute and have deliberately, negligently or recklessly concealed and obfuscated material facts at the hearing of the petitioner’s application dated March 17, 2023.5.Costs of this application and the petition be awarded to the 1^st and 2^nd respondents.

32.The application is premised on grounds set out on the face of the notice of motion the nub of which is that:-1.The 1^st and 2^nd respondents are foreign corporations who are neither formally present, domiciled nor trading in kenya over whom this honourable court cannot as a matter of right or law assume jurisdiction.2.The 1^st and 2^nd respondents are not in fact or law, and on the demonstration by the petitioners, the employers of the petitioners herein. The petitioners have deliberately dishonestly and unfairly concealed and obfuscated the material fact that they are only employed by the 3^rd respondent and by virtue of written contracts of employment between the petitioners and the 3^rd respondent.3.As there is no employer-employee relationship between the petitioners and the 1^st and 2^nd respondents, this court lacks jurisdiction over any purported dispute between the petitioners and the 1^st and 2^nd respondents.4.As required by law, the petitioners have failed to show sufficient grounds or good cause upon which this honourable court could have granted leave to serve the petition out of Kenya and in any event, the circumstances of this petition do not warrant an order for leave to serve the Petition out of Kenya. Any order for leave to serve the 1^st and 2^nd respondents was granted in excess of this honourable court’s jurisdiction and should be set aside ex debito justitiae.5.In any event, and notwithstanding the grounds above, this court cannot assume jurisdiction over the 1^st and 2^nd respondents in the circumstances of this petition.6.The petition is bad in law, incompetent and a non-starter for want of jurisdiction as against the 1^st and 2^nd respondents. It is just and equitable in the circumstances that the orders sought in the application herein are granted.

33.The application is not supported by any affidavit. Upon hearing oral submissions by advocates for the parties, the court gave directions on the disposal of the preliminary objection set out in the application by the 1^st and 2^nd respondents dated March 23, 2023. The advocates for the 1^st and 2^nd respondents and the advocates for the petitioners filed written submissions with list of authorities. The 3^rd and 4^th respondents opted not to participate in the hearing and determination of the preliminary objection.

34.The advocates for the 1^st and 2^nd respondents and the advocates for the petitioners highlighted the submissions and list of authorities cited on April 13, 2023.

Determination

35.The court having considered the objection to the application and petition by the 1^st and 2^nd respondents and the submissions by the parties has identified the following issues for determination:-(a)Whether the court has jurisdiction to hear and determine the petition.(b)Whether the 1^st and 2^nd respondents’ notice of motion application can be considered as a notice of preliminary objection.(c)Whether the 1^st and 2^nd respondents are proper parties in this case; and(d)Whether the petitioners are guilty of non-disclosure of material facts.

Jurisdiction

36.The court will consider the issues delineated together. the 1^st and 2^nd respondents’ object to the jurisdiction of this court to hear and determine the petition was summarized by the advocates for the 1^st and 2^nd respondents as follows:-i.That the 1^st and 2^nd respondents are foreign corporates who are not resident or trading in Kenya and this court as a matter of right or law cannot assume jurisdiction over the 1^st and 2^nd respondents.

37.The 1^st and 2^nd respondents submit further that the petitioners describe the 1^st and 2^nd respondents in paragraphs 4 and 5 of the petition as “a multinational public company with operations and customers all over the world with its principal offices at “1601 Willow Road, Menlo Park, California 94025” and the 2^nd respondent is described as “a subsidiary of the 1^st respondent and a limited liability company with the principal offices at 4 Grand Canal Square grand Canal Habour Dublin, Ireland”

38.The respondents submit therefore it is apparent that the petitioners knew that the two entities were foreign companies without either a Legal or factual presence in Kenya. The respondents submit further that the petitioners sought leave, which leave was granted to effect service of the application and the petition out of Kenya. The petitioners were therefore well aware that the 1^st and 2^nd respondents had their residency and principal offices out of Kenya and in particular in the United States of America and Ireland respectively.

39.That the petitioners cannot in the same breath be heard to plead, as they did in the petition that they are being treated unfairly by the 1^st and 2^nd respondents in Kenya because of the earlier petition filed by their colleagues in Petition E071 of 2022, Daniel Motaung vs Sama Source EPZ Limited trading as Sama (as the 1^st respondent) Meta Platforms, Inc. (as the 2^nd respondent) and Meta Platforms Ireland (as the 3^rd respondent).

40.The respondents submits also that the petitioners deliberately obfuscate and mischaracterize the hard truth that the petitioners herein are employed by Sama, the 3^rd respondent and not by the 1^st and 2^nd respondents. That this is a deliberate non-disclosure of a material and relevant facts which should disentitle the applicants to the reliefs sought.

41.That the petitioners seek to introduce a legal theory unknown to the law, by pleading, that the petitioners are “Facebook Content Moderatos engaged through ‘the 3^rd respondent to work for the 1^st and 2^nd respondents” Inter alia. That this is an attempt by the petitioners to bend over backwards to avoid the truth, which is replete through the pleadings and document’s on record and in particular in the letter of offer referred to at paragraph 21 of the affidavit of the 1^st petitioner which states:-“It gives me great pleasure to communicate our intent for you to serve as a Content Moderator at Sama Source Kenya.”

42.On the issue of jurisdiction, the respondents and petitioners rely on the case of Mukisa Biscuits Manufacturing Company Limited vs West End Distributors Limited (1969) EA in which it was famously held by Newbold S that a preliminary objection is one that raises pure point of law argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained.

43.The Court of Appeal in the case of Attorney General and Another vs Andrew Maina Githinji and Another [2016] affirms this position – Waki JA held that all the above three conditions must be met for a preliminary objection to be sustained.

44.From the pleadings of the petitioners, it is apparent that they were aware that the 1^st and 2^nd respondents are corporate bodies registered in the United States of America and Ireland respectively. However, the petitioners have maintained throughout the pleadings that the 1^st and 2^nd respondents have operations all over the world. That the 1^st and 2^nd respondents were the actual employers of the petitioners even though the recruitment and the contracts of employment were done by the 3^rd respondent. The petitioners have pleaded that they work in the Virtual Platform provided and owned by the 1^st and 2^nd respondents and the 1^st and 2^nd respondents are in control of not only their place of work but also supervise and control their daily work. That the platform which provides their daily work environment – in which they allege continuous violation of their stated rights and fundamental freedoms is provided solely and controlled by the 1^st and 2^nd respondents [Emphasis added].

45.The 1^st and 2^nd respondents have not yet filed any replying affidavit to the petition even though they attempt to dispute these facts set out by the petitioners in the grounds of objection set out in the notice of motion dated March 24, 2023. The contestation of the facts of employment as set out in the petition by the petitioners have not been pleaded in a supporting affidavit to the notice of motion filed by the 1^st and 2^nd respondents.

46.It is apparently clear that the preliminary objection raised by the 1^st and 2^nd respondent in this respect – falls short of the mandatory requirements set out in the Mukisa Biscuits case (supra) – that it does not constitute a pure point of law argued on the assumption that all the facts pleaded by the other side are correct. There are a plethora of facts raised by the petitioners in the petition and the supporting affidavits which are yet to be ascertained. The Court of Appeal in the case of Bashir Haji Abdulahi vs Adhan Mohamed Mooru & 3 Others [2014] eKLR made the following distinction between points of law and matters of fact – ‘Matter of fact’ is a matter involving a judicial inquiry into the truth of alleged facts; a ‘matter of law’; is a matter involving judicial inquiry into the applicable law.”

47.The question the court is called upon to determine upon hearing the case on the merits is whether or not the 1^st and 2^nd respondents are in fact and law the actual employers of the petitioners as alleged in the petition and whether the 1^st and 2^nd respondents are guilty of the violation of the rights and freedoms of the petitioners as set out in the petition in the capacity as employers and /or supervisors who are in control of the petitioners.

48.In Miguna Miguna vs Lufthansa Group operating as German Airlines & 6 Others – KNCHR and Another [2021] eKLR Korir J. held that for a court to be said to be acting extra territorially, the violations complained of by the petitioners must have been committed outside the jurisdiction of the court. This is not the case in this petition. The raft of alleged violations by the 1^st, 2^nd, and 3^rdrespondents are said to have been committed in Kenya and within a work space provided by the 1^st and 2^nd respondents. Privity of contract is not an essential element in establishing violations of human and fundamental freedoms by a person in control and authority over another. [emphasis is added].

49.The court in this respect is persuaded by the three judge bench decision in Rose Wangui Mambo & 2 Others vs Limuru County Club & 17 Others [2014] eKLR where the court held as follows:-

50.“It is also worth mentioning that according to the Rules, a petition cannot be defeated by reason of the misjoinder or non-joinder of parties. The court in such an instance is mandated to deal with the matter in dispute according to rule 5(b) of the rules, while rule 5(d) allows the court at any stage of the proceedings, (either upon or without the application of either party) to order that the name of any party improperly joined be struck out and that the name of any person who ought to have been joined or whose presence before the court may be necessary in order to enable the court adjudicate upon and settle the matter be added.

51.The 2^nd to 9^th respondents have invoked the doctrine of corporate legal entity to claim that they are wrongfully enjoined as respondents. Without appearing to trample on the age old doctrine of corporate legal personality which we do not find necessary to delve into, we think that the issue must be approached more from a practical perspective rather than a purely legalistic manner; and in a way that best advances the cause of justice with regard to all parties concerned.

52.From the definition of the term ‘respondents’ set out above, we understand the implication to be that any person can be joined as a respondent so long as there is an allegation that the person has infringed or threatens to infringe the petitioner’s fundamental rights. It is perhaps worth noting that at this point, we are not talking of determination of culpability or liability, as that we think is an issue for the court to eventually determine.”

50.It is the court’s considered finding that the 1^st and 2^nd respondents have been properly served with the court processes in this matter and have rightly been placed within the territorial jurisdiction of the court to enable them to defend the case brought against them by the petitioners as they are already justly and effectively doing through duly appointed firm of advocates.

51.The 3^rd respondent who has been described by the petitioners as a conduit and partner through which the petitioners were recruited by the 1^st, 2^nd and 3^rd respondents chose rightly not to challenge the jurisdiction of this court recognizing that what is before court are matters relating or arising out of employment and labour and/or arising from an employment relationship between the parties within the meaning of section 12(1) (a) of the Employment and Labour Court Act, 2014.

52.The jurisdiction of this court to hear and determine matters is founded under article 162(1) and (2) of the Constitution of Kenya, 2010 which provides:-“(1)) The superior courts are the Supreme Court, the Court of Appeal, the High Court and the courts mentioned in clause (2).(2)Parliament shall establish courts with the status of the High Court, to hear and determine disputes relating to:-a.Employment and Labour Relations;” andarticle 165(5) which provides:-“(5)The High Court shall not have jurisdiction in respect of matters:-(a)………………(b)Falling within the jurisdiction of the court’s contemplated in article 162 (2)

53.Section 12 of the Employment and Labour Relations Court Act, No 18 of 2014 provides:-“12(1) The court shall have exclusive original andappellate jurisdiction to hear and determine all disputes referred to it in accordance with article 162(2) of the Constitution and the provisions of this Act or any other written Law which extends jurisdiction to the court relating to employment and Labour Relations including :-a.Disputes relating or arising out of employment between an employer and/or employee.” [emphasis added]

54.Article 162(2) and Sections 12(1) (a) aforesaid have been the subject of many decisions of this court; the High Court; and the Court of Appeal. To date this issue has not be settled.

55.The jurisdiction of this court can aptly be said to be in flux and a moving target. This has created uncertainty on what the jurisdiction of this court is and it is about time the Supreme Court rendered itself authoritatively on the matter. It need not be gain said, that almost every other matter before this court starts with a challenge on the jurisdiction of this court due to the lingering uncertainty. This is leading to uneconomical use of the court’s time and to the case backlog.

56.The following Court of Appeal decisions on jurisdiction of Employment and Labour Relations Court are relevant to this matter.

1.Professor Daniel Mugendi and Kenyatta University and 2 Others [2013] eKLR.

2.The National Social Security Fund vs Kenya Tea Growers Association and 14 Others [2023] KCA A 80 KCR

3.Attorney General and 2 Others vs Okiya Omtatah Okoiti and 14 Others [2020] eKLR.

57.In the case of Professor Daniel Mugendi (supra) the Court of Appeal bench of Nambuye, Mwera and Kiage JJ cited with approval the decision of Majanja J. in Petition No 170 of 2012 - United States International University (USIU) vs The Attorney General and Others as follows:-“The learned judge had in the proceedings before him been addressed on the aspect where it was alleged that fundamental rights relating to employment and labour (article 41 Constitution) had been violated, and whether the Industrial Court could entertain such claims. While adopting the position enunciated in the South African case of Gcaba vs Minister of Safety and Security & others CCT 64/08 (2009) ZACC 26, Majanja, J proceeded:“44…..I would adopt the position of the Constitutional Court of South Africa in Gcaba Vs Minister of Safety and Security (Supra). The Industrial Court is a specialist court to deal with employment and labour relations matters. By virtue of article 162(3), section 12 of the Industrial Court Act 2011 has set out matters within the exclusive domain of that court. Since the court is of the same status of the High Court, it must have the jurisdiction to enforce labour rights in article 41 and the jurisdiction to interpret the Constitution and fundamental rights and freedoms, is incidental to the exercise of jurisdiction over matters within its exclusive domain. In any matter falling within the provisions of section 12 of the Industrial Court Act, then the Industrial Court has jurisdiction to enforce, not only Article 41 rights but also all fundamental rights ancillary and incidental to the employment and labour relations including interpretation of the Constitution within the matter before it.” [emphasis added]

58.The Court of Appeal concluded:-“We have quoted in extenso the pertinent parts of the judgment above for the relevance attached to this appeal. In sum on this ground of jurisdiction, we find as we had stated earlier that the High Court had no jurisdiction to entertain the claim which essentially was based on breaches of contract of employment along with some unstated claims of breaches of rights, as the learned judge did find.”

59.The petitioners herein allege breach of the employment contract between them and the 1^st, 2^nd and 3^rd, respondents, violation of rights and fundamental freedoms by the 1^st , 2^nd and 3^rd respondents and discrimination occasioned them by the 1^st, 2^nd and 4^th respondents on ongoing recruitment of new staff on the petitioners.

60.The court finds that this court has jurisdiction to determine the matter of alleged unlawful and unfair termination of employment on grounds of redundancy by the 1^st, 2^nd and 3^rd respondents and also the court has jurisdiction to enforce alleged violation of human rights and fundamental freedoms by the 1^st, 2^nd, 3^rd and 4^th respondents against the petitioners as set out in the petition and the supporting documents.

61.The National Social Security Fund decision (supra) relied upon by the respondents was delivered by a different bench of the Court of Appeal composed of Okwengu, Warsame and Mativo JJ. The Court of Appeal observed at paragraph 55 of the judgment that:-“The issue under consideration in the petitions was the constitutional validity of a statute and or some specific provisions of the NSSF Act, 2013. The constitutional validity of the statute or the targeted provisions did not arise from an employer-employee dispute.[emphasis added ]

62.This court while upholding the interpretation given to article 162(2) (a) read with section 12(1) (a) by the Court of Appeal in Professor Mugendi case (supra) distinguishes the Court of Appeal decision in the NSSF case (supra) in that the Court of Appeal in that case made a specific finding at paragraph 35 that:-“(35)The constitutional validity of the statute or the targeted provisions did not arise from an employer-employee dispute.” [emphasis added]This was the position taken by the Court of Appeal in Omtatah case (supra) as follows:-“……Decided cases are in agreement that constitutional issues can be determined by Employment and Labour Relations Court only if they arise from an employer-employee dispute.”

63.The present dispute arises from an employer – employee dispute. The court will consider the nature and extent of liability with regard to the alleged breaches and violations of the Constitution arising and or related to employment and Labour relations in Kenya. It is in the court’s considered finding that it is immaterial whether the alleged violations occur in a physical or virtual space within the jurisdiction of this court in Kenya. The court distinguishes the decision of this court in Nairobi ELRC Petition No E071 of 2022 – Daniel Motaung and Sama Source Kenya EPZ Limited T/A Sama and 2 Others in that the judge held that the petitioners in that case had not sought leave to serve summons on the 2^nd and 3^rd respondents in terms of order 5, rule 21 of Civil Procedure Rules and therefore the court found that it was not satisfied that it had assumed jurisdiction over the 2^nd and 3^rd respondents in that matter. The court however did not strike out the 2^nd and 3^rd respondents from the petition but gave the petitioners opportunity to comply with order 5 rule 22 of the Civil Procedure Rules.

64.The court has also considered the alleged failure by the petitioners to disclose material facts and have found the said allegations to be without merit. the court need not emphasise that the dispute of facts alluded to by the 1^st and 2^nd respondents shall be fully ventilated, considered and determined upon hearing of the suit on the merits.

65.In the final analysis, this court finds that all the preliminary objections raised by the 1^st and 2^nd respondents, in a Notice of Motion not supported by any affidavit to be without merit.

66.Whereas pure points of law may be raised in any manner and the court may discern them from pleadings and raise same suo moto, the court considers it appropriate for a party who wishes to raise a preliminary objection to do so by a notice of preliminary objection or in a statement of defence where appropriate to avoid unnecessary arguments on the manner in which the points of law have been taken up by the objectors.

67.Accordingly, the preliminary objections raised are found to be without merit and are dismissed with costs in the cause.

68.Due to the nature of this matter and the interim orders in place, considering that this court has just commenced its leave, i refer this matter to the principal judge to allocate the matter to another judge within the Judicial Review and Labour Relation’s Division to hear and determine the pending application and the petition on the merits on a priority basis. The interim orders are extended pending the hearing and determination of the notice of motion dated March 17, 2023.

DATED AND DELIVERED AT NAIROBI (VIRTUALLY) THIS 20^TH DAY OF APRIL, 2023.MATHEWS N. NDUMAJUDGEAppearanceKaplan & Stratton Advocates for the 1^st and 2^nd respondentsWalker Kontos Advocates for the petitionersEkale – Court Assistant

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Constitutional Petition E052 of 2023

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