Meta Platforms, Inc & 2 others v Motaung & 186 others; Kenya National Human Rights and Equality Commission & 14 others (Interested Parties) (Civil Appeal E232 & E445 of 2023 (Consolidated)) [2024] KECA 1262 (KLR) (20 September 2024) (Judgment)

Key Facts

Issues

• The court determined whether the preliminary objections filed by the appellants were based on pure legal questions (e.g., jurisdiction) or involved contested factual issues (e.g., employment relationships). It ruled that factual disputes precluded treatment as preliminary objections.
• The appeals challenged the ELRC's refusal to strike out the petitions against the foreign corporations. The court assessed whether the ELRC's decision to allow the petitions to proceed, despite procedural objections, was a proper exercise of judicial discretion.
• The court examined whether the ELRC had jurisdiction to entertain legal claims against Meta Platforms, Inc. and Meta Platforms Ireland Limited, which are incorporated and based outside Kenya. The issue centered on whether the ELRC's authority extended to foreign corporations not physically present in Kenya but allegedly involved in labor disputes within the country.
• The appeals contested the ELRC's extension of ex-parte orders indefinitely. The court evaluated whether this violated procedural limits in the ELRC Rules and concluded that the extension was lawful under constitutional petition provisions.
• The court addressed whether the petitioners properly obtained leave to serve the foreign corporations under Kenyan procedural rules. It found that the ELRC correctly allowed service without prior leave, given the nature of the claims and digital operations.

Holdings

• The Court of Appeal dismissed both Civil Appeal Nos. E232 and E445 of 2023, finding the appeals devoid of merit. The learned judge did not improperly exercise jurisdiction or misdirect himself in the rulings. The court emphasized that preliminary objections must address pure points of law, and factual disputes cannot be resolved through such objections.
• The ELRC's jurisdiction over foreign corporations was affirmed based on their virtual presence and operations in Kenya. The court rejected the argument that Kenyan laws cannot apply extraterritorially, citing the digital nature of the violations and the respondents' engagement through Kenyan entities.
• The court upheld the extension of ex parte interim orders granted on 20th March 2023, deeming it proper and within jurisdiction. The orders were extended to prevent infringement of the respondents' constitutional rights pending the merits hearing, aligning with Article 23(3) of the Constitution and principles from Gitobu Imanyara v Attorney General.

Remedies

• The Court of Appeal dismissed both Civil Appeal Nos. E232 of 2023 and E445 of 2023, finding them devoid of merit. The appeals were struck out, and the costs were awarded to the respondents.
• The Court of Appeal directed that the costs of the appeals be borne by the respondents, following the determination that the appellants' claims lacked merit.

Legal Principles

• The Court of Appeal held that procedural technicalities should not override substantive justice in determining jurisdiction over foreign corporations. It emphasized that contested factual issues, such as whether a foreign company is 'carrying on business' in Kenya through virtual presence or employment practices, cannot be resolved via preliminary objections or interlocutory applications but require full trial. The judgment underscores the principle that courts must prioritize real-world justice over rigid procedural adherence.
• The court ruled that ex parte interim injunctions in constitutional petitions can be extended beyond the 14-day limit under the ELRC Rules if necessary to protect constitutional rights. It clarified that the Mutunga Rules (governing constitutional petitions) allow such flexibility, distinguishing them from standard civil procedure rules. This reflects the principle that interim measures should adapt to the urgency of human rights violations.

Precedent Name

• TNT Express Worldwide (Kenya) Limited v Timothy Graene Steel
• Yusuf Gitau Abdalla v Building Centre (K) Ltd & 4 Others
• British Columbia (Attorney General) v Brecknell
• Aviation & Allied Workers Union of Kenya v Kenya Airways Ltd & 3 Others
• C.P.C. Industrial Products (K) Ltd v Samuel Kirwa Kosgei
• Mitubell Welfare Society v Kenya Airports Authority & 2 Others
• Valve Corporation v Australian Competition and Consumer Commission
• D T Dobie & Company (K) Ltd v Muchina
• Mbogo & Another v Shab
• Raytheon Aircraft Credit Corporation & Another v Al-Faraj Limited

Cited Statute

• Constitution of Kenya
• Civil Procedure Rules, 2010
• Constitution of Kenya (Protection of Rights and Fundamental Freedoms and Enforcement of the Constitution) Practice and Procedure Rules, 2013
• Employment and Labour Relations Court (ELRC) Rules
• Law Reform Act
• Companies Act

Judge Name

• Jm Mativo
• Dk Musiga
• Msa Makhandia

Passage Text

• We find that the matters raised in the preliminary objection are not pure points of law. For example, whether the appellants are the employers of the 3rd to 186th respondents is an issue of fact which ought to be reserved for the hearing of the petition.
• The upshot of our above findings is that the appellants' appeals numbers E232 of 2023 and E445 of 2023 are devoid of merit and both appeals are hereby dismissed with costs to the respondents.
• However, from the arguments urged by the appellants, the jurisdictional question they are raising is not challenging the court's power to hear the matter, but they are simply saying the trial court lacks jurisdiction because they are foreign companies incorporated outside Kenya and not carrying on business in Kenya. It is their case that the foregoing being the position, they are not subject to the Constitution and the laws of Kenya and therefore Kenyan courts have no jurisdiction over them.