This decision in the stemmed from rulings delivered on 6th February 2023 and 20th April 2023 in Nairobi ELRC Petition E071 of 2022 and Nairobi ELRC Petition E052 of 2023, respectively. In ELRC Petition No. E071 of 2022, Daniel Motaung, representing former and current Facebook content moderators, filed a suit against Samasource Kenya EPZ Ltd (operating as Sama), Meta Platforms Inc., and Meta Platforms Ireland. Motaung claimed poor working conditions, unfair labor practices, and violations of fundamental rights. Samasource contested the case, arguing that Motaung, being a foreign national not residing in Kenya, lacked the legal standing to file the petition.
Furthermore, they contended that Meta was not subject to the court’s jurisdiction as it is a foreign corporation with no operations in Kenya. Meta Platforms Inc. and Meta Platforms Ireland sought dismissal of the case on jurisdictional grounds, but the court, ruled in favour of its jurisdiction and ordered Motaung to properly serve both Meta entities. Dissatisfied with this decision, Meta appealed, challenging the court's jurisdiction.
Reasoning;
In ELRC Petition No. E052 of 2023, several
former employees filed a suit against Meta, Samasource, and Majorel Kenya,
claiming their rights had been violated due to an unjustified redundancy
process. They also filed an application where they sought to effect service
upon Meta Platforms Inc & Meta Platforms Ireland Limited in their principal
offices situated in USA, wherein the court granted them ex parte orders
maintaining the status quo pending hearing and determination of the
application. In response, Meta and its affiliates sought to have the case
struck out, arguing that the court lacked jurisdiction. The court’s ruling on
determined that the nature and extent of Meta’s liability, including violations
occurring virtually within Kenya’s jurisdiction, would be examined. Meta, once
again, appealed this decision on jurisdictional grounds.
In the Court of Appeal, the appellants argued that the Employment and Labour Relations Court (ELRC) could not assume jurisdiction over Meta because proper service had not been effected as required under Kenyan law, and even when service was allowed, the foreign defendant had a right to challenge jurisdiction. The 1st Respondent countered that the issue was now moot since service had been completed, and Meta was actively trading in Kenya through platforms like Facebook Pay and Facebook Marketplace, paying taxes to the Kenyan government. The appellants, however, insisted that Kenyan laws cannot be applied to foreign corporations unless there is evidence of them trading in the country, and enforcing such laws would breach the sovereignty of their home jurisdiction.
The two appeals were determined together.
Issues for determination:
The appeals centered on:
i. whether the ELRC had jurisdiction over Meta, given the company’s foreign status and;
ii. the nature of its operations in Kenya.
Analysis:
Civil Appeal No. 232 of 2023 - On the question of jurisdiction, the Court of Appeal found that the Appellants did not advance any arguments that contested the court’s power to hear and determine the matter, which is the ultimate definition of jurisdiction. They only stated that they are foreign companies who must not be subjected to the Constitution or laws of Kenya, hence ELRC has no jurisdiction over them. The Court of Appeal considered the 1st Respondents arguments that the alleged violations occurred in Kenya, he was employed by the Appellants as a content moderator and the Appellants have a virtual and physical presence in Kenya. The Court of Appeal found that all these arguments that were advanced by parties were issues of fact which could not be determined in an interlocutory application but were meant to be determined in a full hearing. Consequently, the question of jurisdiction that had been put forward by the Appellants, fails.
Civil Appeal No. 445 of 2023 - Here, the Appellants claimed that because there was no employer- employee relationship between them and the 3rd to 186th Respondents and that they were foreign companies, the ELRC cannot assume jurisdiction. The Court of Appeal found that there was no improper exercise of jurisdiction or misdirection by the ELRC.
Court’s Holding/Conclusion:
The Court of Appeal found that the ELRC indeed has the proper jurisdiction over foreign companies in view of the fact that the Respondents' rights were under threat and as such, the orders issued to maintain status quo were valid to the extent of preventing further infringement of the said rights. Additionally, it found no merit in both appeals and dismissed them with costs to the respondents.
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