citizens.” 102. On the second issue, Counsel relying in Communications Commission of Kenya (supra) stated that principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis. Like sentiments were also registered in KKB (supra) which was cited in support. 103. In this matter, Counsel submitted that the actions of the respondent manifestly touch on human rights and fundamental freedoms guaranteed under Articles 19(2), 26, 27, 28, 29, 31, 33, 46, 47, 48 and 50 of the Constitution which is under the exclusive jurisdiction of this Court. As such, Counsel stressed that no other forum would suffice to address the petitioners’ claims. 104. On the last issue, Counsel submitted that Article 22 of the Constitution clearly provides that any person may institute court proceedings claiming that a right or a fundamental freedom has been violated, infringed and threatened including the 1st and 3rd petitioners herein. Accordingly, Counsel contended that contrary to the respondent’s arguments this Court has jurisdiction to entertain the matter, as the alleged violations were committed in Kenya. 105. Be that as it may, Counsel submitted that the Terms of Service relate to any claims arising out of the petitioners’ use of the platform not the constitutional issues raised herein. Counsel noted that contrary to the respondent’s assertion, the issues arising in the petition relate to the use of Facebook by other users to the detriment of the 1st petitioner and the rest of the class of persons represented in the petition. Additionally, Counsel submitted that the Terms of Service do not cover the infringement or violations of the Bill of Rights. 7th Interested party’s submissions 106. Manasses Mwangi and Associates Advocates filed submissions dated 15th January 2024, for the 7th interested party. 107. Counsel submitted that the petition raises substantial questions of law that justify empanelment of a bench. Reliance was placed in Republic v Public Service Commission & Keriako Tobiko Ex parte Nelson Havi [2017] eKLR where it was held that: “the Constitution itself does recognise that in certain circumstances it may be prudent to have a matter which satisfies the constitutional criteria determined by a bench composed of numerically superior judges…” 108. Similar dependence was placed in Philomena Mbete Mwilu(supra). 109. That said, Counsel objected to the respondent’s withdrawal of its grounds of support for the petitioner’s application for empanelment arguing that parties are bound by their pleadings. Reliance was placed in Mombasa Cement Limited v Salim Masdud Abdalla & 4 others [2018] eKLR where it was held that: “In this Application, the Applicant has taken a lot contradictory positions in the same proceedings. In my view, a party cannot be allowed to take two contradictory positions in the same proceedings. In other words, one cannot approbate and reprobate at the same time in the same proceedings. The positions taken by the applicant have been inconsistent.” 110. Like dependence was placed in Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR. 111. Turning to the respondent’s application, Counsel submitted that it was pre-mature and unmerited. Counsel noted that the respondent had not filed any substantive response to the petition before filing the instant application. It was further argued that the facts in this case affirm that this Court has jurisdiction to entertain this matter. This is because the respondent has a registered office in Nairobi which is the headquarters of the African and Asian businesses and that the content The Judiciary of Kenya Doc IDENTITY: 2256051208128601561718914604 Tracking Number:OOEX9A2025 16/23