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c) Facebook users who use Facebook while in Kenya. v. The petition establishes human rights violations by the respondent afflicting Facebook users in Kenya in violation of the Bill of Rights under the Constitution of Kenya and manifests the manner in which these classes of Kenyans have been violated and are threatened. In opposition to the respondent's statement that, the Court does not have jurisdiction to hear the Petition under the constitutional avoidance doctrine vi. While there is a contractual relationship between Facebook users and the respondent, the petition raises substantial issues going beyond the scope of a contractual dispute demanding the interpretation of this Court. These include issues as to the protection of human rights in the age of Artificial Intelligence (AI), and the liability of social media platforms as intermediaries for harm inflicted on their watch vii. It would be futile to seek a non-constitutional resolution of the dispute when the essence of the matter revolves around safeguarding fundamental human rights, requiring an interpretation of the Constitution, that would otherwise not be addressed by contractual remedies In opposition to the respondent's claim that the Court does not have jurisdiction over the claims filed by the 1st and 3rd petitioners’ due to the foreign choice of law in the Terms of Service. viii. Despite the foreign choice of law in Terms of Service, this Court has jurisdiction to entertain the petition by virtue of the nature of the claims brought forth by the 1st and 3rd petitioners which transcend contractual issues. ix. The 1st petitioner rightfully invokes this Court's jurisdiction to address the respondent's activities which were in Kenya. The respondent's hub based in Kenya moderated posts in Amharic and failed to take down posts reported by the 1st petitioner. x. The 3rd petitioner, though a non-consuming entity, is an entitled party to this suit as a person acting in the public interest and representative of Facebook users in Kenya, who may pursuant to Articles 22 and 23 of the Constitution, institute court proceedings claiming that a right or fundamental freedom in the Bill of rights has been violated or threatened. xi. Based on the foregoing, the 2nd interested party urges this Court to dismiss the respondent's application in accordance with the above. 3rd Interested Party’s Case 63. The 3rd interested party in response filed a replying affidavit which was sworn by its Executive Director, Davis Malombe on 5th December 2023. 64. Opposing the respondent’s allegations, he avers that the actions complained of by the petitioners in the petition were handled by the external firms which had been outsourced by the respondent to operate within Kenya. These firms were tasked with the function of analyzing the content posted on Facebook and to remove content found to be in breach of the Facebook Community standards. He notes that this was even admitted by the respondent under Paragraphs 10 in its replying affidavit. 65. He adds that with the respondent’s admission that the content moderators no longer operate, means that the respondent has left an open door for the continued posting of hateful content on the Facebook platform which will infringe on the rights of millions of Kenyans who use the platform. This is despite the already hateful and incitement videos that had been posted on the platform even during the moderation period. He highlights examples of Bett Kiptoo, Member of Parliament of Tiaty in 2021 and Benson Njuki in 2022 who had posted inciteful and hateful content. 66. On this premise, he emphasizes that the petition had been brought on behalf of a class of persons in this case all Facebook users in Kenya, those who use the platform while in Kenya, those whose content is moderated in Kenya and those in Africa as the content moderation function of Facebook is based in Kenya. 67. He further depones that constitutional avoidance does not apply in this petition, as the petition specifically deals with the infringements set out under Articles 19(2), 26, 27, 28, 29, 31, 33, 46, 47, The Judiciary of Kenya Doc IDENTITY: 2256051208128601561718914604 Tracking Number:OOEX9A2025 11/23

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TEKLE FISSEHA MENGISTU AND KATIBA INSTITUTE AND 1 OTHERS VS GLOBAL WITNESS AND KENYA HUMAN RIGHTS COMMISSION AND 6 OTHERS [2025]

Case Law

Country

Kenya

Country Location

Latitude: 2.2319662848575907

Longitude: 37.627257845273796

Country Location (linked Case Law): Kenya

Decision Date: Apr 4, 2025

Case Status: In progress

Case Outcome (Disposition)

Access Restriction/Content Regulation/Information Control
Blocking or Filtering Information

Keywords

Artificial Intelligence
Content Moderation
Human rights

Court Name: IN THE HIGH COURT OF KENYA AT NAIROBI CITY

Case Number: HCCHRPET/E541/2022

Case Summary: In Tekle Fisseha Mengistu and Katiba Institute v Global Witness and Kenya Human Rights Commission & 6 Others, the petitioners alleged that Facebook (Meta) allowed hateful, inciteful, and dangerous content to circulate on its platform in both Kenya and Ethiopia. They argued that Facebook’s algorithm actively amplified harmful material, including propaganda for war, incitement to violence, and advocacy of hatred. According to the petitioners, Facebook’s failure to take down such content had real-world consequences, including killings, psychological torture, and widespread discrimination. They further contended that Facebook treated African users less favourably than users in other regions, thereby engaging in discrimination. The petitioners claimed violations of several provisions of the Kenyan Constitution, including Articles 19(2), 26, 27, 28, 29, 31, 33, 46, 47, 48, and 50.

In response, Facebook applied to strike out the petition. It argued that the Kenyan High Court lacked jurisdiction, insisting that the Constitution does not apply extraterritorially, that its operations were governed by U.S. law, and that any disputes had to be resolved in California under its Terms of Service.

The key issues before the Court were whether the High Court of Kenya had jurisdiction to hear a petition against Facebook alleging human rights violations arising from harmful content and algorithmic design, and whether the matter raised substantial questions of law that warranted empanelment of a multi-judge bench under Article 165(4) of the Constitution.

In addressing these issues, the Court turned to Article 165(3)(b) and (d), which confer jurisdiction on the High Court to determine constitutional questions and alleged violations of rights. It also referred to Article 22(1) and (2), which allow any person, including non-citizens and organisations, to bring a petition either on their own behalf or in the public interest. The Court acknowledged the doctrine of constitutional avoidance, which advises against deciding matters as constitutional disputes where another legal basis is sufficient. It also cited the principle from D.T. Dobie v Muchina (1982) KLR 1, which establishes that pleadings should only be struck out in plain and hopeless cases where no cause of action exists.

Applying these principles, the Court observed that striking out a petition is a draconian measure that should only be used sparingly. Facebook’s challenge rested on contested facts — such as whether the company employed content moderators in Kenya and whether moderation decisions were made in Nairobi — which could only be resolved at a full trial. Evidence presented by the petitioners indicated that Facebook maintained a content moderation hub in Kenya for Sub-Saharan Africa, and that harmful content moderated, or left unmoderated, in Nairobi had affected users in both Kenya and Ethiopia.

The Court further noted that the petition extended beyond Facebook’s contractual Terms of Service and concerned fundamental questions of human rights in the digital sphere. It identified the issues of algorithmic bias, intermediary liability, cross-border human rights accountability, and the protection of rights in the age of artificial intelligence as novel, complex, and of great public importance. For this reason, the doctrine of constitutional avoidance did not apply.

The Court therefore concluded that the petition should not be struck out. It affirmed that the High Court of Kenya has jurisdiction to hear the matter and held that the issues raised constituted substantial questions of law. The petition was accordingly referred to the Chief Justice for empanelment of a larger bench.

Case Significance: Court reaffirmed decison to strike out pleadings is discretionary.

Available in

English

Related Translation

The Constitution of Kenya, 2010

Related Law

The Constitution of Kenya, 2010

Source URL: Katiba Institute

Collection

CIPIT

Date Updated: Aug 18, 2025

Primary Documents

TEKLE-FISSEHA-MENGISTU-AND-KATIBA-INSTITUTE-AND-1-OTHERS-VS-GLOBAL.pdf
English
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CYRILLA: Global Digital Rights Law

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TEKLE FISSEHA MENGISTU AND KATIBA INSTITUTE AND 1 OTHERS VS GLOBAL WITNESS AND KENYA HUMAN RIGHTS COMMISSION AND 6 OTHERS [2025]

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