relevant to this case, jurisdiction of the court does not extend into a foreign country. It refers to the local area upon which its jurisdiction extends within the Republic of Kenya.” 85. On the last issue, Counsel submitted that it is only the High Court which has jurisdiction to determine whether a right or fundamental freedom in the Bill of rights has been denied, violated, infringed or threatened as affirmed in Dennis Mogambi Mong’are v Attorney General & 3 Others [2011] eKLR. 86. Counsel further submitted that the Court in KB v SCM & 5 others [2022] KEHC 289 observed that the doctrine of constitutional does not apply in situations where: “(a) The constitutional violation is so clear and of direct relevance to the matter; (b) There is no apparent alternative form of ordinary relief; or (c) It would be a waste of effort to seek a non-constitutional resolution of the dispute.” 87. Like dependence was placed in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR. 3rd Petitioner’s submissions 88. Counsel, Ochiel Dudley for the 3rd petitioner filed submissions dated 27th December 2023 in opposition to the respondent’s application. 89. Counsel begun by stressing that this Court has jurisdiction to entertain this petition as the cause of action arose in Kenya since the content moderation was done in Kenya. Counsel also pointed out that the National Cohesion and Integration Commission has raised concerns about Meta’s failure to moderate harmful content on Facebook. Counsel as such submitted that the issues in the petition are subject to this Court’s jurisdiction. 90. Be that as it may, Counsel stated that no Court in Kenya has so far concluded one’s case prematurely based on the respondent’s similar arguments. To buttress this issue reliance was placed in Motaung v Samasource Kenya EPZ Limited t/a Sama & 2 others [2023] KEELRC 320 (KLR) where the Court in response to the respondent’s jurisdiction claims held as follows: “Meta’s liability was a “question of evidence” and that the “court [was] persuaded that it would be pre-mature to strike off [Meta] from the Petition. There [were] weighty outstanding issues yet to be determined.” 91. Similarly, Counsel asserted that the petition herein raises weighty issues. Counsel added that a Court’s power to strike out pleadings is not mandatory but a discretionary power and so should be exercised sparingly as held by the Court of Appeal in Safepak Limited v Henry Wambega & 11 others [2019] eKLR. 1st Interested Party’s Submissions 92. Muge Law Advocates for the 1st interested party filed submissions dated 28th February 2024 where Counsel outlined the issues for discussion as: whether this Court has jurisdiction to hear the matter and relief sought by the petitioners in the petition was filed on 14th December 2022, whether this Court is prohibited by the doctrine of constitutional avoidance to hear the matter and Whether the 1st and 3rd petitioner’s claims should be struck off as sought by Meta. 93. Counsel in support of the petitioners’ application for empanelment submitted that the petition raises substantial questions of law within the context of Article 165(4) of the Constitution and in terms of the standard confirmed by the Court of Appeal in Okiya Omtatah Okoiti & another (supra). 94. Counsel further submitted that the issue of jurisdiction is a substantive issue which ought not to be determined at an interlocutory stage but as a substantive issue after the merit of the petition has been considered. Reliance was placed in Mukisa Biscuits Co. Ltd(supra) where it was held that: “A preliminary objection … raises a pure point of law which is 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 or if what is sought is the exercise of judicial discretion.” 95. That said, Counsel reiterated the 1st interested party’s averments in its replying affidavit on the The Judiciary of Kenya Doc IDENTITY: 2256051208128601561718914604 Tracking Number:OOEX9A2025 14/23