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.