algorithms by social media companies and how they contribute to offline harms and rights violations are unsettled thus a legal uncertainty. 29. Reliance was placed in J. Harrison Kinyanjui v Attorney General & Another [2012]eKLR where it was held that: “The proper test for determining whether a question of law raised in the case is substantial would be whether it is of general public importance or whether it directly or substantially affects the rights of the parties and if so, whether it is either an open question in the sense that it is not finally settled by the Supreme Court or by the Privy Council or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the Highest Court or the general principles to be applied in determining the questions are well settled and there is more question of applying these principles or the plea raised is palpably absurd, then the question would not be a substantial question of law.” 30. Comparable dependence was placed in County Government of Meru vs. Ethics and AntiCorruption County Government of Meru vs. Ethics and Anti-Corruption, Omtatah Okoiti & Another v Uhuru Muigai Kenyatta & 7 Others [2016] eKLR, Okiya Omtatah Okoiti & Another (supra), and Hermanus Phillipus Steyn (supra). 3rd Interested party’s submissions 31. Chimei and Company Advocates on behalf of the 3rd interested party filed submissions dated 20th November 2023. Counsel similarly identified the issue for determination as whether the petition raises a substantial question of law warranting certification for empanelment of a bench under Article 165(4) of the Constitution. 32. Counsel equally relying in Okiya Omtatah Okoiti & another(supra) submitted that the Court of Appeal established the principles in such applications as follows: “i. The issue to be canvassed is one the determination of which affects the parties and transcends the circumstances of the particular case and has a significant bearing on the public interest; ii. The applicant must show that there is a state of uncertainty in the law; iii. The matter to be certified must fall within the terms of Article 165 (3)(b) or (d) of the Constitution; and iv. The applicant has an obligation to identify and concisely set out the specific substantial question or questions of law which he or she attributes to the matter for which the certification is sought.” 33. Counsel submitted that the issues raised in the petition go beyond the petitioners’ case as the same bears a great significance on public interest. Particularly, it was stressed that the petitioners represent a number of classes. First the Facebook users in Kenya who have suffered human rights violations as a result of the respondent’s failure to remove the offensive posts, second, Second the Facebook users within Kenya whose rights have been violated from its algorithm serving them with inciteful, hateful and dangerous content and third, Facebook users who use Facebook while in Kenya. Undoubtedly the issues affecting Facebook users in Kenya is a matter of public interest. 34. Counsel further submitted that these issues as is seen in the petition go above the online sphere resulting in real life implications on welfare and human rights of the public at large. Reliance was placed in Del Monte Kenya Limited v County Government of Muranga & 2 others [2016] eKLR where it was held that: “where the Petition raises or deals with an issue of public importance then the balance tilts in favour of empanelment especially if it is also an issue, the determination whereof would affect the rights of both the individual parties as well as the public at large or it is an issue which is yet to be determined and settled by the court or a court superior in hierarchy.” 35. Counsel further submitted that the specified issues in the petitioners’ application are novel questions as have not been addressed before. Reliance was placed in Stanley Livondo v Attorney General [2020] eKLR where it was held that: - The Judiciary of Kenya Doc IDENTITY: 2256051208128601561718914604 Tracking Number:OOEX9A2025 6/23