“A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it, are concerned.” 36. Lastly, Counsel stated that the issues raised fall under Article 165(3)(b) and (d) of the Constitution. Counsel further pointed out that the petition contains voluminous evidence which will benefit from scrutiny by a bench considering the seriousness of the issues raised therein. Reliance was placed in Philomena Mbete Mwilu v Director of Public Prosecution & 4 others [2018] eKLR where it was held that: “I fully agree with the above views on the jurisprudential value of decisions by a bench or a single judge of this court. Although the present petition can be heard by a single judge of this court and also being fully aware that a bench would sometimes require resources both personnel and financial as well as more time to resolve a petition than if it were heard by a single Judge, the present petition is the kind of petition that this court should exercise its discretion in favour of an expanded bench due to its public importance and significance in our constitutional democracy.” 7th Interested Party’s Submissions 37. On 6th November 2023, Manasses, Mwangi and Associates filed submissions for the 7th interested party. Counsel outlined the single issue for discussion as whether the petition should be certified as one raising substantial issue of law and referred to the Hon. Lady Chief Justice for empanelment of a bench to determine it. 38. Counsel echoing the other parties sentiments submitted that the petition raises substantial issues of transnational and cross-jurisdictional grievances, whether the courts in Kenya have jurisdiction to determine issues of action or inaction of actors over the internet, whether the respondent is liable for human rights violations by its content moderation, protection of human rights in the social media space, the application of Artificial Intelligence in content moderation by social media companies, the issue of algorithmic bias of the Respondent’s systems and discrimination contrary to the provisions of the Constitution, and the economics of social media platforms and their effect on human rights among others. Counsel noted further that pertinent issues were underscored by the 7th interested party in its replying affidavit. All these issues are considered to be novel and complex. 39. For this reason, Counsel submitted that the petition raises constitutional issues which fall within this Court’s jurisdiction under Article 165(3)(d) of the Constitution and satisfies the threshold set in Okiya Omtatah Okoiti & another (supra). Similar dependence was placed in Martin Nyaga and Others V Speaker County Assembly of Embu and 4 Others and Amicus [2014] eKLR. 40. Counsel in closing emphasized that the petition will have far-reaching consequences on the intersection between the application of human rights and the way the respondent designs and applies artificial intelligence. As well as content moderation by social media platforms. Thus, Counsel stated that the petition cuts across all the social media and digital space. Moreover, Counsel submitted that the Court will also have an opportunity to address the question whether this Court has jurisdiction to grant redress for human rights violations which occurs in the social media space and who is liable for the same. Respondent’s Application 41. The respondent in its application seeks orders that: i. This Court be pleased to strike out the petition dated 13th December 2022. ii. In the alternative to prayer 1 above, this Court be pleased to strike out the claims of the 1st and 3rd petitioners in the petition dated 13th December 2022. iii. This Court be pleased to issue any other orders it deems fit to meet the ends of justice. iv. The costs of this Application be provided for. The Judiciary of Kenya Doc IDENTITY: 2256051208128601561718914604 Tracking Number:OOEX9A2025 7/23