42. The application is supported by the respondent’s replying affidavit sworn by Emma Pagan, its Associate General Counsel on 18th September 2023. 43. She depones that the respondent’s company is registered and governed by the laws of the State of Delaware in the United States of America thus this Court lacks the requisite jurisdiction to entertain this petition. This argument is based on a number of reasons. 44. First, she avers that the Kenyan Constitution does not have an extraterritorial reach hence cannot be invoked to address the petitioner’s claims. In this regard, she avers that the petitioners’ allegations arise from events that occurred within Ethiopia not Kenya. She points out that both the 1st and 2nd petitioners are Ethiopia citizens and the subject Facebook accounts were created by the two while residing in Ethiopia. It is stated that although the 2nd petitioner works in Kenya, his allegations entirely concern Ethiopia. 45. Additionally, she avers while the 3rd petitioner is a Kenyan organization, it fails to demonstrate the respondent’s alleged discriminatory conduct regarding content moderation affecting Kenyans or persons residing in Kenya. 46. Moreover, it is deponed that the respondent does not have any employees located in Kenya nor any infrastructure in the Country. She adds that the respondent does not employ content moderators in Kenya. 47. She however depones that the third-party contractor in Kenya who had been engaged ceased its content moderation services with the respondent in March 2023. As such it is argued that there is no sufficient nexus between the respondent and Kenya for this Court to assume jurisdiction over the issues raised. 48. She further posits that the relief sought by the petitioners cannot be effected in Kenya. This is with specific focus on the Facebook algorithm and respondent’s content moderation practices. 49. The respondent further argues that this Court’s jurisdiction is also challenged on the basis of the doctrine of constitutional avoidance. She states that the respondent sets out a pre-condition to all its users on Facebook and are required to consent to the Terms of Service. 50. For this reason, she states that the matters raised herein can be determined on another basis being contractual. This was however not utilized by the petitioners. What is more, such a dispute is supposed to be brought before the United States Court. Section 4(4) of the Terms of Service provides that any dispute will be resolved by the U.S. District Court for the Northern District of California or a State Court located in San Mateo County. She argues therefore that the petitioners cannot circumvent this dispute resolution clause. 51. On this ground, the respondent argues that the petition is bad in law and an abuse of the Court process since the petitioners’ seek to invoke an extraterritorial application of the Kenyan Constitution which is improper. Moreover, the petition overlooks the foreign choice of law provision in the respondent’s Terms of Service for Facebook users. 1st and 2nd Petitioners’ Response 52. In reaction to the respondent’s application, these petitioners filed grounds of opposition dated 23rd November 2023 on the basis that: i. The question of jurisdiction as challenged by the respondent is not a preliminary issue but rather a substantive issue that requires this Court to consider all the evidence in the petition before making a just determination. ii. The question of jurisdiction as challenged by the respondent is in itself a substantial question of law that needs to be referred to a bench of an uneven number judges constituted in accordance with Article 165(4) of the Constitution. iii. The prayers sought in the application cannot be granted given the provisions of Rule 5 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. The Judiciary of Kenya Doc IDENTITY: 2256051208128601561718914604 Tracking Number:OOEX9A2025 8/23