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iv. The actions described by the 1st petitioner took place in Kenya and so within the jurisdiction of this Court as the respondent’s content moderation centre has been and is based in Kenya and its moderation centre is also in Kenya. v. The actions described by the 2nd petitioner also took place and continue to take place in Kenya within the jurisdiction of this Court. vi. The jurisdiction of this Court specifically pleaded under paragraphs 155 to 168 of the petition and is invoked on the basis that the respondent’s algorithm recommends inciteful, hateful and dangerous content to Facebook users in Kenya; the respondent undertakes content moderation for the posts impugned in the petition in Kenya; the respondent’s advertising business in Kenya, which is in question in this petition, takes place in Kenya. The respondent also pays tax for this advertising business; the petition pursues implementation of Article 19(2) of the Constitution to preserve the dignity of individuals and communities. vii. The violations addressed in the Petition took place in Kenya. viii. Article 22(1) of the Constitution allows any person to bring a Constitutional Petition alleging that rights and fundamental freedoms have been violated, limited, or threatened. A person need not be a Kenyan citizen to bring a constitutional petition in Kenya. ix. Article 22(2) of the Constitution allows any person (which is defined to include any entity whether incorporated or not) to bring a petition on behalf of another person and in public interest. The 3rd petitioner is therefore a property party in this case. x. The respondent is properly before this Court having been served with the petition pursuant to leave granted by the Court under Order 5 Rule 21 of the Civil Procedure Rules. xi. The respondent has employees in Kenya who conduct Facebook content moderation as has been conclusively held by the Court in ELRC Petition E052 of 2023: Kiana Monique and 184 Others v Meta & 3 Others (2023) eKLR. xii. The doctrine of constitutional avoidance does not apply in this petition as the petition does not claim a breach of the Terms of Service and neither address the issues raised in the petition such as use of the algorithim. Moreover, the remedies sought not available under contract law. xiii. As the dispute before this Court is not a contractual dispute arising out of the Terms of Service, the clauses in the Terms of Service on choice of forum do not apply. xiv. Under Article 165 (3)(b) of the Constitution, only the High Court in Kenya has jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed, or threatened. xv. The petition is brought by the petitioners on their own behalf, on behalf of the class they represent and in public interest. It concerns the welfare of Kenyans and corporate actions taken in Kenya which this Court has jurisdiction to determine in the public interest. xvi. This Court has jurisdiction to hear this petition as it arises out of the respondent’s unconstitutional conduct and decisions made in Kenya. xvii. This Court ought to dismiss the respondent’s application with costs. 53. These averments were equally reiterated in the 1st petitioner’s Replying Affidavit sworn on 29th November 2023.Equally, the 2nd petitioner’s replying affidavit sworn on 24th November 2023. 54. In addition to these grounds, the 1st petitioner affirms that the alleged violations against him and his family were as a result of the respondent’s decision and failure to take down the impugned posts while at its content moderation centres in Nairobi. In the end, this led to the murder of his father causing his family to flee to the United States. 55. The 2nd petitioner affirms that the hateful, inciteful and dangerous comments were made against him while residing in Kenya and where he still resides to date. 1st Interested Party’s Case 56. The 1st interested party through its Deputy Programme Director, Mandivavarira Mudarikwa The Judiciary of Kenya Doc IDENTITY: 2256051208128601561718914604 Tracking Number:OOEX9A2025 9/23

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TEKLE FISSEHA MENGISTU AND KATIBA INSTITUTE AND 1 OTHERS VS GLOBAL WITNESS AND KENYA HUMAN RIGHTS COMMISSION AND 6 OTHERS [2025]

Case Law

Country

Kenya

Country Location

Latitude: 2.2319662848575907

Longitude: 37.627257845273796

Country Location (linked Case Law): Kenya

Decision Date: 4 de abr. de 2025

Case Status: In progress

Case Outcome (Disposition)

Blocking or Filtering Information
Blocking or Filtering of Information

Keywords

Artificial Intelligence
Content Moderation
Human rights

Court Name: IN THE HIGH COURT OF KENYA AT NAIROBI CITY

Case Number: HCCHRPET/E541/2022

Case Summary: 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.

Case Significance: Court reaffirmed decison to strike out pleadings is discretionary.

Available in

English

Related Translation

The Constitution of Kenya, 2010

Related Law

The Constitution of Kenya, 2010

Source URL: Katiba Institute

Collection

CIPIT

Date Updated: 18 de ago. de 2025

Primary Documents

TEKLE-FISSEHA-MENGISTU-AND-KATIBA-INSTITUTE-AND-1-OTHERS-VS-GLOBAL.pdf
English
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CYRILLA: Global Digital Rights Law

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TEKLE FISSEHA MENGISTU AND KATIBA INSTITUTE AND 1 OTHERS VS GLOBAL WITNESS AND KENYA HUMAN RIGHTS COMMISSION AND 6 OTHERS [2025]

Primary Documents

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