Kenyans Are Turning to the Constitution to Sue Big Tech

When a global technology company harms someone in most countries, the victim has a narrow set of options. They may sue in contract, which usually means confronting a forum clause pointing to California or Ireland, or they may sue in tort, which requires proving a recognised cause of action and bringing the company before a local court. In Kenya, there is a third option, and it is rapidly becoming the route of choice: the constitutional petition.

The most significant cases against global platforms in Kenya have been brought, wholly or partly, as claims that the platforms violated rights protected by the Bill of Rights. The route offers wider standing, broader remedies and a powerful answer to contractual forum clauses. It is also untested at the highest levels, and the questions it raises about the reach of the Kenyan Constitution over foreign companies remain unresolved.

Why the Constitution

Four features of the 2010 Constitution make it an attractive basis for claims against technology companies.

First, it binds private actors. The Constitution binds all persons, and the Bill of Rights applies to all law and binds all State organs and all persons.¹ A ‘person’ includes a company, whether incorporated in Kenya or elsewhere.² Rejecting an argument by Meta that the Constitution did not apply to it because it was a foreign company, the Court of Appeal held that the Constitution binds every person within the Republic and obligates every person to observe and respect it.³

Secondly, standing is broad. Every person may institute proceedings claiming that a right has been violated or threatened, and may do so on behalf of another person, as a member of a class, in the public interest or as an association acting for its members.⁴ The claimant need not be a Kenyan citizen, and need not have suffered personal injury.

Thirdly, the remedies are flexible. The court may grant appropriate relief, including declarations, injunctions, conservatory orders and compensation,⁵ and the Supreme Court has held that the list of remedies in Article 23 is not exhaustive.⁶

Fourthly, the High Court has express jurisdiction to determine whether a right in the Bill of Rights has been denied, violated, infringed or threatened.⁷ That jurisdiction is conferred by the Constitution itself, which matters greatly when a platform argues that its terms of service send every dispute to a foreign court.

Meareg v Meta: algorithms before a constitutional court

The leading example is Meareg v Meta Platforms, Inc. Two Ethiopian nationals, one of them living in Kenya, together with a Kenyan public interest organisation, alleged that Meta had allowed inciteful and hateful content to remain on Facebook during the conflict in northern Ethiopia, that its algorithm recommended such content to users in Kenya, and that it treated African users less favourably than users elsewhere. They claimed violations of a wide range of rights, including the rights to life, dignity, freedom from violence, privacy, equality and fair administrative action.⁸

Meta applied to strike out the petition. It argued that it is a Delaware corporation with no employees or infrastructure in Kenya, that the Constitution has no extraterritorial reach, that the events complained of occurred in Ethiopia, and that the dispute was in substance contractual, so that the doctrine of constitutional avoidance applied and the forum clause in Facebook's terms of service sent any claim to California.⁹

The High Court dismissed the application. It held that striking out is a draconian remedy reserved for plain cases, that the factual basis of Meta's objection was strongly contested, and that the doctrine of constitutional avoidance did not oust the court's jurisdiction. The petition raised concerns about acts or omissions of content moderators based in Kenya with an impact on human rights beyond Kenya, which fell within the court's jurisdiction under Article 165(3)(b).¹⁰ The court then certified the petition as raising substantial questions of law, to be heard by a bench of at least three judges. Among those questions were the protection of human rights in the age of artificial intelligence, whether there is algorithmic bias across geographical regions, and the constitutional jurisdiction of the court over digital decisions made in Kenya that affect human rights elsewhere, ‘and the vice-versa’.¹¹

Workplace rights: the content moderators

The content moderators' litigation shows the constitutional route operating in the employment context. Moderators engaged through a Kenyan outsourcing company brought constitutional petitions in the Employment and Labour Relations Court against that company and the Meta entities, alleging violations of their rights to fair labour practices, dignity and health, among others. The court granted interim orders restraining their redundancy and extended those orders pending the hearing.

On appeal, Meta argued that the extension breached the procedural rule limiting the life of ex parte injunctions. The Court of Appeal held that, because the proceedings were a constitutional petition, the trial court could frame appropriate relief under Article 23 to prevent the threatened infringement of rights in the interim, and that the extension was therefore proper and within its jurisdiction.¹² The case illustrates a practical advantage of the constitutional route: interim protection that might not be available in an ordinary civil claim.

Data rights: Worldcoin

The Worldcoin case shows the same approach applied to data. Public interest organisations challenged the collection of biometric data from Kenyans by foreign entities associated with the Worldcoin project. The respondents argued that the organisations, not being data subjects, lacked standing and should have complained to the Data Commissioner. The High Court rejected both arguments. It held that Articles 22 and 258 had greatly expanded standing to bring proceedings in the public interest, and that the organisations could not be required to exhaust a statutory complaints mechanism open only to data subjects.¹³ It also held that judicial review orders may issue against private entities that violate rights in the Bill of Rights, and ordered the foreign respondents to delete the biometric data they had collected.¹⁴

Escaping the contract

Perhaps the most strategically important feature of the constitutional route is its effect on contractual dispute resolution clauses. The Supreme Court has held that the principle of party autonomy cannot bind the superior courts to cede their jurisdiction to interpret the Constitution.¹⁵ In Meareg, the court accepted the petitioners' characterisation of their claim as one about rights rather than the performance of Facebook's terms of service, and so did not need to decide whether the California forum clause would bind a user suing in contract.¹⁶ A claimant who would face a foreign forum clause in a contract claim may therefore find the Kenyan courts open to the same grievance framed as a constitutional one.

The limits of the constitutional route

The route is powerful, but it is not unlimited. The doctrine of constitutional avoidance holds that a court will not decide a constitutional question where the dispute can properly be resolved on another basis.¹⁷ A petition that is in truth a claim for breach of contract or an ordinary tort, dressed in constitutional language to escape a forum clause or a limitation period, risks being dismissed on that ground. The compelling facts of Meareg should not be mistaken for a general licence.

The deeper questions also remain open. The High Court in Meareg did not decide whether the Constitution reaches a foreign company whose only connection with Kenya is that its service affects people here; it referred that question, among others, to a larger bench. The Court of Appeal's statement that the Constitution binds every person ‘within the Republic’ leaves unresolved when a foreign platform is within the Republic in the relevant sense. And a declaration or injunction against a company with no assets in Kenya is only as effective as the company's willingness to comply, or a foreign court's willingness to enforce it.

What this means for platforms and claimants

For global platforms, the lesson is that terms of service and foreign incorporation do not insulate them from scrutiny in Kenya where their conduct is alleged to violate fundamental rights. Platforms with operations, contractors or significant user bases in Kenya should expect constitutional petitions to remain the preferred vehicle for claims about content moderation, algorithmic harm, data collection and labour practices, and should prepare to meet them on the evidence rather than relying on threshold objections alone.

For claimants and public interest organisations, the constitutional route offers standing, remedies and a way around foreign forum clauses that ordinary litigation cannot match. It should be used for genuine rights claims, supported by evidence of a real connection with Kenya, and with a clear view of how any order will be enforced.

The Constitution was written for a Kenya in which power was exercised by the State and by local institutions. Kenyan courts are now being asked whether it also governs the private, foreign and algorithmic power that shapes so much of Kenyan life. The answer is still being written.

Benson Odiwuor is a Nairobi-based dispute resolution lawyer and researcher in internet jurisdiction, who handles dispute resolution in cross-border digital, data protection and online reputation matters. He is also the editor of The BOLD, a legal newsletter focusing on dispute strategies and legal developments in the regulated industries of Kenya. Subscribe to The BOLD here.

For inquiries, contact the author at  info@bensonodiwuor.com.