No Office in Nairobi Is No Shield From Kenyan Courts

Many global technology companies serve millions of Kenyan users without a single office, employee or bank account in Kenya. Their legal teams have long assumed that this structure keeps them out of the Kenyan courts: a company that is not here, the reasoning goes, cannot be sued here. That assumption is now being tested in some of the most significant litigation in Kenya's recent history, and so far it has not held.

The Kenyan courts have not yet decided that a foreign company with only a digital presence is subject to their jurisdiction. What they have decided is something that matters almost as much: whether such a company is present in Kenya is a question of fact, to be proved with evidence at trial, and not a point of law that can be disposed of at the threshold.

The traditional rule

The traditional position is straightforward. A defendant that is present in Kenya, because it resides or carries on business here, may be served with a summons here. A defendant outside Kenya may be served only with the leave of the court, on one of the grounds listed in Order 5 rule 21 of the Civil Procedure Rules.¹ The Court of Appeal has held that the High Court assumes jurisdiction over a person outside Kenya only by granting such leave,² and only once the summons has been served pursuant to it.³

The Companies Act adds a regulatory dimension. A foreign company that carries on business in Kenya must register before doing so.⁴ Whether a company is carrying on business here therefore matters twice over: it determines whether the company must register, and it bears on whether the company can be treated as present for the purpose of being sued.

Meta's argument, and why it has not yet succeeded

Meta Platforms, Inc and Meta Platforms Ireland Ltd have argued in several Kenyan proceedings that they are foreign corporations, neither resident nor trading in Kenya, and that the Kenyan courts therefore have no jurisdiction over them. In the litigation brought by Facebook content moderators, the moderators answered that Facebook has millions of users in Kenya, draws revenue from them through services such as Facebook Marketplace and Facebook Pay, and paid digital service tax to the Kenyan government. They argued that in a digital economy a foreign company can operate fully in Kenya without a physical office, relying on decisions from Australia and Canada to that effect.⁵

The Employment and Labour Relations Court had earlier observed, in dismissing Meta's preliminary objection in one of those cases, that it was immaterial whether the alleged violations occurred in a physical or virtual space within Kenya.⁶ The Court of Appeal, however, decided the appeals on narrower ground. It held that whether Meta was engaged in virtual business, whether that business was available in Kenya, whether the violations occurred in Kenya and whether the moderators were Meta's employees were all questions of fact that could not be determined on an interlocutory application, and that the jurisdictional objection therefore collapsed.⁷

In an earlier ruling refusing to stay the moderators' case, the Court of Appeal had made the same point and added two observations. It noted that, under the Companies Act, a foreign company may register or do business in Kenya, so that whether Meta was operating here was a matter of evidence. It also held that the contention that the Constitution does not apply to Meta because it is foreign was not arguable, since the Constitution binds every person within the Republic.⁸

Presence through others

The Kenyan cases show that a foreign company can acquire a significant connection with Kenya without employing anyone here, through the businesses it engages to work for it.

In the content moderators' litigation, the moderators were engaged by a Kenyan outsourcing company, but the lead petitioner's case was that he had been employed by the Meta companies and brought to Kenya to do that work for them.⁹ In Meareg v Meta Platforms, Inc, Meta's evidence was that it had no employees or infrastructure in Kenya and that the third-party contractor which had moderated content from Nairobi had ceased to do so in March 2023.¹⁰ The High Court nonetheless refused to strike out the petition, finding that the factual basis of Meta's objection was strongly contested and that the petition concerned acts or omissions of content moderators based in Kenya, which fell within its constitutional jurisdiction.¹¹

The Worldcoin judgment illustrates the procedural consequence of using local agents. The foreign respondents had authorised agents in Kenya who carried out data collection on their behalf, and Kenyan advocates who accepted service and took part in the proceedings. The High Court held that where a foreign party has an authorised agent in Kenya, leave to serve outside Kenya may not be required, and that the respondents had in any event waived any objection to service by participating without protest.¹²

A Kenyan subsidiary or partner can also serve as the anchor for a claim against the foreign parent. Order 5 rule 21 permits service out of Kenya where the foreign party is a necessary or proper party to a suit properly brought against another person duly served in Kenya, and the High Court has relied on that ground to keep a foreign company in proceedings without deciding where the underlying contract was made.¹³

The limits: a single transaction is not presence

None of this means that every foreign company that deals with Kenya is present here. In Stichting Rabobank Foundation v Mwangi, the Court of Appeal held, in the context of a foreign lender, that entering into a transaction with a Kenyan party does not, without more, amount to carrying on business in Kenya. The court treated the question as one of fact, to be determined by looking at what the company actually did, and held that it could not properly be resolved on a preliminary objection.¹⁴

The decision cuts both ways. It protects foreign companies whose connection with Kenya is occasional, but it confirms once again that the answer turns on evidence. A company with millions of Kenyan users, Kenyan advertisers, Kenyan contractors and Kenyan payment channels will present a very different factual picture from a lender that advanced a single loan.

How the State already sees digital presence

Other branches of the Kenyan State have already answered the presence question for their own purposes. The Data Protection Act applies to data controllers and processors that are not established in Kenya but process the personal data of data subjects located in Kenya.¹⁵ Since December 2024, the Income Tax Act has taxed the significant economic presence of non-resident providers of digital services to users in Kenya.¹⁶ These statutes do not decide whether a company may be sued in the civil courts, and a foreign company is entitled to insist on that distinction. In practice, however, a company that is regulated and taxed on the basis of its Kenyan presence will find it increasingly difficult to persuade a Kenyan court that it has no presence here at all.

What this means for foreign companies

For a foreign technology company, the absence of a Kenyan office is no longer a reliable shield. The more accurate position is that the absence of an office shifts the battle from law to evidence. A company that wishes to resist Kenyan jurisdiction should expect to prove, with affidavit evidence, how its services reach Kenya, who performs work for it here, how it earns revenue from Kenyan users, and why none of this amounts to carrying on business in Kenya. A bare objection, unsupported by evidence, is unlikely to succeed, and a company that defends the case on the merits while that objection is pending risks being treated as having accepted the court's jurisdiction.

For Kenyan claimants, the same reasoning points to the evidence that matters: the scale of the company's Kenyan user base, its Kenyan advertising and payment channels, the local contractors and agents through which it operates, and its registration and tax status under Kenyan law.

An office is a convenient marker of presence. In the digital economy, the Kenyan courts are making clear that it is not the only one.

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.