Kenya Employment and Labour Relations Court rules Meta primary employer of Sama content moderators (2 June 2023)

On 2 June 2023 Judge Byram Ongaya of Kenya's Employment and Labour Relations Court delivered a ruling in Constitutional Petition E052 of 2023 — Arendse & 42 others v Meta Platforms, Inc & 3 others; Kenya Human Rights Commission & 8 others (Interested Parties) — holding, in Paragraph 29, that Meta Platforms Inc and Meta Platforms Ireland Ltd were "the primary or principal employers of the applicants" and that Samasource Kenya EPZ Ltd (trading as Sama) was "merely the agent, foreman, manager or factor." Foxglove framed the decision as having "explosive potential consequences" for the entire global model of outsourced content moderation. It is the first ruling in the Kenyan courts to make a substantive finding on the labour-side of the make-AI-good movement's Nairobi accountability cluster — distinct from the earlier procedural rulings on Meta's amenability to Kenyan jurisdiction — and the event that placed the "true employer" principle on the Kenyan employment-law record for the first time.

Context

Petition E052 of 2023 grew out of the January 2023 Sama redundancies in which Samasource Kenya declared roughly 260 Nairobi-based Facebook content moderators redundant after Meta terminated its moderation contract with Sama and transferred the work to Majorel. On 17 March 2023 Kiana Monique Arendse, a former Sama moderator, filed the petition in the Employment and Labour Relations Court against Samasource Kenya EPZ Ltd as 1st Respondent, Meta Platforms Inc as 2nd Respondent, Meta Platforms Ireland Ltd as 3rd Respondent, and Majorel as 4th Respondent — the only of the two parallel Nairobi petitions to join Meta's incoming outsourcer as a named respondent. By 13 April 2023 a further 184 petitioners had been joined by court order, and the case had been briefed by Mercy Mutemi of Nzili & Sumbi Advocates with Foxglove as international partner — the same Foxglove–Nzili & Sumbi architecture the cluster had developed in the 10 May 2022 Motaung petition.

The Petition sat inside a crowded early-2023 period of the Nairobi content-moderation cluster. The same January 2023 redundancies that supplied the petition's founding constituency had, a month earlier, also supplied the founding cohort of the African Content Moderators Union that voted into existence at the Mövenpick Hotel on 1 May 2023 — thirty-two days before Judge Ongaya's ruling. The June 2 ruling arrived in a moment when the Nairobi cluster's three principal instruments — the Motaung litigation, the mass-dismissal petition, and the new union — were all active simultaneously.

The ruling: finding on employer status

The June 2 ruling was an interlocutory proceeding — it resolved interim-relief applications, not the petition's merits — but its employer-status finding was substantive and went to the heart of the case's legal theory. Foxglove and Nzili & Sumbi's thesis had always been that Meta could not contract out of responsibility for the conditions of the moderation labour it directed and paid for; Judge Ongaya's Paragraph 29 gave that thesis its first Kenyan court endorsement.

The finding rested on what the court characterised as control: Meta "owned the job" — the SRT system through which content moderation was performed was Meta's proprietary platform; Meta set the community guidelines that defined the standards of performance; Meta issued the "tickets" that constituted each moderator's unit of work; and Meta's performance metrics governed whether a moderator's contract was maintained. Samasource Kenya provided physical workspace and HR services, but the court held it was functioning as Meta's agent in Kenya rather than as an independent contractor with independent operational authority. The court further found that Article 41 of the Kenyan Constitution — guaranteeing fair labour practices — could not be defeated by the contractual arrangement between Meta and Sama: the constitutional right ran to the workers who performed the work, and the identity of the formal employer was a question of substance, not of contractual form.

A notable procedural dimension reinforced the substantive finding: the court struck the affidavits filed by all three respondents in opposition to the interim application. Meta's affidavit carried a futuristic jurat date, rendering it formally invalid. Samasource Kenya's and Majorel's affidavits were executed before commissioners whose valid practising certificates could not be established. The respondents' principal evidentiary submissions were accordingly excluded from the record before the court ruled on the applicants' interim relief.

The ruling: finding on the redundancy

The court identified six distinct grounds on which it found the declared redundancy a sham under the Employment Act: the moderation work had remained available — Meta was engaging Majorel to perform the same function the dismissed moderators had been performing; the respondents had given contradictory explanations to different parties; no genuine consultation with the affected workforce had taken place; the timing of the redundancy coordinated precisely with the engagement of Majorel as replacement vendor; the blacklisting of former Sama moderators from Majorel employment — supported by recruiter text messages entered in evidence — belied the claim that the dismissals were economically driven; and the timing was consistent with the respondents' ongoing effort to contain the organising and litigation threat represented by the Motaung case, which had been filed the year before. The cumulative finding was that no justifiable reason existed for the redundancy as declared.

The court also found that the work of content moderation was "inherently hazardous with serious mental health impacts." This was not merely contextual — it formed part of the basis for the psychological-care orders below, and it placed the occupational-health dimension of the moderation pipeline onto the Employment and Labour Relations Court's substantive record for the first time. The 5th applicant's testimony — describing the trauma of moderating Ethio-Tigray war content and stating "my life will never be the same again" — appeared in the ruling as part of the evidence that this finding drew on.

The orders

The ruling issued twelve interim orders. The principal operative orders were:

1. The 1st, 2nd, and 3rd respondents were restrained from implementing the declared redundancy or terminating the applicants' contracts pending determination of the petition.
2. Any contracts that would lapse before the petition's determination were extended.
3. The 2nd respondent (Meta) was restrained from engaging replacement moderators through the 4th respondent (Majorel) unless the applicants were retained on their prevailing or better contractual terms.
4. The respondents were prohibited from refusing to recruit qualified moderators based on prior Sama employment — the order going directly to the blacklisting allegation.
5. The respondents were prohibited from retaliating against applicants for having filed the petition.
6. The respondents were ordered to provide "proper medical, psychiatric and psychological care" to the petitioners in place of the wellness counselling that had been offered.
7. The immigration status of immigrant moderators was to be regularised pending the petition.

Five interested parties — the Kenya Human Rights Commission, the Attorney General, the Ministry of Labour Social Security and Services, the Ministry of Health, and the Ministry of Foreign Affairs — were directed to report to the court on the state of law and policy for the protection of employees' occupational safety and health in the sector of "virtual or digital work." The order is the corpus's first mapped instance of Kenyan government ministries being directed by an employment court to account for the regulatory gap that the content-moderation working conditions had exposed. The ruling also encouraged the parties to pursue alternative dispute resolution.

Costs were awarded to the applicants. A six-day pause before the orders took effect — expiring 8 June 2023 — gave the respondents a brief window to seek appellate relief before the injunctions became operative.

Significance

The 2 June 2023 ruling is the corpus's first mapped Event of a Kenyan court issuing a substantive employment-law finding in the Nairobi content-moderation accountability cluster — distinct from the purely jurisdictional and procedural rulings that preceded it (the June 2022 refusal of Meta's gag-order application against Daniel Motaung; the 6 February 2023 ruling in Petition E071 of 2022 that Meta was a "proper party"; the 20 April 2023 dismissal of a further Meta jurisdictional challenge). The "true employer" or "primary or principal employer" holding is the first time a Kenyan court went beyond the question of whether Meta could be sued and addressed who Meta was, in law, to the workers performing the labour — and found that the answer was "employer", not merely the client of an outsourcer.

The ruling's implications for the global content-moderation outsourcing model, as Foxglove framed them, were structural: if courts in countries where the moderation work is physically performed could routinely hold the platform — rather than its outsourcing contractor — to be the "true employer" of the workers doing that work, the entire multi-jurisdictional labour-arbitrage architecture through which social media and frontier-AI companies have organised their moderation supply chains would be exposed to worker-side claims in local courts. The ruling was interlocutory and its findings remained provisional pending the full hearing; but the legal reasoning — grounded in the Kenyan Constitution's Article 41 and in the Employment Act's substance-over-form approach to the employment relationship — was stated in terms the broader case and its appeals would need to reckon with.

For the corpus, the June 2 ruling completes the camp-foxglove-185-moderators-meta-kenya campaign's first substantive court milestone, and sits between the petition's March 2023 filing and the July 2023 Court of Appeal dismissal of Meta's stay application as the moment when the case moved from a procedural contest over jurisdiction to a court record with substantive findings on the nature of the employment relationship, the validity of the redundancy, and the occupational-health character of the work. Kauna Malgwi — the Nigerian clinical psychologist whose four-year Sama tenure had ended in the January redundancies and who was present at the union founding vote the month before — was among the petitioners whose situation the ruling addressed; the case's founding cohort and the union's founding cohort substantially overlapped.