A group of 36 digital workers, labour rights advocates and civil society organisations have suffered a setback after the High Court declined to halt the Business Laws (Amendment) Bill from proceeding through Parliament.
In what the court described as premature judicial intervention, Justice Bahati Mwamuye dismissed a case that had sought to block further consideration of the Bill over concerns that it was passed by the Senate without meaningful public participation.
The petition, filed by Oversight Lab and 35 other petitioners, had attracted attention from the country’s growing digital labour sector, including ride-hailing drivers, content moderators, business process outsourcing (BPO) workers and other technology-sector employees.
They had argued that the proposed law could weaken protections for workers and shield multinational technology firms from accountability.
However, the court held that the legislation had not yet passed through the full legislative process to become law, therefore the case was anticipatory.
“In light of the doctrines of jurisdiction, ripeness, separation of powers, and constitutional avoidance, this Court finds that the present Petition is premature, speculative, and legally unsustainable,” ruled Mwamuye.
Although the Bill has already passed through the Senate, the judge noted that it must still be considered by the National Assembly and, if approved, presented to the President for assent before acquiring legal force.
” The Court is persuaded that a legislative proposal, in its inchoate state, does not constitute “law” or “conduct” within the meaning of Article 165(3)(d) so as to found a justiciable controversy. Any challenge mounted at this stage is necessarily anticipatory and speculative,” the court found.
The ruling centred largely on the legal doctrine of ripeness, which requires courts to hear disputes only when they have matured into concrete controversies rather than hypothetical future grievances.
Justice Mwamuye warned that halting the Bill while it remains under consideration would amount to an intrusion into Parliament’s constitutional role and could undermine the checks and balances built into Kenya’s bicameral legislative system.
The petitioners had claimed they had submitted memoranda and recommendations to the Senate during the legislative process but that their views were never meaningfully considered.
According to court filings, they alleged that the Senate Standing Committee on Trade, Industrialisation and Tourism failed to conduct adequate stakeholder engagement or table a report on public participation before the Bill was passed.
The group also argued that provisions within the Bill could make it more difficult for workers to seek legal redress against multinational companies operating in Kenya through outsourcing arrangements.
Fearing that the legislation would proceed rapidly through Parliament, the petitioners asked the court to issue conservatory orders stopping its transmission and consideration by the National Assembly pending a full hearing of the constitutional challenge.
The court observed that the National Assembly retains the power to amend, reject or substantially alter the Bill.
“As a result, any potential harm identified by the petitioners remains uncertain because the final form of the legislation has not yet been determined,” read the judgment in part.
The court further noted that opportunities for public participation have not been exhausted.
“The Constitution guarantees public participation at every stage of the legislative process. The Petitioners retain the opportunity to present their views before the National Assembly. Should a violation ultimately occur, the Court remains available to provide appropriate relief at that stage,” read the ruling.
The ruling means the Business Laws (Amendment) Bill can continue through the parliamentary process, setting the stage for what is likely to be renewed scrutiny when it reaches the National Assembly.
