Otieno v Ovidian Advertising & Design Ltd

6. The threshold of a Preliminary Objection was enunacted by the court of Appeal in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696 where Law JA stated: “ ...A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” Sir, Charles New bold P. added: “ A Preliminary Objection is in the nature of what used to be a demurrer. It raise a pure point of law which is usually argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.” 7. Since the respondent is challenging the competence of the suit on the ground of being statute barred which is essentially a jurisdictional issue, the court is satised that the respondent’s Notice of Preliminary Objection meets the threshold of a Preliminary Objection. 8. The respondent contends that the instant suit is statute barred by dint of Section 89 of the Employment Act which provides; 9. Notwithstanding the provisions of section 4(I) of the Limitation of Actions Act (Cap 22), no civil action or proceedings based or arising out of this Act o r a contract of service in general shall lie or be instituted unless it is commenced within three years next after the act, neglect complained or in the case of continuing injury or damage within twelve months next after the cessation thereof. 10. Typically, time starts running when the cause of action accrues and in a termination of employment, time starts running on the date of termination of employment. 11. In G4S Security Services (K) Ltd v Joseph Kamau & 486 others (2015) KECA 827 (KLR), the Court of Appeal stated: “ In the circumstances of this case we nd that the contracts of 464 respondents were terminated in 2008, 2009 and 2010 and the claim was led in 2014. pursuant to section 90 of the Employment Act the claims should have been led within three years of termination of employment. The claims of the 464 respondents were therefore time barred.” 12. Similarly in Attorney General & another v Andrew Maina Githinji & another (2016) EKLR the Court of Appeal held: “ ...The respondents had a clear cause of action against the employer when they received their letters of dismissal on 2nd October 2010. they had all the facts which had been placed before them in the disciplinary proceedings if they felt aggrieved by that dismissal, but they did not. Having found that the cause of action arose on 2nd February 2010, and that the claim was led on 16th June 2014, it follows by simple arithmetic that the limitation period of 3 years was surpassed by a long margin. The claim was time barred as at 1st February 2013 and I so hold.” https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2582/eng@2026-09-24 2

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13. Applying the above principles to the facts of the instance case is clear that the Petitioner’s case is statute barred. 14. It is not in dispute that the petitioner and the respondent separated on 30th may 2019 and if the petitioner had any cause of action against the Respondent, arising out of the contract of employment, it commenced on that day and the three years lapsed on 29th May 2022. However, the petitioner averred that the cause of action of malicious prosecution and constitutional violation matured on 15th March when he was acquitted in the criminal case. It is trite law that a cause of action in malicious Prosecution arises after conclusion of the criminal. This is because the acquittal and the malice are elements of the cause of action as held in Attorney General & another v Andrew Maina Githinji & another (Supra). In the instant case however, the Petitioner did not sue until 15th April 2026 more than three (3) years later by which time the action on malicious prosecution was statute barred. 15. Strangely, the Petitioner averred that between May 2019 and March 2023, he could not sue because he was labouring under the disability in the name of the ongoing criminal trial. 16. It is trite law that criminal prosecution of an employee or former employee does not aect his independent Constitutional right to sue the employer for unfair or unlawful termination of employment or discrimination, both of which are provided for by the provisions of the Employment Act. This is because these are distinct processes grounded on dierent provisions of law with distinct outcomes. 17. See Attorney General & another v Andrew Maina Githinji & another (Supra) where the Court of Appeal stated. “ In other cases where a plea was made that there was an intervening criminal process, it has been held that the institution of criminal proceedings in not a bar to Civil Proceedings based on similar facts. Such was the case in James Mageria Igati Case where Rika J. held as follows…”(See also Judicial Service Commission v Gladys Boss Shollei & another (2014) eKLR 18. The import of the foregoing is that the petitioner was not labouring under any disability and ought to have led his case within three years of termination of employment or within three (3) years of acquittal for the alleged malicious prosecution but did not do so rendering the two claims statute barred. 19. Concerning discrimination in comparison with colleagues who he described as expatriates, the petitioner ought to have sued within 3 years of termination of employment and the claim is equally statute barred. 20. Finally, particulars of the alleged constitutional violations which allegedly matured on 15th March 2023 were not provided thus failing to meet the threshold enunciated in Anarita Karimi Njeru v Republic (1989) KLR on Constitutional Petitions and raises no constitutional issue. A plain reading of the Petitioner’s Supporting Adavit reveals that by the time he separated with the respondent on 30th May 2019 the only claim he had against the respondent was terminal dues of Kshs.357,403.28. Other alleged causes of action emerged later. 21. For the foregoing reasons the court is satised and nds that the Petitioner’s suit herein is statute barred by dint of the provisions of Section 89 of the Employment Act and this court has no jurisdiction to hear and determine it. 22. In the upshot, the Petition dated 9th February 2026 is struck out for being statute barred. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2582/eng@2026-09-24 3

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Parties shall bear their own costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 24TH SEPTEMBER, 2026. DR. JACOB GAKERI JUDGE Order In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and aordable resolution of civil disputes. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2582/eng@2026-09-24 4

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