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ELRCStruck OutPetition E116 of 2026

Otieno v Ovidian Advertising & Design Ltd

Employment and Labour Relations Court of Kenya
24 September 2026
1,582 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out an employee's entire case because he filed it more than three years after his dismissal, confirming strict time limits apply.

What this practically means

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Executive summary

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The petitioner filed a petition on 15th April 2026 against Ovidian Advertising & Design Limited alleging constitutional violations: termination without reason or due process, malicious prosecution, non-payment of terminal dues, and discrimination against him compared with expatriate colleagues. He averred that the malicious prosecution and constitutional claims matured on 15th March 2023 upon his acquittal of criminal charges. The respondent filed a notice of preliminary objection dated 26th May 2026 contending the prayers were statute barred under Section 90 of the Employment Act and that the petition was defective, incompetent and an abuse of process. Applying the Mukisa Biscuit threshold, JK Gakeri J held the objection was a proper preliminary objection since limitation is a jurisdictional point of law. The court applied Section 89 of the Employment Act requiring suits arising from a contract of service to be filed within three years. The parties separated on 30th May 2019, so termination-related claims lapsed on 29th May 2022. The malicious prosecution claim accrued on acquittal in March 2023 but suit was filed more than three years later. The court held that the pending criminal trial was no disability, as criminal and employment processes are distinct. The discrimination claim was equally time barred, and the constitutional allegations failed the Anarita Karimi Njeru threshold for want of particulars. The petition was struck out for being statute barred, with each party bearing their own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondent's Notice of Preliminary Objection meets the threshold of a preliminary objection
  2. 2.Whether the petition is statute barred under Section 89/90 of the Employment Act
  3. 3.Whether the pendency of criminal proceedings constituted a disability excusing the delay
  4. 4.Whether the petition met the Anarita Karimi Njeru threshold for constitutional petitions

Key legal issues

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01

Threshold of a preliminary objection

Holding

An objection that the suit is statute barred is a jurisdictional pure point of law and qualifies as a preliminary objection

Reasoning

The court applied Mukisa Biscuit: a preliminary objection is a point of law pleaded or arising by clear implication, which if argued may dispose of the suit, and cannot rest on disputed facts or judicial discretion. Limitation was treated as jurisdictional.

p. 2
02

Limitation under the Employment Act

Holding

Claims arising from the contract of service must be filed within three years; the petitioner's claims were all filed out of time

Reasoning

Separation occurred on 30th May 2019, so the three-year period lapsed on 29th May 2022. The malicious prosecution claim accrued on acquittal in March 2023 but suit was filed on 15th April 2026, beyond three years. Discrimination claims also lapsed with termination.

p. 3
03

Effect of pending criminal proceedings on limitation

Holding

Ongoing criminal trial is not a disability; the employee may still sue the employer

Reasoning

Relying on Githinji and Rika J's authority, the court held that criminal and employment processes are distinct, grounded on different provisions of law with distinct outcomes, so the pendency of the criminal trial did not suspend limitation.

p. 3
04

Pleading constitutional violations

Holding

The petition failed the Anarita Karimi Njeru threshold as particulars of the violations were not provided

Reasoning

The court found no particulars of the alleged constitutional violations were given, raising no constitutional issue; the supporting affidavit showed only a terminal dues claim existed at separation.

p. 3

Legal principles established

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  • A preliminary objection on limitation is a pure point of law meeting the Mukisa Biscuit threshold
  • In termination of employment, limitation time runs from the date of termination
  • A cause of action in malicious prosecution accrues on conclusion/acquittal of the criminal case
  • Criminal prosecution of an employee does not bar or disable him from suing the employer for unfair termination or discrimination

Court orders

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  1. 1.The Petition is struck out for being statute barred
  2. 2.Parties shall bear their own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act; objection founded on Section 89/90 of the Employment Act (limitation)

Relief refused

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Entire petition (unfair/unlawful termination, malicious prosecution, terminal dues, discrimination, constitutional violations)

Suit statute barred under Section 89 of the Employment Act; court lacks jurisdiction

p. 3

Costs

Parties shall bear their own costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the upshot, the Petition dated 9th February 2026 is struck out for being statute barred.
p. 3disposition
Parties shall bear their own costs.
p. 4costs
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.
p. 3limitation and jurisdiction
It is trite law that a cause of action in malicious Prosecution arises after conclusion of the criminal.
p. 3accrual of malicious prosecution claim
criminal prosecution of an employee or former employee does not aect his independent Constitutional right to sue the employer for unfair or unlawful termination of employment or discrimination
p. 3criminal process no bar to civil claim

Issues in the judgment

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minor

Petition date inconsistency

minor

Statutory section inconsistency

minor

Acquittal date missing year

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Otieno v Ovidian Advertising & Design Ltd", Case Analysis (2026). Petition E116 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2582/eng@2026-09-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.