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Court of AppealDismissedCivil Appeal No. 239 of 2012· [2017] KECA 542 (KLR)

John Mughailu Tanya v Telkom Kenya Limited [2017] KECA 542 (KLR)

Court of Appeal
12 May 2017
2,121 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed an employee who takes his employer's property without proper written authority can be lawfully summarily dismissed.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Nairobi against the award and decree of the Industrial Court (Mukunya, J) dated 28th June 2012, which dismissed the appellant's claim for unlawful termination and ordered each party to bear its own costs. The appellant, a Section Engineer employed by Telkom Kenya since 1983, was summarily dismissed in October 2009 over the alleged theft of copper cables and unauthorised use of a company motor-vehicle. He pleaded five grounds, principally that the trial judge erred in finding his use of the vehicle lawful, that the claim rested on inadmissible hearsay evidence in the form of an investigative report, and that Section 22(4)(g) of the Employment Act was misapplied. The Court, restating the first-appeal duty to re-evaluate evidence with due allowance for not having seen or heard the witnesses, held that the appellant's admitted removal of the cables to his residence fell within the definition of theft under Section 268 of the Penal Code, justifying summary dismissal under Section 44(4) of the Employment Act. It found the use of the motor-vehicle unauthorised because permission was sought from a junior rather than the immediate supervisor and no written authority existed. It further held the appellant was accorded a fair hearing, having made representations before an investigative team and testified before an appeals committee. The hearsay objection failed as no objection was taken when the report was produced and the appellant's own admission was decisive. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Whether removing the employer's copper cables to the employee's residence constituted theft justifying summary dismissal

Holding

The Court affirmed the trial judge's finding that carting away the respondent's copper cables fell squarely within the definition of theft under Section 268 of the Penal Code, warranting summary dismissal under Section 44(4) of the Employment Act.

Reasoning

The appellant admitted removing the cables from the respondent's yard and off-loading them at his residence, offering only a weak explanation that they were temporarily en route to Athi River. The Court found this conduct within the Penal Code definition of theft, namely fraudulently taking or converting property capable of being stolen, and thus a criminal offence against the employer's property justifying summary dismissal.

p. 4
02

Whether the use of the respondent's motor-vehicle was authorised

Holding

The Court found the use of the motor-vehicle was without authority because the appellant obtained permission only from a junior officer, not his immediate boss, and lacked the required written authority.

Reasoning

The appellant's own evidence was that permission came from Mr. Musasia, his junior, rather than his immediate boss, Mr. Murila. Evidence was given that authority must be sought and given in writing, and the appellant had none. The Court held one cannot obtain authority from one's junior and concluded the use of the vehicle was unauthorised.

p. 4
03

Whether the appellant was denied a fair hearing before termination

Holding

The Court held the appellant was given a right of hearing: he was informed of the allegations, made representations before an investigative team, and appealed to an appeals committee before which he testified.

Reasoning

The respondent wrote to the appellant on 25th September 2009 informing him of the theft allegations, an investigative team was constituted and the appellant made representations before it. After termination he appealed to the respondent's appeals committee and appeared before it. The Court found his grievance lay in the rejection of his explanations, not in the denial of a fair hearing.

p. 4
04

Whether the investigative report was inadmissible hearsay

Holding

Although the report may have been hearsay, no objection was raised when it was produced, and in any event the appellant's own admission of removing the cables was decisive, so the point did not assist him.

Reasoning

The Court observed that the appellant had contended the evidence of PW2, who compiled the investigative report, was hearsay. It noted that no objection was taken when the report was produced. More significantly, the appellant himself owned up to removing the cables from the respondent's yard, so the outcome did not rest on the impugned evidence.

p. 3

Legal principles established

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  • On a first appeal, the Court of Appeal must re-evaluate and re-analyse the evidence and draw its own conclusions, while making due allowance for not having seen or heard the witnesses.
  • An employee who commits, or on reasonable and sufficient grounds is suspected of having committed, a criminal offence against his employer or the employer's property may be summarily dismissed for lawful cause under Section 44(4) of the Employment Act.
  • Authority to use an employer's property must be sought from a senior or immediate supervisor and, where required, given in writing; authority obtained from one's junior is ineffectual.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The appellant to pay the costs of the appeal

Authorities

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Legislation

  • Employment ActSection 44(4)
  • Employment ActSection 22(4)(g)
  • Employment ActSection 45
  • Labour Institution Act
  • Penal CodeSection 268

Cases cited (5)

  • Kenya Ports Authority versus Kuston (Kenya) Limited
    (2009) 2EA 212
  • Telkom Kenya Ltd. v Paul Ngutwa Nairobi Civil Appeal No. 56 of 2011
  • Telkom Kenya Ltd. v Ericsson Edeyangwa Bared Nairobi Civil Appeal No. 152 of 2011
  • Mwanasokoni v Kenya Bus Services Ltd. & Others
    [1982 - 88] 1 KAR
  • Chumo Arap Songok v David Kibiego Rotich Nakuru Civil Appeal No. 141 of 2004
On appeal from
Industrial Court of Kenya
Civil Case No. 689 of 2011
Jurisdiction invoked
First appeal to the Court of Appeal from the Industrial Court (no specific constitutional provision cited in the judgment)

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, "John Mughailu Tanya v Telkom Kenya Limited [2017] KECA 542 (KLR)", Case Analysis (2017). Civil Appeal No. 239 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/542/eng@2017-05-12

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