John Mughailu Tanya v Telkom Kenya Limited [2017] KECA 542 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether removing the employer's copper cables to the employee's residence constituted theft justifying summary dismissal
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.
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.
Whether the use of the respondent's motor-vehicle was authorised
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.
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.
Whether the appellant was denied a fair hearing before termination
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.
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.
Whether the investigative report was inadmissible hearsay
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.
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed
- 2.The appellant to pay the costs of the appeal
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.