The Retracted Admission
During an investigation at a logistics company, the lead investigator arranges to interview Mr Otieno, a dispatch supervisor, on a Monday morning in the boardroom, with the HR manager sitting in 'to take notes'. Mr Otieno was not told the subject of the meeting. Twenty minutes in he admits signing 14 delivery notes for fuel that was never delivered, worth KES 2.8 million, then asks to leave and says he will 'sort it out with the boss'. The HR manager drafted a one-paragraph note afterwards; Mr Otieno refused to sign it. He has since retracted, saying he was told he would be dismissed on the spot if he did not cooperate. Meanwhile the finance manager, who approved the fuel invoices, has asked to be interviewed first, 'to clear his name'.
1. Assess the conduct of the interview and the evidential weight of the admission.
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Conduct - multiple defects, each curable only prospectively:
- No notice of the subject of the meeting. An ambush is defensible in rare cases (risk of destruction), but nothing here shows urgency. It invites the later claim of coerced cooperation.
- No caution and no offer of representation. For an employee facing allegations that could end his career, a right to be accompanied is expected under the Employment Act and fair administrative action. Its absence is the strongest plank of the retraction.
- HR as note-taker. HR is not an independent witness of fact, is the employer's agent, and in a disciplinary process may be a decision-maker. A one-paragraph summary drafted after the meeting, unsigned, is poor evidence.
- No recording, no exhibit shown, no verbatim question-and-answer record.
Weight: under Kenyan evidence law an admission is admissible if voluntary; the defect here goes to voluntariness and reliability, not form. The admission is not worthless - it is specific (14 notes, KES 2.8m), which is the hallmark of inside knowledge - but as it stands it is a contested oral statement recorded by an interested party and contradicted by the maker. On its own it would not support dismissal or a prosecution. It has value as a lead: it tells you exactly which 14 documents to test.
Do not attempt to 'fix' it by having HR sign a fresh statement now; that converts a weak record into a credibility problem.
2. The finance manager asks to be interviewed first. Advise on sequence and on what must happen before any further interview.
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Sequence first: decline the finance manager's request to go first, courteously and without signalling suspicion - 'we're scheduling by process, not by request'. A subject who volunteers to be interviewed first is either genuinely anxious or wants to fix the account before others speak; both are reasons to finish the documentary work first.
Before any interview:
- Obtain the 14 delivery notes and test them against independent sources - weighbridge tickets, gate registers, fuel supplier statements, vehicle tracking/GPS, driver trip sheets. If the fuel was never delivered, the supplier's own records will say so, and no admission is then needed.
- Follow the money: who was the fuel supplier, who approved the invoices, whose bank account received the payments, and is there a link to either man?
- Take a full witness statement from the HR manager - time, place, who said what, exact words if recalled, what was said about dismissal. Do this while memory is fresh and before she is asked to be a witness in a disciplinary hearing (she may not be able to do both).
- Formalise the next interviews: written notice of allegations, right to be accompanied, recording or signed contemporaneous notes, and a written caution that the matter may be referred to police.
Order: peripheral witnesses (drivers, storekeeper, supplier contact) → dispatch supervisor again, formally, with the documents → finance manager last, with the supplier payment trail on the table. Interview the person who approved the invoices only when you can show him what you already know.
3. Mr Otieno now offers to write a full confession and repay KES 900,000 if the company does not report him to the police. Advise.
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Reject the bargain as framed, and separate the three issues.
- The statement: take it, but only in a properly conducted recorded interview with notice and representation, and only as a voluntary statement. A statement written privately and handed over after a deal was discussed is exactly the statement a defence advocate will attack. Record that no promise of leniency was made.
- The repayment: accepting restitution is not itself improper, but a civil settlement must not be used to buy silence. If the company accepts money in exchange for not reporting a KES 2.8m fraud, the individuals who agreed it expose themselves to allegations of compounding an offence and of failing their fiduciary duty. Recommend full recovery efforts run in parallel with, not instead of, a decision by the board on referral.
- The decision to report belongs to the board (and its audit committee), not the investigator, and should be taken on a written recommendation that sets out the strength of evidence, the company's legal exposure, and the precedent risk. Note that where the company is regulated or donor-funded, an external reporting obligation may override the commercial preference for quiet restitution.
As the investigator: document the offer, do not accept or refuse it on the company's behalf, and put your recommendation in writing - including that a confession obtained after this conversation will need independent corroboration because its voluntariness is now in issue.