REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MIGORI
CIVIL APPEAL NO. E037 OF 2024
ANDREW A. OBONYO ….………………………………………… APPELLANT
VERSUS
SOUTH NYANZA SUGAR CO. LTD ………………...……. RESPONDENT
( Being an appeal from the Order of Honourable C. N. Oruo, Principal Magistrate, Rongo Law Courts in PMCC No. 240 of 2016, delivered on the 6 th of June 2024 ).
JUDGMENT
Introduction and Background
1. This appeal arises from the Order of the subordinate court at Rongo Law Courts delivered on the 6 th of June 2024. In the said judgment, the trial court did dismiss the Plaintiffs suit, the main reason for the dismissal being that the Plaintiff had not in the proceedings provided evidence to show that the contract entered into, the Plaintiff did not provide proof of the payment rate of Kshs. 1,730.00 per tonne.
2. The Plaintiff, now Appellant, being dissatisfied with the said judgment has lodged this appeal, seeking that the order of dismissal be set aside and the court proceeds to assess and award damages to the Appellant.
Analysis and Determination .
3. In the plaint dated 30 th of December 2010 , and initially filed at Kisii being Kisii CMCC No. 647 of 2010 , and later transferred to Rongo Law Courts and cited as PMCC No. 240 of 2016 , the Appellant sough the following reliefs as against the Respondent:
a. Damages for breach of contract and an order that the Defendant do compensate the Plaintiff for the loss of three crops on 1.6 hectares of land at the rate of 135 tonnes per hectare and payment of Kshs. 2,500.00 per tonne for the expected three crops.
b. Costs of the suit
c. Interest thereon at court rates from 11 th February 2002 until full payment
d. Any other relief that this Honourable Court may deem fit to grant.
4. The Defendant was served with the pleadings and from the proceedings, they did not file any defence to the pleadings. The proceedings further show that they did not attend the hearings, except for once but kept off for the rest of the proceedings. The claim was thus undefended. The Plaintiff testified on the 13 th of April, 2021, generally adopting his witness statement. As already indicated, the Defendant didn’t file a defence or participate in the proceedings and thus the Plaintiff was not cross examined.
5. In the statement, the Plaintiff stated that he entered into a contract with the Defendant that was to run for 5 years. The Defendant was to undertake three harvests in the contract period. The Defendant ploughed the land and supplied 4 bags of fertilizer but did not harvest the cane when due and it all dried up. The first crop was to be harvested at 24 months and the second and third crops thereafter after 16-18 months. He chopped the dried cane and planted again but the Defendant did not harvest the said crop. He stated that the price per tone was Kshs. 1,730.00. The Plaintiff did annex a copy of the contract entered into with the Defendant dated 4 th April, 2003.
6. The trial court after analysing the evidence of the Plaintiff, isolated two issues for determination. First, whether there was a valid contract between the parties and secondly whether the Plaintiff was entitled to the reliefs sought.
7. On the first issue, the trial court found that there was a valid contract entered into between the parties. The contract availed by the Plaintiff was not disputed. The contract is dated 16 th April, 2003, erroneously indicated as 16th April, 2011. The plot for the planting of the sugar cane is indicated as 1.6 hectares. On the second issue, the court found that the Plaintiff had not proved that the price per acre was Kshs. 1,730.00 per acre.
Findings .
8. This being a first appeal, this court is called upon to independently evaluate the evidence before the trial court and determine whether the trial court correctly evaluated the evidence and arrived at the proper outcome, considering the facts and applicable law. The court is alive to the fact that it did not see or hear the witnesses as the trial court did, and will thus proceed with the said caution in mind. The decisions cited by the Appellant in Selle vs Associated Motor Boat Co. (1968) EA 123 and Kiruga vs Kiruga & Another (1988) KLR 348 are relevant.
9. On the substantive issue of whether the trial court was right in dismissing the Appellants case for lack of proof of the price of Kshs. 1,730.00, this court finds two issues for consideration. First, it is now settled that a civil matter where the standard of proof is on a balance of probability, the claimant needs to persuade the court to the said standard in order to obtain the reliefs sought.
10. The Defendant did not file a defence to the claim. The evidence of the Appellant, then the Plaintiff, was thus uncontroverted. Where a party has been given an opportunity to responds to a claim and fails to do so either by way of filing a defence, a Replying Affidavit or attendance to court to challenge through cross examination or tendering of their own evidence, then the court is entitled to rely on the evidence of the Plaintiff in making its determination. In an appropriate case, the court could still deny the Plaintiff the reliefs sought if not persuaded by the unchallenged evidence. Reasons for the denial would have to be tendered. Otherwise, the court will be required to rely on the tendered evidence in making a decision in favour of the Plaintiff or Claimant.
11. The pleadings, the witness statements and documents proffered by the Plaintiff before the trial court were neither challenged nor controverted. The trial court was thus under a duty to consider the evidence in totality when making the determination.
12. On the second issue and related to the first, the Appellant stated in his evidence and witness statement that the expected harvest was 135 tonnes from the 1.6 hectares of land per harvest. In addition, the price per tonne was Kshs. 1,730.00. This was also not controverted by the Defendant.
13. I have also considered clause 10(n) of the contract executed between the parties. It clearly provides that the Respondent was to pay the Appellant the designated price within 30 days of delivery of the cane. The price was to be fixed by the Government of Kenya. It follows therefore, that as the entity under an obligation to pay for the delivered crop, it was to provide the price schedule and calculate its charges and costs before remitting the balance to the farmers/Outgrowers. The price stated by the Appellant was not challenged by any evidence of document by the Respondent to provide sufficient doubt that the same was not the applicable price.
14. There was thus no proper reason for the trial court to determine the price of the crop to be unclear sufficient to warrant the dismissal of the Appellants claim. In the case cited by the Appellant being South Nyanza Sugar Co. Ltd vs Anyango [2024] KECA 694 (KLR) (21 st June 2024) (Judgment ), the Court of Appeal at paragraph 62 stated thus:
“ However we note, as rehashed earlier, the Respondent testified that the price of sugarcane was Kshs. 1,730.00 per tonne. She further testified that as a result of the failure by the Appellant to harvest the two ratoon crops, she lost Kshs. 173,000.00 because she was anticipating at least 100 tonnes from the two crops. This evidence was uncontroverted by the Appellant. The trial court and the 1st appellate court were therefore entitled to rely on the figures supplied by the Respondent to calculate the damages payable to the Respondent ”.
15. It thus follows that the trial court should have relied on the uncontroverted evidence in making a determination for the Appellant.
16. From the trail courts judgment, no mention was made on whether the court was of the opinion that the Respondent had breached the contract agreement with the Appellant. Be that as it may, having found that the Respondent had a valid contract with the Appellant and the Appellant having testified that the Respondent failed to harvest the Appellants crops within the contract period, then it follows that the Respondent was in breach of the contract and the Appellant is thus entitled to the damages sought in the primary claim.
17. Having so determined, I then make a finding that the Appellant was entitled to the reliefs sought in the suit filed by the Appellant. I will thus be inclined to review the decision of the trial court. I do so in the following terms:
a. The appeal by the Appellant is allowed and the judgment of the trial court rendered on 6 th June 2024 is hereby set aside.
b. Judgment is hereby entered for the Appellant for the sum of Kshs. 700,650.00 (comprising of Kshs 1,730.00 * 135* 3).
c. Interest on the decretal sum to run from 6 th of June 2024 till full payment.
d. Costs of the suit, both in the suit before the subordinate Court and the appeal are awarded to the Appellant .
Dated, signed and delivered virtually via Microsoft Teams this 30 th of June 2026.
HCCA NO. E037 OF 2024 ANDREW A. OBONYO VS SONY SUGAR CO. LTD JUDGMENT Pg. 4
IN THE HIGH COURT OF KENYA AT MIGORI
CIVIL APPEAL NO. E037 OF 2024
ANDREW A. OBONYO ….………………………………………… APPELLANT
VERSUS
SOUTH NYANZA SUGAR CO. LTD ………………...……. RESPONDENT
( Being an appeal from the Order of Honourable C. N. Oruo, Principal Magistrate, Rongo Law Courts in PMCC No. 240 of 2016, delivered on the 6 th of June 2024 ).
JUDGMENT
Introduction and Background
1. This appeal arises from the Order of the subordinate court at Rongo Law Courts delivered on the 6 th of June 2024. In the said judgment, the trial court did dismiss the Plaintiffs suit, the main reason for the dismissal being that the Plaintiff had not in the proceedings provided evidence to show that the contract entered into, the Plaintiff did not provide proof of the payment rate of Kshs. 1,730.00 per tonne.
2. The Plaintiff, now Appellant, being dissatisfied with the said judgment has lodged this appeal, seeking that the order of dismissal be set aside and the court proceeds to assess and award damages to the Appellant.
Analysis and Determination .
3. In the plaint dated 30 th of December 2010 , and initially filed at Kisii being Kisii CMCC No. 647 of 2010 , and later transferred to Rongo Law Courts and cited as PMCC No. 240 of 2016 , the Appellant sough the following reliefs as against the Respondent:
a. Damages for breach of contract and an order that the Defendant do compensate the Plaintiff for the loss of three crops on 1.6 hectares of land at the rate of 135 tonnes per hectare and payment of Kshs. 2,500.00 per tonne for the expected three crops.
b. Costs of the suit
c. Interest thereon at court rates from 11 th February 2002 until full payment
d. Any other relief that this Honourable Court may deem fit to grant.
4. The Defendant was served with the pleadings and from the proceedings, they did not file any defence to the pleadings. The proceedings further show that they did not attend the hearings, except for once but kept off for the rest of the proceedings. The claim was thus undefended. The Plaintiff testified on the 13 th of April, 2021, generally adopting his witness statement. As already indicated, the Defendant didn’t file a defence or participate in the proceedings and thus the Plaintiff was not cross examined.
5. In the statement, the Plaintiff stated that he entered into a contract with the Defendant that was to run for 5 years. The Defendant was to undertake three harvests in the contract period. The Defendant ploughed the land and supplied 4 bags of fertilizer but did not harvest the cane when due and it all dried up. The first crop was to be harvested at 24 months and the second and third crops thereafter after 16-18 months. He chopped the dried cane and planted again but the Defendant did not harvest the said crop. He stated that the price per tone was Kshs. 1,730.00. The Plaintiff did annex a copy of the contract entered into with the Defendant dated 4 th April, 2003.
6. The trial court after analysing the evidence of the Plaintiff, isolated two issues for determination. First, whether there was a valid contract between the parties and secondly whether the Plaintiff was entitled to the reliefs sought.
7. On the first issue, the trial court found that there was a valid contract entered into between the parties. The contract availed by the Plaintiff was not disputed. The contract is dated 16 th April, 2003, erroneously indicated as 16th April, 2011. The plot for the planting of the sugar cane is indicated as 1.6 hectares. On the second issue, the court found that the Plaintiff had not proved that the price per acre was Kshs. 1,730.00 per acre.
Findings .
8. This being a first appeal, this court is called upon to independently evaluate the evidence before the trial court and determine whether the trial court correctly evaluated the evidence and arrived at the proper outcome, considering the facts and applicable law. The court is alive to the fact that it did not see or hear the witnesses as the trial court did, and will thus proceed with the said caution in mind. The decisions cited by the Appellant in Selle vs Associated Motor Boat Co. (1968) EA 123 and Kiruga vs Kiruga & Another (1988) KLR 348 are relevant.
9. On the substantive issue of whether the trial court was right in dismissing the Appellants case for lack of proof of the price of Kshs. 1,730.00, this court finds two issues for consideration. First, it is now settled that a civil matter where the standard of proof is on a balance of probability, the claimant needs to persuade the court to the said standard in order to obtain the reliefs sought.
10. The Defendant did not file a defence to the claim. The evidence of the Appellant, then the Plaintiff, was thus uncontroverted. Where a party has been given an opportunity to responds to a claim and fails to do so either by way of filing a defence, a Replying Affidavit or attendance to court to challenge through cross examination or tendering of their own evidence, then the court is entitled to rely on the evidence of the Plaintiff in making its determination. In an appropriate case, the court could still deny the Plaintiff the reliefs sought if not persuaded by the unchallenged evidence. Reasons for the denial would have to be tendered. Otherwise, the court will be required to rely on the tendered evidence in making a decision in favour of the Plaintiff or Claimant.
11. The pleadings, the witness statements and documents proffered by the Plaintiff before the trial court were neither challenged nor controverted. The trial court was thus under a duty to consider the evidence in totality when making the determination.
12. On the second issue and related to the first, the Appellant stated in his evidence and witness statement that the expected harvest was 135 tonnes from the 1.6 hectares of land per harvest. In addition, the price per tonne was Kshs. 1,730.00. This was also not controverted by the Defendant.
13. I have also considered clause 10(n) of the contract executed between the parties. It clearly provides that the Respondent was to pay the Appellant the designated price within 30 days of delivery of the cane. The price was to be fixed by the Government of Kenya. It follows therefore, that as the entity under an obligation to pay for the delivered crop, it was to provide the price schedule and calculate its charges and costs before remitting the balance to the farmers/Outgrowers. The price stated by the Appellant was not challenged by any evidence of document by the Respondent to provide sufficient doubt that the same was not the applicable price.
14. There was thus no proper reason for the trial court to determine the price of the crop to be unclear sufficient to warrant the dismissal of the Appellants claim. In the case cited by the Appellant being South Nyanza Sugar Co. Ltd vs Anyango [2024] KECA 694 (KLR) (21 st June 2024) (Judgment ), the Court of Appeal at paragraph 62 stated thus:
“ However we note, as rehashed earlier, the Respondent testified that the price of sugarcane was Kshs. 1,730.00 per tonne. She further testified that as a result of the failure by the Appellant to harvest the two ratoon crops, she lost Kshs. 173,000.00 because she was anticipating at least 100 tonnes from the two crops. This evidence was uncontroverted by the Appellant. The trial court and the 1st appellate court were therefore entitled to rely on the figures supplied by the Respondent to calculate the damages payable to the Respondent ”.
15. It thus follows that the trial court should have relied on the uncontroverted evidence in making a determination for the Appellant.
16. From the trail courts judgment, no mention was made on whether the court was of the opinion that the Respondent had breached the contract agreement with the Appellant. Be that as it may, having found that the Respondent had a valid contract with the Appellant and the Appellant having testified that the Respondent failed to harvest the Appellants crops within the contract period, then it follows that the Respondent was in breach of the contract and the Appellant is thus entitled to the damages sought in the primary claim.
17. Having so determined, I then make a finding that the Appellant was entitled to the reliefs sought in the suit filed by the Appellant. I will thus be inclined to review the decision of the trial court. I do so in the following terms:
a. The appeal by the Appellant is allowed and the judgment of the trial court rendered on 6 th June 2024 is hereby set aside.
b. Judgment is hereby entered for the Appellant for the sum of Kshs. 700,650.00 (comprising of Kshs 1,730.00 * 135* 3).
c. Interest on the decretal sum to run from 6 th of June 2024 till full payment.
d. Costs of the suit, both in the suit before the subordinate Court and the appeal are awarded to the Appellant .
Dated, signed and delivered virtually via Microsoft Teams this 30 th of June 2026.
HCCA NO. E037 OF 2024 ANDREW A. OBONYO VS SONY SUGAR CO. LTD JUDGMENT Pg. 4