The Appellant vide Plaint dated 15th June 2018 sued the Respondents herein for breach of contract allegedly entered into between them, among others to inspect for maturity, the Appellant’s 3.2 Ha sugarcane grown on plot No. 181, Field No. 253 C, Account No. 550715 and to programme the same for harvesting before authorizing the Appellant to harvest and deliver to the Respondent.
The Appellant therefore prayed for damages for breach of contract, costs of the suit and interest on the damages for breach.
Upon hearing the evidence of the parties in the suit the Trial Magistrate delivered a judgement in which she established that indeed there was a contract between the Appellant and the Respondent and that there was also a breach of the said contract by the Respondents who could have terminated the same when they realized the Appellant had allegedly failed to maintain the sugar cane but they did not. It was also the Trial Courts finding that there was no evidence tendered by the Respondents that the Appellant did not plant the sugarcane as alleged.
The Trial Magistrate also found that there was no evidence that the Appellant developed the 1st and 2nd Ratoon Crops and therefore he cannot be compensated for what he did not lose.
The Trial Magistrate also found that the Respondent’s claim for statutory deductions, including transport, cess and harvesting charges had no bearing as they did not harvest the plant crop hence no expenses or deductions should be occasioned on the Plaintiff.
The Trial Magistrate also relied on the Respondent’s evidence to find that the Appellant’s field measured 2.36 Ha and not 3.2 Ha as claimed by the Appellant.
The Trial Magistrate declined to award damages for the 1st and 2nd Ratoon Crops but awarded exemplary Damages of Kshs. 100,000/= together with costs of the suit from date of judgement and interest from date of filing suit and a further interest at 3 percent as per clause 5.2 of the Agreement between the parties.
The Appellant being dissatisfied with the judgement and orders of the trial court preferred an appeal before this court vide a Memorandum of Appeal dated 25th April, 2023 setting forth the following grounds of appeal;
(a) THAT the Learned Trial Magistrate erred in law and fact by entertaining and / or regarding the defense evidence which is at variance with the statement with the defense filed
(b) THAT the Learned Trial Magistrate erred in law and fact by writing judgement not based on evidence and pleadings on record.
(c) THAT the Learned Trial Magistrate erred in law and fact by expressing her opinion in her judgement instead of making findings based on pleadings and evidence.
(d) THAT the Learned Trial Magistrate erred in law and fact by disregarding the Appellant’s pertinent and apt evidence, submissions and authorities cited, the precedents of which she glossed over.
(e) THAT the Learned Trial Magistrate disregarded the principle’’restitutio in integrum’’
(f) THAT the Learned Trial Magistrate’s interpretation of the various relevant principles of law and fact was erroneous.
The Appellant urged this court to grant the following ORDERS that;
(a) THAT the court be pleased to set aside the trial Magistrates judgement and substitute the same with an appropriate award for Plant Crop, Ratoon 1 & 2sugarcane crop cycles and the due interests thereon.
(b) . THAT the court being the 1st Appellate Court do re-evaluate the evidence on record and arrive at own independent findings.
(c) . THAT the costs and interests thereon be borne by the Respondent.
The Respondent also filed a Memorandum of Cross Appeal dated 3rd April 2024 on the following grounds:
(a) THAT the Learned Trial Magistrate erred in law and fact when he found and held that the contract entered into between the Appellant and Nyambiba Daniel Maroa on 19/10/2011 was breached by the Appellant’s failure to harvest the Plant Crop whereas the said Nyambiba Daniel Maroa never led admissible and satisfactory evidence of the date/ day when he planted the plant crop.
(b) THAT the Learned Trial Magistrate erred in law and fact when she found and held that Nyambiba Daniel Maroa planted the Plant Crop on an unknown date in an unknown duration and held that the said Plant Crop would have been harvested and each ton would have fetched Kshs. 3,200/=
(c) THAT the Learned Trial Magistrate erred in law and fact in finding and holding that the Appellant breach the contract in the absence of evidence on the commencement date of the contract
(d) THAT the Learned Trial Magistrate erred in law and fact in adopting and applying the cane price of Kshs. 3,200/= per ton of sugarcane when the facts of the suit did not permit him to do so.
(e) THAT the Learned Trial Magistrate erred in law and fact in awarding the Respondent exemplary damages when the circumstances of the suit did not permit any award of exemplary damages.
(f) THAT the Learned Trial Magistrate erred in law and fact after she opted to award the Respondent exemplary damages of Kshs. 100,000/= for the ratoons which award was excessive and disproportionate on the facts.
(g) THAT the Learned Trial Magistrate misapprehended the evidence adduced by the parties.
(h) THAT the Learned Trial Magistrate misapprehended the law applicable to the parties’ cases.
(i) THAT the Learned Trial Magistrate erred in law and fact when she entered judgement for the Respondent against the Appellant in the sum of Kshs. 581,968/= when the same was not pleaded specifically and proved strictly.
(j) THAT the Learned Trial Magistrate erred in law and fact in failing to make provision for transport and harvesting charges when she had discretionary power to do so.
(k) THAT the Learned Trial Magistrate erred in law and fact when she ordered that interest on the award made in favor of the Respondent would accrue interest from the date of filing suit as opposed to interest being accrued from the date of judgement without reasonable cause.
(l) THAT the Learned Trial Magistrate erred in law and fact when she awarded the Respondent a further penalty interest on the sum of Kshs. 481,968/= at the rate of 3 percent as per clause 5.2 of the agreement from the date of filing of the suit until payment in full while it was not pleaded, evidence was not led thereon and the parties did not canvass that aspect.
REASONS WHEREFORE the Appellant seeks judgement against the Respondent and prays that:
1. This appeal be allowed
2. The judgement and decree of the subordinate court dated 29th March 2023 be set aside.
3. The Respondent’s suit before the Subordinate Court be dismissed.
4. The costs of the Respondent’s suit in the Subordinate court be awarded to the Appellant.
5. The Court be pleased to order that any interest on a sum of money awarded as damages, if any, be calculated from the date of judgement, if the court were to find that damages are due.
6. The costs of this appeal be awarded to the Appellant.
The Appellant’s case was that by a contract dated 19th October 2011 he entered into an agreement with the Respondent company to grow sugarcane on parcel of land No. 181 Field No. 253C measuring 3.2 Ha and sell to the Respondent. That it was a term of the both express and implied that the contract would commence on 5th August 2013 and remain in force for 5 years or until one plant crop and 2 ratoon crops of sugarcane are harvested on the plot whichever period was less; that the plant crop and ratoon cane would be harvested at the age of 22-24 months and 16-18 months after planting and subsequent harvest respectively; that the Defendant/Appellant was to exercise due care during the harvest. The Appellant contended that the Respondent in breach of the said agreement failed to harvest the plant crop when the cane matured and was ready for harvest at 22-24 months of age; that the cane started deteriorating as a result of which the Appellant suffered loss. The Appellant’s evidence was tendered by his Attorney.
The Respondent opposed the claim and its evidence was tendered by Justus Otieno George who said he was a Field Extension Supervisor working for the Respondent. He adopted his statement in which he admitted that the Appellant entered into a contract with the Appellant for development and supply of cane on 5th August 2013 on plot measuring 2.63 Ha and not 3.2Ha as alleged. He admitted that the contract was for 5 years or until one plant crop and 2 ratoon crops of the sugarcane had been harvested from the subject parcel of land whichever event occurred first. He said the Respondent assigned Account No. 550715 to the Appellant.
According to the Respondent the agreement was to the effect that the farmer should grow cane on the said field and the Respondent would develop the plot, supply the inputs, harvest the cane if it grows to maturity, transport it to the weighbridge and take ownership of the cane once the Respondent issues the Appellant with weighbridge certificate.
It was further the Respondent’s evidence that it was to mill the cane and thereafter pay the Appellant the net yield value of the milled cane at the prevailing price which was Kshs. 3,200/=per Ha less the investments the Respondent had put into developing the cane. The Respondent’s witness further said that cane yields were based on hectares and in Moheto Sub-Location the Plant Crop yield was 63.82 tonnes per hectare and ratoon crop yield was 40.36 tonnes per Ha.
According to the Respondent the Appellant was entitled to 3.200/=x 63.82 tonnes x2.63 Ha which would translate to Kshs. 536,960 less harvesting charges at Kshs. 307/= per ton; transport at Kshs. 690/= per ton; Cess 1 percent ; Levy at 1 percent ;and interest on inputs at 17 percent per annum.
The Respondent argued that the Appellant who had the duty to prepare his land before planting but failed to do so and no seed cane nor fertilizer was supplied for planting. That planting of cane was not done by the Appellant and there was no job completion certificate issued to justify the claim; that no cane grew to maturity for harvesting by the Respondent and no cane dried up on the plot; that ratoon 1 and 2 were also not developed and as such nothing was to be harvested from the plot as alleged by the Appellant.
This appeal canvassed by way of written submissions. Both parties complied and filed their respective submissions.
The Appellant’s submissions are dated 20th June 2024. The Appellant submitted that the Respondent’s pleadings in the statement of defense was that there was no contract between it and the Appellant but in their testimony their evidence was at variance with the pleadings and the same was inadmissible. It was further submitted that the survey Report produced by the Respondent is dated 1st May 2012 and is distinct from the contract herein which was signed on 5th August 2013. The Appellant argued that the Respondent cunningly misrepresented exhibits which dates were changed.
The Appellant also submitted that the Agreement between him and the Respondent was binding and cannot be ousted by the Appellant’s exhibits on the size of the plot.
The Respondent also argued that the Trial Magistrate failed by ignoring the authorities cited in support of the claim and instead awarded exemplary damages which were not pleaded or claimed in the suit without giving a reason for the award.
It was further submitted that the Respondents in Cross appeal referred to a contract dated19th October 2011 which has no relevance or nexus with the one in question.
The Respondent’s submissions are dated 21st February 2025 and are to the effect that there was no evidence that the Respondent’s failure to harvest the Plant Crop compromised the development of the 1st and 2nd Ratoon Crops. That it was not pleaded or proven that the Appellant developed the plant crop, and it was not harvested; that the Appellant went on to develop the subsequent crops and they were not harvested.
The Respondent cited the holding of Chitembwe J in Migori HCCA NO 47 of 2019 South Nyanza Sugar Co. Ltd Vs Francis Aderi Dedege to support its position that the Appellant had a duty to prove that indeed he had developed the 1st Ratoon.
Appellant’s submissions are to the effect that the learned magistrate failed to……… The Respondent’s submissions in respect to the cross appeal is that the Appellant never led evidence to prove the date or day when he planted the plant crop for the court to make a finding that indeed the Respondent failed to harvest the Plant Crop.
The Respondent also submitted that the Trial Magistrate failed to make provisions for transport and harvesting charges when on the facts of the suit she could exercise her discretion and make for such charges. The Respondent argued that it supported the Appellant in the development of the cane and the trial court ought to have made allowance for the said expenses which would have been deducted from the proceeds.
The Respondent urged the court to order that each party bears their own costs of the appeal.
Analysis and Determination
This being a first appeal, this court has an obligation to re-evaluate, re-analyse and re-assess the evidence adduced before the Trial court and come up with its own inference bearing in mind that this court did not have the opportunity to observe the witnesses testify. This position is enunciated in the case of Abok James Odera T/A A.J Odera & Associates vs John Patrick Machira T/A Machira & Co. Advocates (2013) eKLR the Court of appeal held as follows;
“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.”
Further in Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus:
"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."
I have considered the grounds of appeal, the record of appeal and re-evaluated the evidence adduced before the trial court together with the rival submissions and find the issues that crystalizes for determination are:
(a) Whether the contract between the Appellant and the Respondent was breached and whether the Appellant was entitled to compensation for the 1st and 2nd Ratoon Crops following failure by the Respondent to harvest the Plant crop.
(b) Whether Trial Magistrate properly made an award for exemplary damages in lieu of damages for the 1st and 2nd Ratoon Crops
(c) Whether the Trial Magistrate was obligated to order for deduction of costs of input, harvesting and transport among other things from the award made to the Appellant.
(d) Whether the Trial Magistrate properly applied interest rate of 3 percent as per clause 5.2 of the contract agreement to the award and whether interest from date of filing of suit till payment in full was justifiable in the circumstances.
On whether the contract between the Appellant and the Respondent was breached and whether the Appellant was entitled to compensation for the 1st and 2nd Ratoon Crops following failure by the Respondent to harvest the Plant crop
It was not in dispute that the Appellant and the Respondent entered into a contract as established by the Trial Magistrate that it was for a period of 5 years. The Trial Magistrate went ahead to find that the said contract was breached by Respondents who failed to harvest the Plant crop. Contracts such as the instant one have severally been litigated both in the High Court and the Court of Appeal and the established jurisprudence obtaining is that the same being a contract for a specific period of time breach of any part of the contract affects the entire contract and the party who breaches is therefore under obligation to make good the said breach and restitute the party whose rights have been breached to the position they would have been had the contract not been breached.
In South Nyanza Sugar Company Limited v Oreko (Civil Appeal 138 of 2017) [2022] KECA 570 (KLR) (24 June 2022) (Judgment) it was held:
‘’On my part, the approach to take must be one which does not derogate from the objective of granting damages for breach of contract which is to ensure that the victim of breach is placed in as much as possible the same position as if the breach did not happen. Never losing sight, of course, of the duty of the victim of breach to mitigate the loss.
23.The contract itself was for a period of five years or until one plant crop and two ratoons were harvested on the plot, whichever period would be less. The evidence accepted by both courts below, and which has not been challenged before us, is that Sony was guilty of breach by failing to harvest the plant crop. Once the plant crop was not harvested, it dried and the ratoon crops could not grow. This was a natural consequence of the breach. It is therefore reasonably foreseeable that failure to harvest the plant crop would imperil the subsequent ratoon crop and naturally, so too, the 2nd ratoon crop. In this way a loss of the plant crop was also a loss of the two ratoon crops.’’
Flowing from the above decision it follows that the Appellant had a duty to compensate the Respondent for the loss that arose from the breach in terms of the expected proceeds for the Plant Crop and the 2 Ratoon Crops.
On whether Trial Magistrate properly made an award for exemplary damages in lieu of damages for the 1st and 2nd Ratoon Crops.
The Trial Magistrate in the judgement said that for the 1st and 2nd Ratoon Crops the Appellant was entitled to exemplary Damages for reasons that the Plant Crop indeed dried up and if the plant crop dried had been harvested the Ratoon Crops would have developed. This finding is not consistent with the finding that no evidence was produced that the Ratoon crops were ever developed
Exemplary damages are different from ordinary damages, which are usually compensatory in nature and ought to be specifically pleaded. The Appellant did not seek exemplary damages and so they could not be available to him at the instance of the Trial Magistrate who did not explain how this decision was arrived at in the absence of any pleadings in that respect.
Having found as above that the Appellant was entitled to be compensated for the 2 Ratoon Crops this court hereby sets aside the award for exemplary damages and substitutes thereof with the compensation for the proceeds for the ratoon crops.
On whether the Trial Magistrate was obligated to order for deduction of costs of input, harvesting and transport among other things from the award made to the Appellant, this court hereby orders that the cost of inputs made by the Respondent and statutory deductions should be agreed upon or computed by the Trial Court as the Respondent did not plead what expenses they incurred in developing the Appellant’s field as per the contract.
On whether the Trial Magistrate properly applied interest rate of 3 percent as per clause 5.2 of the contract agreement to the award and whether interest from date of filing of suit till payment in full was justifiable in the circumstances
In consideration that there is a contractual obligation under Clause 5.2 of the Contract as established by the Trial Court for the party who breaches the contract to pay interest this court finds that it would be double jeopardy and punitive to impose further interest from date of filing suit as the same has already been catered for in the contract. In the circumstances this court sets aside the order for interest to accrue from date of filing suit to the date of the judgement in addition to the interest as stipulated in the contract.
Based on the re-evaluation of the evidence in the Trial Court and consideration of the grounds of appeal as well as submissions of the respective parties I do find that the appeal and cross appeal are both partially successful to the extent discussed above and therefore each party will bear their own costs of the appeal and cross appeal.
Orders accordingly.
Dated, Signed and Delivered at Migori this 12th day of June, 2025.
The Appellant therefore prayed for damages for breach of contract, costs of the suit and interest on the damages for breach.
Upon hearing the evidence of the parties in the suit the Trial Magistrate delivered a judgement in which she established that indeed there was a contract between the Appellant and the Respondent and that there was also a breach of the said contract by the Respondents who could have terminated the same when they realized the Appellant had allegedly failed to maintain the sugar cane but they did not. It was also the Trial Courts finding that there was no evidence tendered by the Respondents that the Appellant did not plant the sugarcane as alleged.
The Trial Magistrate also found that there was no evidence that the Appellant developed the 1st and 2nd Ratoon Crops and therefore he cannot be compensated for what he did not lose.
The Trial Magistrate also found that the Respondent’s claim for statutory deductions, including transport, cess and harvesting charges had no bearing as they did not harvest the plant crop hence no expenses or deductions should be occasioned on the Plaintiff.
The Trial Magistrate also relied on the Respondent’s evidence to find that the Appellant’s field measured 2.36 Ha and not 3.2 Ha as claimed by the Appellant.
The Trial Magistrate declined to award damages for the 1st and 2nd Ratoon Crops but awarded exemplary Damages of Kshs. 100,000/= together with costs of the suit from date of judgement and interest from date of filing suit and a further interest at 3 percent as per clause 5.2 of the Agreement between the parties.
The Appellant being dissatisfied with the judgement and orders of the trial court preferred an appeal before this court vide a Memorandum of Appeal dated 25th April, 2023 setting forth the following grounds of appeal;
(a) THAT the Learned Trial Magistrate erred in law and fact by entertaining and / or regarding the defense evidence which is at variance with the statement with the defense filed
(b) THAT the Learned Trial Magistrate erred in law and fact by writing judgement not based on evidence and pleadings on record.
(c) THAT the Learned Trial Magistrate erred in law and fact by expressing her opinion in her judgement instead of making findings based on pleadings and evidence.
(d) THAT the Learned Trial Magistrate erred in law and fact by disregarding the Appellant’s pertinent and apt evidence, submissions and authorities cited, the precedents of which she glossed over.
(e) THAT the Learned Trial Magistrate disregarded the principle’’restitutio in integrum’’
(f) THAT the Learned Trial Magistrate’s interpretation of the various relevant principles of law and fact was erroneous.
The Appellant urged this court to grant the following ORDERS that;
(a) THAT the court be pleased to set aside the trial Magistrates judgement and substitute the same with an appropriate award for Plant Crop, Ratoon 1 & 2sugarcane crop cycles and the due interests thereon.
(b) . THAT the court being the 1st Appellate Court do re-evaluate the evidence on record and arrive at own independent findings.
(c) . THAT the costs and interests thereon be borne by the Respondent.
The Respondent also filed a Memorandum of Cross Appeal dated 3rd April 2024 on the following grounds:
(a) THAT the Learned Trial Magistrate erred in law and fact when he found and held that the contract entered into between the Appellant and Nyambiba Daniel Maroa on 19/10/2011 was breached by the Appellant’s failure to harvest the Plant Crop whereas the said Nyambiba Daniel Maroa never led admissible and satisfactory evidence of the date/ day when he planted the plant crop.
(b) THAT the Learned Trial Magistrate erred in law and fact when she found and held that Nyambiba Daniel Maroa planted the Plant Crop on an unknown date in an unknown duration and held that the said Plant Crop would have been harvested and each ton would have fetched Kshs. 3,200/=
(c) THAT the Learned Trial Magistrate erred in law and fact in finding and holding that the Appellant breach the contract in the absence of evidence on the commencement date of the contract
(d) THAT the Learned Trial Magistrate erred in law and fact in adopting and applying the cane price of Kshs. 3,200/= per ton of sugarcane when the facts of the suit did not permit him to do so.
(e) THAT the Learned Trial Magistrate erred in law and fact in awarding the Respondent exemplary damages when the circumstances of the suit did not permit any award of exemplary damages.
(f) THAT the Learned Trial Magistrate erred in law and fact after she opted to award the Respondent exemplary damages of Kshs. 100,000/= for the ratoons which award was excessive and disproportionate on the facts.
(g) THAT the Learned Trial Magistrate misapprehended the evidence adduced by the parties.
(h) THAT the Learned Trial Magistrate misapprehended the law applicable to the parties’ cases.
(i) THAT the Learned Trial Magistrate erred in law and fact when she entered judgement for the Respondent against the Appellant in the sum of Kshs. 581,968/= when the same was not pleaded specifically and proved strictly.
(j) THAT the Learned Trial Magistrate erred in law and fact in failing to make provision for transport and harvesting charges when she had discretionary power to do so.
(k) THAT the Learned Trial Magistrate erred in law and fact when she ordered that interest on the award made in favor of the Respondent would accrue interest from the date of filing suit as opposed to interest being accrued from the date of judgement without reasonable cause.
(l) THAT the Learned Trial Magistrate erred in law and fact when she awarded the Respondent a further penalty interest on the sum of Kshs. 481,968/= at the rate of 3 percent as per clause 5.2 of the agreement from the date of filing of the suit until payment in full while it was not pleaded, evidence was not led thereon and the parties did not canvass that aspect.
REASONS WHEREFORE the Appellant seeks judgement against the Respondent and prays that:
1. This appeal be allowed
2. The judgement and decree of the subordinate court dated 29th March 2023 be set aside.
3. The Respondent’s suit before the Subordinate Court be dismissed.
4. The costs of the Respondent’s suit in the Subordinate court be awarded to the Appellant.
5. The Court be pleased to order that any interest on a sum of money awarded as damages, if any, be calculated from the date of judgement, if the court were to find that damages are due.
6. The costs of this appeal be awarded to the Appellant.
The Appellant’s case was that by a contract dated 19th October 2011 he entered into an agreement with the Respondent company to grow sugarcane on parcel of land No. 181 Field No. 253C measuring 3.2 Ha and sell to the Respondent. That it was a term of the both express and implied that the contract would commence on 5th August 2013 and remain in force for 5 years or until one plant crop and 2 ratoon crops of sugarcane are harvested on the plot whichever period was less; that the plant crop and ratoon cane would be harvested at the age of 22-24 months and 16-18 months after planting and subsequent harvest respectively; that the Defendant/Appellant was to exercise due care during the harvest. The Appellant contended that the Respondent in breach of the said agreement failed to harvest the plant crop when the cane matured and was ready for harvest at 22-24 months of age; that the cane started deteriorating as a result of which the Appellant suffered loss. The Appellant’s evidence was tendered by his Attorney.
The Respondent opposed the claim and its evidence was tendered by Justus Otieno George who said he was a Field Extension Supervisor working for the Respondent. He adopted his statement in which he admitted that the Appellant entered into a contract with the Appellant for development and supply of cane on 5th August 2013 on plot measuring 2.63 Ha and not 3.2Ha as alleged. He admitted that the contract was for 5 years or until one plant crop and 2 ratoon crops of the sugarcane had been harvested from the subject parcel of land whichever event occurred first. He said the Respondent assigned Account No. 550715 to the Appellant.
According to the Respondent the agreement was to the effect that the farmer should grow cane on the said field and the Respondent would develop the plot, supply the inputs, harvest the cane if it grows to maturity, transport it to the weighbridge and take ownership of the cane once the Respondent issues the Appellant with weighbridge certificate.
It was further the Respondent’s evidence that it was to mill the cane and thereafter pay the Appellant the net yield value of the milled cane at the prevailing price which was Kshs. 3,200/=per Ha less the investments the Respondent had put into developing the cane. The Respondent’s witness further said that cane yields were based on hectares and in Moheto Sub-Location the Plant Crop yield was 63.82 tonnes per hectare and ratoon crop yield was 40.36 tonnes per Ha.
According to the Respondent the Appellant was entitled to 3.200/=x 63.82 tonnes x2.63 Ha which would translate to Kshs. 536,960 less harvesting charges at Kshs. 307/= per ton; transport at Kshs. 690/= per ton; Cess 1 percent ; Levy at 1 percent ;and interest on inputs at 17 percent per annum.
The Respondent argued that the Appellant who had the duty to prepare his land before planting but failed to do so and no seed cane nor fertilizer was supplied for planting. That planting of cane was not done by the Appellant and there was no job completion certificate issued to justify the claim; that no cane grew to maturity for harvesting by the Respondent and no cane dried up on the plot; that ratoon 1 and 2 were also not developed and as such nothing was to be harvested from the plot as alleged by the Appellant.
This appeal canvassed by way of written submissions. Both parties complied and filed their respective submissions.
The Appellant’s submissions are dated 20th June 2024. The Appellant submitted that the Respondent’s pleadings in the statement of defense was that there was no contract between it and the Appellant but in their testimony their evidence was at variance with the pleadings and the same was inadmissible. It was further submitted that the survey Report produced by the Respondent is dated 1st May 2012 and is distinct from the contract herein which was signed on 5th August 2013. The Appellant argued that the Respondent cunningly misrepresented exhibits which dates were changed.
The Appellant also submitted that the Agreement between him and the Respondent was binding and cannot be ousted by the Appellant’s exhibits on the size of the plot.
The Respondent also argued that the Trial Magistrate failed by ignoring the authorities cited in support of the claim and instead awarded exemplary damages which were not pleaded or claimed in the suit without giving a reason for the award.
It was further submitted that the Respondents in Cross appeal referred to a contract dated19th October 2011 which has no relevance or nexus with the one in question.
The Respondent’s submissions are dated 21st February 2025 and are to the effect that there was no evidence that the Respondent’s failure to harvest the Plant Crop compromised the development of the 1st and 2nd Ratoon Crops. That it was not pleaded or proven that the Appellant developed the plant crop, and it was not harvested; that the Appellant went on to develop the subsequent crops and they were not harvested.
The Respondent cited the holding of Chitembwe J in Migori HCCA NO 47 of 2019 South Nyanza Sugar Co. Ltd Vs Francis Aderi Dedege to support its position that the Appellant had a duty to prove that indeed he had developed the 1st Ratoon.
Appellant’s submissions are to the effect that the learned magistrate failed to……… The Respondent’s submissions in respect to the cross appeal is that the Appellant never led evidence to prove the date or day when he planted the plant crop for the court to make a finding that indeed the Respondent failed to harvest the Plant Crop.
The Respondent also submitted that the Trial Magistrate failed to make provisions for transport and harvesting charges when on the facts of the suit she could exercise her discretion and make for such charges. The Respondent argued that it supported the Appellant in the development of the cane and the trial court ought to have made allowance for the said expenses which would have been deducted from the proceeds.
The Respondent urged the court to order that each party bears their own costs of the appeal.
Analysis and Determination
This being a first appeal, this court has an obligation to re-evaluate, re-analyse and re-assess the evidence adduced before the Trial court and come up with its own inference bearing in mind that this court did not have the opportunity to observe the witnesses testify. This position is enunciated in the case of Abok James Odera T/A A.J Odera & Associates vs John Patrick Machira T/A Machira & Co. Advocates (2013) eKLR the Court of appeal held as follows;
“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.”
Further in Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus:
"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."
I have considered the grounds of appeal, the record of appeal and re-evaluated the evidence adduced before the trial court together with the rival submissions and find the issues that crystalizes for determination are:
(a) Whether the contract between the Appellant and the Respondent was breached and whether the Appellant was entitled to compensation for the 1st and 2nd Ratoon Crops following failure by the Respondent to harvest the Plant crop.
(b) Whether Trial Magistrate properly made an award for exemplary damages in lieu of damages for the 1st and 2nd Ratoon Crops
(c) Whether the Trial Magistrate was obligated to order for deduction of costs of input, harvesting and transport among other things from the award made to the Appellant.
(d) Whether the Trial Magistrate properly applied interest rate of 3 percent as per clause 5.2 of the contract agreement to the award and whether interest from date of filing of suit till payment in full was justifiable in the circumstances.
On whether the contract between the Appellant and the Respondent was breached and whether the Appellant was entitled to compensation for the 1st and 2nd Ratoon Crops following failure by the Respondent to harvest the Plant crop
It was not in dispute that the Appellant and the Respondent entered into a contract as established by the Trial Magistrate that it was for a period of 5 years. The Trial Magistrate went ahead to find that the said contract was breached by Respondents who failed to harvest the Plant crop. Contracts such as the instant one have severally been litigated both in the High Court and the Court of Appeal and the established jurisprudence obtaining is that the same being a contract for a specific period of time breach of any part of the contract affects the entire contract and the party who breaches is therefore under obligation to make good the said breach and restitute the party whose rights have been breached to the position they would have been had the contract not been breached.
In South Nyanza Sugar Company Limited v Oreko (Civil Appeal 138 of 2017) [2022] KECA 570 (KLR) (24 June 2022) (Judgment) it was held:
‘’On my part, the approach to take must be one which does not derogate from the objective of granting damages for breach of contract which is to ensure that the victim of breach is placed in as much as possible the same position as if the breach did not happen. Never losing sight, of course, of the duty of the victim of breach to mitigate the loss.
23.The contract itself was for a period of five years or until one plant crop and two ratoons were harvested on the plot, whichever period would be less. The evidence accepted by both courts below, and which has not been challenged before us, is that Sony was guilty of breach by failing to harvest the plant crop. Once the plant crop was not harvested, it dried and the ratoon crops could not grow. This was a natural consequence of the breach. It is therefore reasonably foreseeable that failure to harvest the plant crop would imperil the subsequent ratoon crop and naturally, so too, the 2nd ratoon crop. In this way a loss of the plant crop was also a loss of the two ratoon crops.’’
Flowing from the above decision it follows that the Appellant had a duty to compensate the Respondent for the loss that arose from the breach in terms of the expected proceeds for the Plant Crop and the 2 Ratoon Crops.
On whether Trial Magistrate properly made an award for exemplary damages in lieu of damages for the 1st and 2nd Ratoon Crops.
The Trial Magistrate in the judgement said that for the 1st and 2nd Ratoon Crops the Appellant was entitled to exemplary Damages for reasons that the Plant Crop indeed dried up and if the plant crop dried had been harvested the Ratoon Crops would have developed. This finding is not consistent with the finding that no evidence was produced that the Ratoon crops were ever developed
Exemplary damages are different from ordinary damages, which are usually compensatory in nature and ought to be specifically pleaded. The Appellant did not seek exemplary damages and so they could not be available to him at the instance of the Trial Magistrate who did not explain how this decision was arrived at in the absence of any pleadings in that respect.
Having found as above that the Appellant was entitled to be compensated for the 2 Ratoon Crops this court hereby sets aside the award for exemplary damages and substitutes thereof with the compensation for the proceeds for the ratoon crops.
On whether the Trial Magistrate was obligated to order for deduction of costs of input, harvesting and transport among other things from the award made to the Appellant, this court hereby orders that the cost of inputs made by the Respondent and statutory deductions should be agreed upon or computed by the Trial Court as the Respondent did not plead what expenses they incurred in developing the Appellant’s field as per the contract.
On whether the Trial Magistrate properly applied interest rate of 3 percent as per clause 5.2 of the contract agreement to the award and whether interest from date of filing of suit till payment in full was justifiable in the circumstances
In consideration that there is a contractual obligation under Clause 5.2 of the Contract as established by the Trial Court for the party who breaches the contract to pay interest this court finds that it would be double jeopardy and punitive to impose further interest from date of filing suit as the same has already been catered for in the contract. In the circumstances this court sets aside the order for interest to accrue from date of filing suit to the date of the judgement in addition to the interest as stipulated in the contract.
Based on the re-evaluation of the evidence in the Trial Court and consideration of the grounds of appeal as well as submissions of the respective parties I do find that the appeal and cross appeal are both partially successful to the extent discussed above and therefore each party will bear their own costs of the appeal and cross appeal.
Orders accordingly.
Dated, Signed and Delivered at Migori this 12th day of June, 2025.