By a Plaint dated 22nd September, 2017 the Appellant sued the Respondent in Rongo PMCC No. 454 of 2017 for the value of unharvested sugarcane, costs of the suit and interest at court rates for breach of terms of agreement where the Respondent contracted the Appellant to grow and sell his sugarcane on Plot No. 488 Kakmasia Sub-Location measuring 0.7 Ha. The Contract was Account No. 264537.
According to the Appellant it was the implied term of the contract that the agreement would commence on 28th August 2009 and remain in force for a period of 5 years or until one plant crop or two ratoon crops are harvested on the subject plot whichever period shall be less.
The Trial Magistrate established that indeed there was a contact between the Appellant and the Respondent and the Respondent breached the said contract by failing to harvest the Plant crop but found that the Appellant had not proved the acreage of the plot and as such she concluded that she could not award damages for the plant crop. The suit was therefore dismissed with costs and interest of the suit to the defendant.
Vide Memorandum of Appeal dated 16th November, 2023 the Appellant lodged the appeal herein on the following ground:
1) That the Learned Magistrate erred in dismissing the Plaintiff’s claim for damages for the unharvested cane.
2) That the Learned Magistrate erred in dismissing the Plaintiff’s suit on the basis that the claim was not proved on a balance of probabilities.
3) That the Learned Magistrate failed to consider the evidence and testimony of the Appellant in proof of the claim.
REASONS WHEREFORE the Appellant prays for orders that:-
(a). That the appeal be allowed and judgment be set aside.
(b). That the court does assess the award on damages due to the Appellant.
(c). That the costs of the appeal and subordinate court be awarded.
The appeal herein was canvassed by way of written submissions. The Respondent’s submissions are dated 20th June 2025 whereas the Appellant’s submissions are dated 30th May 2025.
ANALYSIS AND DETERMINATION
This being a first appeal, this Court is obligated to reconsider and re-evaluate the evidence adduced before the trial court and draw its own conclusions while bearing in mind that it neither saw nor heard the witnesses testify. This duty was stated in Selle v Associated Motor Boat Co. Ltd.
Having considered the Record of Appeal, the judgment of the trial court and the submissions by the parties, the issue arising for determination is whether the Learned Trial Magistrate erred in dismissing the Appellant’s claim despite finding that the Respondent had breached the contract.
It is not in dispute that the parties entered into a sugarcane farming contract in respect of Plot No. 488 Kakmasia Sub-Location under Account No. 264537.
The Learned Trial Magistrate expressly found that the Respondent breached the agreement by failing to harvest the plant crop. That finding was not challenged by way of cross-appeal and therefore remains undisturbed.
The central reason for dismissal of the suit was that the Appellant allegedly failed to prove the acreage of the contracted land.
This Court has carefully perused the exhibits produced before the trial court. The demand letter dated 9th November 2015 indicates that the area of the plot in respect to which the contract was entered into is 0.7 Ha. The agreement dated 9th September 2009 is in respect to Plot No. Kakmasia/488 which has been referred to in the above demand letter.
In sugarcane contract disputes, the contract document constitutes primary evidence of the acreage agreed upon by the parties unless rebutted by contrary evidence. The Respondent did not produce any evidence disputing the acreage stated in the Appellant’s documents which was referred to in the demand letter. In cross examination of the Appellant, he was not questioned about the acreage of the plot upon which the sugarcane was to be planted.
The Learned Trial Magistrate therefore erred in disregarding the acreage expressly contained in the claim, and the Appellant’s documents filed and produced in court.
The law relating to breach of sugarcane farming contracts is now settled. In South Nyanza Sugar Co. Ltd v Ezekiel Otuche, the Court held that once breach of contract by the miller is established, the farmer becomes entitled to compensation for the expected proceeds from the crop that ought to have been harvested.
Similarly, in South Nyanza Sugar Co. Ltd v Hezron Owiti the Court emphasized that damages in sugarcane contracts are ascertainable based on the acreage, expected yield and prevailing cane prices.
The Court in Kenya Sugar Research Foundation v South Nyanza Sugar Co. Ltd further recognized that yield estimates and contractual acreage form the basis for computation of damages in sugarcane disputes.
Once the trial court found that the Respondent breached the contract by failing to harvest the plant crop, the logical consequence ought to have been an assessment of damages payable to the Appellant.
The dismissal of the entire suit despite a clear finding on breach resulted in a contradiction in the judgment.
Further, even where a court is inclined to dismiss a suit, it is good practice to assess damages that would have been payable had the claim succeeded. This principle has been reiterated in numerous decisions of superior courts. The failure by the Learned Trial Magistrate to assess damages deprived this Court of the benefit of the trial court’s assessment and constituted an error in principle.
From the evidence on record, the Appellant proved on a balance of probabilities that:
i. There existed a valid contract between the parties;
ii. The contracted acreage was 0.7 hectares;
iii. The Respondent breached the contract by failing to harvest the plant crop; and
iv. The Appellant suffered loss as a result of the breach.
Consequently, this Court finds that the appeal is merited and the appeal is hereby allowed and the judgment of the trial court dismissing the Appellant’s suit is hereby set aside.
Judgment is hereby entered for the Appellant against the Respondent for damages arising from the unharvested plant crop on Plot No. 488 Kakmasia Sub-Location measuring 0.7 hectares under Account No. 264537.
The damages shall be computed based on:
i. The contractual acreage of 0.7 hectares;
ii. The applicable cane yield per hectare proved before the trial court; and
iii. The prevailing cane price applicable at the material time.
iv. Less input by the Respondent if any.
The Appellant shall also have costs of the suit before the subordinate court and costs of this appeal together with interest at court rates.
DATED, SIGNED AND DELIVERED AT MIGORI, THIS 14TH DAY OF MAY, 2026.
According to the Appellant it was the implied term of the contract that the agreement would commence on 28th August 2009 and remain in force for a period of 5 years or until one plant crop or two ratoon crops are harvested on the subject plot whichever period shall be less.
The Trial Magistrate established that indeed there was a contact between the Appellant and the Respondent and the Respondent breached the said contract by failing to harvest the Plant crop but found that the Appellant had not proved the acreage of the plot and as such she concluded that she could not award damages for the plant crop. The suit was therefore dismissed with costs and interest of the suit to the defendant.
Vide Memorandum of Appeal dated 16th November, 2023 the Appellant lodged the appeal herein on the following ground:
1) That the Learned Magistrate erred in dismissing the Plaintiff’s claim for damages for the unharvested cane.
2) That the Learned Magistrate erred in dismissing the Plaintiff’s suit on the basis that the claim was not proved on a balance of probabilities.
3) That the Learned Magistrate failed to consider the evidence and testimony of the Appellant in proof of the claim.
REASONS WHEREFORE the Appellant prays for orders that:-
(a). That the appeal be allowed and judgment be set aside.
(b). That the court does assess the award on damages due to the Appellant.
(c). That the costs of the appeal and subordinate court be awarded.
The appeal herein was canvassed by way of written submissions. The Respondent’s submissions are dated 20th June 2025 whereas the Appellant’s submissions are dated 30th May 2025.
ANALYSIS AND DETERMINATION
This being a first appeal, this Court is obligated to reconsider and re-evaluate the evidence adduced before the trial court and draw its own conclusions while bearing in mind that it neither saw nor heard the witnesses testify. This duty was stated in Selle v Associated Motor Boat Co. Ltd.
Having considered the Record of Appeal, the judgment of the trial court and the submissions by the parties, the issue arising for determination is whether the Learned Trial Magistrate erred in dismissing the Appellant’s claim despite finding that the Respondent had breached the contract.
It is not in dispute that the parties entered into a sugarcane farming contract in respect of Plot No. 488 Kakmasia Sub-Location under Account No. 264537.
The Learned Trial Magistrate expressly found that the Respondent breached the agreement by failing to harvest the plant crop. That finding was not challenged by way of cross-appeal and therefore remains undisturbed.
The central reason for dismissal of the suit was that the Appellant allegedly failed to prove the acreage of the contracted land.
This Court has carefully perused the exhibits produced before the trial court. The demand letter dated 9th November 2015 indicates that the area of the plot in respect to which the contract was entered into is 0.7 Ha. The agreement dated 9th September 2009 is in respect to Plot No. Kakmasia/488 which has been referred to in the above demand letter.
In sugarcane contract disputes, the contract document constitutes primary evidence of the acreage agreed upon by the parties unless rebutted by contrary evidence. The Respondent did not produce any evidence disputing the acreage stated in the Appellant’s documents which was referred to in the demand letter. In cross examination of the Appellant, he was not questioned about the acreage of the plot upon which the sugarcane was to be planted.
The Learned Trial Magistrate therefore erred in disregarding the acreage expressly contained in the claim, and the Appellant’s documents filed and produced in court.
The law relating to breach of sugarcane farming contracts is now settled. In South Nyanza Sugar Co. Ltd v Ezekiel Otuche, the Court held that once breach of contract by the miller is established, the farmer becomes entitled to compensation for the expected proceeds from the crop that ought to have been harvested.
Similarly, in South Nyanza Sugar Co. Ltd v Hezron Owiti the Court emphasized that damages in sugarcane contracts are ascertainable based on the acreage, expected yield and prevailing cane prices.
The Court in Kenya Sugar Research Foundation v South Nyanza Sugar Co. Ltd further recognized that yield estimates and contractual acreage form the basis for computation of damages in sugarcane disputes.
Once the trial court found that the Respondent breached the contract by failing to harvest the plant crop, the logical consequence ought to have been an assessment of damages payable to the Appellant.
The dismissal of the entire suit despite a clear finding on breach resulted in a contradiction in the judgment.
Further, even where a court is inclined to dismiss a suit, it is good practice to assess damages that would have been payable had the claim succeeded. This principle has been reiterated in numerous decisions of superior courts. The failure by the Learned Trial Magistrate to assess damages deprived this Court of the benefit of the trial court’s assessment and constituted an error in principle.
From the evidence on record, the Appellant proved on a balance of probabilities that:
i. There existed a valid contract between the parties;
ii. The contracted acreage was 0.7 hectares;
iii. The Respondent breached the contract by failing to harvest the plant crop; and
iv. The Appellant suffered loss as a result of the breach.
Consequently, this Court finds that the appeal is merited and the appeal is hereby allowed and the judgment of the trial court dismissing the Appellant’s suit is hereby set aside.
Judgment is hereby entered for the Appellant against the Respondent for damages arising from the unharvested plant crop on Plot No. 488 Kakmasia Sub-Location measuring 0.7 hectares under Account No. 264537.
The damages shall be computed based on:
i. The contractual acreage of 0.7 hectares;
ii. The applicable cane yield per hectare proved before the trial court; and
iii. The prevailing cane price applicable at the material time.
iv. Less input by the Respondent if any.
The Appellant shall also have costs of the suit before the subordinate court and costs of this appeal together with interest at court rates.
DATED, SIGNED AND DELIVERED AT MIGORI, THIS 14TH DAY OF MAY, 2026.