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JudgmentJOEL OTIENO NYATUREKA VS TRANSMARA SUGAR CO. LTD8 min read

JOEL OTIENO NYATUREKA VS TRANSMARA SUGAR CO. LTD

High Court at Migori High Court · · Anne Ong'injo


  1. Joel Onyiego Nyatureka was awarded Kshs. 317,844/= plus costs and interest from the date of Judgment in Migori Chief Magistrate Court Civil Case 673 of 2016 together with cost and interest from the date of judgment.  The trial Magistrate found that the Appellant had the duty to harvest and transport cane to the factory and having failed to do so breached the contract between it and the Respondent. That failure to harvest the plant crop at all compromised the development of both 1st and 2nd ratoon crops.
  2. The Appellant in Civil Appeal No. 60 of 2021 was aggrieved by the judgment of the trial court and he filed the Appeal herein vide Memorandum of Appeal dated 1.7.21 on the following grounds: -
  3. The learned trial magistrate failed to acknowledge and note that the Appellant has several weighbridges including two weighbridges at the respondent’s locality and that it was the absolute duty of the respondent to deliver cane at the weighbridge for it to be weighed and tonnage taken
  4. The learned magistrate failed, refused and/or neglected to acknowledge and agree that it was the sole duty of the plaintiff / Respondent to harvest and transport his cane from the alleged contract
  5. The learned magistrate failed, and or refused to acknowledge the fact that the plaintiff never at any time notified the Appellant that his crop was ripe and if he did so no evidence was adduced to conclusively arrive at that determination
  6. The learned trial magistrate assumed and presumed that can production for plant crop, ratoon one and ratoon two yield equal proceeds in a straight line, when evidence has been repeatedly adduced that as the crop ages there is a steady reduction in crop yields.
  7. The learned magistrate erred in law and in fact in awarding compensation for three harvests yet the [plaintiff on his own admission never incurred any damages for two harvests as the plant crop had dried up in the field.
  8. The learned magistrate erred in awarding compensation for three harvest yet no evidence was adduced by the plaintiff to prove that the alleged parcel of land had remained fallow for the entire duration of the contract.
  9. The learned trial magistrate erred in law in awarding and assessing compensatory damages in the sum of Kshs. 317,844/= only in favour of the Respondent, whereas the said damages had neither been pleaded nor proved, in accordance with the law.
  10. The learned trial magistrate erred in law and in fact when he used a pricing range per ton that was not applicable at the relevant time when the crop could have matured and harvested.
  11. The learned trial magistrate erred in law and in fact when he discerned the appropriate and applicable law but subsequently either misapplied that applicable law or ignored it in his judgment therefore making the judgment to be a per in curium judgment
  12. The learned trial magistrate erred in law and in fact by failing to appreciate that there was no contractually agreed price for the cane and that the document placed on record did not originate from the Appellant.
  13. The learned magistrate failed to acknowledge and appreciate that it was the Plaintiff who was in breach of the contract and not the defendant.
  14. The learned trial magistrate erred in law and in fact in awarding compensation that was quite above the actual yields per acre by relying on a Kenya Sugar Research foundation (KESREF) report that was not on record as the report on record indicated so much lower expected yields for out growers’ fields.
  15. The learned trial magistrate failed to cumulatively and/or exhaustively evaluate the entire evidence on record and accord such evidence its due weight and merits and hence failed to capture and decipher the salient dispute before him thus arriving at an unconsidered decision
  16. The learned trial magistrate erred in law and in fact by failing to deduct transport and harvesting charges from the decretal amount yet he had arrived at the conclusion that it was the duty of the Appellant to transport and harvest sugarcane from the plaintiff’s  farm.
  17. The Appellant in Civil Appeal No. E062 of 2021 was also aggrieved by the decision that interest rates were to accrue from the time of Judgement and he filed Appeal vide Memorandum of Appeal dated 12.7.21 seeking that the court sets aside the order of the trial magistrates and substitute it with an order that interest should accrue from date of filing of the suit.
  18. The Appeal was canvassed by way of written submission. 
  19. The Appellants in Civil Appeal No. E060 of 2021 submissions dated 28.10.24 whereas the Appellant in EO62 of 2021 filed submissions dated 25.1.23.
  20. Having considered the grounds of Appeal the Record of Appeal and re-valuated and analysed the evidence tendered in the trial court as well as the judgment of the trial magistrate together with the rival submissions of the parties the issues for determination are:-
  21. Whether the contract between the Appellant and the Respondent was breached;
  22. Whether Joel Onyiego Nyatureka  was entitled to damages.
  23. Whether the price of sugarcane per tonne was Kshs. 3,500 or 4,500 at the time of the alleged breach of contract.

d) Whether the trial magistrate deducted incidental costs arising out of the contract.

e) Whether interest on the award made should accrue from the time of filing the suit or from the date of judgment.

  1. The contract between the parties herein is dated 13.4.2011 and it provides that the said contract shall  continue until the farmer has harvested on maturity one plant crop and 2 ratoons crop or for a period of 6 years from the date the crop is planted whichever shall be the lesser of the two.  The contract estimates that the maturity of the plant crop was 18 – 26 months.  For the 1st and 2nd ratoons it was estimated that each would mature between 16 and 24 months respectively. 
  2. The contract between the parties herein spelt out the terms and conditions of the agreement and specified the parcel of land upon which the sugarcane in question was to be planted i.e Plot No. 190 Field No.  07020207 the acreage of the plot is indicated as 0.6Ha and the plant crop was supposed to be planted in April 2011 the cane variety being C041. The trial magistrate found as per the Sugar Act of 2001 (now repealed)  that it is was the duty of the Appellant to harvest and transport the cane to the factory for milling and having failed to do so they are the ones who breached the terms and conditions of the contract.  Although the Appellant argued that the trial magistrate chose to rewrite the contract between the parties it was not disputed that the Sugar Act 2001 that was in existence then provided that it was the miller and not the farmer to harvest and transport sugarcane to the Mill and thereafter pay.  The Appellant has not controverted the decision in Migori High Court Civil Appeal No. 10 of 2019 Transmara Sugar Company Limited vs. Nelson Dedege Mbai that Clause 10 of the said contract was void ab initio as it intended to oust the expressed provisions of an Act of Parliament.   The authorities relied on by the Appellant to support its position that courts cannot revoke valid contracts are therefore distinguishable from the current facts and evidence and cannot be relied on to unsettle the finds that the Appellant breached the contract dated 13.4.2011. 
  3. Having confirmed the trial magistrate’s findings that the Appellant/Miller breached the contract it follows that they were liable to compensate the farmer for the loss that was suffered by failure to harvest and transport the sugarcane for milling.  Clause 1 of the contract is very clear as to the duration of the relationship between the parties herein unless the same is terminated under the provisions of clause 2, 3 or 4.
  4. The Respondent in the Amended Plaint dated 10.3.17 at paragraph 10 claimed 3,400/= per ton as the cane produced yield assessment report by Gordon Onyango Abayo to support his claim that he was entitled to Kshs. 3,400/= per ton. In his testimony he said that each harvest was to yield 60 tonnes.   That evidence was not challenged by the Appellant but it is noted that in his computation of damages the trial magistrates used 36 tonnes instead of 60 and none of the parties has raised any queries concerning the discrepancies in the two figures.   This court therefore finds that the Plaintiff is entitled to damages for 3 cycles as the contract was for a period of 6 years and the failure to harvest the plant crop compromised the development of 1st and 2nd ratoon crops.
  5. The Appellant claimed that the trial magistrate did not deduct the expenses incurred in carrying out the harvest and transportation of the sugarcane but it is clear from the template in the Judgment that deduction were made. 
  6. In the end this court finds that the amount due to the Plaintiff/Respondent is as follows:-
  7. For plant crop 36 x3400 less harvesting costs at 270/= per ton less transport charges at 900/= per ton less Cess to the County at 1% and VAT on transport 16%.
  8. 1st ratoon 36 x 3400 less harvesting costs at 270/= per ton less transport charges at 900/= per ton less Cess to the County at 1% and VAT on transport 16%.
  9. 2nd ratoon 36 x 3400 less harvesting costs at 270/= per ton less transport charges at 900/= per ton less cess to the County at 1% and VAT on transport 16%.

13. On the issue of interest, the  trial magistrate  did not give any reason why interest rate on award was to accrue from the date of judgment and not the date of filing the suit.  Having found that the claim by the Appellant was quantifiable and the pleadings specified what  was in dispute in terms of the acreage of the farm, the expected yield per harvest, the price of sugarcane per ton and the number of harvest being claimed and in consideration of the Court of Appeal decisions in Civil Appeal 138 of 2017 South Nyanza Company Limited vs. Awino Oreko and Kisumu Civil Appeal No. 278 of 2010 John Richard Okuku vs. South Nyanza Company Limited the interest rate ought accrue from the time the suit was instituted because damages were special in nature.

14. In conclusion Civil Appeal No. E062 of 2021 is allowed with costs and Civil Appeal No. E060 OF 2021 is dismissed with costs.

Delivered dated and signed at Migori this 19th  day of December,  2024.

    JOEL OTIENO NYATUREKA VS TRANSMARA SUGAR CO. LTD JOEL OTIENO NYATUREKA VS TRANSMARA SUGAR CO. LTD