REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MIGORI
CIVIL APPEAL NO. E099 OF 2022
OGUTU KWACH ….………………………….…………………… APPELLANT
VERSUS
SOUTH NYANZA SUGAR CO. LTD …………….…….……. RESPONDENT
( Being an appeal from the Judgment of Hon. R.K. Langat, Principal Magistrate, dated 19 th July 2022 at the Magistrates Court at Rongo, PMCC No. E132 of 2014 ).
JUDGMENT
Introduction and Background
1. This appeal arises from the judgment of the subordinate court dated 19 th July 2022.The judgment dismissed the Plaintiffs claim that was filed against the Defendant vide the plaint dated 28 th May 2024. The Plaintiff being dissatisfied by the judgment of the court to dismiss the matter on the basis that the claim was time barred resulted in this present appeal.
Analysis and determination.
2. This being a first appeal, the court is required to independently re-evaluate the evidence and the law and determine whether the trial court correctly considered the evidence adduced and came to the logical and legal conclusion. What was the evidence before the trial court?
3. In the plaint dated 28 th May 2014, the Plaintiff sought the following reliefs against the Defendant:
a. Damages for breach of contract.
b. Costs of the suit.
c. Interest thereon at court rates from 14 th July 2004 until payment in full
d. Any other relief that the Honourable Court would deem fit to grant.
4. The Defendant filed their defence dated 30 th June 2014. In the statement of defence, the Defendant denied the allegations and claim by the Plaintiff, in as far as the alleged breach of contract is concerned and at paragraph 8 averred that the claim was statute barred and thus should be dismissed.
5. At the hearing, the Plaintiff on 17 th May 2016 adopted his witness statement and from the record there was no cross examination. At some point, the defence Counsel asked to re-open the case but did not do so despite being granted time by the court and indulged by the Plaintiff’s Counsel. The Plaintiff in his statement averred that he got into a written contract with the Defendant dated 14 th July 2004. The contract was for 5 years and three harvests were expected to be made in the said period. He stated that he ploughed the filed but was given the seeds and fertilizer. He sold two bulls to facilitate the process and the Defendant didn’t harvest the produce causing him losses as tabulated in the plaint.
6. The Defendant testified on 24 th May 2022. The witness equally adopted his statement and added in cross examination that the Plaintiff planted and maintained the crop and stated that the contract was not terminated.
7. In his judgment, the trial court set out the facts and correctly determined the issue of whether the claim was time barred before delving into the substance of the claim. The trial magistrate then determined, for reasons set out at page 2 to 5 of the judgment that the claim was brought after the statutory period provided and proceeded to dismiss the claim with costs to the Defendant. He relied on the determinations cited in Migori HCCA No. 176 of 2018 South Nyanza Sugar Company Ltd vs Francis Koskei Ntuitai (2021) eKLR, B. Mathayo Obonyo vs South Nyanza Sugar Company Limited and South Nyanza Sugar Company Limited vs Joshua Aloo Aloo (2021) eKLR .
8. The trial court evaluated the evidence and in the judgment dated 19 th July 2022, made a determination that the claim was time barred as the Plaintiff’s cause of action arose on the 14 th July 2006 and the claim ought to have been filed by 14 th July 2012. This claim was filed on 4 th June 2014, almost 23 months later.
9. Contracts are governed by the Limitation of Actions Act, section 4 (1)(a). The same provides thus:
“( 1) The following actions may not be brought after the end of six years from the date on which the cause of action accrued—
(a) actions founded on contract ;”
10. The parties do not dispute that the contract commenced on the 14 th July 2004. The contract was expected to run for 5 years. The Defendant was expected within the said period to undertake three harvests. From the evidence of the Plaintiff, no harvest was ever done and the same continued for the subsequent years.
11. It is important to note that each contract is unique. The contract will set out the terms that bind all the parties and the same can only be amended with the concurrence of both parties. In addition, the breach of a contract is not standard across all contracts. A breach is deemed to have occurred when either party fails to fulfil their part of the contract and the offended party does not acquiesce to the breach. Where the parties, depending on the nature of breach, decide to make amends, then the breach is deemed as forgone and the parties after the amends cannot be seen to retract from the same. That amend must be mutual and intended to correct the breach and cannot be unilateral. The parties can also determine to proceed with the contract and agree to remedy the breach by other means, including damages or penalties.
12. In the present contract, the same stipulated at clause 2 that the contract was to commence from 14 th July 2004. It was to run for 5 years. At clause 1 (f), it stipulates that the plant crop was to mature after 24 months from planting. Thereafter, the Defendant was to undertake two Ratoon harvests. None of this was done. It is clear that the Ratoon harvests could be made without the Plant Crop being harvested first, as per the contract. In that regard, by failing to harvest the Plant Crop as scheduled, then the Plaintiff deemed the defendant had breached the contract.
13. Without going into the merits of the breach, noting that the Defendant equally alleged breach by the Plaintiff, alleging he had poached the Plant Crop, then the Plaintiff should have deemed the same as the genesis of the breach. Counting 24 months from 14 th of July 2004, the same falls on or about 14 th July 2006. The time for breach then would determine, as per the contract on 14 th of July 2012, or thereabout. This suit was filed on 4 th June 2014, about 23 months from the time the breach had commenced.
14. It would have been different if the contract was in independent parts, then the court would have considered only the subsequent breached for the Ratoon harvests. Unfortunately, this being one contract, then the claim of the Plaintiff would be indivisible, in the current circumstances and formulation of the claim
15. In the claim filed before the court, the Plaintiff has sought for compensation for all the three failed harvests, totalling to Kshs. 303,750.00. The import is that the Defendant failed to undertake their first obligation for the first year, which was 2 years after the crop was planted, and the harvest expected 22-24 months later. The same was to be undertaken by the Defendant. That was a breach and the Plaintiff should have moved then to have the Defendant remedy the breach. He did not.
16. As correctly considered by the trail magistrate and supported by decisions cited by the Defendant, the breach and thus the cause of action arose when the Defendant failed to harvest the first crop as due. It is clear in my mind that even where the contract is for a defined period of time, the breach occurs when either of the parties fails to undertake their part of the contract, whether it is at the beginning of the contract or at the end. In the present case, then the breach is alleged to have occurred when the first crop was not harvested and the Plaintiff ought to have taken that into account when considering this claim.
17. I am persuaded by the reasoning of my brother Justice Mrima in South Nyanza Sugar Company Limited vs Dickson Aero Owuor (2017) eKLR , where he states:
“ it is only when one of the parties happens to be in breach of the contract that a possible cause of action arises as at the date of the alleged breach and not at the end of the contract period ”.
The learned Judge clearly departed from the position taken in the decisions both Zadock Danda and Ezekiel Oduk, both against South Naynza Sugar Company Limited . The decisions were well articulated by the parties in the trial court and well analysed by the trial magistrate.
18. I am thus persuaded that the trial court correctly considered the aspect of time and arrived at the correct conclusion that the suit was time barred. No effort was made to even seek to file the suit out of time. The submissions by the Plaintiff thus that time only began to run after the 5 years in not well founded.
19. The effect therefore is that the appeal is not well grounded and the same is dismissed accordingly.
20. As the Defendant did not file their submissions herein or participate in the appeal, I will direct that there be no order as to costs .
Dated, signed and delivered virtually via Microsoft teams this 25 th day of June 2026.
In the presence of:
No appearance for the parties.
HCCA NO. E099 OF 2022 OGUTU KWACH VS SONY SUGAR COMPANY LTD JUDGMENT Pg. 5
IN THE HIGH COURT OF KENYA AT MIGORI
CIVIL APPEAL NO. E099 OF 2022
OGUTU KWACH ….………………………….…………………… APPELLANT
VERSUS
SOUTH NYANZA SUGAR CO. LTD …………….…….……. RESPONDENT
( Being an appeal from the Judgment of Hon. R.K. Langat, Principal Magistrate, dated 19 th July 2022 at the Magistrates Court at Rongo, PMCC No. E132 of 2014 ).
JUDGMENT
Introduction and Background
1. This appeal arises from the judgment of the subordinate court dated 19 th July 2022.The judgment dismissed the Plaintiffs claim that was filed against the Defendant vide the plaint dated 28 th May 2024. The Plaintiff being dissatisfied by the judgment of the court to dismiss the matter on the basis that the claim was time barred resulted in this present appeal.
Analysis and determination.
2. This being a first appeal, the court is required to independently re-evaluate the evidence and the law and determine whether the trial court correctly considered the evidence adduced and came to the logical and legal conclusion. What was the evidence before the trial court?
3. In the plaint dated 28 th May 2014, the Plaintiff sought the following reliefs against the Defendant:
a. Damages for breach of contract.
b. Costs of the suit.
c. Interest thereon at court rates from 14 th July 2004 until payment in full
d. Any other relief that the Honourable Court would deem fit to grant.
4. The Defendant filed their defence dated 30 th June 2014. In the statement of defence, the Defendant denied the allegations and claim by the Plaintiff, in as far as the alleged breach of contract is concerned and at paragraph 8 averred that the claim was statute barred and thus should be dismissed.
5. At the hearing, the Plaintiff on 17 th May 2016 adopted his witness statement and from the record there was no cross examination. At some point, the defence Counsel asked to re-open the case but did not do so despite being granted time by the court and indulged by the Plaintiff’s Counsel. The Plaintiff in his statement averred that he got into a written contract with the Defendant dated 14 th July 2004. The contract was for 5 years and three harvests were expected to be made in the said period. He stated that he ploughed the filed but was given the seeds and fertilizer. He sold two bulls to facilitate the process and the Defendant didn’t harvest the produce causing him losses as tabulated in the plaint.
6. The Defendant testified on 24 th May 2022. The witness equally adopted his statement and added in cross examination that the Plaintiff planted and maintained the crop and stated that the contract was not terminated.
7. In his judgment, the trial court set out the facts and correctly determined the issue of whether the claim was time barred before delving into the substance of the claim. The trial magistrate then determined, for reasons set out at page 2 to 5 of the judgment that the claim was brought after the statutory period provided and proceeded to dismiss the claim with costs to the Defendant. He relied on the determinations cited in Migori HCCA No. 176 of 2018 South Nyanza Sugar Company Ltd vs Francis Koskei Ntuitai (2021) eKLR, B. Mathayo Obonyo vs South Nyanza Sugar Company Limited and South Nyanza Sugar Company Limited vs Joshua Aloo Aloo (2021) eKLR .
8. The trial court evaluated the evidence and in the judgment dated 19 th July 2022, made a determination that the claim was time barred as the Plaintiff’s cause of action arose on the 14 th July 2006 and the claim ought to have been filed by 14 th July 2012. This claim was filed on 4 th June 2014, almost 23 months later.
9. Contracts are governed by the Limitation of Actions Act, section 4 (1)(a). The same provides thus:
“( 1) The following actions may not be brought after the end of six years from the date on which the cause of action accrued—
(a) actions founded on contract ;”
10. The parties do not dispute that the contract commenced on the 14 th July 2004. The contract was expected to run for 5 years. The Defendant was expected within the said period to undertake three harvests. From the evidence of the Plaintiff, no harvest was ever done and the same continued for the subsequent years.
11. It is important to note that each contract is unique. The contract will set out the terms that bind all the parties and the same can only be amended with the concurrence of both parties. In addition, the breach of a contract is not standard across all contracts. A breach is deemed to have occurred when either party fails to fulfil their part of the contract and the offended party does not acquiesce to the breach. Where the parties, depending on the nature of breach, decide to make amends, then the breach is deemed as forgone and the parties after the amends cannot be seen to retract from the same. That amend must be mutual and intended to correct the breach and cannot be unilateral. The parties can also determine to proceed with the contract and agree to remedy the breach by other means, including damages or penalties.
12. In the present contract, the same stipulated at clause 2 that the contract was to commence from 14 th July 2004. It was to run for 5 years. At clause 1 (f), it stipulates that the plant crop was to mature after 24 months from planting. Thereafter, the Defendant was to undertake two Ratoon harvests. None of this was done. It is clear that the Ratoon harvests could be made without the Plant Crop being harvested first, as per the contract. In that regard, by failing to harvest the Plant Crop as scheduled, then the Plaintiff deemed the defendant had breached the contract.
13. Without going into the merits of the breach, noting that the Defendant equally alleged breach by the Plaintiff, alleging he had poached the Plant Crop, then the Plaintiff should have deemed the same as the genesis of the breach. Counting 24 months from 14 th of July 2004, the same falls on or about 14 th July 2006. The time for breach then would determine, as per the contract on 14 th of July 2012, or thereabout. This suit was filed on 4 th June 2014, about 23 months from the time the breach had commenced.
14. It would have been different if the contract was in independent parts, then the court would have considered only the subsequent breached for the Ratoon harvests. Unfortunately, this being one contract, then the claim of the Plaintiff would be indivisible, in the current circumstances and formulation of the claim
15. In the claim filed before the court, the Plaintiff has sought for compensation for all the three failed harvests, totalling to Kshs. 303,750.00. The import is that the Defendant failed to undertake their first obligation for the first year, which was 2 years after the crop was planted, and the harvest expected 22-24 months later. The same was to be undertaken by the Defendant. That was a breach and the Plaintiff should have moved then to have the Defendant remedy the breach. He did not.
16. As correctly considered by the trail magistrate and supported by decisions cited by the Defendant, the breach and thus the cause of action arose when the Defendant failed to harvest the first crop as due. It is clear in my mind that even where the contract is for a defined period of time, the breach occurs when either of the parties fails to undertake their part of the contract, whether it is at the beginning of the contract or at the end. In the present case, then the breach is alleged to have occurred when the first crop was not harvested and the Plaintiff ought to have taken that into account when considering this claim.
17. I am persuaded by the reasoning of my brother Justice Mrima in South Nyanza Sugar Company Limited vs Dickson Aero Owuor (2017) eKLR , where he states:
“ it is only when one of the parties happens to be in breach of the contract that a possible cause of action arises as at the date of the alleged breach and not at the end of the contract period ”.
The learned Judge clearly departed from the position taken in the decisions both Zadock Danda and Ezekiel Oduk, both against South Naynza Sugar Company Limited . The decisions were well articulated by the parties in the trial court and well analysed by the trial magistrate.
18. I am thus persuaded that the trial court correctly considered the aspect of time and arrived at the correct conclusion that the suit was time barred. No effort was made to even seek to file the suit out of time. The submissions by the Plaintiff thus that time only began to run after the 5 years in not well founded.
19. The effect therefore is that the appeal is not well grounded and the same is dismissed accordingly.
20. As the Defendant did not file their submissions herein or participate in the appeal, I will direct that there be no order as to costs .
Dated, signed and delivered virtually via Microsoft teams this 25 th day of June 2026.
In the presence of:
No appearance for the parties.
HCCA NO. E099 OF 2022 OGUTU KWACH VS SONY SUGAR COMPANY LTD JUDGMENT Pg. 5