Background
The Appellant vide Plaint dated 7th September 2017 sued the Respondents herein for breach of contract allegedly entered into between them, among others to buy sugarcane on his land parcel No 70B Field No. 253 in Kakmia Sub-Location measuring 0.6 Ha. The agreement was dated 6th August 2010.
That the Respondent in breach of the terms of the said agreement failed to harvest the plant crop and the two subsequent ratoon crops when the same was mature and ready for harvesting and by reason of the said breach the Appellant suffered loss and damage.
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 found that indeed there was a contract between the Appellant and the Respondent for the supply of sugarcane which contract was to last for 5 years.
The Trial Magistrate also found that the Respondents failed to harvest the Plant Crop for reasons the Appellant neglected the sugarcane and the same was therefore not in good condition and he was given a warning letter as per Clause 6.1, 9 and 15 of the Contract Agreement. The Appellant’s claim for damages was therefore dismissed with costs to the defendant.
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 14th February, 2023 setting forth the following grounds of appeal;
(a). THAT the Learned Trial Magistrate erred in law and fact in determining the suit on unpleaded issues to wit that the Defendant issued a notice of breach capable of terminating the contract between the parties.
(b). THAT the Learned Trial Magistrate erred in law in her evaluation of evidence alleging in one instance that there was a breach of contract and in the other instance absolving the Respondent from liability which finding was contradictory, inconsistent, irrational and unreasonable in the circumstances of the case.
(c). THAT the Learned Trial Magistrate erred in law by arriving at a decision not based on evidence.
(d). THAT the Learned Trial Magistrate erred in law by denying the Appellant an award of damages having found that there was a breach of contract by the Respondent.
REASONS WHEREFORE the Appellant urged this court to grant the following ORDERS;
(a) THAT the judgement of the trial court dated 23rd August 2023 in PMCC NO 286 OF 2017 be set aside.
(b) .THAT there be judgement entered for the Appellant.
(c) .THAT the court do assess and award the Appellant damages for the breach of contract as prayed.
(d) . THAT there be an order for payment of interest, the same accrue from the date of filing of the Plaintiff’s suit in the subordinate court.
(e) THAT the Respondent to bear the costs of the appeal and the subordinate court.
The Appellant’s case was that by a contract dated 6th August 2010 he entered into an agreement with the Respondent company to grow sugarcane on parcel of land No. 70B Field No.253 measuring 0.6 Ha and sell to the Respondent. That it was a term of both express and implied that the contract would commence on ………… 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 and subsequently failed to harvest the 1st and 2nd Ratoons when they matured at 16-18 months.The Appellant said that he suffered loss of 135 tonnes per every hectare and that one ton was Kshs. 2,500/=
The Appellant in his evidence in chief produced the copy of agreement dated 6th August 2010, Demand letter dated 13th March 2017 and Survey certificate dated 4th September 2010
In cross examination the Appellant said that there were deductions to be made on the harvest. He said he expected 135 tonnes from his farm. He said that the Respondent company gave him the seed cane.
The Respondent opposed the claim and its evidence was tendered by Justus Otieno George who testified on behalf of George Ochieng who was his colleague in the Department of Agriculture. He adopted the statement of the said colleague in which he admitted that the Appellant entered into a contract with the Appellant for development and supply of cane from plot measuring 0.6 Ha. He said that at the time of the contract cane price was Kshs.2,500/= per ton and that the farmer was to maintain the crop. He said there was no harvest done on the farm in question. He said that cane census is usually done per year to confirm existence of cane and a report is supposed to be prepared and produced but there was none in this case. He said that the census report would have shown the condition of the cane and whether it existed.
This appeal canvassed by way of written submissions. Both parties complied and filed their respective submissions.
The Appellant’s submissions are dated 20th November 2024 and it was to the effect that the Trial Magistrate failed to determine the damages and veered off the issues and directions she had identified. The Appellant’s Counsel submitted that the Trial Magistrate dealt with issues that had not been pleaded by the parties and not addressed by them.
The Appellant’s Counsel cited the holding in David Sironga Ole Tukai Vs Francis Arap Muge, Samuel Kiprotich Arap and Johannah Kiprono Arap C. A No. 76 of 2014 where it was held that unpleaded issues not raised by parties must be ignored.
The Appellant’s Counsel further submitted that the Respondents did not plead that a notice was issued to the Appellant for termination of the contract as a consequence of failure to develop sugarcane.
It was submitted that Clause 6.2 of the contract placed the duty on the Respondent to develop and maintain sugarcane if the Appellant failed to do so. That such a notice if issued should be in tandem and in conformity with the contract.
The Appellant’s Counsel further argued that the evidence of Respondent’s witness was hearsay as the maker of the statement that was adopted did not testify neither did the mysterious Chief attend court to testify.
The Appellant’s Counsel cited the authority in Henry O. Otieno Vs South Nyanza Sugar Company Ltd HCCA No. 44 of 2019 where it was held:#######
The Appellant’ Counsel submitted that the Trial Court’s evaluation of the evidence based on the issue of notice was inept and not based on any evidentiary proof and must be rejected as it was flawed and any admissible evidence remaining and disputing liability was insufficient to conclude that the Appellant was undeserving of any remedy.
It was further submitted that the Appellant was entitled to damages for the Plant Crop and 2 Ratoon Crops at 66.56 tonnes for the plant crop and 48.75 tonnes for each of the 2 Ratoon Crops at Kshs. 2,500/= per tonne.
The Appellant also prayed for costs of the appeal and interest from the date of filing of the suit.
Respondent’s submissions are dated 3rd March 2025 and in response to the Appellant’s submissions it was submitted that they supported the decision of the Trial Court and adopted their submissions in the Trial Court. The Respondents agreed that parties are bound by their pleadings but the Respondent led evidence on a course which the proceedings in the Trial had taken and on matters which had been left to the subordinate court to determine by the parties, there having been a pleading critically that the subject sugar cane had not been developed.
It was submitted that the Respondent’s witness testified and was cross examined on the matter of notices, the failure to develop the sugarcane, and the termination of the contract and the Appellant’s Counsel never objected to the Respondent’s line of evidence but left it for the court to weigh and come up with a decision.
The Respondent’s Counsel cited the holding in Maingi Mutisya Nzioka Vs Mbuki Kisavi [2014] KECA 837 (KLR) where the Court of Appeal stated, thus:
‘’the court may base its decision on unpleaded issue [and/ or unprecisely or inadequately pleaded issue] if during the course of the trial the issue has been left for the decision of the court. In this instant, the issue was left to the court’s decision when the appellant addressedthe court and led evidence on the issue,’’
The Respondent’s Counsel also relied on the holding in David Sironga Ole Tukai Vs Francis Arap Muge, Samuel Kiprotich Arap and Johannah Kiprono Arap C. A No. 76 of 2014 and Edco Africa Ltd Vs Kirigia $ Another [2025] KECA 107 (KLR) at page 22-25 to support their argument that a court may base its decision on issues that are not pleaded.
It was also contended that the Learned Trial Magistrate who heard the parties and had occasion to see the witnesses found and held that it was more probable than not that the Appellant never developed sugarcane and there is no reason to warrant disturbing the said finding.
The court was urged to dismiss 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 maind that this court did not have the opportunity to observe the witnesses testify. This is position enumerated 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.”
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..."
Having considered the grounds of appeal and rival submissions and having re-evaluated and scrutinized the evidence and judgment of the trial court afresh the issues that arises for determination are:
(a). Whether the Learned Trial Magistrate determined the suit based on unpleaded issues to wit that the Defendant issued a notice of breach capable of terminating the contract between the parties.
(b). Whether the Learned Trial Magistrate’s findings as to breach of contract was contradictory, inconsistent, irrational and unreasonable in the circumstances of the case.
(c). Whether the Learned Trial Magistrate erroneously denied the Appellant an award of damages having found that there was a breach of contract by the Respondent.
The Respondent’s in their statement of Defense denied the Appellant’s claim but DW1 admitted that the Appellant entered into a contract with the Respondent in terms of the Agreement produced in court and they gave the farmer inputs which he utilized. He said cane census was done but there was no report filed.
The Trial Magistrate found that the Respondent had breached the terms of the contract by not harvesting the Appellant’s Plant Crop as per the contract and again made an about turn and found that the Appellant had failed to take care of the cane and there was nothing to harvest.
From the statement of the Respondent’s witness George Ochieng who never testified the Appellant failed to do manual weeding and protecting cane from livestock grazing and the cane plot went fallow at an early stage of 5 months and did not grow to maturity. It is stated that the Appellant was informed of the matter through the Chief and Ratoon Crops were never planted.
The person who testified on behalf of the Respondent’s witness and alleged that the witness who recorded the statement was his colleague did not produce any document to prove his qualifications and that of his alleged colleague neither was it proved that DW1 and the person who recorded the statement worked for the Respondent in any capacity. There was no evidence to show why the witness who recorded the statement did not attend court to testify and have his evidence tested. The statement not having been tendered in court by the maker and the same not have been tested by way of cross examination was not sufficient to controvert the Appellant’s claim.
The warning allegedly served on the Appellant through an unknown Chief is signed by unknown author and cannot therefore be regarded as having any probative value. It would have been believable if the person who signed the Survey Certificate also signed the alleged warning letter or if the Chief who is said to have received the letter was called as a witness to testify to show consistency and seriousness on the part of the Respondent in the performance of the terms of the contract between it and the Appellant.
This court therefore finds that the Trial Court was in error in admitting evidence of DW1 when he was not the one who recorded the statement and for inferring that the Appellant was in breach when indeed there was no such evidence on record to rely on.
From the provisions of the contract between the Appellant and the Respondent it is clear that there are scheduled visits by the Respondent to the farmer’s plot and notification thereof of the farmer by the Company of any works or operations that may be required to be done. Therefore, it goes without saying that it was the duty of the Respondent to inform the Appellant or his representative of their duties in relation to the development of the cane on the subject farm as there is a system developed by the Respondent to ensure scheduled and/or follow up visits to the farm was to ensure that the farmer has maintained, cultivated and tended his shamba for purposes of obtaining satisfactory yield. The Respondent did not have any evidence whatsoever to demonstrate that the Appellant had failed to maintain the shamba satisfactorily; or that it had valid reasons to rescind its contract with the farmer on account of breach of contract on his part.
Having found that it is the Respondents who breached the terms and conditions of the contract and being guided by the Court of Appeal authority In South Nyanza Sugar Company Limited V Oreko they are thereby held liable to restitute the Appellant to the position he would have been had the terms of the said contract been performed namely compensation for all the 3 cycles as the contract was for a period of 5 years and the failure to harvest the plant crop compromised the development of 1st and 2nd ratoon crops.
The contract document indicates that the Appellant’s plot was 0.6 Ha and was expected to yield 66.65 tonnes per Ha as per cane yields in the subject area for the plant crop at Kshs. 2,500/= per tonne and for Ratoons 1 & 2 the expected yield is 48.75tonnes at Kshs. 2,500/= per tonne.
The cane yields document produced by the Appellant is for the years 1995 to 1997 and may not be applicable to yields in 2010 as per the contract herein.
The Appellant’s entitlement is therefore calculated as follows:
Plant Crop _ Kshs. 2,500/= x 0.6 x66.65=99,975/=
Ratoon 1_ Kshs. 2,500/= x 0.60 x 48.75=73,125/=
Ratoon 2_ Kshs. 2,500/= x 0.60 x 48.75=73,125/=
TOTALS……………………………………. = 246,225/=
The above award is to be subjected to the contractual, statutory and other deductions which include:
-Harvesting charges Kshs307/= per tonne
-Transport charges Kshs. 690/= per tonne
- Cess 1% of the total cane value
-Levy 1% of the total cane value
-Interest on the costs of input 17% p.a
Costs of the suit in the subordinate court and on appeal to the Appellant. Interest on the award to accrue from the date of the filing of the suit.
Order accordingly.
Signed dated and delivered at Migori this 30th day of May, 2025.
The Appellant vide Plaint dated 7th September 2017 sued the Respondents herein for breach of contract allegedly entered into between them, among others to buy sugarcane on his land parcel No 70B Field No. 253 in Kakmia Sub-Location measuring 0.6 Ha. The agreement was dated 6th August 2010.
That the Respondent in breach of the terms of the said agreement failed to harvest the plant crop and the two subsequent ratoon crops when the same was mature and ready for harvesting and by reason of the said breach the Appellant suffered loss and damage.
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 found that indeed there was a contract between the Appellant and the Respondent for the supply of sugarcane which contract was to last for 5 years.
The Trial Magistrate also found that the Respondents failed to harvest the Plant Crop for reasons the Appellant neglected the sugarcane and the same was therefore not in good condition and he was given a warning letter as per Clause 6.1, 9 and 15 of the Contract Agreement. The Appellant’s claim for damages was therefore dismissed with costs to the defendant.
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 14th February, 2023 setting forth the following grounds of appeal;
(a). THAT the Learned Trial Magistrate erred in law and fact in determining the suit on unpleaded issues to wit that the Defendant issued a notice of breach capable of terminating the contract between the parties.
(b). THAT the Learned Trial Magistrate erred in law in her evaluation of evidence alleging in one instance that there was a breach of contract and in the other instance absolving the Respondent from liability which finding was contradictory, inconsistent, irrational and unreasonable in the circumstances of the case.
(c). THAT the Learned Trial Magistrate erred in law by arriving at a decision not based on evidence.
(d). THAT the Learned Trial Magistrate erred in law by denying the Appellant an award of damages having found that there was a breach of contract by the Respondent.
REASONS WHEREFORE the Appellant urged this court to grant the following ORDERS;
(a) THAT the judgement of the trial court dated 23rd August 2023 in PMCC NO 286 OF 2017 be set aside.
(b) .THAT there be judgement entered for the Appellant.
(c) .THAT the court do assess and award the Appellant damages for the breach of contract as prayed.
(d) . THAT there be an order for payment of interest, the same accrue from the date of filing of the Plaintiff’s suit in the subordinate court.
(e) THAT the Respondent to bear the costs of the appeal and the subordinate court.
The Appellant’s case was that by a contract dated 6th August 2010 he entered into an agreement with the Respondent company to grow sugarcane on parcel of land No. 70B Field No.253 measuring 0.6 Ha and sell to the Respondent. That it was a term of both express and implied that the contract would commence on ………… 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 and subsequently failed to harvest the 1st and 2nd Ratoons when they matured at 16-18 months.The Appellant said that he suffered loss of 135 tonnes per every hectare and that one ton was Kshs. 2,500/=
The Appellant in his evidence in chief produced the copy of agreement dated 6th August 2010, Demand letter dated 13th March 2017 and Survey certificate dated 4th September 2010
In cross examination the Appellant said that there were deductions to be made on the harvest. He said he expected 135 tonnes from his farm. He said that the Respondent company gave him the seed cane.
The Respondent opposed the claim and its evidence was tendered by Justus Otieno George who testified on behalf of George Ochieng who was his colleague in the Department of Agriculture. He adopted the statement of the said colleague in which he admitted that the Appellant entered into a contract with the Appellant for development and supply of cane from plot measuring 0.6 Ha. He said that at the time of the contract cane price was Kshs.2,500/= per ton and that the farmer was to maintain the crop. He said there was no harvest done on the farm in question. He said that cane census is usually done per year to confirm existence of cane and a report is supposed to be prepared and produced but there was none in this case. He said that the census report would have shown the condition of the cane and whether it existed.
This appeal canvassed by way of written submissions. Both parties complied and filed their respective submissions.
The Appellant’s submissions are dated 20th November 2024 and it was to the effect that the Trial Magistrate failed to determine the damages and veered off the issues and directions she had identified. The Appellant’s Counsel submitted that the Trial Magistrate dealt with issues that had not been pleaded by the parties and not addressed by them.
The Appellant’s Counsel cited the holding in David Sironga Ole Tukai Vs Francis Arap Muge, Samuel Kiprotich Arap and Johannah Kiprono Arap C. A No. 76 of 2014 where it was held that unpleaded issues not raised by parties must be ignored.
The Appellant’s Counsel further submitted that the Respondents did not plead that a notice was issued to the Appellant for termination of the contract as a consequence of failure to develop sugarcane.
It was submitted that Clause 6.2 of the contract placed the duty on the Respondent to develop and maintain sugarcane if the Appellant failed to do so. That such a notice if issued should be in tandem and in conformity with the contract.
The Appellant’s Counsel further argued that the evidence of Respondent’s witness was hearsay as the maker of the statement that was adopted did not testify neither did the mysterious Chief attend court to testify.
The Appellant’s Counsel cited the authority in Henry O. Otieno Vs South Nyanza Sugar Company Ltd HCCA No. 44 of 2019 where it was held:#######
The Appellant’ Counsel submitted that the Trial Court’s evaluation of the evidence based on the issue of notice was inept and not based on any evidentiary proof and must be rejected as it was flawed and any admissible evidence remaining and disputing liability was insufficient to conclude that the Appellant was undeserving of any remedy.
It was further submitted that the Appellant was entitled to damages for the Plant Crop and 2 Ratoon Crops at 66.56 tonnes for the plant crop and 48.75 tonnes for each of the 2 Ratoon Crops at Kshs. 2,500/= per tonne.
The Appellant also prayed for costs of the appeal and interest from the date of filing of the suit.
Respondent’s submissions are dated 3rd March 2025 and in response to the Appellant’s submissions it was submitted that they supported the decision of the Trial Court and adopted their submissions in the Trial Court. The Respondents agreed that parties are bound by their pleadings but the Respondent led evidence on a course which the proceedings in the Trial had taken and on matters which had been left to the subordinate court to determine by the parties, there having been a pleading critically that the subject sugar cane had not been developed.
It was submitted that the Respondent’s witness testified and was cross examined on the matter of notices, the failure to develop the sugarcane, and the termination of the contract and the Appellant’s Counsel never objected to the Respondent’s line of evidence but left it for the court to weigh and come up with a decision.
The Respondent’s Counsel cited the holding in Maingi Mutisya Nzioka Vs Mbuki Kisavi [2014] KECA 837 (KLR) where the Court of Appeal stated, thus:
‘’the court may base its decision on unpleaded issue [and/ or unprecisely or inadequately pleaded issue] if during the course of the trial the issue has been left for the decision of the court. In this instant, the issue was left to the court’s decision when the appellant addressedthe court and led evidence on the issue,’’
The Respondent’s Counsel also relied on the holding in David Sironga Ole Tukai Vs Francis Arap Muge, Samuel Kiprotich Arap and Johannah Kiprono Arap C. A No. 76 of 2014 and Edco Africa Ltd Vs Kirigia $ Another [2025] KECA 107 (KLR) at page 22-25 to support their argument that a court may base its decision on issues that are not pleaded.
It was also contended that the Learned Trial Magistrate who heard the parties and had occasion to see the witnesses found and held that it was more probable than not that the Appellant never developed sugarcane and there is no reason to warrant disturbing the said finding.
The court was urged to dismiss 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 maind that this court did not have the opportunity to observe the witnesses testify. This is position enumerated 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.”
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..."
Having considered the grounds of appeal and rival submissions and having re-evaluated and scrutinized the evidence and judgment of the trial court afresh the issues that arises for determination are:
(a). Whether the Learned Trial Magistrate determined the suit based on unpleaded issues to wit that the Defendant issued a notice of breach capable of terminating the contract between the parties.
(b). Whether the Learned Trial Magistrate’s findings as to breach of contract was contradictory, inconsistent, irrational and unreasonable in the circumstances of the case.
(c). Whether the Learned Trial Magistrate erroneously denied the Appellant an award of damages having found that there was a breach of contract by the Respondent.
The Respondent’s in their statement of Defense denied the Appellant’s claim but DW1 admitted that the Appellant entered into a contract with the Respondent in terms of the Agreement produced in court and they gave the farmer inputs which he utilized. He said cane census was done but there was no report filed.
The Trial Magistrate found that the Respondent had breached the terms of the contract by not harvesting the Appellant’s Plant Crop as per the contract and again made an about turn and found that the Appellant had failed to take care of the cane and there was nothing to harvest.
From the statement of the Respondent’s witness George Ochieng who never testified the Appellant failed to do manual weeding and protecting cane from livestock grazing and the cane plot went fallow at an early stage of 5 months and did not grow to maturity. It is stated that the Appellant was informed of the matter through the Chief and Ratoon Crops were never planted.
The person who testified on behalf of the Respondent’s witness and alleged that the witness who recorded the statement was his colleague did not produce any document to prove his qualifications and that of his alleged colleague neither was it proved that DW1 and the person who recorded the statement worked for the Respondent in any capacity. There was no evidence to show why the witness who recorded the statement did not attend court to testify and have his evidence tested. The statement not having been tendered in court by the maker and the same not have been tested by way of cross examination was not sufficient to controvert the Appellant’s claim.
The warning allegedly served on the Appellant through an unknown Chief is signed by unknown author and cannot therefore be regarded as having any probative value. It would have been believable if the person who signed the Survey Certificate also signed the alleged warning letter or if the Chief who is said to have received the letter was called as a witness to testify to show consistency and seriousness on the part of the Respondent in the performance of the terms of the contract between it and the Appellant.
This court therefore finds that the Trial Court was in error in admitting evidence of DW1 when he was not the one who recorded the statement and for inferring that the Appellant was in breach when indeed there was no such evidence on record to rely on.
From the provisions of the contract between the Appellant and the Respondent it is clear that there are scheduled visits by the Respondent to the farmer’s plot and notification thereof of the farmer by the Company of any works or operations that may be required to be done. Therefore, it goes without saying that it was the duty of the Respondent to inform the Appellant or his representative of their duties in relation to the development of the cane on the subject farm as there is a system developed by the Respondent to ensure scheduled and/or follow up visits to the farm was to ensure that the farmer has maintained, cultivated and tended his shamba for purposes of obtaining satisfactory yield. The Respondent did not have any evidence whatsoever to demonstrate that the Appellant had failed to maintain the shamba satisfactorily; or that it had valid reasons to rescind its contract with the farmer on account of breach of contract on his part.
Having found that it is the Respondents who breached the terms and conditions of the contract and being guided by the Court of Appeal authority In South Nyanza Sugar Company Limited V Oreko they are thereby held liable to restitute the Appellant to the position he would have been had the terms of the said contract been performed namely compensation for all the 3 cycles as the contract was for a period of 5 years and the failure to harvest the plant crop compromised the development of 1st and 2nd ratoon crops.
The contract document indicates that the Appellant’s plot was 0.6 Ha and was expected to yield 66.65 tonnes per Ha as per cane yields in the subject area for the plant crop at Kshs. 2,500/= per tonne and for Ratoons 1 & 2 the expected yield is 48.75tonnes at Kshs. 2,500/= per tonne.
The cane yields document produced by the Appellant is for the years 1995 to 1997 and may not be applicable to yields in 2010 as per the contract herein.
The Appellant’s entitlement is therefore calculated as follows:
Plant Crop _ Kshs. 2,500/= x 0.6 x66.65=99,975/=
Ratoon 1_ Kshs. 2,500/= x 0.60 x 48.75=73,125/=
Ratoon 2_ Kshs. 2,500/= x 0.60 x 48.75=73,125/=
TOTALS……………………………………. = 246,225/=
The above award is to be subjected to the contractual, statutory and other deductions which include:
-Harvesting charges Kshs307/= per tonne
-Transport charges Kshs. 690/= per tonne
- Cess 1% of the total cane value
-Levy 1% of the total cane value
-Interest on the costs of input 17% p.a
Costs of the suit in the subordinate court and on appeal to the Appellant. Interest on the award to accrue from the date of the filing of the suit.
Order accordingly.
Signed dated and delivered at Migori this 30th day of May, 2025.