By a Plaint dated 10th October, 2017 the Appellant sought for orders for general damages for breach of contract, costs of the suit and interest on the damages and costs at court rates from 18th July 2013 until payment in full.
The Appellant’s claim was that on 18th July 2013 he entered into a contract with the Respondent to grow and sell to it sugar cane on his land parcel No. 123 measuring 1.6 Ha. That the Appellant duly executed the contract and was allocated Account No. 263726 and he planted the cane as agreed.
That pursuant to the said contract the Respondent breached the terms by failing to harvest the plant crop and the ratoon crops upon maturity and the Appellant alleged he suffered loss and damage to the extent of 4300/= per ton. According to the Appellant he was expecting 135 tons of sugar cane per hectare.
Upon consideration of the evidence on record submissions filed by the respective parties the Trial Magistrate found that it was the Respondent’s obligation to harvest and transport the sugar cane upon maturity and that the Respondent breached the contract by failing to harvest and transport the Appellant’s sugar cane.
The Trial Magistrate however found that the Appellant was only entitled to damages for the Plant Crop and not the ratoon crops as he did not develop the ratoon crops. He therefore quantified the damages for the Plant Crop at Kshs. 340,787.20 together with costs of the suit and interest from the date of filing the suit.
Aggrieved by the judgment and decree of the trial Magistrate the Appellant lodged the appeal herein vide Memorandum of Appeal dated 18th August, 2022 on the following ground:-
1. THAT the Learned Trial Magistrate failed to properly and adequately evaluate the evidence adduced at the trial so as to come to a just and fair award of damages.
2. THAT the Learned Trial Magistrate unfairly and prejudicially faulted the pleadings when it was neither a correct and reasonable appreciation of the pleadings and evidence on the record.
3. THAT the Learned Trial Magistrate erred in law in failing to award the Appellant damages for the loss of the two ratoon, when the stated loss was a natural and foreseable consequence of the breach.
REASONS WHEREFORE the Appellant prays for judgment and orders that:-
a). That the appeal be allowed and the judgment and decree of the trial court be set aside
b). Damages for the two ratoon crops be awarded to the Appellant in addition to the award for the plant crop.
c). Costs of the appeal be awarded to the Appellant
d). Interest on (b) & (c) be awarded at court rates until payment in full.
(d). Such further and / or other orders as the court may deem just and expedient.
This appeal was canvassed by way of written submissions.
The Appellant’s submissions are dated 20th February 2025 and are to the effect that the Trial Magistrates finding was not based on any facts. The Appellant relied on the case of South Nyanza Sugar Company Ltd Vs Florence Anyango Oduol where it was held:-
“On the variance between the date of the contract in the pleadings, the contract itself and the oral testimony, Counsel for the defendant was in court when the respondent testified. He did not cross examine the respondent to explain the variance between her pleadings and the contract in question. The variance is not of a great magnitude as to affect the substance of the issue before the trial court, which is the breach of contract. Justus Otieno George, DW1 testified that they had a contract with the respondent. Therefore, the contract was not denied by the appellant. It is this court’s finding that the respondent did prove that a contract exist between the parties.”
Further in the case of Florence supra it was held:-
The failure to harvest the plant crop automatically affects the growth of the 1st and 2nd ratoons. In South Nyanza Sugar Company vs Awino Oreko (supra) the Court of Appeal held: -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.”
The Respondents did not file submissions.
ANALYSIS AND DETERMINATION
This being a first appeal, this Court is under a duty to reconsider and re-evaluate the evidence that was placed before the trial court and draw its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify.
The Court must therefore examine the entire evidence afresh and determine whether the conclusions reached by the learned Trial Magistrate were supported by the evidence and the applicable law. This duty was stated in the case of Selle v Associated Motor Boat Co. Ltd.
From the grounds of appeal and the submissions filed by the Appellant, the issues falling for determination are:
a. Whether the Respondent breached the contract;
b. Whether the Appellant was entitled to damages in respect of the first and second ratoon crops; and
c. Who bears the costs of the appeal
On whether there was a breach, the learned Trial Magistrate expressly found that the Respondent was under an obligation to harvest and transport the sugarcane upon maturity and that it failed to do so. That finding has not been challenged by the Respondent. Indeed, the central dispute in this appeal is not liability for breach but the legal consequences of that breach, particularly whether the Appellant was entitled to compensation for the two ratoon crops. This court therefore uphold the finding of the trial court that the Respondent breached the contract by failing to harvest and transport the plant crop when it had matured.
Whether the Appellant was entitled to damages for the two ratoons, the critical question is whether the Appellant's failure to develop the ratoon crops disentitled him from recovering damages in respect thereof. The learned Trial Magistrate appears to have reasoned that because the Appellant did not develop the ratoon crops, there was no basis upon which damages could be awarded for crops which had not physically come into existence. With respect, that reasoning does not sufficiently take into account the causal relationship between the Respondent's breach and the non-development of the ratoons.
A ratoon crop is, by its very nature, a regrowth of the plant crop following harvesting. Consequently, if the plant crop is not harvested when due and is allowed to deteriorate or dry up, the subsequent ratoon crops may necessarily fail to develop. The question is therefore not simply whether the ratoon crops physically existed. The question is whether their non-existence was itself a consequence of the Respondent's breach and whether the resulting loss was within the reasonable contemplation of the parties when they entered into the contract.
This question is no longer new. In South Nyanza Sugar Company Limited v Awino Oreko [2022] KECA 570 (KLR), the Court of Appeal considered substantially the same issue. The contract in that case provided for one plant crop and two ratoon crops. The miller failed to harvest the plant crop. The plant crop consequently dried and the ratoons could not develop. The Court of Appeal held that the failure to harvest the plant crop was the cause of the failure of the ratoons to develop and that such loss was a natural and reasonably foreseeable consequence of the breach. The Court stated that where the plant crop is not harvested and consequently dries, the failure of the ratoons to develop is a natural consequence of the breach and the loss of the plant crop extends to the two ratoon crops. That decision is directly applicable to the present appeal.
The Respondent had undertaken to harvest the Appellant's mature sugarcane. The Appellant was therefore entitled to proceed on the basis that upon harvesting of the plant crop, the ratoon crops would subsequently develop and be harvested in accordance with the contract. The Appellant cannot fairly be faulted for not developing the ratoons where, on the evidence accepted by the trial court, the Respondent had failed to harvest the plant crop in the first place. To hold otherwise would permit the party in breach to rely on the consequences of its own breach to defeat the innocent party's claim. The loss of the ratoon crops was therefore not remote. It was a natural and foreseeable consequence of the Respondent's failure to harvest the plant crop.
This court consequently find that the learned Trial Magistrate erred in law in holding that the Appellant was not entitled to damages for the two ratoon crops merely because the ratoons were not separately developed.
The Appellant also complained that the learned Trial Magistrate unfairly and prejudicially faulted his pleadings. It is trite that damages arising from breach of a contract of this nature are in the nature of special damages and must be specifically pleaded and strictly proved. The requirement, however, is not that a claimant must use any particular formula in drafting the prayer for relief. What is important is that the opposing party is given adequate notice of the nature and extent of the claim and that the amount claimed is supported by the evidence.
The Court of Appeal in South Nyanza Sugar Company Limited v Awino Oreko considered a similar argument. The Court held that where the plaint particularizes the expected yield, acreage, applicable price per tonne and the three crop cycles, the requirement of specific pleading is satisfied, even where the prayer itself simply seeks damages for breach of contract.
In the present case, the Appellant pleaded the acreage of the land, the expected yield of 135 tonnes per hectare and the applicable price of Kshs. 4,300/= per tonne. The claim for the loss of the plant crop and the two ratoons was therefore sufficiently particularized to enable the Respondent to understand and answer the claim.
More importantly, the issue before this Court is not whether the Appellant could recover an unpleaded head of damage. The loss of the two ratoons formed part of the pleaded consequences of the Respondent's failure to harvest the crop. This court therefore find that the learned Trial Magistrate fell into error in treating the absence of physical development of the ratoons as a bar to recovery.
Having found that the Appellant was entitled in principle to compensation for the two ratoon crops, the next question is the appropriate quantum. The Court must be cautious not to award a sum that is speculative or unsupported by the evidence. The objective of damages for breach of contract is compensatory: the innocent party should, so far as money can do so, be placed in the position in which he would have been had the contract been performed. The Appellant pleaded an expected yield of 135 tonnes per hectare and an acreage of 1.6 hectares. He further pleaded a price of Kshs. 4,300/= per tonne. However, the mere mathematical multiplication of acreage, expected yield and price does not, without more, necessarily represent the net amount which the Appellant would have received. Where the evidence establishes that there were costs or deductions ordinarily borne in the production, harvesting and transportation of sugarcane, those sums must be taken into account in arriving at compensatory damages.
The learned Trial Magistrate assessed the plant crop at Kshs. 340,787.20. That assessment was based on the evidence which the trial court accepted and has not been specifically demonstrated to be erroneous by the Respondent. The proper approach is therefore not to disturb the award relating to the plant crop unless the evidence demonstrates an error in principle.
As regards the ratoons, the evidence before the trial court established the contractual relationship and the Respondent's breach. The loss of the ratoons was a foreseeable consequence of that breach.
Although in the case of South Nyanza Sugar Company Limited v Awino Oreko the Court of Appeal emphasized that assessment must reflect the evidence as to the expected yield of the ratoon crops and the applicable cane price at the respective periods of harvest the Respondents did not suggest or propose any other figure other than the one given by the Appellant. This court is aware that the ratoon crops may yield less but being there was no alternative figures given and justified the court cannot therefore make a finding that the ratoon crops could have yielded less than the plant crop. That finding will be subject to the appropriate deductions for expenses.
The appeal herein is therefore allowed. The Appellant is entitled to damages for the two ratoons and is awarded damages of Kshs. 340,787.20 for each ratoon. The total award is therefore Kshs 1,022,361.60 for the three crop cycles.
The Appellant sought interest from 18th July 2013, being the date of the contract. That prayer cannot properly be granted merely because the contract was entered into on that date. The cause of action arose upon breach, and the damages became ascertainable through the litigation process. The trial court awarded interest from the date of filing the suit. I find no basis on the material before me for interfering with that exercise of discretion. This is also consistent with the position stated by the Court of Appeal in South Nyanza Sugar Company Limited v Awino Oreko, where the Court held that damages of this nature are special damages and interest ordinarily runs from the date of filing the suit, because the loss is ascertainable and the money is due to the claimant from that date. This court therefore upholds the order that interest shall run from the date of filing the suit at court rates until payment in full.
In conclusion this court finds that the learned Trial Magistrate correctly found that the Respondent breached the contract by failing to harvest and transport the Appellant's mature plant crop. However, the learned Magistrate erred in law in holding that the Appellant was not entitled to compensation for the two ratoon crops merely because the ratoons were not physically developed. The failure to develop the ratoons was, on the evidence and in law, a natural and foreseeable consequence of the Respondent's failure to harvest the plant crop. The Appellant was therefore entitled to compensation for the loss of the two ratoons.
The appeal consequently succeeds to that extent.
The orders that ensue are as follows:
a. The appeal is allowed partly.
b. The finding of the Trial Magistrate that the Appellant was not entitled to damages for the first and second ratoon crops is hereby set aside.
c. The award of Kshs. 340,787.20 in respect of the plant crop is upheld.
d. The Appellant is entitled to damages for the first and second ratoon crops, the same is hereby assessed at Kshs 340,787.20 for each of the ratoons subject to applicable contractual expenses.
e. The total award is therefore Kshs. 1,022,361.60.
f. The aggregate damages shall attract interest at court rates from the date of filing of the suit until payment in full.
g. The Appellant shall have the costs of the appeal.
h. The costs awarded by the trial court shall remain undisturbed.
It is so ordered.
DATED, SIGNED AND DELIVERED AT MIGORI, THIS 20TH DAY OF AUGUST, 2026.
The Appellant’s claim was that on 18th July 2013 he entered into a contract with the Respondent to grow and sell to it sugar cane on his land parcel No. 123 measuring 1.6 Ha. That the Appellant duly executed the contract and was allocated Account No. 263726 and he planted the cane as agreed.
That pursuant to the said contract the Respondent breached the terms by failing to harvest the plant crop and the ratoon crops upon maturity and the Appellant alleged he suffered loss and damage to the extent of 4300/= per ton. According to the Appellant he was expecting 135 tons of sugar cane per hectare.
Upon consideration of the evidence on record submissions filed by the respective parties the Trial Magistrate found that it was the Respondent’s obligation to harvest and transport the sugar cane upon maturity and that the Respondent breached the contract by failing to harvest and transport the Appellant’s sugar cane.
The Trial Magistrate however found that the Appellant was only entitled to damages for the Plant Crop and not the ratoon crops as he did not develop the ratoon crops. He therefore quantified the damages for the Plant Crop at Kshs. 340,787.20 together with costs of the suit and interest from the date of filing the suit.
Aggrieved by the judgment and decree of the trial Magistrate the Appellant lodged the appeal herein vide Memorandum of Appeal dated 18th August, 2022 on the following ground:-
1. THAT the Learned Trial Magistrate failed to properly and adequately evaluate the evidence adduced at the trial so as to come to a just and fair award of damages.
2. THAT the Learned Trial Magistrate unfairly and prejudicially faulted the pleadings when it was neither a correct and reasonable appreciation of the pleadings and evidence on the record.
3. THAT the Learned Trial Magistrate erred in law in failing to award the Appellant damages for the loss of the two ratoon, when the stated loss was a natural and foreseable consequence of the breach.
REASONS WHEREFORE the Appellant prays for judgment and orders that:-
a). That the appeal be allowed and the judgment and decree of the trial court be set aside
b). Damages for the two ratoon crops be awarded to the Appellant in addition to the award for the plant crop.
c). Costs of the appeal be awarded to the Appellant
d). Interest on (b) & (c) be awarded at court rates until payment in full.
(d). Such further and / or other orders as the court may deem just and expedient.
This appeal was canvassed by way of written submissions.
The Appellant’s submissions are dated 20th February 2025 and are to the effect that the Trial Magistrates finding was not based on any facts. The Appellant relied on the case of South Nyanza Sugar Company Ltd Vs Florence Anyango Oduol where it was held:-
“On the variance between the date of the contract in the pleadings, the contract itself and the oral testimony, Counsel for the defendant was in court when the respondent testified. He did not cross examine the respondent to explain the variance between her pleadings and the contract in question. The variance is not of a great magnitude as to affect the substance of the issue before the trial court, which is the breach of contract. Justus Otieno George, DW1 testified that they had a contract with the respondent. Therefore, the contract was not denied by the appellant. It is this court’s finding that the respondent did prove that a contract exist between the parties.”
Further in the case of Florence supra it was held:-
The failure to harvest the plant crop automatically affects the growth of the 1st and 2nd ratoons. In South Nyanza Sugar Company vs Awino Oreko (supra) the Court of Appeal held: -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.”
The Respondents did not file submissions.
ANALYSIS AND DETERMINATION
This being a first appeal, this Court is under a duty to reconsider and re-evaluate the evidence that was placed before the trial court and draw its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify.
The Court must therefore examine the entire evidence afresh and determine whether the conclusions reached by the learned Trial Magistrate were supported by the evidence and the applicable law. This duty was stated in the case of Selle v Associated Motor Boat Co. Ltd.
From the grounds of appeal and the submissions filed by the Appellant, the issues falling for determination are:
a. Whether the Respondent breached the contract;
b. Whether the Appellant was entitled to damages in respect of the first and second ratoon crops; and
c. Who bears the costs of the appeal
On whether there was a breach, the learned Trial Magistrate expressly found that the Respondent was under an obligation to harvest and transport the sugarcane upon maturity and that it failed to do so. That finding has not been challenged by the Respondent. Indeed, the central dispute in this appeal is not liability for breach but the legal consequences of that breach, particularly whether the Appellant was entitled to compensation for the two ratoon crops. This court therefore uphold the finding of the trial court that the Respondent breached the contract by failing to harvest and transport the plant crop when it had matured.
Whether the Appellant was entitled to damages for the two ratoons, the critical question is whether the Appellant's failure to develop the ratoon crops disentitled him from recovering damages in respect thereof. The learned Trial Magistrate appears to have reasoned that because the Appellant did not develop the ratoon crops, there was no basis upon which damages could be awarded for crops which had not physically come into existence. With respect, that reasoning does not sufficiently take into account the causal relationship between the Respondent's breach and the non-development of the ratoons.
A ratoon crop is, by its very nature, a regrowth of the plant crop following harvesting. Consequently, if the plant crop is not harvested when due and is allowed to deteriorate or dry up, the subsequent ratoon crops may necessarily fail to develop. The question is therefore not simply whether the ratoon crops physically existed. The question is whether their non-existence was itself a consequence of the Respondent's breach and whether the resulting loss was within the reasonable contemplation of the parties when they entered into the contract.
This question is no longer new. In South Nyanza Sugar Company Limited v Awino Oreko [2022] KECA 570 (KLR), the Court of Appeal considered substantially the same issue. The contract in that case provided for one plant crop and two ratoon crops. The miller failed to harvest the plant crop. The plant crop consequently dried and the ratoons could not develop. The Court of Appeal held that the failure to harvest the plant crop was the cause of the failure of the ratoons to develop and that such loss was a natural and reasonably foreseeable consequence of the breach. The Court stated that where the plant crop is not harvested and consequently dries, the failure of the ratoons to develop is a natural consequence of the breach and the loss of the plant crop extends to the two ratoon crops. That decision is directly applicable to the present appeal.
The Respondent had undertaken to harvest the Appellant's mature sugarcane. The Appellant was therefore entitled to proceed on the basis that upon harvesting of the plant crop, the ratoon crops would subsequently develop and be harvested in accordance with the contract. The Appellant cannot fairly be faulted for not developing the ratoons where, on the evidence accepted by the trial court, the Respondent had failed to harvest the plant crop in the first place. To hold otherwise would permit the party in breach to rely on the consequences of its own breach to defeat the innocent party's claim. The loss of the ratoon crops was therefore not remote. It was a natural and foreseeable consequence of the Respondent's failure to harvest the plant crop.
This court consequently find that the learned Trial Magistrate erred in law in holding that the Appellant was not entitled to damages for the two ratoon crops merely because the ratoons were not separately developed.
The Appellant also complained that the learned Trial Magistrate unfairly and prejudicially faulted his pleadings. It is trite that damages arising from breach of a contract of this nature are in the nature of special damages and must be specifically pleaded and strictly proved. The requirement, however, is not that a claimant must use any particular formula in drafting the prayer for relief. What is important is that the opposing party is given adequate notice of the nature and extent of the claim and that the amount claimed is supported by the evidence.
The Court of Appeal in South Nyanza Sugar Company Limited v Awino Oreko considered a similar argument. The Court held that where the plaint particularizes the expected yield, acreage, applicable price per tonne and the three crop cycles, the requirement of specific pleading is satisfied, even where the prayer itself simply seeks damages for breach of contract.
In the present case, the Appellant pleaded the acreage of the land, the expected yield of 135 tonnes per hectare and the applicable price of Kshs. 4,300/= per tonne. The claim for the loss of the plant crop and the two ratoons was therefore sufficiently particularized to enable the Respondent to understand and answer the claim.
More importantly, the issue before this Court is not whether the Appellant could recover an unpleaded head of damage. The loss of the two ratoons formed part of the pleaded consequences of the Respondent's failure to harvest the crop. This court therefore find that the learned Trial Magistrate fell into error in treating the absence of physical development of the ratoons as a bar to recovery.
Having found that the Appellant was entitled in principle to compensation for the two ratoon crops, the next question is the appropriate quantum. The Court must be cautious not to award a sum that is speculative or unsupported by the evidence. The objective of damages for breach of contract is compensatory: the innocent party should, so far as money can do so, be placed in the position in which he would have been had the contract been performed. The Appellant pleaded an expected yield of 135 tonnes per hectare and an acreage of 1.6 hectares. He further pleaded a price of Kshs. 4,300/= per tonne. However, the mere mathematical multiplication of acreage, expected yield and price does not, without more, necessarily represent the net amount which the Appellant would have received. Where the evidence establishes that there were costs or deductions ordinarily borne in the production, harvesting and transportation of sugarcane, those sums must be taken into account in arriving at compensatory damages.
The learned Trial Magistrate assessed the plant crop at Kshs. 340,787.20. That assessment was based on the evidence which the trial court accepted and has not been specifically demonstrated to be erroneous by the Respondent. The proper approach is therefore not to disturb the award relating to the plant crop unless the evidence demonstrates an error in principle.
As regards the ratoons, the evidence before the trial court established the contractual relationship and the Respondent's breach. The loss of the ratoons was a foreseeable consequence of that breach.
Although in the case of South Nyanza Sugar Company Limited v Awino Oreko the Court of Appeal emphasized that assessment must reflect the evidence as to the expected yield of the ratoon crops and the applicable cane price at the respective periods of harvest the Respondents did not suggest or propose any other figure other than the one given by the Appellant. This court is aware that the ratoon crops may yield less but being there was no alternative figures given and justified the court cannot therefore make a finding that the ratoon crops could have yielded less than the plant crop. That finding will be subject to the appropriate deductions for expenses.
The appeal herein is therefore allowed. The Appellant is entitled to damages for the two ratoons and is awarded damages of Kshs. 340,787.20 for each ratoon. The total award is therefore Kshs 1,022,361.60 for the three crop cycles.
The Appellant sought interest from 18th July 2013, being the date of the contract. That prayer cannot properly be granted merely because the contract was entered into on that date. The cause of action arose upon breach, and the damages became ascertainable through the litigation process. The trial court awarded interest from the date of filing the suit. I find no basis on the material before me for interfering with that exercise of discretion. This is also consistent with the position stated by the Court of Appeal in South Nyanza Sugar Company Limited v Awino Oreko, where the Court held that damages of this nature are special damages and interest ordinarily runs from the date of filing the suit, because the loss is ascertainable and the money is due to the claimant from that date. This court therefore upholds the order that interest shall run from the date of filing the suit at court rates until payment in full.
In conclusion this court finds that the learned Trial Magistrate correctly found that the Respondent breached the contract by failing to harvest and transport the Appellant's mature plant crop. However, the learned Magistrate erred in law in holding that the Appellant was not entitled to compensation for the two ratoon crops merely because the ratoons were not physically developed. The failure to develop the ratoons was, on the evidence and in law, a natural and foreseeable consequence of the Respondent's failure to harvest the plant crop. The Appellant was therefore entitled to compensation for the loss of the two ratoons.
The appeal consequently succeeds to that extent.
The orders that ensue are as follows:
a. The appeal is allowed partly.
b. The finding of the Trial Magistrate that the Appellant was not entitled to damages for the first and second ratoon crops is hereby set aside.
c. The award of Kshs. 340,787.20 in respect of the plant crop is upheld.
d. The Appellant is entitled to damages for the first and second ratoon crops, the same is hereby assessed at Kshs 340,787.20 for each of the ratoons subject to applicable contractual expenses.
e. The total award is therefore Kshs. 1,022,361.60.
f. The aggregate damages shall attract interest at court rates from the date of filing of the suit until payment in full.
g. The Appellant shall have the costs of the appeal.
h. The costs awarded by the trial court shall remain undisturbed.
It is so ordered.
DATED, SIGNED AND DELIVERED AT MIGORI, THIS 20TH DAY OF AUGUST, 2026.