( Being an appeal from the judgment and decree by Hon. R.K. Langat (Senior Resident Magistrate) in in Rongo Magistrate's Civil Suit No. 96 of 2014 delivered on 13 th day of May, 2021 )
JUDGMENT
1. This is an appeal by Siprosa Achieng Ayege (the appellant) against the judgement of the Hon. R.K. Langat, Senior Resident Magistrate, dated and delivered on 13/05/2021 .
2. That by an amended plaint dated the 27 th October, 2019 the Appellant sought for order of damages for breach of contract, costs of the suit and interests thereon at court rates until payment in full.
3. The Appellant vide her amended plaint pleaded that on or about the 2 nd day of December, 2003, the deceased AYEGA NYANJWA OGOT and the Respondent entered into an agreement whereby the deceased AYEGA NYANJWA OGOT was to grow sugarcane on his parcel of land being Plot Number 544 in field number 80A in field Kakmasia location measuring approximately 1.8 hectares and sell the same to the Respondent and the parties herein duly signed the agreement.
4. The Respondent filed their Defence in which they denied the allegations and put the Appellant to strict proof thereof.
5. That after hearing, the trial court allowed the Respondent’s suit with costs.
6. Being aggrieved by the judgement of the trial court the Appellant filed a Memorandum of Appeal dated the 13 th May, 2024 on the following Eleven (11) grounds: -
1. The learned trial magistrate erred in law and in fact in raising and determining the suit on an issue (locus standi) which was neither pleaded nor canvassed at the trial by the parties.
2. The learned trial magistrate erred in law and in fact in stating that the appellant lacked the locus to file the suit whereas the suit was filed in 2014 by the original plaintiff, Ayege N. Ogot, and not the substituted plaintiff.
3. The learned trial magistrate erred in law when he came to a conclusion that the appellant lacked locus standi to prosecute the case, when the court did allow the appellant upon an application made and documents tendered, to be substituted in place of the deceased plaintiff on or about 12 th August, 2016, which documents and orders formed part of the records.
4. The trial magistrate erred in law in failing to properly evaluate the evidence on record and to come to a just conclusion.
7. Directions on the appeal were taken and the appeal was canvassed by way of written submissions. The Appellant filed submissions dated the 6 th October, 2025 which I have duly considered. This Court notes that at the time the judgement was done the Respondent was yet to file their submissions.
8. I have considered the grounds of appeal, the submissions by the appellant and the trial court’s record noting that the Respondent did not file any submissions in opposition of the appeal and the only issues for determination seems to be: -
a) Whether the issue of locus standi was properly before the trial court for determination.
b) Whether the substituted plaintiff had the requisite locus standi to continue prosecuting the suit following the substitution of the original plaintiff.
9. This is a first appeal. It is settled law that the duty of the first appellate court is to re-evaluate the evidence which was adduced in the subordinate court both on points of law and fact and come up with its own findings and conclusions [ see Peters -vs- Sunday Post Limited [1958] E.A 424 ]
10. Further, in SELLE and Another -vs- Associated Motor Boat Company Ltd & Others [1968] 1. E.A 123 it was stated as follows:
“..this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind [the fact] that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears that he has clearly failed on some point to take into account of particular circumstances or probabilities materially to estimate the evidence.”
11. Likewise, in Gitobu Imanyara & 2 Others -vs- Attorney General [2016] eKLR , the court of Appeal stated thus:
“An appeal to this court is by way of a 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.”
12. Therefore, the appropriate standard of review in cases of appeal can be summarized in the following three principles: -
1) On first appeal the court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions.
2) In reconsidering and re-evaluating the evidence of the first appeal court must bear in mind and give due allowance for the fact that the trial court had the advantage of seeing and hearing the witnesses.
3) It is not open to the first appellate court to review the findings of a trial court simply on the basis that it would have reached a different conclusion had it been hearing the matter for the first time.
13. On the first issue, The Appellant contends that the learned trial magistrate erred in law and in fact by raising and determining the issue of locus standi when the same had neither been pleaded nor canvassed by the parties during the hearing. It is the Appellant's position that the trial court improperly introduced a new issue at the stage of judgment, thereby denying the parties an opportunity to address the same.
14. Upon a careful consideration of the pleadings, proceedings and the record of appeal, this Court finds that the issue of locus standi was not a collateral issue introduced by the trial court, but one that arose naturally from the record and touched on the competence of the proceedings before the court.
15. The record shows that the suit was instituted vide a plaint dated the 14 th November, 2014 by the original Plaintiff, Ayege N. Ogot. Before the matter could proceed to hearing, the original Plaintiff passed away. Consequently, an application was filed seeking to substitute the deceased Plaintiff with his wife to continue prosecuting the suit on behalf of his estate. The application was allowed, and the substituted Plaintiff thereafter assumed conduct of the proceedings.
16. It is noteworthy that upon the death of a sole plaintiff, the proceedings do not automatically come to an end. Order 24 Rule 3 of the Civil Procedure Rules provides the mechanism through which the legal representative of a deceased plaintiff may be brought on record where the cause of action survives. Once an order for substitution is made, the substituted party steps into the shoes of the deceased litigant and assumes both the rights and obligations attendant to the prosecution of the suit. Such substitution, however, does not exempt the substituted party from complying with the procedural requirements governing pleadings and the conduct of the proceedings thereafter.
17. The Court of Appeal in Said Sweilem Gheithan Saanum v Commissioner of Lands (being sued through the Attorney General) & 5 Others [2015] eKLR observed that substitution under Order 24 Civil Procedure Rules is intended to preserve proceedings and ensure that a cause of action does not abate by reason of the death of a litigant. However, the substituted legal representative is required to prosecute the suit in accordance with the law and applicable procedural rules.
18. The Court has further noted that following the substitution, an amended plaint was filed. The proceedings of 30 th October 2019 show that the parties agreed to have the application for amendment of the plaint allowed and the amended statement of defence was also admitted. The consequence of the same was to have both pleadings on the file as they were and the parties had the chance then to proceed with the hearing of the suit.
19. In the original and amended statements of defence filed by the Defendants, they did state that they would be seeking to have the suit struck out at the appropriate time for being defective and offending Order 4 Rule 1 of the Civil Procedure Rules, 2010. It is noteworthy that the Defendant did not specify the specific aspects of the Order that had been violated. For context, I will restate the provisions of Order 4 Rule of the CPR . It provides as follows:
“(1) The plaint shall contain the following particulars—
(a) the name of the court in which the suit is brought;
(b) the name, description and place of residence of the plaintiff, and an address for service;
(c) the name, description and place of residence of the defendant, so far as they can be ascertained;
(d) the place where the cause of action arose;
(e) where the plaintiff or defendant is a minor or person of unsound mind, a statement to that effect; and
(f) an averment that there is no other suit pending, and that there have been no previous proceedings, in any court between the plaintiff and the defendant over the same subject matter and that the cause of action relates to the plaintiff named in the plaint.
(2) The plaint shall be accompanied by an affidavit sworn by the plaintiff verifying the correctness of the averments contained in rule 1(1)(f) above.
(3) Where there are several plaintiffs, one of them, with written authority filed with the verifying affidavit, may swear the verifying affidavit on behalf of the others.
(4) Where the plaintiff is a corporation, the verifying affidavit shall be sworn by an officer of the company duly authorized under the seal of the company to do so.
(5) The provisions of sub-rule (3) and (4) shall apply mutatis mutandis to counterclaims.
(6) The court may of its own motion or on the application by the plaintiff or the defendant order to be struck out any plaint or counterclaim which does not comply with sub-rule (2) (3), (4) and (5) of this rule.
20. As is evident, the order deals with several issues as set out in sub rule 1 to 6. The trial court stated at page 2 of the judgment that the Plaintiff adopted her statement as her evidence and was then taken through cross examination by the defence counsel. In cross examination, she stated that the contract had been executed by her late husband and she was not aware that the Defendant had made some payments to her late husband. This was after she was shown two payments made to her late husband’s account. The defence did not call any evidence.
21. In the judgment, the trial court, set out three issues for determination. These were:
a. Whether the Plaintiff had capacity to sue
b. Whether there was any breach of contract
c. Whether the Plaintiff, if any, was entitled to reliefs sought.
22. The trial court proceeded and analyzed the first issue. He came to the conclusion that the Plaintiff had not demonstrated her locus in the suit and proceeded to dismiss the suit. He stated that the Plaintiff had not shown her legal capacity to institute and file the suit and added that given capacity had not been demonstrated and no Letters of Administration Ad Litem had been produced before the court.
23. A close look at the proceedings and documents herein will reveal that that position was erroneous. When the application filed on 25 th of August 2016 was filed seeking to substitute the late Ayege Nyanjwa Ogot with the present Plaintiffs was made, the Plaintiffs attached a copy of the Limited Grant of Letters of Administration dated 12 th August 2016. It was specifically for the purpose of enabling the Plaintiffs prosecute the suit then pending before the court. It was thus an error on the part of the trial court to make the said conclusion without reference to the annexures to that application.
24. For clarity, pleadings, affidavits and documents filed in the course of a suit all form part of the documents a court can rely on, unless they are expunged from the record. For the reason that the Limited Grant of Letters of Administration was not produced separately as a document to support the Plaintiffs’ case during the hearing of the main suit is not a basis for the trial court to have overlooked the said document.
25. In essence, the trial court made a determination based on an erroneous assumption that the Plaintiffs had no locus when they had actually been formally allowed to substitute the deceased in this case. For that reason, I do find that the judgment of the trial court cannot stand.
26. The issue of the absence of a Verifying Affidavit to the amended plaint has been raised. I note from the record that indeed the amended plaint was not accompanied by a Verifying Affidavit as required by Order 4 Rule 1 (2) of the CPR. I have noted the proceedings of 30 th October 2019, wherein the parties admitted the amended pleadings by both parties. The Counsel for the Defence did not raise the issue at that time or anytime later in the proceedings. While it is a substantive issue, I deem that the same is saved by dint of Article 159 2(d) of the Constitution as read with Section 3A of the Civil Procedure Act. It would defeat the ends of justice for the court to harp on an issue that parties had already dispensed with.
27. I am persuaded by the holding of the court in an almost similar situation in Isabela Akumu Ngutu vs South Nyanza Sugar Co. Ltd HCCA No. 118 of 2011[2018] КЕНС 137 (KLR ) a similar scenario occurred and the court stated:
"... In the appellant's application dated the applicants sought to be made plaintiff's instead of their deceased husband one Samuel Ngutu Gula who died on the 18/1/2005. In their application they sought to have the plaint deemed to be amended. According to the appellants they recorded a consent which was binds the parties. The respondent argue that the appellants ought to have filed the amended plaint in compliance with the provisions of Order 8 of the Civil Procedure Rules. The application was brought under order 23 of the Civil Procedure Rules, this was in order. The issue for determination is whether the trial magistrate erred in dismissing the appellant's suit in light of the consent order. From the proceedings the trial court accepted the consent order between the parties and recorded it became an order of the court. The consent order was that the plaint be deemed. By dismissing the suit, the trial court relied more on procedure then substantive justice. Article 159 (2) (d) of the Constitution provides that justice shall be administered without undue regard to procedural technicalities. The court trial court accepted the consent. By making a conclusion that the appellant did not file an amended plaint was in my view rewriting the consent the parties entered in. Under section 1A or B of the Civil Procedure Act a court has a duty to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act. Section 1B provides that. The respondents’ submissions on amendments of pleadings is proper however this was not a case where the court made a further order that the appellant file an amended plaint. The parties recorded a consent and they were bound by it. The trial magistrate erred in dismissing the appellant's suit. The order dismissing the appellants' suit dated the 25th May 2011 is set aside ."
28. That said, I do not therefore find that the Plaintiffs suit should have been dismissed in that aspect. As already stated, the judgment of the trial court is for setting aside.
29. In the substantive claim, it transpired that the deceased despite filing a claim for all the three expected harvests had already received payments for the plant crop and the 1 st ratoon, on 20 th June 2005 and 19 th November 2007 respectively. That being the case, then the reliefs sought under paragraph 7 (a) and (b) of the amended plaint are not sustainable.
30. The Defendant did not demonstrate that the Plaintiffs did not plant and tender the second ratoon plant to warrant the nonpayment. In addition, the Defendant did not produce any documents in support of their assertions that the Plaintiffs had breached their part of the contract by failing to plant and call for the harvesting of the second ratoon. As already stated, the defence did not call any evidence during the hearing of the suit.
31. For the first ratoon, for the same acreage yielded a sum of Kshs. 131,441.00. I deem that is the appropriate sum to award the Appellant in the present case.
32. The upshot is that the judgment of the lower court dated 13 th May 2021 dismissing the Plaintiffs’ suit is hereby set aside and substituted with an order for Judgement in favour of the Appellant/Plaintiffs in the sum of Kshs. 131, 441.00.
33. The costs of the suit and appeal are awarded to the Plaintiffs .
Orders accordingly.
Dated, signed and delivered virtually via Microsoft Teams this 6 th Day of August 2026.
HCCA NO. E024 OF 2024 SIPROSA ACHIENG & 2 OTHERS VS SONY SUGAR CO. LTD JGT Pg. 10
JUDGMENT
1. This is an appeal by Siprosa Achieng Ayege (the appellant) against the judgement of the Hon. R.K. Langat, Senior Resident Magistrate, dated and delivered on 13/05/2021 .
2. That by an amended plaint dated the 27 th October, 2019 the Appellant sought for order of damages for breach of contract, costs of the suit and interests thereon at court rates until payment in full.
3. The Appellant vide her amended plaint pleaded that on or about the 2 nd day of December, 2003, the deceased AYEGA NYANJWA OGOT and the Respondent entered into an agreement whereby the deceased AYEGA NYANJWA OGOT was to grow sugarcane on his parcel of land being Plot Number 544 in field number 80A in field Kakmasia location measuring approximately 1.8 hectares and sell the same to the Respondent and the parties herein duly signed the agreement.
4. The Respondent filed their Defence in which they denied the allegations and put the Appellant to strict proof thereof.
5. That after hearing, the trial court allowed the Respondent’s suit with costs.
6. Being aggrieved by the judgement of the trial court the Appellant filed a Memorandum of Appeal dated the 13 th May, 2024 on the following Eleven (11) grounds: -
1. The learned trial magistrate erred in law and in fact in raising and determining the suit on an issue (locus standi) which was neither pleaded nor canvassed at the trial by the parties.
2. The learned trial magistrate erred in law and in fact in stating that the appellant lacked the locus to file the suit whereas the suit was filed in 2014 by the original plaintiff, Ayege N. Ogot, and not the substituted plaintiff.
3. The learned trial magistrate erred in law when he came to a conclusion that the appellant lacked locus standi to prosecute the case, when the court did allow the appellant upon an application made and documents tendered, to be substituted in place of the deceased plaintiff on or about 12 th August, 2016, which documents and orders formed part of the records.
4. The trial magistrate erred in law in failing to properly evaluate the evidence on record and to come to a just conclusion.
7. Directions on the appeal were taken and the appeal was canvassed by way of written submissions. The Appellant filed submissions dated the 6 th October, 2025 which I have duly considered. This Court notes that at the time the judgement was done the Respondent was yet to file their submissions.
8. I have considered the grounds of appeal, the submissions by the appellant and the trial court’s record noting that the Respondent did not file any submissions in opposition of the appeal and the only issues for determination seems to be: -
a) Whether the issue of locus standi was properly before the trial court for determination.
b) Whether the substituted plaintiff had the requisite locus standi to continue prosecuting the suit following the substitution of the original plaintiff.
9. This is a first appeal. It is settled law that the duty of the first appellate court is to re-evaluate the evidence which was adduced in the subordinate court both on points of law and fact and come up with its own findings and conclusions [ see Peters -vs- Sunday Post Limited [1958] E.A 424 ]
10. Further, in SELLE and Another -vs- Associated Motor Boat Company Ltd & Others [1968] 1. E.A 123 it was stated as follows:
“..this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind [the fact] that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears that he has clearly failed on some point to take into account of particular circumstances or probabilities materially to estimate the evidence.”
11. Likewise, in Gitobu Imanyara & 2 Others -vs- Attorney General [2016] eKLR , the court of Appeal stated thus:
“An appeal to this court is by way of a 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.”
12. Therefore, the appropriate standard of review in cases of appeal can be summarized in the following three principles: -
1) On first appeal the court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions.
2) In reconsidering and re-evaluating the evidence of the first appeal court must bear in mind and give due allowance for the fact that the trial court had the advantage of seeing and hearing the witnesses.
3) It is not open to the first appellate court to review the findings of a trial court simply on the basis that it would have reached a different conclusion had it been hearing the matter for the first time.
13. On the first issue, The Appellant contends that the learned trial magistrate erred in law and in fact by raising and determining the issue of locus standi when the same had neither been pleaded nor canvassed by the parties during the hearing. It is the Appellant's position that the trial court improperly introduced a new issue at the stage of judgment, thereby denying the parties an opportunity to address the same.
14. Upon a careful consideration of the pleadings, proceedings and the record of appeal, this Court finds that the issue of locus standi was not a collateral issue introduced by the trial court, but one that arose naturally from the record and touched on the competence of the proceedings before the court.
15. The record shows that the suit was instituted vide a plaint dated the 14 th November, 2014 by the original Plaintiff, Ayege N. Ogot. Before the matter could proceed to hearing, the original Plaintiff passed away. Consequently, an application was filed seeking to substitute the deceased Plaintiff with his wife to continue prosecuting the suit on behalf of his estate. The application was allowed, and the substituted Plaintiff thereafter assumed conduct of the proceedings.
16. It is noteworthy that upon the death of a sole plaintiff, the proceedings do not automatically come to an end. Order 24 Rule 3 of the Civil Procedure Rules provides the mechanism through which the legal representative of a deceased plaintiff may be brought on record where the cause of action survives. Once an order for substitution is made, the substituted party steps into the shoes of the deceased litigant and assumes both the rights and obligations attendant to the prosecution of the suit. Such substitution, however, does not exempt the substituted party from complying with the procedural requirements governing pleadings and the conduct of the proceedings thereafter.
17. The Court of Appeal in Said Sweilem Gheithan Saanum v Commissioner of Lands (being sued through the Attorney General) & 5 Others [2015] eKLR observed that substitution under Order 24 Civil Procedure Rules is intended to preserve proceedings and ensure that a cause of action does not abate by reason of the death of a litigant. However, the substituted legal representative is required to prosecute the suit in accordance with the law and applicable procedural rules.
18. The Court has further noted that following the substitution, an amended plaint was filed. The proceedings of 30 th October 2019 show that the parties agreed to have the application for amendment of the plaint allowed and the amended statement of defence was also admitted. The consequence of the same was to have both pleadings on the file as they were and the parties had the chance then to proceed with the hearing of the suit.
19. In the original and amended statements of defence filed by the Defendants, they did state that they would be seeking to have the suit struck out at the appropriate time for being defective and offending Order 4 Rule 1 of the Civil Procedure Rules, 2010. It is noteworthy that the Defendant did not specify the specific aspects of the Order that had been violated. For context, I will restate the provisions of Order 4 Rule of the CPR . It provides as follows:
“(1) The plaint shall contain the following particulars—
(a) the name of the court in which the suit is brought;
(b) the name, description and place of residence of the plaintiff, and an address for service;
(c) the name, description and place of residence of the defendant, so far as they can be ascertained;
(d) the place where the cause of action arose;
(e) where the plaintiff or defendant is a minor or person of unsound mind, a statement to that effect; and
(f) an averment that there is no other suit pending, and that there have been no previous proceedings, in any court between the plaintiff and the defendant over the same subject matter and that the cause of action relates to the plaintiff named in the plaint.
(2) The plaint shall be accompanied by an affidavit sworn by the plaintiff verifying the correctness of the averments contained in rule 1(1)(f) above.
(3) Where there are several plaintiffs, one of them, with written authority filed with the verifying affidavit, may swear the verifying affidavit on behalf of the others.
(4) Where the plaintiff is a corporation, the verifying affidavit shall be sworn by an officer of the company duly authorized under the seal of the company to do so.
(5) The provisions of sub-rule (3) and (4) shall apply mutatis mutandis to counterclaims.
(6) The court may of its own motion or on the application by the plaintiff or the defendant order to be struck out any plaint or counterclaim which does not comply with sub-rule (2) (3), (4) and (5) of this rule.
20. As is evident, the order deals with several issues as set out in sub rule 1 to 6. The trial court stated at page 2 of the judgment that the Plaintiff adopted her statement as her evidence and was then taken through cross examination by the defence counsel. In cross examination, she stated that the contract had been executed by her late husband and she was not aware that the Defendant had made some payments to her late husband. This was after she was shown two payments made to her late husband’s account. The defence did not call any evidence.
21. In the judgment, the trial court, set out three issues for determination. These were:
a. Whether the Plaintiff had capacity to sue
b. Whether there was any breach of contract
c. Whether the Plaintiff, if any, was entitled to reliefs sought.
22. The trial court proceeded and analyzed the first issue. He came to the conclusion that the Plaintiff had not demonstrated her locus in the suit and proceeded to dismiss the suit. He stated that the Plaintiff had not shown her legal capacity to institute and file the suit and added that given capacity had not been demonstrated and no Letters of Administration Ad Litem had been produced before the court.
23. A close look at the proceedings and documents herein will reveal that that position was erroneous. When the application filed on 25 th of August 2016 was filed seeking to substitute the late Ayege Nyanjwa Ogot with the present Plaintiffs was made, the Plaintiffs attached a copy of the Limited Grant of Letters of Administration dated 12 th August 2016. It was specifically for the purpose of enabling the Plaintiffs prosecute the suit then pending before the court. It was thus an error on the part of the trial court to make the said conclusion without reference to the annexures to that application.
24. For clarity, pleadings, affidavits and documents filed in the course of a suit all form part of the documents a court can rely on, unless they are expunged from the record. For the reason that the Limited Grant of Letters of Administration was not produced separately as a document to support the Plaintiffs’ case during the hearing of the main suit is not a basis for the trial court to have overlooked the said document.
25. In essence, the trial court made a determination based on an erroneous assumption that the Plaintiffs had no locus when they had actually been formally allowed to substitute the deceased in this case. For that reason, I do find that the judgment of the trial court cannot stand.
26. The issue of the absence of a Verifying Affidavit to the amended plaint has been raised. I note from the record that indeed the amended plaint was not accompanied by a Verifying Affidavit as required by Order 4 Rule 1 (2) of the CPR. I have noted the proceedings of 30 th October 2019, wherein the parties admitted the amended pleadings by both parties. The Counsel for the Defence did not raise the issue at that time or anytime later in the proceedings. While it is a substantive issue, I deem that the same is saved by dint of Article 159 2(d) of the Constitution as read with Section 3A of the Civil Procedure Act. It would defeat the ends of justice for the court to harp on an issue that parties had already dispensed with.
27. I am persuaded by the holding of the court in an almost similar situation in Isabela Akumu Ngutu vs South Nyanza Sugar Co. Ltd HCCA No. 118 of 2011[2018] КЕНС 137 (KLR ) a similar scenario occurred and the court stated:
"... In the appellant's application dated the applicants sought to be made plaintiff's instead of their deceased husband one Samuel Ngutu Gula who died on the 18/1/2005. In their application they sought to have the plaint deemed to be amended. According to the appellants they recorded a consent which was binds the parties. The respondent argue that the appellants ought to have filed the amended plaint in compliance with the provisions of Order 8 of the Civil Procedure Rules. The application was brought under order 23 of the Civil Procedure Rules, this was in order. The issue for determination is whether the trial magistrate erred in dismissing the appellant's suit in light of the consent order. From the proceedings the trial court accepted the consent order between the parties and recorded it became an order of the court. The consent order was that the plaint be deemed. By dismissing the suit, the trial court relied more on procedure then substantive justice. Article 159 (2) (d) of the Constitution provides that justice shall be administered without undue regard to procedural technicalities. The court trial court accepted the consent. By making a conclusion that the appellant did not file an amended plaint was in my view rewriting the consent the parties entered in. Under section 1A or B of the Civil Procedure Act a court has a duty to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act. Section 1B provides that. The respondents’ submissions on amendments of pleadings is proper however this was not a case where the court made a further order that the appellant file an amended plaint. The parties recorded a consent and they were bound by it. The trial magistrate erred in dismissing the appellant's suit. The order dismissing the appellants' suit dated the 25th May 2011 is set aside ."
28. That said, I do not therefore find that the Plaintiffs suit should have been dismissed in that aspect. As already stated, the judgment of the trial court is for setting aside.
29. In the substantive claim, it transpired that the deceased despite filing a claim for all the three expected harvests had already received payments for the plant crop and the 1 st ratoon, on 20 th June 2005 and 19 th November 2007 respectively. That being the case, then the reliefs sought under paragraph 7 (a) and (b) of the amended plaint are not sustainable.
30. The Defendant did not demonstrate that the Plaintiffs did not plant and tender the second ratoon plant to warrant the nonpayment. In addition, the Defendant did not produce any documents in support of their assertions that the Plaintiffs had breached their part of the contract by failing to plant and call for the harvesting of the second ratoon. As already stated, the defence did not call any evidence during the hearing of the suit.
31. For the first ratoon, for the same acreage yielded a sum of Kshs. 131,441.00. I deem that is the appropriate sum to award the Appellant in the present case.
32. The upshot is that the judgment of the lower court dated 13 th May 2021 dismissing the Plaintiffs’ suit is hereby set aside and substituted with an order for Judgement in favour of the Appellant/Plaintiffs in the sum of Kshs. 131, 441.00.
33. The costs of the suit and appeal are awarded to the Plaintiffs .
Orders accordingly.
Dated, signed and delivered virtually via Microsoft Teams this 6 th Day of August 2026.
HCCA NO. E024 OF 2024 SIPROSA ACHIENG & 2 OTHERS VS SONY SUGAR CO. LTD JGT Pg. 10