By a Plaint dated 7th September 2017, the Respondent sued the Appellant seeking damages for breach of contract, costs of the suit and interest from 15th March 2012until payment in full.
The Respondent’s claim was that the Appellant failed to harvest the Plant Crop and the two Ratoon Crops when the same matured and ready for harvesting. He said that as a result of the failure to harvest the sugarcane he suffered loss of his bargain and expected profit from the plant crop and the ratoon crops and he suffered loss and damage. The Respondent quantified yield for the three cycles at Kshs. 928,800/= each. The Appellant’s witness DW1 admitted that sugar cane was not harvest. He also confirmed that cane price as at 2017 was Kshs 4510/=. He also confirmed that the contract was to end in 2017.
Upon consideration of the evidence on record for the Respondent and the Appellant the Trial Magistrate established that the Respond had proved that the Appellant had breached the contract and awarded him the cane yields for the 3 cycles with interest from the date of filing of the suit. The Respondent was also awarded costs of the suit.
Aggrieved by the judgment the Appellant lodged the appeal herein vide Memorandum of Appeal dated 4th May 2023 on the following ground:-
1. THAT the Learned Trial Magistrate erred in fact and law when he found that the Appellant breached the contract made between the Appellant and the Respondent by the failure on the part of the Appellant to harvest the plant crop whereas the Respondent never led admissible and satisfactory evidence of the date/day when he planted the cane before the Appellant could be found to have breached that contract by failure to harvest.
2. THAT the Learned Trial Magistrate erred in fact and law in finding and holding that the Appellant breached the contract in issue, absent of evidence on the commencement date of the contract.
3. THAT the Learned Trial Magistrate erred in fact and law in adopting and applying the cane price of Kshs. 4300/= per ton of sugar cane when the facts of the suit did not permit him to do so.
4. THAT the Learned Trial Magistrate misapprehended the parties’ cases.
5. THAT the Learned Trial Magistrate misapprehended the law applicable.
6. THAT the Learned Trial Magistrate erred in fact and law when he entered judgment for the Respondent against the Appellant for a principal sum of Kshs.1609920/= while that sum was neither pleaded specifically with required particularity nor proved strictly in law.
7. THAT the Learned Trial Magistrate erred in fact by failing to make provision for transport and harvesting charges, when on the facts of that suit the Trial Magistrate had power and discretion, and was duty bound, in law, to make provision for such charges by causing further proceedings thereon, or by discounting a reasonable amount of money from the award.
8. THAT the Learned Trial Magistrate erred in law and fact when after he had assessed damages in the judgment at Kshs,1609902/= and awarding the Respondent Kshs. 1,217266/=as damages for breach of contract on the basis of that assessment and award of damages, he ordered that interest on that principal from the date of filing of suit as opposed to such interest from the date of judgment, and without assigning his reasons for so ordering and whereas in the circumstances of that suit, it was altogether unlawful, unjust, and disproportional to award interest from the date of filing suit.
Reasons Wherefore the Appellant seeks judgment against the Respondent and prays that:-
a). That the appeal be allowed.
b). The judgment and decree of the subordinate court be set aside,
c). The Respondent’s suit before the subordinate court be awarded to the Appellant.
d). The costs of the of the Respondent’s suit before the subordinate court be awarded to the Appellant.
e). The court be pleased to order that any interest on a sum of money awarded as damages, if any be calculated from the date of judgment.
f). The costs of the appeal be awarded to the Appellant.
g). The Appellant be awarded interest on the costs of the Respondent’s suit at the subordinate court, and interest on costs of the appeal at court rates from the dates of determination.
This appeal was canvassed by way of written submissions.
The Appellant’s submissions are dated 5TH January 2026 and are to the effect that there was no proof of breach of the contract as pleaded at grounds 1, 2, 4 and 5 of the Memorandum of Appeal herein. That the Respondent did not lead evidence of when he in fact planted the plant crop, contractually. The Respondent was required to prove the specific date/days when he planted the plant crop, before the Appellant could have breached the contract, by not harvesting the plant crop.
It was submitted that there was no pleading of when, exactly, the plant crop was planted, under the suit contract. In cross-examination, the Respondent testified that by the time the suit contract was entered into, the sugarcane was already 2 months old, the sugarcane having been planted by someone else, before he bought it. The Respondent also testified that the cane was initially non-contracted.
The Appellant’s counsel also submitted that there was no evidence of the person whom the Respondent allegedly bought the already standing sugarcane from, and for how much. Besides, that alleged prior sugarcane owner was not called to testify to when he/she planted the sugarcane before selling it to the Respondent.
That the commencement date of the contract was 15 March 2012. See page 32 of the Record of Appeal. Clause 3.2 of the suit contract required the Respondent to plant the initial crop on or after 15 March 2012. See page 35 of the Record of Appeal. The suit contract does not show anywhere that when it was made, the Respondent already had sugarcane standing on the plot.
That in those circumstances, particularly given the stark contradiction between the Respondent’s oral evidence in cross-examination and the suit contract, there is no clear-cut evidence, on a balance of probabilities, of when, in fact, the plant crop was planted, for the purposes of those clauses of the contract that required sugarcane to be harvested at particular deadlines, which clauses are alleged to have been breached, so that the Respondent suffered the alleged losses.
It was also submitted that it is manifest that the Trial Magistrate erred in adopting and applying the cane price of KShs. 4, 300/- per ton of cane, uniformly, for all cycles, when the facts of the suit did not permit him to do so.
It was submitted that the Appellant’s admission that KShs. 4, 300/- per ton was the cane price, at the material time was, confined to the plant crop, only and there was no basis for extrapolating the KShs. 4, 300/- to the 1st and 2nd ratoons. The all-important aspect of this part of the case was the tangible evidence comprised in the Appellant’s Exhibit 2, namely a cane price list, per ton, for the period up to 30 June 2017. That the Appellant’s Exhibit 2 showed that as of January – April 2014, when the Respondent’s alleged plant crop was to mature for harvesting, the cane price was between KShs. 3, 400/- and KShs. 3, 200/- per ton. These would be the rates, 24 months after the Respondent had planted the 1st crop, whether or not the plant crop was planted 2 months before the contract.
That 18 months later, for the 1st ratoon, the price per ton would still have been KShs. 3, 200/-, as the 1st ratoon would have matured for harvesting in the period in the band for KShs. 3, 200/-.
That a further 18 months later, for the 2nd ratoon, the price per ton would have been KShs. 3, 570/-. The 2nd ratoon would have matured during the period in the band for KShs. 3, 570/-.
That accordingly, the Trial Magistrate’s choice of KShs. 4, 300/- across board was erroneous. It ought to be set aside. As a corollary, the award of KShs. 1, 609, 920/- should be set aside.
The Appellant also faulted the Trial Magistrate for failure to Provide for Deductions and submitted that this was done despite the Appellant’s witness having testified to those deductions.
That the Appellant’s witness testified to the following deductions:
a) Harvesting Charges KShs. 307/- per ton.
b) Transport Charges KShs. 690/- per ton.
c) Cess 1% of total cane value.
That these deductions had been pleaded at paragraph 15 of the defence, in broad strokes, then galvanized with particulars that were availed in evidence, and were uncontested throughout.
That the Learned Trial Magistrate, in an unmistakable error, concluded that the Appellant never proved the rates for transport and harvesting charges.
That In the context of the pleading and evidence of deductions, failure to deduct the relevant sums from the principal award, or failure to make due allowance for those deductions, amounted to unjust enrichment of the Respondent, and flouted the principle in restitutio in integrum.
That had the sugarcane been harvested and delivered to the Appellant’s premises for milling, the Respondent would not have been paid the gross value of his sugarcane. He would have been paid the net value of the cane, after deduction of transport and harvesting costs, and cess.
The Appellant cited the holding In Ezekiel Omambia Omoke v South Nyanza Sugar Co. Ltd [2018] KEHC 4951 (KLR),
Where Mrima, J, while dealing with a near-similar bit, held, at paragraph 6 thereof, as follows:
There is no dispute that the expected yields for the ratoons was 40.36 tons per hectare. Likewise, there is no contention on the size of the land and the then prevailing cane prices.
The Appellant was hence entitled to judgment for the two ratoon crops at Kshs. 1,291,520/= thereby bringing the total compensation to Kshs. 2,312,640/=. This figure must however be subjected to the transport and harvesting charges. I have noted from the record that there was no evidence tendered to that effect, but this Court takes judicial notice of the fact that such charges are standardized in accordance to zones within the Respondent’s operational areas.
It was further submitted that the Court of Appeal affirmed this this decision in South Nyanza Sugar Company Limited v Omoke [2025] KECA 2180 (KLR).
Similarly in South Nyanza Sugar Company Limited v David Odongo Odoyo, Migori HCCA No. 172 of 2018, Chitembwe, J, grappled with a similar problem, and found and held, thus:
In computing damages, the trial court was guided by the assessment report, which gives an estimate of 54 tons per hectare in the area. This works out to 10.8 tons for one cycle of the 0.2Ha plot. It is common knowledge that the ratoons cannot produce the equivalent quantity as the plant crop. The respondent in his written witness statement indicate that he has no objection to the harvesting and transport costs deducted, although submissions before the trial court gives a contrary position. It is quite obvious that the cane would have been harvested and transported to the factory. This would have made the Respondent incur costs.
The trial court did not make any deductions. I do find that the income from the 2nd ratoon can cater for the expected costs. The Respondent is entitled to compensation for the plant crop and the 1st ratoon. I will also give the same quantity of the 1st ratoon as the plant crop in view of the exclusion of the 2nd ratoon from the computation of damages …
The appeal partly succeeds. The Respondent cannot reap the entire three cycles of what could have been produced and sold without the expenses being deducted. The sum of KShs. 46, 440/- that has been deducted represents one complete cycle. The appellant was entitled to deduct the cost of seed cane and fertilizer.
The Appellants prayed that the Court deducts the applicable sum from the gross award, thus:
a) Harvesting Charges: KShs. 307/- per ton x 125 ton x 3 cycles = KShs. 115, 125/-.
b) Transport Charges. KShs. 690/- per ton x 125 tons x 3 cycles = KShs. 258, 750/-
c) Cess, @ 1% of the gross value: KShs. 16, 099/-.
Total Deductions: 389, 974/-.
These proposals are based on the assumptive, contested calculations of the trial court.
The ground on interest was abandoned based on the Court of Appeal decisions in:-
a. South Nyanza Sugar Company Ltd v Mary Anyango (Suing as Administratrix of the Estate of Jared Onyango Onguka (Civil Appeal No. 171 of 2019) [2024] KECA 694 KLR (21 June, 2024) (Judgment).
b. South Nyanza Sugar Company Limited v Mboga (Civil Appeal 141 of 2019) [2025] KECA 546 (KLR) (21 March 2025) (Judgment).
c. Kisumu COACA No. 173 of 2019 – South Nyanza Sugar Company Limited v Isaiah
Owino Lawi, dated and delivered on 3 October 2025.
d. Kisumu COACA No. 215 of 2019 – South Nyanza Sugar Company Limited v Peres
Anyango, dated and delivered on 3 October 2025.
e. South Nyanza Sugar Company Limited v Oreko [2022] KECA 570 (KLR).
Consistent decisions of the Court of appeal have settled this aspect, at least for now.
The Appellants prayed that this appeal be allowed as proposed in the Memorandum of Appeal.
The Respondent’s submissions are dated 3rd August 2023 are to the effect that there was no evidence to support the allegations that sugar cane was diverted elsewhere or Ratoon crops were not developed.
It was also submitted that the Appellant denied the Respondent’s claim on account of allegations that he did not follow advise to maintain the crop and not that the Respondent failed to plant cane. The Trial Magistrate in the judgment made a finding that the issue of diverted sugar cane was not pleaded and could not be introduced during trial.
The Respondent’s Counsel further submitted that the issue the day/ date of planting the plant crop did not arise at the trial and there was evidence in Ex P1 to show commencement of the contract was 15th March 2015.
It was submitted that grounds 1 & 2 failed
On the issue of purchase price it was submitted that the Trial Magistrate found that the purchase price of Kshs. 4,300/= was agreed upon by the parties and that ground had no merit.
Submissions in regard to grounds 4, 5 and 6 were that the Respondent claimed special damages as per paragraph 8 of the plaint and the Appellant controverted the claim and as such was aware of the nature of the claim.
The Respondent cited the case of John Richard Okuku Vs South Nyanza Sugar Company Ltd HCCA No 278 of 2010[2-13] eKLR and South Nyanza Sugar Co. Ltd Vs Awino Oreko COACA No. 138 of 2017 to support the position that sugar cane claims are special in nature and the Appellant’s grounds No.4, 5 and 6 should also be dismissed.
For ground 7 the Respondent submitted that the Trial Magistrate was not provided with any evidence of deductions except the bare statements od DW1 and the Trial Magistrate made a finding to that effect.
Regarding interest on special damages, the Respondent sought to rely on the many decisions of the Court of Appeal that interest on special damages is to be awarded from the date of filing of the suit such as John Richard Okuku Vs South Nyanza Sugar Company Ltd HCCA No 278 of 2010[2-13] eKLR.
The Respondent urged the court to dismiss the appeal with costs.
ANALYSIS AND DETERMINATION
This being a first appeal, this Court is obligated to reconsider and re-evaluate the evidence adduced before the trial court and draw its own conclusions while bearing in mind that it neither saw nor heard the witnesses testify. This duty was stated in the case of Selle v Associated Motor Boat Co. Ltd.
As a first appellate court, I have re-evaluated the pleadings, evidence and submissions on record, bearing in mind that I neither saw nor heard the witnesses testify.
The Appellant principally contends that the Respondent failed to prove when the cane was planted and therefore failed to establish that the Appellant breached the contract. This court is unable to agree with that argument. The evidence established that the parties entered into a valid sugarcane farming contract, the Appellant admitted that the cane was never harvested, and there was no evidence that the contract had been lawfully terminated or that the Respondent was responsible for the failure to harvest. The issue whether the cane had initially been planted by another person did not negate the contractual obligations assumed by the Appellant upon execution of the agreement. The trial court therefore correctly found that the Appellant was in breach of contract.
On the complaint regarding the applicable cane price, the Respondent pleaded Kshs. 4,300 per tonne, which was expressly admitted by the Appellant in its defence. The trial court cannot therefore be faulted for adopting that price in assessing damages.
The Appellant also challenged the award on the basis that no deductions were made for harvesting, transport and cess charges. This ground has merit. It is now settled that damages for unharvested sugarcane should reflect the net value that the farmer would have received after the statutory and contractual deductions. Awarding the gross value would unjustly enrich the farmer. Although the trial court found that the Appellant had not sufficiently proved the applicable rates, the evidence of DW1 disclosed the applicable deductions, and in any event the court was entitled to take judicial notice that harvesting and transport charges are ordinarily deductible in sugarcane contracts.
Accordingly, while the finding of the trial court on liability and award of three crop cycles is upheld this court finds that the award ought to have been subjected to deductions for harvesting, transport and cess charges in accordance with the evidence on record.
The Appellant abandoned the ground challenging the award of interest from the date of filing suit. In any event, the Court of Appeal has consistently held that damages in sugarcane contract claims, being in the nature of special damages, attract interest from the date of filing suit. The trial court therefore committed no error in that regard.
In the result, the appeal succeeds only to the limited extent that the award of damages shall be subjected to the applicable deductions for harvesting charges, transport charges and cess as proved by the evidence. In all other respects, the judgment of the trial court is upheld.
Given the partial success of the appeal, the Appellant will pay 75% of the costs of the appeal to the Respondent.
It is so ordered.
DATED, SIGNED AND DELIVERED AT MIGORI, THIS 23RD DAY OF JULY, 2026.
The Respondent’s claim was that the Appellant failed to harvest the Plant Crop and the two Ratoon Crops when the same matured and ready for harvesting. He said that as a result of the failure to harvest the sugarcane he suffered loss of his bargain and expected profit from the plant crop and the ratoon crops and he suffered loss and damage. The Respondent quantified yield for the three cycles at Kshs. 928,800/= each. The Appellant’s witness DW1 admitted that sugar cane was not harvest. He also confirmed that cane price as at 2017 was Kshs 4510/=. He also confirmed that the contract was to end in 2017.
Upon consideration of the evidence on record for the Respondent and the Appellant the Trial Magistrate established that the Respond had proved that the Appellant had breached the contract and awarded him the cane yields for the 3 cycles with interest from the date of filing of the suit. The Respondent was also awarded costs of the suit.
Aggrieved by the judgment the Appellant lodged the appeal herein vide Memorandum of Appeal dated 4th May 2023 on the following ground:-
1. THAT the Learned Trial Magistrate erred in fact and law when he found that the Appellant breached the contract made between the Appellant and the Respondent by the failure on the part of the Appellant to harvest the plant crop whereas the Respondent never led admissible and satisfactory evidence of the date/day when he planted the cane before the Appellant could be found to have breached that contract by failure to harvest.
2. THAT the Learned Trial Magistrate erred in fact and law in finding and holding that the Appellant breached the contract in issue, absent of evidence on the commencement date of the contract.
3. THAT the Learned Trial Magistrate erred in fact and law in adopting and applying the cane price of Kshs. 4300/= per ton of sugar cane when the facts of the suit did not permit him to do so.
4. THAT the Learned Trial Magistrate misapprehended the parties’ cases.
5. THAT the Learned Trial Magistrate misapprehended the law applicable.
6. THAT the Learned Trial Magistrate erred in fact and law when he entered judgment for the Respondent against the Appellant for a principal sum of Kshs.1609920/= while that sum was neither pleaded specifically with required particularity nor proved strictly in law.
7. THAT the Learned Trial Magistrate erred in fact by failing to make provision for transport and harvesting charges, when on the facts of that suit the Trial Magistrate had power and discretion, and was duty bound, in law, to make provision for such charges by causing further proceedings thereon, or by discounting a reasonable amount of money from the award.
8. THAT the Learned Trial Magistrate erred in law and fact when after he had assessed damages in the judgment at Kshs,1609902/= and awarding the Respondent Kshs. 1,217266/=as damages for breach of contract on the basis of that assessment and award of damages, he ordered that interest on that principal from the date of filing of suit as opposed to such interest from the date of judgment, and without assigning his reasons for so ordering and whereas in the circumstances of that suit, it was altogether unlawful, unjust, and disproportional to award interest from the date of filing suit.
Reasons Wherefore the Appellant seeks judgment against the Respondent and prays that:-
a). That the appeal be allowed.
b). The judgment and decree of the subordinate court be set aside,
c). The Respondent’s suit before the subordinate court be awarded to the Appellant.
d). The costs of the of the Respondent’s suit before the subordinate court be awarded to the Appellant.
e). The court be pleased to order that any interest on a sum of money awarded as damages, if any be calculated from the date of judgment.
f). The costs of the appeal be awarded to the Appellant.
g). The Appellant be awarded interest on the costs of the Respondent’s suit at the subordinate court, and interest on costs of the appeal at court rates from the dates of determination.
This appeal was canvassed by way of written submissions.
The Appellant’s submissions are dated 5TH January 2026 and are to the effect that there was no proof of breach of the contract as pleaded at grounds 1, 2, 4 and 5 of the Memorandum of Appeal herein. That the Respondent did not lead evidence of when he in fact planted the plant crop, contractually. The Respondent was required to prove the specific date/days when he planted the plant crop, before the Appellant could have breached the contract, by not harvesting the plant crop.
It was submitted that there was no pleading of when, exactly, the plant crop was planted, under the suit contract. In cross-examination, the Respondent testified that by the time the suit contract was entered into, the sugarcane was already 2 months old, the sugarcane having been planted by someone else, before he bought it. The Respondent also testified that the cane was initially non-contracted.
The Appellant’s counsel also submitted that there was no evidence of the person whom the Respondent allegedly bought the already standing sugarcane from, and for how much. Besides, that alleged prior sugarcane owner was not called to testify to when he/she planted the sugarcane before selling it to the Respondent.
That the commencement date of the contract was 15 March 2012. See page 32 of the Record of Appeal. Clause 3.2 of the suit contract required the Respondent to plant the initial crop on or after 15 March 2012. See page 35 of the Record of Appeal. The suit contract does not show anywhere that when it was made, the Respondent already had sugarcane standing on the plot.
That in those circumstances, particularly given the stark contradiction between the Respondent’s oral evidence in cross-examination and the suit contract, there is no clear-cut evidence, on a balance of probabilities, of when, in fact, the plant crop was planted, for the purposes of those clauses of the contract that required sugarcane to be harvested at particular deadlines, which clauses are alleged to have been breached, so that the Respondent suffered the alleged losses.
It was also submitted that it is manifest that the Trial Magistrate erred in adopting and applying the cane price of KShs. 4, 300/- per ton of cane, uniformly, for all cycles, when the facts of the suit did not permit him to do so.
It was submitted that the Appellant’s admission that KShs. 4, 300/- per ton was the cane price, at the material time was, confined to the plant crop, only and there was no basis for extrapolating the KShs. 4, 300/- to the 1st and 2nd ratoons. The all-important aspect of this part of the case was the tangible evidence comprised in the Appellant’s Exhibit 2, namely a cane price list, per ton, for the period up to 30 June 2017. That the Appellant’s Exhibit 2 showed that as of January – April 2014, when the Respondent’s alleged plant crop was to mature for harvesting, the cane price was between KShs. 3, 400/- and KShs. 3, 200/- per ton. These would be the rates, 24 months after the Respondent had planted the 1st crop, whether or not the plant crop was planted 2 months before the contract.
That 18 months later, for the 1st ratoon, the price per ton would still have been KShs. 3, 200/-, as the 1st ratoon would have matured for harvesting in the period in the band for KShs. 3, 200/-.
That a further 18 months later, for the 2nd ratoon, the price per ton would have been KShs. 3, 570/-. The 2nd ratoon would have matured during the period in the band for KShs. 3, 570/-.
That accordingly, the Trial Magistrate’s choice of KShs. 4, 300/- across board was erroneous. It ought to be set aside. As a corollary, the award of KShs. 1, 609, 920/- should be set aside.
The Appellant also faulted the Trial Magistrate for failure to Provide for Deductions and submitted that this was done despite the Appellant’s witness having testified to those deductions.
That the Appellant’s witness testified to the following deductions:
a) Harvesting Charges KShs. 307/- per ton.
b) Transport Charges KShs. 690/- per ton.
c) Cess 1% of total cane value.
That these deductions had been pleaded at paragraph 15 of the defence, in broad strokes, then galvanized with particulars that were availed in evidence, and were uncontested throughout.
That the Learned Trial Magistrate, in an unmistakable error, concluded that the Appellant never proved the rates for transport and harvesting charges.
That In the context of the pleading and evidence of deductions, failure to deduct the relevant sums from the principal award, or failure to make due allowance for those deductions, amounted to unjust enrichment of the Respondent, and flouted the principle in restitutio in integrum.
That had the sugarcane been harvested and delivered to the Appellant’s premises for milling, the Respondent would not have been paid the gross value of his sugarcane. He would have been paid the net value of the cane, after deduction of transport and harvesting costs, and cess.
The Appellant cited the holding In Ezekiel Omambia Omoke v South Nyanza Sugar Co. Ltd [2018] KEHC 4951 (KLR),
Where Mrima, J, while dealing with a near-similar bit, held, at paragraph 6 thereof, as follows:
There is no dispute that the expected yields for the ratoons was 40.36 tons per hectare. Likewise, there is no contention on the size of the land and the then prevailing cane prices.
The Appellant was hence entitled to judgment for the two ratoon crops at Kshs. 1,291,520/= thereby bringing the total compensation to Kshs. 2,312,640/=. This figure must however be subjected to the transport and harvesting charges. I have noted from the record that there was no evidence tendered to that effect, but this Court takes judicial notice of the fact that such charges are standardized in accordance to zones within the Respondent’s operational areas.
It was further submitted that the Court of Appeal affirmed this this decision in South Nyanza Sugar Company Limited v Omoke [2025] KECA 2180 (KLR).
Similarly in South Nyanza Sugar Company Limited v David Odongo Odoyo, Migori HCCA No. 172 of 2018, Chitembwe, J, grappled with a similar problem, and found and held, thus:
In computing damages, the trial court was guided by the assessment report, which gives an estimate of 54 tons per hectare in the area. This works out to 10.8 tons for one cycle of the 0.2Ha plot. It is common knowledge that the ratoons cannot produce the equivalent quantity as the plant crop. The respondent in his written witness statement indicate that he has no objection to the harvesting and transport costs deducted, although submissions before the trial court gives a contrary position. It is quite obvious that the cane would have been harvested and transported to the factory. This would have made the Respondent incur costs.
The trial court did not make any deductions. I do find that the income from the 2nd ratoon can cater for the expected costs. The Respondent is entitled to compensation for the plant crop and the 1st ratoon. I will also give the same quantity of the 1st ratoon as the plant crop in view of the exclusion of the 2nd ratoon from the computation of damages …
The appeal partly succeeds. The Respondent cannot reap the entire three cycles of what could have been produced and sold without the expenses being deducted. The sum of KShs. 46, 440/- that has been deducted represents one complete cycle. The appellant was entitled to deduct the cost of seed cane and fertilizer.
The Appellants prayed that the Court deducts the applicable sum from the gross award, thus:
a) Harvesting Charges: KShs. 307/- per ton x 125 ton x 3 cycles = KShs. 115, 125/-.
b) Transport Charges. KShs. 690/- per ton x 125 tons x 3 cycles = KShs. 258, 750/-
c) Cess, @ 1% of the gross value: KShs. 16, 099/-.
Total Deductions: 389, 974/-.
These proposals are based on the assumptive, contested calculations of the trial court.
The ground on interest was abandoned based on the Court of Appeal decisions in:-
a. South Nyanza Sugar Company Ltd v Mary Anyango (Suing as Administratrix of the Estate of Jared Onyango Onguka (Civil Appeal No. 171 of 2019) [2024] KECA 694 KLR (21 June, 2024) (Judgment).
b. South Nyanza Sugar Company Limited v Mboga (Civil Appeal 141 of 2019) [2025] KECA 546 (KLR) (21 March 2025) (Judgment).
c. Kisumu COACA No. 173 of 2019 – South Nyanza Sugar Company Limited v Isaiah
Owino Lawi, dated and delivered on 3 October 2025.
d. Kisumu COACA No. 215 of 2019 – South Nyanza Sugar Company Limited v Peres
Anyango, dated and delivered on 3 October 2025.
e. South Nyanza Sugar Company Limited v Oreko [2022] KECA 570 (KLR).
Consistent decisions of the Court of appeal have settled this aspect, at least for now.
The Appellants prayed that this appeal be allowed as proposed in the Memorandum of Appeal.
The Respondent’s submissions are dated 3rd August 2023 are to the effect that there was no evidence to support the allegations that sugar cane was diverted elsewhere or Ratoon crops were not developed.
It was also submitted that the Appellant denied the Respondent’s claim on account of allegations that he did not follow advise to maintain the crop and not that the Respondent failed to plant cane. The Trial Magistrate in the judgment made a finding that the issue of diverted sugar cane was not pleaded and could not be introduced during trial.
The Respondent’s Counsel further submitted that the issue the day/ date of planting the plant crop did not arise at the trial and there was evidence in Ex P1 to show commencement of the contract was 15th March 2015.
It was submitted that grounds 1 & 2 failed
On the issue of purchase price it was submitted that the Trial Magistrate found that the purchase price of Kshs. 4,300/= was agreed upon by the parties and that ground had no merit.
Submissions in regard to grounds 4, 5 and 6 were that the Respondent claimed special damages as per paragraph 8 of the plaint and the Appellant controverted the claim and as such was aware of the nature of the claim.
The Respondent cited the case of John Richard Okuku Vs South Nyanza Sugar Company Ltd HCCA No 278 of 2010[2-13] eKLR and South Nyanza Sugar Co. Ltd Vs Awino Oreko COACA No. 138 of 2017 to support the position that sugar cane claims are special in nature and the Appellant’s grounds No.4, 5 and 6 should also be dismissed.
For ground 7 the Respondent submitted that the Trial Magistrate was not provided with any evidence of deductions except the bare statements od DW1 and the Trial Magistrate made a finding to that effect.
Regarding interest on special damages, the Respondent sought to rely on the many decisions of the Court of Appeal that interest on special damages is to be awarded from the date of filing of the suit such as John Richard Okuku Vs South Nyanza Sugar Company Ltd HCCA No 278 of 2010[2-13] eKLR.
The Respondent urged the court to dismiss the appeal with costs.
ANALYSIS AND DETERMINATION
This being a first appeal, this Court is obligated to reconsider and re-evaluate the evidence adduced before the trial court and draw its own conclusions while bearing in mind that it neither saw nor heard the witnesses testify. This duty was stated in the case of Selle v Associated Motor Boat Co. Ltd.
As a first appellate court, I have re-evaluated the pleadings, evidence and submissions on record, bearing in mind that I neither saw nor heard the witnesses testify.
The Appellant principally contends that the Respondent failed to prove when the cane was planted and therefore failed to establish that the Appellant breached the contract. This court is unable to agree with that argument. The evidence established that the parties entered into a valid sugarcane farming contract, the Appellant admitted that the cane was never harvested, and there was no evidence that the contract had been lawfully terminated or that the Respondent was responsible for the failure to harvest. The issue whether the cane had initially been planted by another person did not negate the contractual obligations assumed by the Appellant upon execution of the agreement. The trial court therefore correctly found that the Appellant was in breach of contract.
On the complaint regarding the applicable cane price, the Respondent pleaded Kshs. 4,300 per tonne, which was expressly admitted by the Appellant in its defence. The trial court cannot therefore be faulted for adopting that price in assessing damages.
The Appellant also challenged the award on the basis that no deductions were made for harvesting, transport and cess charges. This ground has merit. It is now settled that damages for unharvested sugarcane should reflect the net value that the farmer would have received after the statutory and contractual deductions. Awarding the gross value would unjustly enrich the farmer. Although the trial court found that the Appellant had not sufficiently proved the applicable rates, the evidence of DW1 disclosed the applicable deductions, and in any event the court was entitled to take judicial notice that harvesting and transport charges are ordinarily deductible in sugarcane contracts.
Accordingly, while the finding of the trial court on liability and award of three crop cycles is upheld this court finds that the award ought to have been subjected to deductions for harvesting, transport and cess charges in accordance with the evidence on record.
The Appellant abandoned the ground challenging the award of interest from the date of filing suit. In any event, the Court of Appeal has consistently held that damages in sugarcane contract claims, being in the nature of special damages, attract interest from the date of filing suit. The trial court therefore committed no error in that regard.
In the result, the appeal succeeds only to the limited extent that the award of damages shall be subjected to the applicable deductions for harvesting charges, transport charges and cess as proved by the evidence. In all other respects, the judgment of the trial court is upheld.
Given the partial success of the appeal, the Appellant will pay 75% of the costs of the appeal to the Respondent.
It is so ordered.
DATED, SIGNED AND DELIVERED AT MIGORI, THIS 23RD DAY OF JULY, 2026.