The Appellant’s claim vide amended Plaint dated 31st May, 2021is for:
(a). Damages for breach of contract
(b). Costs of the suit
(c). Interest at court rates on (a) & (b) from 14th June 2006.
The trial magistrate vide judgment delivered on 16th December, 2021 found that there was proof of breach of contract by the Defendants who failed to harvest 1st Ratoon crop that had been developed by the Plaintiff.
The Trial Magistrate however made an award for only the 1st Ratoon saying there was no evidence that failure to harvest the 1st Ratoon affected the development and harvest of the 2nd Ratoon Crop.
The Trial Magistrate adopted the cane yield Report produced by the Defendant to assess damages due to the Plaintiff and awarded Kshs. 37,019.58 with costs of the suit and interest from the date the Plaintiff testified.
The Appellant was dissatisfied with the trial magistrates’ decision and lodged the appeal herein vide Memorandum of Appeal dated 2nd February, 2022 on the following grounds: -
(1). The learned trial magistrate erred in law and fact in failing tofind that the evidence which the Respondent led in an attempt to prove her claim before th trial court was fundamentally and fatally at variance with and departed from the Respondent’s plaint in material aspects of the particulars of breach and in failing to give due allowance for such variance and departure in the Respondent’s evidence from the pleadings and in so doing failed to find and hold that the Respondent did not prove her pleaded claim.
(2). The learned trial magistrate erred in law and fact by entering judgement for Kshs. 37,019.58 when the same was not pleaded.
(3). The learned trial magistrate erred in law and fact in deciding the case on the whole against the evidence that was before him and thus arrived at a decision which was wholly erroneous.
(4). The learned trial magistrate erred in law and fact when he awarded the Respondent interest from 11th May 2021 when in the circumstances of the case it was just and appropriate to both parties for it to run from the date of judgement.
REASONS WHEREFORE the Appellant prayed that:
The appeal be allowed.
The judgement and decree of the subordinate court be dismissed
The costs of the Respondent’s suit before the subordinate court be awarded to the Appellant.
The costs of the appeal be awarded to the Appellant.
The Respondent was dissatisfied with the trial magistrates’ decision and she lodged the appeal herein vide Memorandum of Cross Appeal dated 1st March 2022 on the following grounds: -
1) The learned trial magistrate erred in failing to find that failure to harvest the 1st Ratoon Crop led to going to waste of the 2nd Ratoon Crop and thus the award was manifestly low in the circumstances.
2) The learned trial magistrate erred in law and fact by refusing to award the Respondent interest from the date the suit was filed by wrongly laying blame on the Respondent for the delay in concluding the case whereas the record shows that the Respondent had consistently and earnestly prosecuted the case from 2014 and the decision arrived at was prejudicial.
The Respondent prayed for orders:-
1) That the judgement and decree of the trial Magistratebe set aside and award be made for the 2 Ratoon Crops lost.
2) The order that interest on the award do run from 11th May 2021 be set aside and instead this court do order that interest do accrue from the date of filing of the suit.
3) Cost of the appeal and of the cross appeal be borne by the Appellant.
On 11th November 2023 directions were taken for hearing of the appeals by way of written submissions.
Subsequently on 4th April 2024 it was indicated that the parties intended to settle the appeal by consent but when the Appellant learnt of the cross appeal they decided to prosecute their appeal as well.
On 29th May 2024 it was again indicated parties were ready to record a consent but due to power outage the Advocates who were appearing virtually were not able to record consent. Matter was then fixed for 25th June 2024 for recording of consent.
On 24th July2024 Mr Odero Advocate informed the court that the issue remaining to be settled was costs of the cross appeal which instructions on settlement had not been given by the Appellant. On 28th October 2024 Mr Odero opted to file submissions for want of instructions from the client to record a consent settling the matter. However on 24th February 2025 it turned out that the Appellant’s Advocate had not filed submissions and Mr. Odero Advocate abandoned the appeal as the decree of the subordinate court had been satisfied. Costs of the appeal were awarded to the Respondent.
What remains for this court to determine is the cross appeal.
The Respondent filed submissions dated 14th September 2023 and relied on the holdings in the following authorities in support of the Cross Appeal:
I. Martin Akama Lango Vs South Nyanza Sugar Company Ltd;
II. South Nyanza Sugar Company Ltd Vs Kaleb Onyango Mikwanga;
III. Adongo Vs South Nyanza Sugar Co. Ltd;
IV. South Nyanza Sugar Co. Ltd Vs Awino Oreko all of which held that failure to harvest the plant crop/1st Ratoon would affect the subsequent crops and this was a natural consequence of the breach by the Appellant and in this way a loss of the plant crop was also a loss of the two ratoon crops.
In regard to the issue of interest on the award it was submitted that ordinarily interest on special damages flows from the date of filing the suit. The Respondent submitted that the delay in conducting the trials was a problem faced by both the Appellant and the Respondent and there was no evidence of inordinate delay attributed to the Respondent. It was submitted that the purpose of awarding interest is to console a party who has been kept away from his money as was held in Mathews O. Ogot Vs South Nyanza Sugar Co, Ltd where it was held:
“On the issue of interest the Court of Appeal in John Richard Okuku Vs South Nyanza Sugar Co. Ltd settled the same. It held that interest must run from the date of filing the suit and as such the trial court erred in making an order that the interest runs from the date of judgement………………..The simple reason thereto is that it is well settled in law and has been so held over time that interest starts running from filing of suit in special damages claim as in in this case. The Respondent was denied the use of his money for all that period and the interest remain the sole consolation’’
The Respondent also relied on the case of Awino Oreko (supra) regarding award of interest in a special damages claim.
The Appellant did not oppose the Respondent’s appeal and in consideration of the authorities from the High Court and the Court of Appeal cited by the Respondent and in consideration of the grounds of appeal and the Respondents submissions this court finds that the Respondent was entitled to be compensated for the 2nd Ratoon Crop considering that the contract was for a specific period of time. In the circumstances the award made for the 1st Ratoon Crop of Kshs. 37,019.58 applies to the 2nd Ratoon Crop together with costs and interest from te date of filing of the suit till payment in full. The Respondent is also awarded costs of the cross appeal.
Order Accordingly.
Dated, Signed and Delivered at Migori this 5th June 2025
(a). Damages for breach of contract
(b). Costs of the suit
(c). Interest at court rates on (a) & (b) from 14th June 2006.
The trial magistrate vide judgment delivered on 16th December, 2021 found that there was proof of breach of contract by the Defendants who failed to harvest 1st Ratoon crop that had been developed by the Plaintiff.
The Trial Magistrate however made an award for only the 1st Ratoon saying there was no evidence that failure to harvest the 1st Ratoon affected the development and harvest of the 2nd Ratoon Crop.
The Trial Magistrate adopted the cane yield Report produced by the Defendant to assess damages due to the Plaintiff and awarded Kshs. 37,019.58 with costs of the suit and interest from the date the Plaintiff testified.
The Appellant was dissatisfied with the trial magistrates’ decision and lodged the appeal herein vide Memorandum of Appeal dated 2nd February, 2022 on the following grounds: -
(1). The learned trial magistrate erred in law and fact in failing tofind that the evidence which the Respondent led in an attempt to prove her claim before th trial court was fundamentally and fatally at variance with and departed from the Respondent’s plaint in material aspects of the particulars of breach and in failing to give due allowance for such variance and departure in the Respondent’s evidence from the pleadings and in so doing failed to find and hold that the Respondent did not prove her pleaded claim.
(2). The learned trial magistrate erred in law and fact by entering judgement for Kshs. 37,019.58 when the same was not pleaded.
(3). The learned trial magistrate erred in law and fact in deciding the case on the whole against the evidence that was before him and thus arrived at a decision which was wholly erroneous.
(4). The learned trial magistrate erred in law and fact when he awarded the Respondent interest from 11th May 2021 when in the circumstances of the case it was just and appropriate to both parties for it to run from the date of judgement.
REASONS WHEREFORE the Appellant prayed that:
The appeal be allowed.
The judgement and decree of the subordinate court be dismissed
The costs of the Respondent’s suit before the subordinate court be awarded to the Appellant.
The costs of the appeal be awarded to the Appellant.
The Respondent was dissatisfied with the trial magistrates’ decision and she lodged the appeal herein vide Memorandum of Cross Appeal dated 1st March 2022 on the following grounds: -
1) The learned trial magistrate erred in failing to find that failure to harvest the 1st Ratoon Crop led to going to waste of the 2nd Ratoon Crop and thus the award was manifestly low in the circumstances.
2) The learned trial magistrate erred in law and fact by refusing to award the Respondent interest from the date the suit was filed by wrongly laying blame on the Respondent for the delay in concluding the case whereas the record shows that the Respondent had consistently and earnestly prosecuted the case from 2014 and the decision arrived at was prejudicial.
The Respondent prayed for orders:-
1) That the judgement and decree of the trial Magistratebe set aside and award be made for the 2 Ratoon Crops lost.
2) The order that interest on the award do run from 11th May 2021 be set aside and instead this court do order that interest do accrue from the date of filing of the suit.
3) Cost of the appeal and of the cross appeal be borne by the Appellant.
On 11th November 2023 directions were taken for hearing of the appeals by way of written submissions.
Subsequently on 4th April 2024 it was indicated that the parties intended to settle the appeal by consent but when the Appellant learnt of the cross appeal they decided to prosecute their appeal as well.
On 29th May 2024 it was again indicated parties were ready to record a consent but due to power outage the Advocates who were appearing virtually were not able to record consent. Matter was then fixed for 25th June 2024 for recording of consent.
On 24th July2024 Mr Odero Advocate informed the court that the issue remaining to be settled was costs of the cross appeal which instructions on settlement had not been given by the Appellant. On 28th October 2024 Mr Odero opted to file submissions for want of instructions from the client to record a consent settling the matter. However on 24th February 2025 it turned out that the Appellant’s Advocate had not filed submissions and Mr. Odero Advocate abandoned the appeal as the decree of the subordinate court had been satisfied. Costs of the appeal were awarded to the Respondent.
What remains for this court to determine is the cross appeal.
The Respondent filed submissions dated 14th September 2023 and relied on the holdings in the following authorities in support of the Cross Appeal:
I. Martin Akama Lango Vs South Nyanza Sugar Company Ltd;
II. South Nyanza Sugar Company Ltd Vs Kaleb Onyango Mikwanga;
III. Adongo Vs South Nyanza Sugar Co. Ltd;
IV. South Nyanza Sugar Co. Ltd Vs Awino Oreko all of which held that failure to harvest the plant crop/1st Ratoon would affect the subsequent crops and this was a natural consequence of the breach by the Appellant and in this way a loss of the plant crop was also a loss of the two ratoon crops.
In regard to the issue of interest on the award it was submitted that ordinarily interest on special damages flows from the date of filing the suit. The Respondent submitted that the delay in conducting the trials was a problem faced by both the Appellant and the Respondent and there was no evidence of inordinate delay attributed to the Respondent. It was submitted that the purpose of awarding interest is to console a party who has been kept away from his money as was held in Mathews O. Ogot Vs South Nyanza Sugar Co, Ltd where it was held:
“On the issue of interest the Court of Appeal in John Richard Okuku Vs South Nyanza Sugar Co. Ltd settled the same. It held that interest must run from the date of filing the suit and as such the trial court erred in making an order that the interest runs from the date of judgement………………..The simple reason thereto is that it is well settled in law and has been so held over time that interest starts running from filing of suit in special damages claim as in in this case. The Respondent was denied the use of his money for all that period and the interest remain the sole consolation’’
The Respondent also relied on the case of Awino Oreko (supra) regarding award of interest in a special damages claim.
The Appellant did not oppose the Respondent’s appeal and in consideration of the authorities from the High Court and the Court of Appeal cited by the Respondent and in consideration of the grounds of appeal and the Respondents submissions this court finds that the Respondent was entitled to be compensated for the 2nd Ratoon Crop considering that the contract was for a specific period of time. In the circumstances the award made for the 1st Ratoon Crop of Kshs. 37,019.58 applies to the 2nd Ratoon Crop together with costs and interest from te date of filing of the suit till payment in full. The Respondent is also awarded costs of the cross appeal.
Order Accordingly.
Dated, Signed and Delivered at Migori this 5th June 2025