Skip to content
JudgmentSUKARI INDUSTRIES LIMITED VS WILLIS OYIER OGUTU3 min read

SUKARI INDUSTRIES LIMITED VS WILLIS OYIER OGUTU

High Court at Homabay High Court · · Kiarie W. Kiarie

(Being an Appeal from the judgment in Ndhiwa Principal Magistrate’s SRMCC No.134 of 2016 by Hon. Mary A. Ochieng –Principal Magistrate).

  1. Sukari Industries Company Limited was the defendant in Ndhiwa Principal Magistrate’s Court civil case No.134 of 2016. The respondent filed this lawsuit for a breach of contract claim and sought compensation for three unharvested cycles. On the 21st day of June 2022, Hon. Onzere delivered the judgment on behalf of the trial magistrate, who ruled in favour of the respondent and ordered the appellant to pay Kshs.160, 800.00.
  2. The appellant was aggrieved by the judgment and filed this appeal. The firm of Olendo & Samba Advocates LLP represented the appellant. The appellant raised the following grounds of appeal:
  3. The learned trial magistrate erred in law and fact in superficially treating the evidence and submissions before her and coming to a wrong conclusion.
  4. The learned trial magistrate erred in fact and law in ignoring the principles applicable in awarding damages and the relevant authorities on the quantum cited in the written submissions presented and filed by the appellant.
  5. The learned trial magistrate erred in fact and law by awarding the respondent exemplary damages, yet the respondent did not plead for the award in the plaint.
  6. The learned trial magistrate erred in fact and law in finding that the respondent had proved his case on a balance of probability.
  7. The learned trial magistrate erred in fact and law in ignoring the pleadings and submissions for the defence.
  8. The learned trial magistrate erred in fact and law in failing to appreciate sufficiently or at all that the evidence tendered in favour of the appellant controverted and rebutted the respondent’s evidence, thus lowering the respondent’s probative evidentiary value.
  9. Without prejudice to the foregoing, the award of damages in the circumstances was excessive.
  10. The firm of Kerario Marwa & Company Advocates represented the respondent. The respondent opposed the appeal and contended that it was impossible to mitigate the loss due to the restrictions imposed by the contract.
  11. As the first appellate court, it is my responsibility to carefully review all of the evidence presented and consider that I did not have the opportunity to observe the witnesses testify and their behaviour. I will follow the principles outlined in the Selle vs Associated Motor Boat Co. Ltd. [1965] E.A. 123, which states that the first appellate court must examine and assess the evidence presented in the trial court and then come to its conclusions.
  12. There were two main issues for the learned trial magistrate to consider: whether there was a contract between the parties and, if it existed, whether there was a breach.
  13. In the statement of defence, the appellant, in paragraph 3, denied the existence of a contract between the parties. However, Cane Farming and Supply Contract No.11120 contradicted this denial. On page 6 of the agreement, both parties signed the contract, which Joash Ogutu, the assistant chief of the Kobita sub-location, witnessed.
  14. The learned trial magistrate's determination that the contract presented in court and signed by both parties cannot be faulted.
  15. The duties of the Grower (the respondent) are spelt out in clauses 7.1 to 7.15. Clause 7.2 of the agreement states:

The grower shall offer for delivery on maturity in accordance with clause (1) above and deliver to the miller all such cane as is derived from his contracted field and no other using the Miller’s transport or the Grower’s appointed transporter approved in advance by the Miller.

  1. After analysing the clause, it is apparent that the grower was responsible for informing the miller when the sugar cane was ready for harvesting. The phrase "The Grower shall offer for delivery on maturity" explicitly states this. The respondent contended that he notified the appellant that the cane was ready for harvesting but did not produce any evidence to support this claim. He did not testify to have issued a notice as required in clause 3 of the agreement in case of failure by the appellant to harvest the cane. He, therefore, did not adduce evidence to show that he discharged his obligation under the contract.
  2. The evidence on record was insufficient to hold that the appellant was in breach of contract.
  3. From the preceding, therefore, I set aside the finding by the trial magistrate that the appellant was in breach of the contract and the award. The appeal is allowed with costs.

Delivered and signed at Homa Bay this 9th day of April 2024

    SUKARI INDUSTRIES LIMITED VS WILLIS OYIER OGUTU SUKARI INDUSTRIES LIMITED VS WILLIS OYIER OGUTU