( Being an appeal from the judgment and decree by Hon. C.N.C Oruo, Principal Magistrate, in Rongo Magistrate's Civil Suit No. 78 of 2017 delivered on 17 th October, 2024 )
JUDGMENT.
1. This is an appeal by SUKARI INDUSTRIES LIMITED (the Appellant) against the judgement of the Hon. C.N.C Oruo, Principal Magistrate, dated and delivered on the 17 th day of October, 2024 . That by a plaint dated 26 th April, 2017, the Respondent sued the Appellant for damages for breach of contract, costs of the suit, interests thereon and any further relief the court may deem just and expedient to grant.
2. The Respondent pleaded that vide a written agreement entered into on the 11 th September, 2011 the Appellant agreed to harvest and purchase sugarcane on his land parcel being Plot Number 318 in South Kabuoch location for portion measuring 0.6 hectares and was assigned an account number. The Respondent further pleaded it was agreed that the agreement would commence on the 11 th September, 2011 and will remain in force for a period of five (5) or until one plant crop and two ratoon crops of sugarcane are harvested on the plot whichever period shall be less.
3. The Respondent added that within the five (5) year’s period or less the Plant Crop and ratoon cane would be harvested at the age of 18-28 months and 16-24 months after planting and subsequent harvest and that the Appellant would be bound to exercise due care whilst harvesting and taking delivery of the cane.
4. It was the Respondent’s further contention that the Appellant only harvested the plant crop and failed to harvest the subsequent two (2) ratoon crops when the same was ready and mature. It was further pleaded that the Respondent’s plot was capable of producing an average of 100 tonnes per hectare for the Plant crop and 100 tonnes per hectare for the ratoon crop and the rate of payment then applicable per tonne was Kshs. 3,500.00 and the Respondent claimed for damages for the two (2) crop cycle as particularized to the tune of Kshs. 420,000.00
5. The Appellant filed a Defence dated the 14/11/2017 in which it denied the allegations in the plaint and put the Appellant to strict proof thereof. The matter proceeded for hearing and after the hearing thereof, judgement was entered in favour of the Respondent to the tune of Kshs. 389,760.00 with costs and interests of the suit.
6. Being aggrieved by the judgement of the trial court the Appellant filed a Memorandum of Appeal dated the 6 th December, 2024 on the following Thirteen (13) grounds: -
1. The learned trial magistrate erred in law and in fact by continuing to hear and determine the case to its conclusion and delivering judgement thereon on 8 th November, 2024 by failing to appreciate that on the 24 th May, 2022 they had issued a ruling setting aside its orders of dismissing the suit for want of attendance on condition that the Plaintiff had to attend court the next hearing failure to which the suit stood dismissed and in the next hearing on 27 th May, 2023 the Plaintiff was not present in court and thus the suit stood dismissed as the orders of 24 th May, 2022 were never varied and or set aside.
2. The learned trial magistrate erred in law and in fact by finding that there was a binding contract between the Appellant and the Respondent whereas the contract had not been signed by either the parties.
3. The learned trial magistrate erred in law and in fact by finding that there was a binding contract between the Appellant and the Respondent whereas the agreement had not been fully executed.
4. The learned trial magistrate erred in law and in fact by awarding the damages to the Respondent whereas he had not made any determination as to whether the Appellant breached the agreement.
5. The learned trial magistrate erred in law and in fact by awarding loss of profits damages whereas the Respondent did not specifically plead for breach of contract and or loss profit as the sugarcane pricing entails loss of profit which is speculative.
6. The learned trial magistrate erred in law and in fact by awarding damages while failing to appreciate that the Respondent had not provided any evidence that he undertook its obligation as per the contract.
7. The learned trial magistrate erred in law and in fact by awarding special damages that were not specifically pleaded and or proved as there was no agricultural assessment report was ever adduced in evidence to support the loss suffered.
8. The learned trial magistrate erred in law and in fact by descending into the arena of the litigants contrary to the established role of a neutral arbiter by importing issues and documents into the proceedings in support of the Respondent’s case and specifically Respondent’s Exhibit P3 and P4 and the same neither identified for marking and or produced as part of the Respondent’s evidence and he relied on the same to determine the tonnages which the Plaintiff is alleged to have lost thereby denying the Appellants and opportunity to test veracity of the evidence.
9. The learned trial magistrate erred in law and in fact by awarding damages whereas the Respondent did not adduce to show that he mitigated the loss upon the breach of the agreement in order to be entitled to any damages.
10. The learned trial magistrate erred in law and in fact by awarding general damages for a breach of contract whereas that remedy is not available for breach of contract.
11. The learned trial magistrate erred in law and in fact by failing to appreciate that there was no pricing report confirming that alleged price of Kshs. 3,500/= per tonne.
12. The learned trial magistrate erred in fact and in law in not appreciating sufficiently or at all that the appellant evidence thereby arriving at an erroneous finding.
13. The learned trial magistrate erred in fact and in law in failing to appreciate that the Respondent has obtained the judgement by fraud thereby aiding and abating the fraud .
7. Directions on the appeal were taken and the appeal was canvassed by way of written submissions. The Appellant filed their submission dated the 2 nd day of February, 2026 whereas the Respondent filed their submissions dated the 11 th day of December, 2024 which I have duly considered. I have considered the grounds of appeal, the submissions by the appellant and the trial court’s record and the only issues for determination seems to be: -
a) Whether the suit was properly heard and determined in light of the conditional orders issued on 24 th May 2022.
b) Whether there existed a valid and binding contract between the parties and, if so, whether there was a breach of the same.
c) Whether the Respondent proved performance or readiness and willingness to perform his obligations under the alleged contract.
d) Whether the damages awarded were legally available, properly pleaded and strictly proved.
e) Whether reliance was properly placed on documents and evidence, particularly Exhibits P3 and P4, which were allegedly not properly produced in evidence, thereby denying the Appellant an opportunity to challenge their authenticity and probative value.
f) Whether the judgment was affected by fraud so as to warrant interference on appeal.
8. This being the first appellate court, the court has a duty to re-evaluate and analyze all the evidence tendered in the lower court and arrive at its own conclusions but bearing in mind that it neither saw nor heard the witnesses testify. It has to establish whether the decision of the lower court was well founded. The court is guided by the decision in Selle & Another vs Associated Motor Boat Co. Ltd (1968) EA 123 .
9. The Court of Appeal for East Africa which took the same position in Peters vs Sunday Post Limited [1958] EA 424 where Sir Kenneth O’Connor stated as follows: -
“It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion…”
10. On the first issue, I have considered the order made on 24 th May 2022, which directed the Plaintiff to proceed with the hearing and provided that, “in default the matter shall stand dismissed.” The consequence stipulated in the order was therefore clear however the order must be considered together with the subsequent proceedings and the conduct of the parties.
11. On the first hearing date, counsel for the Plaintiff was present and explained that the intended witness, the Respondent was unavailable. The Appellant and the Advocate were absent on that day. The court thereafter indulged the Respondent and another hearing date was fixed. On the subsequent date, the witness was again unavailable owing to a funeral. The Appellant’s counsel did not object to the adjournment and another date was taken by consent, the Appellant’s counsel also informed the court that he was yet to file their compliance documents at the time. Thereafter, when counsel for the Respondent was absent, counsel for the Appellant participated in taking another hearing date. The matter subsequently proceeded to hearing and the Respondent testified.
12. It is therefore apparent from the record that, notwithstanding the conditional order of 24 th May 2022, the court and the parties thereafter continued to treat the suit as pending. No objection was raised by the Appellant before the trial court that the suit had stood dismissed by reason of the Respondent's failure to comply with the conditional order. Instead, the Appellant participated in the subsequent proceedings and consented to the fixing of a further hearing date and brought a witness in defence.
13. It is my considered view, while the conditional order prescribed dismissal in the event of default, the subsequent proceedings cannot be ignored as both parties participated in the proceedings after the alleged default and having failed to raise the issue before the trial court, the Appellant cannot properly seek to invalidate the entire proceedings for the first time on appeal, particularly where the record demonstrates that the court subsequently permitted the matter to proceed and the Appellant participated therein. Reliance is placed on article 159 of the constitution of Kenya.
14. On the second issue , Black’s Law Dictionary defines a contract as follows:
“An agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law”.
15. In RTS Flexible Systems Ltd vs. Molkerel Alois Muller GmbH & Co, KG (UK Production) (2010) UKSC14, [45] (Supra) the Supreme Court of the United Kingdom stated that:
“…The general principles are not in doubt. Whether there is a binding contract between the parties and, if so, upon what terms depends upon what they have agreed. It depends not upon their subjective state of mind, but upon a consideration of what was communicated between them by words or conduct, and whether that leads objectively to a conclusion that they intended to create legal relations and had agreed upon all the terms which they regarded or the law requires as essential for the formation of legally binding relations. Even if certain terms of economic or other significance to the parties have not been finalized, an objective appraisal of their words and conduct may lead to the conclusion that they did not intend agreement of such terms to be a precondition to a concluded and legally binding agreement.”
16. In Charles Mwirigi Miriti vs Thananga Tea Growers Sacco Limited and Another (2014) eKLR the Court of Appeal stated that it is trite that there are three essential elements for a valid contract. That is an offer, acceptance and consideration.
17. In the present case, there is an agreement on record which was signed by both parties, notwithstanding the Appellant’s contention that the agreement was neither signed by the Appellant nor by an authorized agent on its behalf. Further the witness called by the Appellant to testify before the trial court confirmed in his testimony that the Appellant had contracted the Respondent for purposes of sugar cane planting
18. The agreement also bears the signature of one Joseph D. Dwange, the Appellant’s supervisor, on the Appellant’s behalf, as well as the signature of the Respondent in person. The agreement was further executed in the presence of Michael Mukala who is the Assistant Chief.
19. Going further it is my considered view that the testimony provided by the Appellant’s witness in the trial court coupled up with the conduct of the parties and the agreement on record sufficiently demonstrates that the parties intended to create legal relations and had entered into a contractual relationship.
20. I therefore find and hold that there was a valid and enforceable contract between the parties.
21. On the third issue, the Appellant submits that it was the duty of the Respondent to make the sugar cane available in a deliverable state in accordance with Clause 7(2) of the agreement and in accordance with the Sales of Goods Act. Clause 7(2) of the agreement provides in substance that the Grower was to offer the sugar cane for delivery when mature while using the Miller’s transport or such transport as may be appointed by the Grower with the approval of the Miller.
22. In the present case, the evidence demonstrates that the Respondent proceeded to plant the sugar cane pursuant to the agreement. The Appellant’s own witness confirmed before the trial court that the Appellant had contracted the Respondent for purposes of sugar cane planting.
23. I therefore find that the Respondent had commenced and substantially performed the obligation which was capable of performance at that stage which is namely planting and growing the cane.
24. The Appellant’s contention that the Respondent failed to make the cane available in a deliverable state must however be considered in the context of the contractual arrangement as a whole as the agreement contemplated that the cane would first be grown to maturity and thereafter offered for delivery.
25. It is my considered view that readiness and willingness to perform must be assessed objectively from the conduct of the parties and the circumstances of the case. The Respondent’s decision to proceed with the planting of the cane in accordance with the agreement was conduct consistent with an intention to perform his contractual obligations which he did from the testimonies recorded before the trial court.
26. I am also guided by the principle that a party alleging breach of contract must establish the particular contractual obligation which was breached and demonstrate how the conduct complained of constituted such breach.
27. I am guided by a recent decision of the High Court in Matumbawe Investment Limited vs Centofanti [2024] KEHC 1646 (KLR ) reiterated that breach occurs when a party fails to fulfil an obligation imposed by the terms of the contract, and that damages must flow from the breach established by evidence.
28. The Appellant has not demonstrated that after the cane had attained the stage at which it was contractually required to be offered for delivery the Respondent failed or refused to offer it for delivery in accordance with Clause 7(2). In the absence of such evidence I am unable to find that the Respondent breached the obligation relied upon by the Appellant.
29. The issue of mitigation must also be considered in its proper context. The law imposes upon a party who has suffered loss a duty to take reasonable steps to mitigate that loss.
30. In Gogni Rajope Construction Company v Dennis [2025] KEELC 684 (KLR ) , the Court reiterated that a plaintiff is required to take all reasonable steps to mitigate loss, but is not required to injure himself or his property or business merely for purposes of reducing the damages payable by the wrongdoer. The Court further emphasized that what is reasonable in mitigation is a question of fact in the circumstances of each case, with the burden resting upon the defendant.
31. Similarly, in Kagema v Muraguri [2025] KEHC 13109 (KLR ) , the Court reiterated that the duty to mitigate arises when a party realizes that an interest has been injured by a breach and requires the injured party to take reasonable steps to reduce the resulting loss. The Court emphasized that the question whether particular steps were reasonable is one of fact depending on the circumstances of each case.
32. In the circumstances of the present case, I do not consider the Respondent’s decision to proceed with planting the sugar cane, pursuant to the very contract entered into with the Appellant to amount to a failure to mitigate. On the contrary, the Respondent’s conduct was an attempt to perform the contract and to place himself in a position to fulfil the obligation to offer the cane for delivery once it matured.
33. I am of the considered view that mitigation cannot be used to impose upon the innocent party a contractual obligation which he did not undertake. The Respondent was required to grow the cane and offer it for delivery when mature in accordance with Clause 7(2).
34. The principle underlying an award of damages for breach of contract is subject to mitigation and to place the innocent party as nearly as possible in the position he would have occupied had the contract been performed.
35. This principle has recently been reiterated by the High Court in Nyamweya v Asakania [2025] KEHC 1702 (KLR ) , which restated that damages are subject to the claimant's duty to mitigate and must arise naturally from the breach or be within the reasonable contemplation of the parties.
36. I therefore find that the Respondent proved from the evidence before the trial court that he performed the obligation of planting and growing the sugar cane and was ready and willing to proceed to the stage of offering the mature cane for delivery as contemplated by Clause 7(2). The Appellant has not demonstrated that the Respondent thereafter refused or failed to perform any obligation which had accrued under the agreement.
37. Accordingly, I find that the Appellant has not established that the Respondent was in breach by failing to make the sugar cane available for delivery.
38. On the fourth issue, the question is whether the damages awarded by the trial court were legally available, properly pleaded and strictly proved. The trial court awarded the Respondent Kshs. 194,880.00 for the first ratoon and a further Kshs. 194,880.00 for the second ratoon.
39. From the documentary evidence produced before the trial court, the expected yield was shown as 92.8 tonnes per hectare, at the agreed rate of Kshs. 3,500.00 per tonne which means that the computation of the loss was based on the contractual and documentary evidence placed before the court and was not controverted by the Appellant.
40. In the circumstances, I am satisfied that the Respondent sufficiently established the basis upon which the damages were quantified.
41. The Appellant did not challenge the documentary evidence showing the yield of 92.8 tonnes per hectare and the applicable rate of Kshs. 3,500.00 per tonne, nor did the Appellant provide an alternative computation or evidence to displace the Respondent’s figures. I therefore find that the award of Kshs. 194,880.00 for the first ratoon and Kshs. 194,880.00 for the second ratoon was properly grounded in the evidence and was not a speculative award.
42. On the fifth issue, the Appellant contends that the trial court improperly relied on Exhibits P3 and P4, which were allegedly not properly produced in evidence, thereby denying the Appellant an opportunity to challenge their authenticity and probative value.
43. I have considered the record in this regard. Exhibit P4, being the Kenya Research Foundation Report was marked for production and was produced in evidence by Gordon Onyango Abayo, an agronomist and former employee of the Kenya Research Foundation.
44. The Sugar Productivity Report which was marked as PMFI 3 was likewise admitted into evidence by the trial court. The fact that the report related to Sony Sugar does not in my view render it irrelevant or inadmissible. The report was prepared by a government research institution and contained data relating to sugarcane productivity within the region which in my opinion was relevant to the assessment of the expected yield.
45. It is my considered view that the Appellant had the opportunity to challenge the report and its contents and the evidence of the witness who produced it during the trial but no such objection or cross examination is apparent from the record.
46. I am further guided by the principle that a document marked for identification only acquires evidential value upon its formal production as an exhibit. In Njuguna & another v Njuguna & Another [2025] KEELC 8268 (KLR ) , the Court observed that a document marked for identification becomes part of the evidence on record when it is formally produced as an exhibit by a witness.
47. The distinction is important in the present case because Exhibit P4 was not merely marked for identification but was subsequently produced in evidence by a witness and admitted by the trial court. The Appellant therefore had an opportunity to challenge its production and its authenticity as well as its relevance and probative value at the trial. The record further shows that no objection was raised at the pre-trial stage regarding the production or reliance on the said documents.
48. I therefore find no basis for the contention that the Appellant was denied an opportunity to challenge the documents or that the trial court erred in considering them.
49. It is also material to note that the proceedings in which the documents were produced was in Civil Case No. 116 of 2018, and not in the present appellate record as a separate evidentiary exercise. The issue raised in the present appeal arises from the decision rendered in that suit and the evidence received and exhibits admitted during the trial constitute the evidentiary record upon which the trial court was entitled to base its determination.
50. It is therefore my considered view that the Appellant should not at the appellate stage seek to treat an exhibit properly produced and admitted during the trial as though it had never formed part of the evidentiary record. I accordingly find that Exhibits P3 and P4 were properly before the trial court and were available for consideration in determining the dispute herein.
51. The next and final issue for determination is whether the judgment was affected by fraud so as to warrant any interference on appeal. It is my considered opinion that the Appellant bears the burden of proving the allegation of fraud. Section 107(1) of the Evidence Act provides thus:
“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”
52. Further, Section 108 of the Evidence Act provides that the burden of proof in a suit or proceeding lies on the person who would fail if no evidence at all were given on either side. Thus, the burden of proving the alleged fraud rested squarely upon the Appellant.
53. The law on proof of fraud is well settled. In Kinyanjui Kamau v George Kamau Njoroge [2015] eKLR , the Court of Appeal stated:
“It is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo v Ndolo (2008) 1 KLR (G & F) 742 wherein the court stated that: ‘We start by saying that it was the respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; but the burden of proof on the respondent was certainly not one beyond a reasonable doubt as in criminal cases.’”
The Court further stated that:
“In cases where fraud is alleged, it is not enough to simply infer fraud from the facts.”
54. This was reiterated by the High Court in Rugi Farmers Co-operative Society Ltd v Rumukia Farmers Co-operative Society Ltd [2024] KEHC 1961 (KLR ) at paragraphs 30–31 to wit:
“30. Allegations of fraud in civil matters call for a higher threshold in proof. The Court of Appeal in Kinyanjui Kamau v George Kamau [2015] eKLR expressed itself as follows; -
“…It is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo v Ndolo (2008) 1 KLR (G & F) 742 wherein the Court stated that:
“...We start by saying that it was the respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; In cases where fraud is alleged, it is not enough to simply infer fraud from the facts."
31. In Virani t/a Kisumu Beach Resort vs Phoenix of East Africa Assurance Company Ltd [2004] eKLR , the same court held that:
“Fraud is a serious quasi-criminal imputation, and it requires more than proof on a balance of probability though not beyond reasonable doubt”.
55. More recently the Court of Appeal in Kibathi t/a Osoro Chege Kibathi & Co Advocates v Musti Investments Ltd [2024] KECA 270 (KLR ) , at paragraph 31, considered the effect of fraud on a judgment and stated:
“No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved, it vitiates judgments, contracts and all transactions whatsoever.”
The Court proceeded at paragraph 32 to state:
“ The standard of proof of fraud in civil disputes is the intermediate one, not as high as beyond reasonable doubt, but higher than on a balance of probabilities .”
56. The Court further adopted the statement in R. G. Patel v Lalji Makanji [1957] EA 314 that:
“Allegations of fraud must be strictly proved; although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required.”
57. Turning to the present appeal, I have carefully considered the Appellant’s allegation that the judgment was affected by fraud. However, I find no evidence on record establishing any fraudulent conduct on the part of the Respondent or demonstrating that the judgment of the trial court was procured through fraud. The Appellant has not placed before this Court any cogent evidence capable of meeting the requisite intermediate standard of proof.
58. In the circumstances the allegation of fraud remains an assertion which is not supported by evidence. The Appellant being the party alleging fraud failed to discharge the burden placed upon him by Sections 107 and 108 of the Evidence Act and it is not sufficient for a party to make an allegation of fraud unless the allegation is distinctly pleaded and strictly proved.
59. I therefore find that there is no evidence upon which this Court can properly conclude that the judgment of the trial court was affected by fraud. The judgment of the subordinate court awarding damages in respect of the 1 st ratoon and 2 nd ratoon crops is hereby upheld in its entirety.
Disposition .
a. The appeal filed by the Appellant is dismissed in its entirety.
b. The costs of this appeal are awarded to the Respondent.
Orders accordingly.
Dated, signed and delivered virtually via Microsoft Teams this 13 th of August 2026.
HCCA NO. E097 of 2024 SUKARI INDUSTRIES LTD VS ELIJAH MIDEMBE OKOTH JUDGMENT Pg.17
JUDGMENT.
1. This is an appeal by SUKARI INDUSTRIES LIMITED (the Appellant) against the judgement of the Hon. C.N.C Oruo, Principal Magistrate, dated and delivered on the 17 th day of October, 2024 . That by a plaint dated 26 th April, 2017, the Respondent sued the Appellant for damages for breach of contract, costs of the suit, interests thereon and any further relief the court may deem just and expedient to grant.
2. The Respondent pleaded that vide a written agreement entered into on the 11 th September, 2011 the Appellant agreed to harvest and purchase sugarcane on his land parcel being Plot Number 318 in South Kabuoch location for portion measuring 0.6 hectares and was assigned an account number. The Respondent further pleaded it was agreed that the agreement would commence on the 11 th September, 2011 and will remain in force for a period of five (5) or until one plant crop and two ratoon crops of sugarcane are harvested on the plot whichever period shall be less.
3. The Respondent added that within the five (5) year’s period or less the Plant Crop and ratoon cane would be harvested at the age of 18-28 months and 16-24 months after planting and subsequent harvest and that the Appellant would be bound to exercise due care whilst harvesting and taking delivery of the cane.
4. It was the Respondent’s further contention that the Appellant only harvested the plant crop and failed to harvest the subsequent two (2) ratoon crops when the same was ready and mature. It was further pleaded that the Respondent’s plot was capable of producing an average of 100 tonnes per hectare for the Plant crop and 100 tonnes per hectare for the ratoon crop and the rate of payment then applicable per tonne was Kshs. 3,500.00 and the Respondent claimed for damages for the two (2) crop cycle as particularized to the tune of Kshs. 420,000.00
5. The Appellant filed a Defence dated the 14/11/2017 in which it denied the allegations in the plaint and put the Appellant to strict proof thereof. The matter proceeded for hearing and after the hearing thereof, judgement was entered in favour of the Respondent to the tune of Kshs. 389,760.00 with costs and interests of the suit.
6. Being aggrieved by the judgement of the trial court the Appellant filed a Memorandum of Appeal dated the 6 th December, 2024 on the following Thirteen (13) grounds: -
1. The learned trial magistrate erred in law and in fact by continuing to hear and determine the case to its conclusion and delivering judgement thereon on 8 th November, 2024 by failing to appreciate that on the 24 th May, 2022 they had issued a ruling setting aside its orders of dismissing the suit for want of attendance on condition that the Plaintiff had to attend court the next hearing failure to which the suit stood dismissed and in the next hearing on 27 th May, 2023 the Plaintiff was not present in court and thus the suit stood dismissed as the orders of 24 th May, 2022 were never varied and or set aside.
2. The learned trial magistrate erred in law and in fact by finding that there was a binding contract between the Appellant and the Respondent whereas the contract had not been signed by either the parties.
3. The learned trial magistrate erred in law and in fact by finding that there was a binding contract between the Appellant and the Respondent whereas the agreement had not been fully executed.
4. The learned trial magistrate erred in law and in fact by awarding the damages to the Respondent whereas he had not made any determination as to whether the Appellant breached the agreement.
5. The learned trial magistrate erred in law and in fact by awarding loss of profits damages whereas the Respondent did not specifically plead for breach of contract and or loss profit as the sugarcane pricing entails loss of profit which is speculative.
6. The learned trial magistrate erred in law and in fact by awarding damages while failing to appreciate that the Respondent had not provided any evidence that he undertook its obligation as per the contract.
7. The learned trial magistrate erred in law and in fact by awarding special damages that were not specifically pleaded and or proved as there was no agricultural assessment report was ever adduced in evidence to support the loss suffered.
8. The learned trial magistrate erred in law and in fact by descending into the arena of the litigants contrary to the established role of a neutral arbiter by importing issues and documents into the proceedings in support of the Respondent’s case and specifically Respondent’s Exhibit P3 and P4 and the same neither identified for marking and or produced as part of the Respondent’s evidence and he relied on the same to determine the tonnages which the Plaintiff is alleged to have lost thereby denying the Appellants and opportunity to test veracity of the evidence.
9. The learned trial magistrate erred in law and in fact by awarding damages whereas the Respondent did not adduce to show that he mitigated the loss upon the breach of the agreement in order to be entitled to any damages.
10. The learned trial magistrate erred in law and in fact by awarding general damages for a breach of contract whereas that remedy is not available for breach of contract.
11. The learned trial magistrate erred in law and in fact by failing to appreciate that there was no pricing report confirming that alleged price of Kshs. 3,500/= per tonne.
12. The learned trial magistrate erred in fact and in law in not appreciating sufficiently or at all that the appellant evidence thereby arriving at an erroneous finding.
13. The learned trial magistrate erred in fact and in law in failing to appreciate that the Respondent has obtained the judgement by fraud thereby aiding and abating the fraud .
7. Directions on the appeal were taken and the appeal was canvassed by way of written submissions. The Appellant filed their submission dated the 2 nd day of February, 2026 whereas the Respondent filed their submissions dated the 11 th day of December, 2024 which I have duly considered. I have considered the grounds of appeal, the submissions by the appellant and the trial court’s record and the only issues for determination seems to be: -
a) Whether the suit was properly heard and determined in light of the conditional orders issued on 24 th May 2022.
b) Whether there existed a valid and binding contract between the parties and, if so, whether there was a breach of the same.
c) Whether the Respondent proved performance or readiness and willingness to perform his obligations under the alleged contract.
d) Whether the damages awarded were legally available, properly pleaded and strictly proved.
e) Whether reliance was properly placed on documents and evidence, particularly Exhibits P3 and P4, which were allegedly not properly produced in evidence, thereby denying the Appellant an opportunity to challenge their authenticity and probative value.
f) Whether the judgment was affected by fraud so as to warrant interference on appeal.
8. This being the first appellate court, the court has a duty to re-evaluate and analyze all the evidence tendered in the lower court and arrive at its own conclusions but bearing in mind that it neither saw nor heard the witnesses testify. It has to establish whether the decision of the lower court was well founded. The court is guided by the decision in Selle & Another vs Associated Motor Boat Co. Ltd (1968) EA 123 .
9. The Court of Appeal for East Africa which took the same position in Peters vs Sunday Post Limited [1958] EA 424 where Sir Kenneth O’Connor stated as follows: -
“It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion…”
10. On the first issue, I have considered the order made on 24 th May 2022, which directed the Plaintiff to proceed with the hearing and provided that, “in default the matter shall stand dismissed.” The consequence stipulated in the order was therefore clear however the order must be considered together with the subsequent proceedings and the conduct of the parties.
11. On the first hearing date, counsel for the Plaintiff was present and explained that the intended witness, the Respondent was unavailable. The Appellant and the Advocate were absent on that day. The court thereafter indulged the Respondent and another hearing date was fixed. On the subsequent date, the witness was again unavailable owing to a funeral. The Appellant’s counsel did not object to the adjournment and another date was taken by consent, the Appellant’s counsel also informed the court that he was yet to file their compliance documents at the time. Thereafter, when counsel for the Respondent was absent, counsel for the Appellant participated in taking another hearing date. The matter subsequently proceeded to hearing and the Respondent testified.
12. It is therefore apparent from the record that, notwithstanding the conditional order of 24 th May 2022, the court and the parties thereafter continued to treat the suit as pending. No objection was raised by the Appellant before the trial court that the suit had stood dismissed by reason of the Respondent's failure to comply with the conditional order. Instead, the Appellant participated in the subsequent proceedings and consented to the fixing of a further hearing date and brought a witness in defence.
13. It is my considered view, while the conditional order prescribed dismissal in the event of default, the subsequent proceedings cannot be ignored as both parties participated in the proceedings after the alleged default and having failed to raise the issue before the trial court, the Appellant cannot properly seek to invalidate the entire proceedings for the first time on appeal, particularly where the record demonstrates that the court subsequently permitted the matter to proceed and the Appellant participated therein. Reliance is placed on article 159 of the constitution of Kenya.
14. On the second issue , Black’s Law Dictionary defines a contract as follows:
“An agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law”.
15. In RTS Flexible Systems Ltd vs. Molkerel Alois Muller GmbH & Co, KG (UK Production) (2010) UKSC14, [45] (Supra) the Supreme Court of the United Kingdom stated that:
“…The general principles are not in doubt. Whether there is a binding contract between the parties and, if so, upon what terms depends upon what they have agreed. It depends not upon their subjective state of mind, but upon a consideration of what was communicated between them by words or conduct, and whether that leads objectively to a conclusion that they intended to create legal relations and had agreed upon all the terms which they regarded or the law requires as essential for the formation of legally binding relations. Even if certain terms of economic or other significance to the parties have not been finalized, an objective appraisal of their words and conduct may lead to the conclusion that they did not intend agreement of such terms to be a precondition to a concluded and legally binding agreement.”
16. In Charles Mwirigi Miriti vs Thananga Tea Growers Sacco Limited and Another (2014) eKLR the Court of Appeal stated that it is trite that there are three essential elements for a valid contract. That is an offer, acceptance and consideration.
17. In the present case, there is an agreement on record which was signed by both parties, notwithstanding the Appellant’s contention that the agreement was neither signed by the Appellant nor by an authorized agent on its behalf. Further the witness called by the Appellant to testify before the trial court confirmed in his testimony that the Appellant had contracted the Respondent for purposes of sugar cane planting
18. The agreement also bears the signature of one Joseph D. Dwange, the Appellant’s supervisor, on the Appellant’s behalf, as well as the signature of the Respondent in person. The agreement was further executed in the presence of Michael Mukala who is the Assistant Chief.
19. Going further it is my considered view that the testimony provided by the Appellant’s witness in the trial court coupled up with the conduct of the parties and the agreement on record sufficiently demonstrates that the parties intended to create legal relations and had entered into a contractual relationship.
20. I therefore find and hold that there was a valid and enforceable contract between the parties.
21. On the third issue, the Appellant submits that it was the duty of the Respondent to make the sugar cane available in a deliverable state in accordance with Clause 7(2) of the agreement and in accordance with the Sales of Goods Act. Clause 7(2) of the agreement provides in substance that the Grower was to offer the sugar cane for delivery when mature while using the Miller’s transport or such transport as may be appointed by the Grower with the approval of the Miller.
22. In the present case, the evidence demonstrates that the Respondent proceeded to plant the sugar cane pursuant to the agreement. The Appellant’s own witness confirmed before the trial court that the Appellant had contracted the Respondent for purposes of sugar cane planting.
23. I therefore find that the Respondent had commenced and substantially performed the obligation which was capable of performance at that stage which is namely planting and growing the cane.
24. The Appellant’s contention that the Respondent failed to make the cane available in a deliverable state must however be considered in the context of the contractual arrangement as a whole as the agreement contemplated that the cane would first be grown to maturity and thereafter offered for delivery.
25. It is my considered view that readiness and willingness to perform must be assessed objectively from the conduct of the parties and the circumstances of the case. The Respondent’s decision to proceed with the planting of the cane in accordance with the agreement was conduct consistent with an intention to perform his contractual obligations which he did from the testimonies recorded before the trial court.
26. I am also guided by the principle that a party alleging breach of contract must establish the particular contractual obligation which was breached and demonstrate how the conduct complained of constituted such breach.
27. I am guided by a recent decision of the High Court in Matumbawe Investment Limited vs Centofanti [2024] KEHC 1646 (KLR ) reiterated that breach occurs when a party fails to fulfil an obligation imposed by the terms of the contract, and that damages must flow from the breach established by evidence.
28. The Appellant has not demonstrated that after the cane had attained the stage at which it was contractually required to be offered for delivery the Respondent failed or refused to offer it for delivery in accordance with Clause 7(2). In the absence of such evidence I am unable to find that the Respondent breached the obligation relied upon by the Appellant.
29. The issue of mitigation must also be considered in its proper context. The law imposes upon a party who has suffered loss a duty to take reasonable steps to mitigate that loss.
30. In Gogni Rajope Construction Company v Dennis [2025] KEELC 684 (KLR ) , the Court reiterated that a plaintiff is required to take all reasonable steps to mitigate loss, but is not required to injure himself or his property or business merely for purposes of reducing the damages payable by the wrongdoer. The Court further emphasized that what is reasonable in mitigation is a question of fact in the circumstances of each case, with the burden resting upon the defendant.
31. Similarly, in Kagema v Muraguri [2025] KEHC 13109 (KLR ) , the Court reiterated that the duty to mitigate arises when a party realizes that an interest has been injured by a breach and requires the injured party to take reasonable steps to reduce the resulting loss. The Court emphasized that the question whether particular steps were reasonable is one of fact depending on the circumstances of each case.
32. In the circumstances of the present case, I do not consider the Respondent’s decision to proceed with planting the sugar cane, pursuant to the very contract entered into with the Appellant to amount to a failure to mitigate. On the contrary, the Respondent’s conduct was an attempt to perform the contract and to place himself in a position to fulfil the obligation to offer the cane for delivery once it matured.
33. I am of the considered view that mitigation cannot be used to impose upon the innocent party a contractual obligation which he did not undertake. The Respondent was required to grow the cane and offer it for delivery when mature in accordance with Clause 7(2).
34. The principle underlying an award of damages for breach of contract is subject to mitigation and to place the innocent party as nearly as possible in the position he would have occupied had the contract been performed.
35. This principle has recently been reiterated by the High Court in Nyamweya v Asakania [2025] KEHC 1702 (KLR ) , which restated that damages are subject to the claimant's duty to mitigate and must arise naturally from the breach or be within the reasonable contemplation of the parties.
36. I therefore find that the Respondent proved from the evidence before the trial court that he performed the obligation of planting and growing the sugar cane and was ready and willing to proceed to the stage of offering the mature cane for delivery as contemplated by Clause 7(2). The Appellant has not demonstrated that the Respondent thereafter refused or failed to perform any obligation which had accrued under the agreement.
37. Accordingly, I find that the Appellant has not established that the Respondent was in breach by failing to make the sugar cane available for delivery.
38. On the fourth issue, the question is whether the damages awarded by the trial court were legally available, properly pleaded and strictly proved. The trial court awarded the Respondent Kshs. 194,880.00 for the first ratoon and a further Kshs. 194,880.00 for the second ratoon.
39. From the documentary evidence produced before the trial court, the expected yield was shown as 92.8 tonnes per hectare, at the agreed rate of Kshs. 3,500.00 per tonne which means that the computation of the loss was based on the contractual and documentary evidence placed before the court and was not controverted by the Appellant.
40. In the circumstances, I am satisfied that the Respondent sufficiently established the basis upon which the damages were quantified.
41. The Appellant did not challenge the documentary evidence showing the yield of 92.8 tonnes per hectare and the applicable rate of Kshs. 3,500.00 per tonne, nor did the Appellant provide an alternative computation or evidence to displace the Respondent’s figures. I therefore find that the award of Kshs. 194,880.00 for the first ratoon and Kshs. 194,880.00 for the second ratoon was properly grounded in the evidence and was not a speculative award.
42. On the fifth issue, the Appellant contends that the trial court improperly relied on Exhibits P3 and P4, which were allegedly not properly produced in evidence, thereby denying the Appellant an opportunity to challenge their authenticity and probative value.
43. I have considered the record in this regard. Exhibit P4, being the Kenya Research Foundation Report was marked for production and was produced in evidence by Gordon Onyango Abayo, an agronomist and former employee of the Kenya Research Foundation.
44. The Sugar Productivity Report which was marked as PMFI 3 was likewise admitted into evidence by the trial court. The fact that the report related to Sony Sugar does not in my view render it irrelevant or inadmissible. The report was prepared by a government research institution and contained data relating to sugarcane productivity within the region which in my opinion was relevant to the assessment of the expected yield.
45. It is my considered view that the Appellant had the opportunity to challenge the report and its contents and the evidence of the witness who produced it during the trial but no such objection or cross examination is apparent from the record.
46. I am further guided by the principle that a document marked for identification only acquires evidential value upon its formal production as an exhibit. In Njuguna & another v Njuguna & Another [2025] KEELC 8268 (KLR ) , the Court observed that a document marked for identification becomes part of the evidence on record when it is formally produced as an exhibit by a witness.
47. The distinction is important in the present case because Exhibit P4 was not merely marked for identification but was subsequently produced in evidence by a witness and admitted by the trial court. The Appellant therefore had an opportunity to challenge its production and its authenticity as well as its relevance and probative value at the trial. The record further shows that no objection was raised at the pre-trial stage regarding the production or reliance on the said documents.
48. I therefore find no basis for the contention that the Appellant was denied an opportunity to challenge the documents or that the trial court erred in considering them.
49. It is also material to note that the proceedings in which the documents were produced was in Civil Case No. 116 of 2018, and not in the present appellate record as a separate evidentiary exercise. The issue raised in the present appeal arises from the decision rendered in that suit and the evidence received and exhibits admitted during the trial constitute the evidentiary record upon which the trial court was entitled to base its determination.
50. It is therefore my considered view that the Appellant should not at the appellate stage seek to treat an exhibit properly produced and admitted during the trial as though it had never formed part of the evidentiary record. I accordingly find that Exhibits P3 and P4 were properly before the trial court and were available for consideration in determining the dispute herein.
51. The next and final issue for determination is whether the judgment was affected by fraud so as to warrant any interference on appeal. It is my considered opinion that the Appellant bears the burden of proving the allegation of fraud. Section 107(1) of the Evidence Act provides thus:
“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”
52. Further, Section 108 of the Evidence Act provides that the burden of proof in a suit or proceeding lies on the person who would fail if no evidence at all were given on either side. Thus, the burden of proving the alleged fraud rested squarely upon the Appellant.
53. The law on proof of fraud is well settled. In Kinyanjui Kamau v George Kamau Njoroge [2015] eKLR , the Court of Appeal stated:
“It is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo v Ndolo (2008) 1 KLR (G & F) 742 wherein the court stated that: ‘We start by saying that it was the respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; but the burden of proof on the respondent was certainly not one beyond a reasonable doubt as in criminal cases.’”
The Court further stated that:
“In cases where fraud is alleged, it is not enough to simply infer fraud from the facts.”
54. This was reiterated by the High Court in Rugi Farmers Co-operative Society Ltd v Rumukia Farmers Co-operative Society Ltd [2024] KEHC 1961 (KLR ) at paragraphs 30–31 to wit:
“30. Allegations of fraud in civil matters call for a higher threshold in proof. The Court of Appeal in Kinyanjui Kamau v George Kamau [2015] eKLR expressed itself as follows; -
“…It is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo v Ndolo (2008) 1 KLR (G & F) 742 wherein the Court stated that:
“...We start by saying that it was the respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; In cases where fraud is alleged, it is not enough to simply infer fraud from the facts."
31. In Virani t/a Kisumu Beach Resort vs Phoenix of East Africa Assurance Company Ltd [2004] eKLR , the same court held that:
“Fraud is a serious quasi-criminal imputation, and it requires more than proof on a balance of probability though not beyond reasonable doubt”.
55. More recently the Court of Appeal in Kibathi t/a Osoro Chege Kibathi & Co Advocates v Musti Investments Ltd [2024] KECA 270 (KLR ) , at paragraph 31, considered the effect of fraud on a judgment and stated:
“No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved, it vitiates judgments, contracts and all transactions whatsoever.”
The Court proceeded at paragraph 32 to state:
“ The standard of proof of fraud in civil disputes is the intermediate one, not as high as beyond reasonable doubt, but higher than on a balance of probabilities .”
56. The Court further adopted the statement in R. G. Patel v Lalji Makanji [1957] EA 314 that:
“Allegations of fraud must be strictly proved; although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required.”
57. Turning to the present appeal, I have carefully considered the Appellant’s allegation that the judgment was affected by fraud. However, I find no evidence on record establishing any fraudulent conduct on the part of the Respondent or demonstrating that the judgment of the trial court was procured through fraud. The Appellant has not placed before this Court any cogent evidence capable of meeting the requisite intermediate standard of proof.
58. In the circumstances the allegation of fraud remains an assertion which is not supported by evidence. The Appellant being the party alleging fraud failed to discharge the burden placed upon him by Sections 107 and 108 of the Evidence Act and it is not sufficient for a party to make an allegation of fraud unless the allegation is distinctly pleaded and strictly proved.
59. I therefore find that there is no evidence upon which this Court can properly conclude that the judgment of the trial court was affected by fraud. The judgment of the subordinate court awarding damages in respect of the 1 st ratoon and 2 nd ratoon crops is hereby upheld in its entirety.
Disposition .
a. The appeal filed by the Appellant is dismissed in its entirety.
b. The costs of this appeal are awarded to the Respondent.
Orders accordingly.
Dated, signed and delivered virtually via Microsoft Teams this 13 th of August 2026.
HCCA NO. E097 of 2024 SUKARI INDUSTRIES LTD VS ELIJAH MIDEMBE OKOTH JUDGMENT Pg.17