By a Plaint dated 31st May 2016, the Respondent sued the Appellant seeking damages for breach of contract and for the 3 cycles, costs of the suit and interest on general damages and costs.
The Respondent’s claim was that on the 7th day of July 2011 he entered into contract with the Appellant to harvest and purchase the sugarcane on his farm measuring 0.8 Ha situated at Gesonso area Boikanga Sub-Location, Nyakembene Location, South Gucha District within Kisii County in the Republic of Kenya.
It was the Respondent’s case that at the time of signing the Out-Grower agreement he had already developed the sugar cane on his farm and he was bound by the terms of the said agreement but that the Appellant without any reasons refused and/ or ignored to harvest the said Plant Crop which dried up in the shamba and affected the preparation of the ratoons.
The Respondent argued that two months after maturity of the sugar cane he notified the Appellant and demanded that they harvest and transport the sugar cane in vain and as a result the terms of the agreement were breached by the Appellant and he suffered loss which he demanded to be compensated.
The Respondent claimed an average of 76.8 ton yield per hectare at Kshs 4,300/= per ton for the three cycles.
The Appellant filed a statement of defence dated 10th January 2017 which was later amended vide statement dated 7th September 2020 attaching list of witnesses and statement of the said witnesses but they did not attend court to testify and the court closed their case.
Upon consideration of the evidence on record for the Respondent and submissions filed by the respective parties the Trial Magistrate found that it was the Appellant’s obligation to harvest and transport the sugar cane upon maturity and that the Appellant breached the contract by failing to harvest and transport the Respondent’s sugar cane.
The Trial Magistrate also found that the Respondent was entitled to be compensated for the plant crop as well as the 2 ratoon crops. He therefore quantified the damages as shown in the body of the judgment.
Aggrieved by the judgment the Appellant lodged the appeal herein vide Memorandum of Appeal dated 16th November 2021 on the following ground:-
1. THAT the Learned Trial Magistrate failed to acknowledge and note that the Appellant has several weighbridges at the Respondent’s locality and that it was the absolute duty of the Respondent to deliver cane at the weighbridge for it to be weighed and tonnage taken.
2. THAT the Learned Trial Magistrate failed, refused and/ or neglected to acknowledge and agree that it was the duty of the Plaintiff/ Respondent to harvest and transport his cane from the alleged contract.
3. THAT the Learned Trial Magistrate failed and refused to acknowledge the fact that the Plaintiff never at any time notified the Appellant that his crop was ready and if he did so no evidence was adduced to conclusively arrive at that determination.
4. THAT the Learned Trial Magistrate assumed and presumed that cane production for plant crop and the ratoon crops yield equal proceeds in a straight line, when evidence has been repeatedly adduced that as the crop ages there is a steady reduction in the crop yields.
5. THAT the Learned Trial Magistrate erred in law and fact in awarding compensation for three harvests yet the Plaintiff’s on his own admission never incurred any damages for the two harvests as the plant crop had dried on the farm.
6. THAT the Learned Trial Magistrate erred in awarding compensation for three harvests yet no evidence was adduced by the Plaintiff to prove that the alleged parcel of land had remained fallow for the entire duration of the contract.
7. THAT the Learned Trial Magistrate erred in law in awarding and assessing compensatory damages in the sum of Kshs. 599,640/= only in favour of the Respondent whereas the said damages had neither been pleaded nor proved in accordance with the law.
8. THAT the Learned Trial Magistrate erred in law and fact when he used a pricing range per ton that was not applicable at the relevant time when the crop could have matured and harvested.
9. THAT the Learned Trial Magistrate erred in law and fact when he discerned the appropriate and applicable law but subsequently either misapplied that applicable law or ignored it in his judgment therefore making the judgment to be per incurium judgment.
10. THAT the Learned Trial Magistrate erred in law and fact by failing to appreciate that there was no contractually agreed price for the sugar cane and that the document placed on record did not originate from the Appellant.
11. THAT the Learned Trial Magistrate erred in law and fact by failing to appreciate that it was the Plaintiff who was in breach of the contract and not the Defendant.
12. THAT the Learned Trial Magistrate erred in law and fact in awarding compensation that was quite above the actual yields per acre by relying on a Kenya Sugar Research Foundation (KESREF) report that was not on record as the report on record indicated so much lower expected yields from the outgrower’s field.
13. THAT the Learned Trial Magistrate failed to cumulatively and/ or exhaustively evaluate the entire evidence on record and accord such evidence its due weight and merits and hence failed to capture and decipher the salient dispute before him thus arriving at an unconsidered decision.
14. THAT the Learned Trial Magistrate erred in law and fact by failing to deduct transport and harvesting charges from the decretal amount yet he had arrived at the conclusion that it was the duty of the Appellant to harvest and transport sugarcane from the Plaintiff’s farm.
IT IS PROPOSED TO ASK THIS COURT FOR ORDERS THAT:-
a). That the appeal be allowed and the entire judgment and decree of the trial court delivered on 4th November, 2021 be set aside
b). That the court be pleased to substitute the decision of the trial court with one setting aside the entire compensation of Kshs. 599,640/= .
c). Costs of the appeal and those incurred in the subordinate court be borne by the Respondent.
(d). Such further and / or other orders as the court may deem just and expedient.
This appeal was canvassed by way of written submissions.
The Appellant’s submissions are dated 13th June 2025.
The Respondent’s submissions are dated 28th November 2025.
ANALYSIS AND DETERMINATION
This being a first appeal, this Court is obligated to reconsider and re-evaluate the evidence adduced before the trial court a
nd 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 ton, 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 20TH DAY OF AUGUST, 2026.
The Respondent’s claim was that on the 7th day of July 2011 he entered into contract with the Appellant to harvest and purchase the sugarcane on his farm measuring 0.8 Ha situated at Gesonso area Boikanga Sub-Location, Nyakembene Location, South Gucha District within Kisii County in the Republic of Kenya.
It was the Respondent’s case that at the time of signing the Out-Grower agreement he had already developed the sugar cane on his farm and he was bound by the terms of the said agreement but that the Appellant without any reasons refused and/ or ignored to harvest the said Plant Crop which dried up in the shamba and affected the preparation of the ratoons.
The Respondent argued that two months after maturity of the sugar cane he notified the Appellant and demanded that they harvest and transport the sugar cane in vain and as a result the terms of the agreement were breached by the Appellant and he suffered loss which he demanded to be compensated.
The Respondent claimed an average of 76.8 ton yield per hectare at Kshs 4,300/= per ton for the three cycles.
The Appellant filed a statement of defence dated 10th January 2017 which was later amended vide statement dated 7th September 2020 attaching list of witnesses and statement of the said witnesses but they did not attend court to testify and the court closed their case.
Upon consideration of the evidence on record for the Respondent and submissions filed by the respective parties the Trial Magistrate found that it was the Appellant’s obligation to harvest and transport the sugar cane upon maturity and that the Appellant breached the contract by failing to harvest and transport the Respondent’s sugar cane.
The Trial Magistrate also found that the Respondent was entitled to be compensated for the plant crop as well as the 2 ratoon crops. He therefore quantified the damages as shown in the body of the judgment.
Aggrieved by the judgment the Appellant lodged the appeal herein vide Memorandum of Appeal dated 16th November 2021 on the following ground:-
1. THAT the Learned Trial Magistrate failed to acknowledge and note that the Appellant has several weighbridges at the Respondent’s locality and that it was the absolute duty of the Respondent to deliver cane at the weighbridge for it to be weighed and tonnage taken.
2. THAT the Learned Trial Magistrate failed, refused and/ or neglected to acknowledge and agree that it was the duty of the Plaintiff/ Respondent to harvest and transport his cane from the alleged contract.
3. THAT the Learned Trial Magistrate failed and refused to acknowledge the fact that the Plaintiff never at any time notified the Appellant that his crop was ready and if he did so no evidence was adduced to conclusively arrive at that determination.
4. THAT the Learned Trial Magistrate assumed and presumed that cane production for plant crop and the ratoon crops yield equal proceeds in a straight line, when evidence has been repeatedly adduced that as the crop ages there is a steady reduction in the crop yields.
5. THAT the Learned Trial Magistrate erred in law and fact in awarding compensation for three harvests yet the Plaintiff’s on his own admission never incurred any damages for the two harvests as the plant crop had dried on the farm.
6. THAT the Learned Trial Magistrate erred in awarding compensation for three harvests yet no evidence was adduced by the Plaintiff to prove that the alleged parcel of land had remained fallow for the entire duration of the contract.
7. THAT the Learned Trial Magistrate erred in law in awarding and assessing compensatory damages in the sum of Kshs. 599,640/= only in favour of the Respondent whereas the said damages had neither been pleaded nor proved in accordance with the law.
8. THAT the Learned Trial Magistrate erred in law and fact when he used a pricing range per ton that was not applicable at the relevant time when the crop could have matured and harvested.
9. THAT the Learned Trial Magistrate erred in law and fact when he discerned the appropriate and applicable law but subsequently either misapplied that applicable law or ignored it in his judgment therefore making the judgment to be per incurium judgment.
10. THAT the Learned Trial Magistrate erred in law and fact by failing to appreciate that there was no contractually agreed price for the sugar cane and that the document placed on record did not originate from the Appellant.
11. THAT the Learned Trial Magistrate erred in law and fact by failing to appreciate that it was the Plaintiff who was in breach of the contract and not the Defendant.
12. THAT the Learned Trial Magistrate erred in law and fact in awarding compensation that was quite above the actual yields per acre by relying on a Kenya Sugar Research Foundation (KESREF) report that was not on record as the report on record indicated so much lower expected yields from the outgrower’s field.
13. THAT the Learned Trial Magistrate failed to cumulatively and/ or exhaustively evaluate the entire evidence on record and accord such evidence its due weight and merits and hence failed to capture and decipher the salient dispute before him thus arriving at an unconsidered decision.
14. THAT the Learned Trial Magistrate erred in law and fact by failing to deduct transport and harvesting charges from the decretal amount yet he had arrived at the conclusion that it was the duty of the Appellant to harvest and transport sugarcane from the Plaintiff’s farm.
IT IS PROPOSED TO ASK THIS COURT FOR ORDERS THAT:-
a). That the appeal be allowed and the entire judgment and decree of the trial court delivered on 4th November, 2021 be set aside
b). That the court be pleased to substitute the decision of the trial court with one setting aside the entire compensation of Kshs. 599,640/= .
c). Costs of the appeal and those incurred in the subordinate court be borne by the Respondent.
(d). Such further and / or other orders as the court may deem just and expedient.
This appeal was canvassed by way of written submissions.
The Appellant’s submissions are dated 13th June 2025.
The Respondent’s submissions are dated 28th November 2025.
ANALYSIS AND DETERMINATION
This being a first appeal, this Court is obligated to reconsider and re-evaluate the evidence adduced before the trial court a
nd 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 ton, 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 20TH DAY OF AUGUST, 2026.