1. Before the trial court was a suit by the current respondent alleging breach of contract and praying for general damages for such breach. It was the plaintiff’s case that he entered into an agreement with the appellant for the development of cane on a piece of land measuring 0.8 hectares.
2. It was the respondent’s case that at the time of executing the agreement signed by him on the 8.8.2011 and by the company on the 28.9.2011, he had in fact planted the cane and that he expected the same to mature early the following year. He contended that the cane indeed matured and that he informed the appellant verbally to harvest same but the appellant failed to do so leading to the cane drying up and occasioning to him the loss of three crops.
3. In support of his case, he filed a witness statement and a list of four documents comprising of; a demand letter, the agreement, Sugar cane price list for the period 2010 -2015 and a document by KESREF on sugar yields in Trans-mara area.
4. The suit was resisted by a defense which essentially denied all the allegations, including the existence of a contract with several pleadings, on without prejudice basis, effectively asserting that if there was indeed there was an agreement then the respondent breached the same by not harvesting and delivering the crop to the designated weighbridge. There was also a plea that the agreement commanded that any disputes under the agreement be referred to arbitration. For that contention, an application for reference was filed, well after the defence had been filed, but the record shows that the same was never pursued and left unprosecuted till the matter was heard in full.
5. The appellant filed witness statements by four witnesses but without any list of documents to be relied upon as evidence.
6. After recording evidence from the only witness of the respondent and the four from the appellant, the trial court came to a conclusion that the format of a cane development agreement is given in a template under the then Sugar Act which obligated the miller to; harvest, weigh at the farm gate and mill the sugarcane supplied by a contracted farmer. The court further found and held that any agreement that shifted that obligation would be prejudicial to the farmer and illegal. The court thus concluded that the appellant had breached the agreement and was liable to pay compensation for the breach.
7. On that basis the court took the view that the Respondent was entitled to special damages based on the size of land and the expected tonnage in yields for the three crops and entered a judgment in favour of the Respondent in the aggregate sum of Kshs 395, 264 calculated at 165,888, 114,688 and 114, 688 for plant crop, 1st and 2nd ratoons. The calculation was easy; expected yield times the price per ton, less harvesting and transport charges, and county cess.
8. That decision has aggrieved the appellant who has filed the instant appeal proffering some whooping 28 grounds of appeal. Before going to the merits of the case, the court must express displeasure on the fashion adopted to craft the memorandum. It is wholly goes against the dictates of order 42 rule 1(2) in so far as it lacks conciseness, is more narrative, argumentative and story-telling with quite unadmirable inelegance, verbosity and tautology.
ANALYSIS AND DETERMINATION
1. This being a first appeal, this court has the duty to re-evaluate, and analyse all the evidence tendered in the lower court and arrive at its own conclusions but bear 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 v Associated Motorboat Co Ltd [1968] EA 123.
2. It is also settled that an appellate court will not ordinarily interfere with findings of fact by the trial Court unless they were based on no evidence at all, or on a misapprehension of it or on demonstrably wrong principles not supported by evidence or on wrong principles of the law. This was the finding of the Court of Appeal in Mbogua Kiruga v Mugecha Kiruga & another [1988] eKLR where the Court of Appeal held:-“An appeal court cannot properly substitute its own factual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong. An appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand but his is a jurisdiction which should be exercised with caution.”
3. I have carefully considered the record of appeal, the rival submissions and the proceedings in the trial court. The following is the issue for determination:
whether the claim pleaded and prosecuted before the court was proved to the requisite standards.
9. The starting point is the law that parties and the court are bound by the pleadings filed as a safeguard to the right to a fair hearing. It is cardinal that a defendant and the plaintiff get the claim to be pursued at the very onset. That enables the sued party to design its appropriate response and also put forth the evidence to be so employed in prosecuting that defence by way of witness statements and documents.
10. The Appellant disputed existence of the contract but from the record the contract was entered into on the 18th June 2011. The contract document was produced as an exhibit by the Respondent and the Appellants did not dispute it. From the said contract, the plant crop was to take 18 to 26 months to mature and thereafter the farmer was to develop two ratoons to be harvested by the Appellant. The Appellant failed to harvest when the plant crop matured. The first harvest was to be in June 2013 at a price of Kshs. 3,800/= per ton.
11. In case of South Nyanza Sugar Company Limited v Oreko (Civil Appeal 138 of 2017) [2022] KECA 570 (KLR) (24 June 2022), the court stated that “The contract itself was for a period of five years or until one plant crop and two ratoons were harvested on the plot, whichever period would be less. The evidence accepted by both courts below, and which has not been challenged before us, is that Sony was guilty of breach by failing to harvest the plant crop. Once the plant crop was not harvested, it dried and the ratoon crops could not grow. This was a natural consequence of the breach. It is therefore reasonably foreseeable that failure to harvest the plant crop would imperil the subsequent ratoon crop and naturally, so too, the 2nd ratoon crop. In this way a loss of the plant crop was also a loss of the two ratoon crops.”
12. Similarly in South Nyanza Sugar Company Limited v Opiyo (Civil Appeal 215 of 2019) [2025] KECA 1631 (KLR) the court affirmed that sugarcane contracts generally cover one Plant crop and two ratoons.
13. This court finds that the Appellant was at breach for failing to harvest the Plant crop and the subsequent ratoons which were never developed due to non-harvest of the Plant Crop. This court finds no reason to interfere with the decision of the trial court.
14. The appeal is dismissed with costs to the Respondent. Interest on the damages to accrue from the date of filing of the suit.
DATED, SIGNED AND DELIVERED AT MIGORI THIS 30TH DAY OF JULY,2026
2. It was the respondent’s case that at the time of executing the agreement signed by him on the 8.8.2011 and by the company on the 28.9.2011, he had in fact planted the cane and that he expected the same to mature early the following year. He contended that the cane indeed matured and that he informed the appellant verbally to harvest same but the appellant failed to do so leading to the cane drying up and occasioning to him the loss of three crops.
3. In support of his case, he filed a witness statement and a list of four documents comprising of; a demand letter, the agreement, Sugar cane price list for the period 2010 -2015 and a document by KESREF on sugar yields in Trans-mara area.
4. The suit was resisted by a defense which essentially denied all the allegations, including the existence of a contract with several pleadings, on without prejudice basis, effectively asserting that if there was indeed there was an agreement then the respondent breached the same by not harvesting and delivering the crop to the designated weighbridge. There was also a plea that the agreement commanded that any disputes under the agreement be referred to arbitration. For that contention, an application for reference was filed, well after the defence had been filed, but the record shows that the same was never pursued and left unprosecuted till the matter was heard in full.
5. The appellant filed witness statements by four witnesses but without any list of documents to be relied upon as evidence.
6. After recording evidence from the only witness of the respondent and the four from the appellant, the trial court came to a conclusion that the format of a cane development agreement is given in a template under the then Sugar Act which obligated the miller to; harvest, weigh at the farm gate and mill the sugarcane supplied by a contracted farmer. The court further found and held that any agreement that shifted that obligation would be prejudicial to the farmer and illegal. The court thus concluded that the appellant had breached the agreement and was liable to pay compensation for the breach.
7. On that basis the court took the view that the Respondent was entitled to special damages based on the size of land and the expected tonnage in yields for the three crops and entered a judgment in favour of the Respondent in the aggregate sum of Kshs 395, 264 calculated at 165,888, 114,688 and 114, 688 for plant crop, 1st and 2nd ratoons. The calculation was easy; expected yield times the price per ton, less harvesting and transport charges, and county cess.
8. That decision has aggrieved the appellant who has filed the instant appeal proffering some whooping 28 grounds of appeal. Before going to the merits of the case, the court must express displeasure on the fashion adopted to craft the memorandum. It is wholly goes against the dictates of order 42 rule 1(2) in so far as it lacks conciseness, is more narrative, argumentative and story-telling with quite unadmirable inelegance, verbosity and tautology.
ANALYSIS AND DETERMINATION
1. This being a first appeal, this court has the duty to re-evaluate, and analyse all the evidence tendered in the lower court and arrive at its own conclusions but bear 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 v Associated Motorboat Co Ltd [1968] EA 123.
2. It is also settled that an appellate court will not ordinarily interfere with findings of fact by the trial Court unless they were based on no evidence at all, or on a misapprehension of it or on demonstrably wrong principles not supported by evidence or on wrong principles of the law. This was the finding of the Court of Appeal in Mbogua Kiruga v Mugecha Kiruga & another [1988] eKLR where the Court of Appeal held:-“An appeal court cannot properly substitute its own factual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong. An appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand but his is a jurisdiction which should be exercised with caution.”
3. I have carefully considered the record of appeal, the rival submissions and the proceedings in the trial court. The following is the issue for determination:
whether the claim pleaded and prosecuted before the court was proved to the requisite standards.
9. The starting point is the law that parties and the court are bound by the pleadings filed as a safeguard to the right to a fair hearing. It is cardinal that a defendant and the plaintiff get the claim to be pursued at the very onset. That enables the sued party to design its appropriate response and also put forth the evidence to be so employed in prosecuting that defence by way of witness statements and documents.
10. The Appellant disputed existence of the contract but from the record the contract was entered into on the 18th June 2011. The contract document was produced as an exhibit by the Respondent and the Appellants did not dispute it. From the said contract, the plant crop was to take 18 to 26 months to mature and thereafter the farmer was to develop two ratoons to be harvested by the Appellant. The Appellant failed to harvest when the plant crop matured. The first harvest was to be in June 2013 at a price of Kshs. 3,800/= per ton.
11. In case of South Nyanza Sugar Company Limited v Oreko (Civil Appeal 138 of 2017) [2022] KECA 570 (KLR) (24 June 2022), the court stated that “The contract itself was for a period of five years or until one plant crop and two ratoons were harvested on the plot, whichever period would be less. The evidence accepted by both courts below, and which has not been challenged before us, is that Sony was guilty of breach by failing to harvest the plant crop. Once the plant crop was not harvested, it dried and the ratoon crops could not grow. This was a natural consequence of the breach. It is therefore reasonably foreseeable that failure to harvest the plant crop would imperil the subsequent ratoon crop and naturally, so too, the 2nd ratoon crop. In this way a loss of the plant crop was also a loss of the two ratoon crops.”
12. Similarly in South Nyanza Sugar Company Limited v Opiyo (Civil Appeal 215 of 2019) [2025] KECA 1631 (KLR) the court affirmed that sugarcane contracts generally cover one Plant crop and two ratoons.
13. This court finds that the Appellant was at breach for failing to harvest the Plant crop and the subsequent ratoons which were never developed due to non-harvest of the Plant Crop. This court finds no reason to interfere with the decision of the trial court.
14. The appeal is dismissed with costs to the Respondent. Interest on the damages to accrue from the date of filing of the suit.
DATED, SIGNED AND DELIVERED AT MIGORI THIS 30TH DAY OF JULY,2026