REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KILGORIS
CIVIL APPEAL NO. E006 OF 2025
(CORAM: HON. CHARLES M. KARIUKI – J)
((Being an appeal arising from the judgment of Hon.W.C. WASWA(SRM) delivered on 21 ST FEBRUARY 2025 in Kilgoris MCCC/E019 OF 2023, Transmara Sugar Company Limited -V- Moses Tajewuo Mpario & Sukari Industries Limited)
TRANSMARA SUGAR COMPANY LIMITED ……………………………APPELLANT VERSUS
MOSES TAJEWUO MPARIO …………………………………………1ST RESPONDENT
SUKARI INDUSTRIES LIMITED………………………………………2ND RESPONDENT
JUDGMENT
03/07/2026
A. INTRODUCTION AND BACKGROUND
1) This is the first appeal arising from the judgment of the Senior Resident Magistrate, Hon. W.C. Waswa, delivered on 21 st February 2025 in Kilgoris CMCC No. E019 of 2023. The appeal is confined to the portion of the judgment dismissing the Appellant's claim against the 2 nd Respondent, Sukari Industries Limited. The trial court entered judgment against the 1st Respondent for breach of a Sugarcane Growing and Supply Contract and awarded the Appellant special damages of Kshs. 250,720.72 together with costs and interest but found that no liability attached to the 2 nd Respondent on the basis that it was not privy to the contract.
2) The dispute arose from a Sugarcane Growing and Supply Contract executed on 1 st September 2017 between the Appellant and the 1 st Respondent. Under the agreement, the Appellant undertook to provide seed cane, fertilizer, and other agricultural inputs. In contrast, the 1 st Respondent undertook to cultivate and exclusively supply three crop cycles of sugarcane to the Appellant. The evidence before the trial court established that the Appellant supplied the agreed farm inputs and the contractual relationship remained in force.
3) The Appellant complained that before the Appellant could harvest the final crop cycle, the 1st Respondent sold the mature sugarcane to the 2 nd Respondent, who harvested, transported, and milled the cane. The Appellant consequently instituted proceedings seeking a declaration that the 1 st Respondent had breached the contract and further sought special damages of Kshs 250,720.72 against both Respondents jointly and severally.
4) After hearing the evidence, the learned trial magistrate held that the 1 st Respondent had indeed breached the contract and entered judgment against him. However, the court dismissed the suit against the 2 nd Respondent, holding that the doctrine of privity of contract precluded liability because there existed no contractual relationship between the Appellant and the 2nd Respondent. Aggrieved only by that finding, the Appellant lodged the present appeal.
5) As this is a first appeal, this Court is required to reconsider, re-evaluate, and re-analyse the entire evidence on record and arrive at its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. The duty of the first appellate court was succinctly stated in Selle & Another v Associated Motorboat Co. Ltd [1968] EA 123 and has consistently been reaffirmed, including in Sumaria & Another v Allied Industries Ltd [2007] 2 KLR 1 and Peters v Sunday Post Ltd [1958] EA 424.
B. Memorandum of appeal.
6) The Appellant, Transmara Sugar Company Limited, filed the Memorandum of Appeal dated 6 th March 2025, challenging that part of the judgment of the Senior Resident Magistrate delivered on 21 st February 2025, which dismissed its claim against the 2 nd Respondent, Sukari Industries Limited, with costs.
7) The grounds of appeal assert, inter alia, that:
1. 1. THAT the learned Trial Magistrate erred in fact and in law by failing to consider that the 2 nd Respondent is also liable jointly and severally with the 1st Respondent for the damages sought by the Appellant, as normally done in the sugarcane industry.
2. THAT the learned Trial Magistrate erred in fact and in law by failing to consider the evidence of the Appellant’s witnesses and ignoring them altogether.
3. THAT the learned Trial Magistrate erred in fact and in law by failing to consider the sanctity, presence, and the effect of a duly executed contract.
4. THAT the learned Trial Magistrate erred in fact and in law by not putting sufficient weight and consideration to the Appellant’s evidence tendered, thus arising at a fundamentally flawed determination.
5. THAT the learned Trial Magistrate erred in fact and in law by failing take into account the evidence of the 2 nd Respondent’s witness who admitted that indeed they bought, harvested, transported and crushed the sugarcane of the 1st Respondent under the authority of the 1 st Respondent and further paid the 1st Respondent and thus should have found that the 2 nd Respondent is liable to pay the loss of revenue claimed by the Appellant since 2 nd Respondent was the recipient of the sugarcane knowingly.
6. The learned trial Magistrate erred in fact and in law by dismissing the case against the 2 nd Respondent with costs against the entirety of the weight of the evidence in the case.
7. The trial Magistrate erred in fact and in law by being led by extraneous issues and elements in determining the case against the 2 nd Defendant rather than the evidence in totality.
8. The trial magistrate erred in fact and in law in giving credence to the intentional participation of the 2 nd Defendant in purchasing contracted cane, with all the information that it was contracted cane. He further misled himself by stating that “whether or not the 2 nd Defendant was aware that the sugarcane was contracted to the Plaintiff is irrelevant” and thus by holding so, completely ignored the admission by the 2 nd Respondent’s witness who admitted buying and crushing contracted cane and the trial court should have held that the 2nd Defendant is equally liable for the loss of revenue but instead dismissed the case against the 2nd Defendant regardless.
9. The trial Magistrate erred in law and in fact by misapplying the principle of privity of contract vis-àvis the prevailing evidence and circumstances of the case as normally applied in the sugarcane industry.
8) Based on those grounds, the Appellant prays that the appeal be allowed, that the portion of the judgment dismissing the suit against the 2 nd Respondent together with the consequential order on costs be set aside, and that appropriate relief, including the costs of the appeal, be granted.
C. Directions of the court.
9) The appeal was canvassed by way of written submissions.
D. THE PARTIES' SUBMISSIONS
i. The Appellant’s Submissions
10) The Appellant submits that, being a first appeal, this Court is under a duty to reconsider, re-evaluate, and re-analyse the entire evidence on record and arrive at its own independent conclusions while bearing in mind that it did not have the advantage of seeing or hearing the witnesses testify. In support of this proposition, reliance is placed on Wilson Kazungu Katana & 101 Others v Salim Abdalla Bakshwein & Another [2015] KECA 728 (KLR ), where the Court of Appeal reaffirmed the principles set out in Selle & Another v Associated Motor Boat Co. Ltd & Others (1968) EA 123, Ogol v Muriithi [1985] KLR 359, and Seascapes Ltd v Development Finance Company of Kenya Ltd [2009] KLR 384, that a first appellate court must revisit the evidence afresh, evaluate it independently and draw its own conclusions, while giving due allowance to the trial court's advantage of observing the witnesses.
11) On the merits of the appeal, the Appellant submits that the evidence on record unequivocally established the existence of a valid Sugarcane Growing and Supply Contract No. 40104 dated 1 st September 2017 between itself and the 1st Respondent. It argues that the contract was duly executed and substantially performed by providing seed cane, fertiliser, and other agricultural inputs, all of which were produced as exhibits before the trial court. According to the Appellant, the contract required the 1 st Respondent to supply three crop cycles to the Appellant exclusively, and the documentary evidence, including delivery notes, fertiliser issue notes, farmer crop details, and the IFRS statement, demonstrated that the contractual relationship was never disputed by the 1 st Respondent and remained valid throughout the material period.
12) The Appellant further contends that the 1 st Respondent blatantly breached the contract by selling the third crop (second ratoon) to the 2 nd Respondent while the cane was still within the contractual harvesting age. It argues that the sale was deliberately undertaken to defeat the Appellant's contractual right to harvest the cane and recover the substantial investment it had made through the supply of farm inputs. The Appellant maintains that the photographic evidence, crop records, and testimony of its witnesses proved that the 2 nd Respondent harvested, transported, and milled the contracted sugarcane despite protests by the Appellant's representatives.
13) The Appellant submits that the breach caused it quantifiable monetary loss amounting to KShs. 250,720.72, comprising KShs. 200,789.20 is the loss of revenue. 49,931.52 being unrecovered input costs for seed cane and fertiliser supplied to the 1 st Respondent. It argues that these losses were specifically pleaded, strictly proved through documentary exhibits and witness testimony, and therefore constituted recoverable special damages.
14) A substantial part of the Appellant's submissions is directed at establishing the liability of the 2 nd Respondent. It contends that the trial magistrate erred in holding that the 2 nd Respondent bore no responsibility merely because it was not privy to the contract. According to the Appellant, the evidence demonstrated that the 2 nd Respondent knowingly harvested, transported, weighed, purchased, and crushed sugarcane which it either knew or ought reasonably to have known belonged to the Appellant under an existing cane supply contract. The Appellant relies on the evidence of PW2, who testified that he personally informed the 2 nd Respondent's harvesting team during the harvest that the cane was contracted to the Appellant and demanded that they stop. Still, they ignored the warning and continued the exercise. The Appellant faults the trial court for disregarding this evidence and instead accepting the 2 nd Respondent's assertion that it was unaware of the contract.
15) The Appellant further argues that the admissions made by the 2 nd Respondent's own witness established active participation in the transaction. It submits that the witness admitted that the 2 nd Respondent purchased the cane, transported it to its factory, crushed it, and paid the 1 st Respondent. The Appellant maintains that the payment itself constituted an inducement which encouraged the 1 st Respondent to breach his contractual obligations. It further submits that the 2 nd Respondent benefited not only from the sugar produced but also from valuable by-products such as molasses, bagasse, and press mud, thereby profiting directly from the contractual breach.
16) The Appellant criticises the trial court for holding that whether the 2 nd Respondent knew that the sugarcane was contracted to the Appellant was irrelevant. It argues that such a finding ignored both the oral and documentary evidence demonstrating that the Appellant's officers had notified the harvesting team of the contract's existence. The Appellant also points to the 2 nd Respondent's admission during cross-examination that millers do not ordinarily place identification markers on contracted farms, thereby undermining the trial court's reasoning that the absence of signage excused the 2 nd Respondent's conduct.
17) To support its argument that the 2 nd Respondent is jointly liable for the breach, the Appellant relies principally on Joseph Ochieng & 2 Others t/a Aquiline Agencies v First National Bank of Chicago, Civil Appeal No. 149 of 1991, [1995-1998] 2 EA 183 (CAK), where the Court of Appeal adopted the statement in Bullen & Leake's Precedents of Pleadings, 12th Edition, that the tort of inducing breach of contract consists of four essential elements: knowledge of the contract, intentional interference or inducement causing breach, causation, and resulting damage. The Appellant submits that the evidence fully established all four elements, since the 2nd Respondent became aware of the existing contract through the Appellant's representatives, yet proceeded to harvest and purchase the cane, thereby causing the breach and resulting in monetary loss to the Appellant.
18) Finally, the Appellant submits that the trial court misapplied the doctrine of privity of contract by treating it as an absolute bar to liability on the part of the 2 nd Respondent. It argues that its claim against the 2 nd Respondent was not founded upon contractual privity but upon the latter's intentional participation in and inducement of the breach of contract. The Appellant therefore urges the appellate court to set aside the finding absolving the 2 nd Respondent of liability, enter judgment against both Respondents jointly and severally for KShs. 250,720.72, allow the appeal, and award the Appellant the costs of both the suit and the appeal on the basis that costs follow the event.
ii. The 2 nd Respondent’s Submissions
19) The 2 nd Respondent submits that the appeal is devoid of merit and urges the court to uphold the judgment of the trial magistrate dismissing the suit against it with costs. At the outset, the 2 nd Respondent acknowledges that its submissions before the trial court were not filed due to technical challenges with the Case Tracking System (CTS) but contends that the omission did not prejudice the determination because the evidence on record clearly demonstrated that no liability attached to it. The Respondent further submits that, as a first appellate court, this Court is obligated to reconsider and re-evaluate the entire evidence before arriving at its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. In support of this proposition, reliance is placed on Sumaria & Another v Allied Industries Ltd [2007] KLR 1.
20) The 2 nd Respondent argues that the learned trial magistrate correctly found that there was no privity of contract between the Appellant and the 2 nd Respondent and consequently no legal basis upon which liability could be imposed upon it. According to the Respondent, the pleadings and evidence unmistakably showed that the contractual relationship existed exclusively between the Appellant and the 1 st Respondent, who allegedly breached the sugarcane supply agreement by selling cane elsewhere. It is submitted that the Appellant itself pleaded that the 1 st Respondent breached the contract and sought a declaration to that effect, yet paradoxically sought damages against the 2 nd Respondent without establishing any contractual or legal obligation owed by the latter.
21) The Respondent further submits that the Appellant failed to establish its claim on a balance of probabilities as required under Sections 107, 108, and 109 of the Evidence Act. It maintains that although it denied all allegations in its defence and called evidence, the legal burden nevertheless remained with the Appellant throughout the proceedings. Reliance is placed on Philomena Mutheu Nzyoka (Legal Representative of the Estate of the Late TKM) v Transpares Kenya Limited [2016] eKLR, where the court held that even in the absence of rebuttal evidence, a plaintiff must still discharge the burden of proof before judgment can be entered in its favour.
22) The 2 nd Respondent further argues that the Appellant's plaint disclosed no reasonable cause of action against it. It submits that the pleadings contained no allegations of negligence, breach of statutory duty, breach of any duty of care, or any independent wrongful conduct attributable to the 2 nd Respondent. Instead, the plaintiff consistently blamed the 1st Respondent for breaching the contract. Consequently, the Respondent contends that it was improperly joined to the proceedings. In support of the principle that parties are bound by their pleadings and courts cannot determine matters not pleaded, reliance is placed on Dakianga Distributors (K) Ltd v Kenya Seed Company Limited [2015] eKLR , where the Court of Appeal emphasised that litigation must be confined to the issues raised in the pleadings. The Respondent also cites Investments and Mortgages Bank Limited v Nancy Thumari & 3 Others [2015] eKLR, which discussed what constitutes a reasonable cause of action and affirmed that a party improperly joined in proceedings may be struck out where no triable issue is disclosed. The Respondent additionally relies on DT Dobie & Company (Kenya) Ltd v Muchina [1982] KLR 1, Francis Kamande v Vanguard Electrical Services Ltd, and Olympic Escort International Co. Ltd & 2 Others v Parminder Singh Sandhu & Another [2009] eKLR for the proposition that a cause of action must disclose a bona fide triable issue.
23) On liability generally, the Respondent submits that Kenyan law recognises no liability without fault and that the Appellant neither pleaded nor proved any wrongful conduct attributable to it. It relies on Mboga v Mwambodze [2024] KESC 7376 (KLR), where the court reaffirmed the principle articulated in Dharmagma Patel & Another v T.A. (a minor suing through her mother and next friend H.H.) [2014] eKLR , which in turn cited Kiema Mutuku v Kenya Cargo Hauling Services Ltd [1991] 2 KAR 258, for the proposition that negligence or other actionable fault must be specifically pleaded and proved before liability can arise.
24) On the doctrine of privity of contract, the Respondent submits that there was absolutely no contractual relationship between itself and the Appellant. It argues that only the Appellant and the 1 st Respondent were parties to the sugarcane agreement, and none of the recognised exceptions to the doctrine of privity was pleaded or proved. The Respondent therefore contends that it could neither incur obligations under nor be sued for breach of a contract to which it was not a party. In support, it relies on Aineah Liluyani Njirah v Aga Khan Health Services [2013] KECA 481 (KLR), in which the Court of Appeal extensively discussed the doctrine of privity of contract and its limited exceptions.
25) The Respondent further argues that even if the Appellant intended to pursue a claim based on inducement of breach of contract, no such cause of action was pleaded or proved. It submits that the pleadings did not allege that the 2 nd Respondent knowingly procured or induced the 1 st Respondent to breach the contract. Moreover, there was no evidence demonstrating that the 2 nd Respondent knew about the contract or its terms. The Respondent relies on Joseph Ochieng & 2 Others t/a Acquiline Agencies v First National Bank of Chicago [1990] eKLR, where the Court of Appeal outlined the essential ingredients of the tort of inducing breach of contract and held that failure to plead the material particulars rendered such a claim legally deficient.
26) The Respondent also submits that the abolition of exclusive sugarcane zoning meant that it was legally entitled to purchase sugarcane from any willing farmer. It argues that there was no statutory prohibition preventing it from buying cane from the 1 st Respondent. Reliance is placed on Nzoia Sugar Company Limited v West Kenya Sugar Company Limited [2017] eKLR, where the Court affirmed that there are no exclusive sugar-growing zones for millers following the enactment of the Competition Act and the Crops Act.
27) Further, the Respondent contends that it purchased the sugarcane as a bona fide purchaser for value without notice. It submits that the 1 st Respondent voluntarily approached it as a willing seller, represented himself as entitled to sell the cane, and received payment for the produce. According to the Respondent, there was no evidence that it knew or ought to have known of any contractual restrictions affecting the sugarcane. Consequently, it acquired a good title to the produce. Reliance is placed on Moses Lutomia Washiali v Zephaniah Ngaira Angweye & Another [2018] eKLR , which adopted the definition of a bona fide purchaser for value without notice, and Mary Muriza Ondatto v District Lands Adjudication and Settlement Officer, Kilifi & 2 Others [2018] eKLR , where the court adopted the principles stated in Katende v Haridar & Company Ltd (2008) 2 EA 173 on the requirements of bona fide purchase.
28) Regarding damages, the Respondent submits that the Appellant failed to strictly prove the special damages claimed, particularly the alleged loss of revenue amounting to Kshs. 200,789.20. It argues that although the Appellant produced evidence relating to farm inputs valued at Kshs. 49,931.52, it tendered no evidence to justify the alleged loss of revenue. The Respondent further submits that general damages are ordinarily not recoverable for breach of contract. In support, it relies on South Nyanza Sugar Company Ltd v Hezron Ndarera Mogwasi [2010] eKLR, which reaffirmed the principle in Jivanji v Sanyo Electrical Company Ltd (2003) 1 EA 98 and Coast Bus Service Ltd v Murunga & Others (1992) LLR 318 (CAK) that special damages must not only be specifically pleaded but must also be strictly proved.
29) Finally, the Respondent submits that the appeal is fundamentally defective because the Appellant merely seeks to set aside the dismissal of the suit against the 2nd Respondent without proposing the specific orders that ought to replace the impugned judgment. It argues that the Appellant already possesses a valid judgment against the 1st Respondent for Kshs. 250,720.72 and has failed to demonstrate any legal basis for imposing a second liability upon the 2nd Respondent arising from the same transaction. The Respondent therefore maintains that the learned trial magistrate properly dismissed the claim against it and urges this Court to dismiss the appeal with costs.
iii. The Appellant’s Supplementary Submissions
30) In its supplementary submissions, the Appellant sought to distinguish the authorities and arguments relied upon by the 2 nd Respondent and urged the appellate court to find that, notwithstanding the doctrine of privity of contract, the 2 nd Respondent was liable for inducing and facilitating the breach of the sugarcane supply contract between the Appellant and the 1 st Respondent. The Appellant submitted that the appeal did not seek to enforce contractual obligations against the 2 nd Respondent as a contracting party, but rather to impose tortious liability arising from the 2 nd Respondent's deliberate interference with an existing contractual relationship.
31) The Appellant acknowledged that the doctrine of privity of contract is firmly established in Kenyan law and relied on Savings & Loan (K) Ltd v Kanyenje Karangaita Gakombe & Another [2015] eKLR, where the Court affirmed that contractual rights and obligations are enforceable only between parties to the contract. Similar reliance was placed on Agricultural Finance Corporation v Lengetia Ltd [1985] KLR 765, in which the Court of Appeal held that a contract cannot confer rights or impose obligations upon persons who are not parties to it. However, the Appellant argued that these authorities merely restate the general rule and do not exclude liability founded on tortious conduct by third parties.
32) According to the Appellant, Kenyan jurisprudence recognises several exceptions to the doctrine of privity, including agency, trusts, collateral contracts, assignment, statutory exceptions, restrictive covenants, third-party rights, contracts for the benefit of third parties, and novation. More importantly, the Appellant submitted that the present appeal falls within the recognised exception of tortious interference with contractual relations, inducement of breach of contract, unjust enrichment, and accessory liability, contending that these principles impose liability independently of contractual privity.
33) The Appellant maintained that the evidence before the trial court established the essential ingredients of the tort of interference with contractual relations, namely the existence of a valid sugarcane supply contract, the 2 nd Respondent's knowledge of that contract, its intentional procurement of the breach, and the loss suffered by the Appellant. Reliance was placed on Gimalu Estates Ltd & 4 Others v International Finance Corporation & Another [2016] eKLR , which was cited for the proposition that a third party who knowingly interferes with contractual relations may incur liability in tort notwithstanding the absence of contractual privity. The Appellant submitted that the 2 nd Respondent knowingly purchased sugarcane that was contractually committed to the Appellant, paid the 1 st Respondent for that cane, facilitated the diversion of the contracted crop, and thereby intentionally procured the breach of the supply agreement.
34) The Appellant further argued that the 2 nd Respondent possessed both actual and constructive knowledge of the contractual relationship. It is submitted that as an established participant in the sugar industry, the 2 nd Respondent was fully conversant with the regulatory framework governing sugarcane contracting and could not plausibly claim ignorance of the existence of grower-miller contracts. According to the Appellant, every licensed miller is required to demonstrate the existence of contracted cane before obtaining a milling licence, making it inconceivable that the 2 nd Respondent could lawfully operate while professing ignorance of industry contracting arrangements. The Appellant therefore contended that the 2 nd Respondent was deemed to have constructive notice of competing contractual obligations and could not shield itself behind the doctrine of privity.
35) The Appellant also advanced the doctrine of unjust enrichment, arguing that the 2 nd Respondent derived financial benefit by purchasing and milling sugarcane that ought to have been supplied to the Appellant under the existing contract. It is submitted that equity does not permit a party to retain benefits obtained through wrongful interference with another's contractual rights and urged the Court to require restitution of the profits earned from the impugned transaction.
36) Further, the Appellant submitted that the 2 nd Respondent incurred accessory liability by actively facilitating and financing the breach of contract through payment to the 1st Respondent. It argued that the purchase price constituted the inducement that enabled the contractual breach and that the 2 nd Respondent's conduct amounted to active participation rather than passive receipt of sugarcane.
37) On the issue of whether liability could arise independently of contractual privity, the Appellant reiterated that the cause of action before the Court was founded on tort rather than contract. It is submitted that payment to the 1 st Respondent was the very mechanism by which the breach was procured and that such conduct attracted liability irrespective of the absence of contractual relations between the Appellant and the 2nd Respondent. It therefore urged the Court to hold the 2nd Respondent jointly and severally liable with the 1st Respondent for the losses occasioned by the breach.
38) The Appellant devoted considerable attention to the statutory regulation of the sugar industry, arguing that the sector operates under a comprehensive legal framework that imposes obligations beyond ordinary contractual relationships. It is submitted that sugar factories are licensed participants within a regulated supply chain and therefore cannot be treated as innocent third-party purchasers. In support of this position, reliance was placed on John Okoth Ochieng v Kibos Sugar & Allied Industries Ltd [2021] KEELRC 1926 (KLR), where the Court emphasised the necessity of proving unauthorised third-party harvesting in disputes concerning sugarcane contracts. The Appellant also cited Ogake v Transmara Sugar Co. Ltd, Miscellaneous Application No. 29 of 2022 [2023] KEHC 20993 (KLR) (20 July 2023) for the proposition that contractual obligations within the sugar industry are governed strictly by agreed contractual terms and the applicable statutory framework.
39) The Appellant further submitted that Kenyan courts have consistently recognised the highly regulated nature of the sugar industry. It relied on South Nyanza Sugar Company Ltd v Attorney General [2016] eKLR, in which the High Court recognised that sugar millers operate within a statutory regulatory framework that establishes structured relationships between growers and millers. It also cited Gedion Angachi Anyinya & 9 Others v West Kenya Sugar Co. Ltd [2016] eKLR, where the Court of Appeal observed that growers, millers, and other stakeholders are all participants within the statutory sugar industry framework and that the regulatory regime governs disputes concerning cane supply. According to the Appellant, these authorities demonstrate that sugar factories are not neutral purchasers but regulated actors subject to obligations that extend beyond common-law contractual principles.
40) The Appellant further relied on Transmara Sugar Company Limited v David Nyabuto Sindani [2022] eKLR, arguing that the decision reaffirmed that sugarcane contracts are governed by statutory obligations concerning harvesting, transport, and processing, and that contractual arrangements must comply with the prevailing regulatory framework. It also cited Elena Olala v South Nyanza Sugar Co. Ltd [2018] eKLR, in which the Court of Appeal upheld the enforceability of sugarcane contracts and imposed liability for failure to harvest mature cane, thereby illustrating judicial protection of contrac
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IN THE HIGH COURT OF KENYA AT KILGORIS
CIVIL APPEAL NO. E006 OF 2025
(CORAM: HON. CHARLES M. KARIUKI – J)
((Being an appeal arising from the judgment of Hon.W.C. WASWA(SRM) delivered on 21 ST FEBRUARY 2025 in Kilgoris MCCC/E019 OF 2023, Transmara Sugar Company Limited -V- Moses Tajewuo Mpario & Sukari Industries Limited)
TRANSMARA SUGAR COMPANY LIMITED ……………………………APPELLANT VERSUS
MOSES TAJEWUO MPARIO …………………………………………1ST RESPONDENT
SUKARI INDUSTRIES LIMITED………………………………………2ND RESPONDENT
JUDGMENT
03/07/2026
A. INTRODUCTION AND BACKGROUND
1) This is the first appeal arising from the judgment of the Senior Resident Magistrate, Hon. W.C. Waswa, delivered on 21 st February 2025 in Kilgoris CMCC No. E019 of 2023. The appeal is confined to the portion of the judgment dismissing the Appellant's claim against the 2 nd Respondent, Sukari Industries Limited. The trial court entered judgment against the 1st Respondent for breach of a Sugarcane Growing and Supply Contract and awarded the Appellant special damages of Kshs. 250,720.72 together with costs and interest but found that no liability attached to the 2 nd Respondent on the basis that it was not privy to the contract.
2) The dispute arose from a Sugarcane Growing and Supply Contract executed on 1 st September 2017 between the Appellant and the 1 st Respondent. Under the agreement, the Appellant undertook to provide seed cane, fertilizer, and other agricultural inputs. In contrast, the 1 st Respondent undertook to cultivate and exclusively supply three crop cycles of sugarcane to the Appellant. The evidence before the trial court established that the Appellant supplied the agreed farm inputs and the contractual relationship remained in force.
3) The Appellant complained that before the Appellant could harvest the final crop cycle, the 1st Respondent sold the mature sugarcane to the 2 nd Respondent, who harvested, transported, and milled the cane. The Appellant consequently instituted proceedings seeking a declaration that the 1 st Respondent had breached the contract and further sought special damages of Kshs 250,720.72 against both Respondents jointly and severally.
4) After hearing the evidence, the learned trial magistrate held that the 1 st Respondent had indeed breached the contract and entered judgment against him. However, the court dismissed the suit against the 2 nd Respondent, holding that the doctrine of privity of contract precluded liability because there existed no contractual relationship between the Appellant and the 2nd Respondent. Aggrieved only by that finding, the Appellant lodged the present appeal.
5) As this is a first appeal, this Court is required to reconsider, re-evaluate, and re-analyse the entire evidence on record and arrive at its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. The duty of the first appellate court was succinctly stated in Selle & Another v Associated Motorboat Co. Ltd [1968] EA 123 and has consistently been reaffirmed, including in Sumaria & Another v Allied Industries Ltd [2007] 2 KLR 1 and Peters v Sunday Post Ltd [1958] EA 424.
B. Memorandum of appeal.
6) The Appellant, Transmara Sugar Company Limited, filed the Memorandum of Appeal dated 6 th March 2025, challenging that part of the judgment of the Senior Resident Magistrate delivered on 21 st February 2025, which dismissed its claim against the 2 nd Respondent, Sukari Industries Limited, with costs.
7) The grounds of appeal assert, inter alia, that:
1. 1. THAT the learned Trial Magistrate erred in fact and in law by failing to consider that the 2 nd Respondent is also liable jointly and severally with the 1st Respondent for the damages sought by the Appellant, as normally done in the sugarcane industry.
2. THAT the learned Trial Magistrate erred in fact and in law by failing to consider the evidence of the Appellant’s witnesses and ignoring them altogether.
3. THAT the learned Trial Magistrate erred in fact and in law by failing to consider the sanctity, presence, and the effect of a duly executed contract.
4. THAT the learned Trial Magistrate erred in fact and in law by not putting sufficient weight and consideration to the Appellant’s evidence tendered, thus arising at a fundamentally flawed determination.
5. THAT the learned Trial Magistrate erred in fact and in law by failing take into account the evidence of the 2 nd Respondent’s witness who admitted that indeed they bought, harvested, transported and crushed the sugarcane of the 1st Respondent under the authority of the 1 st Respondent and further paid the 1st Respondent and thus should have found that the 2 nd Respondent is liable to pay the loss of revenue claimed by the Appellant since 2 nd Respondent was the recipient of the sugarcane knowingly.
6. The learned trial Magistrate erred in fact and in law by dismissing the case against the 2 nd Respondent with costs against the entirety of the weight of the evidence in the case.
7. The trial Magistrate erred in fact and in law by being led by extraneous issues and elements in determining the case against the 2 nd Defendant rather than the evidence in totality.
8. The trial magistrate erred in fact and in law in giving credence to the intentional participation of the 2 nd Defendant in purchasing contracted cane, with all the information that it was contracted cane. He further misled himself by stating that “whether or not the 2 nd Defendant was aware that the sugarcane was contracted to the Plaintiff is irrelevant” and thus by holding so, completely ignored the admission by the 2 nd Respondent’s witness who admitted buying and crushing contracted cane and the trial court should have held that the 2nd Defendant is equally liable for the loss of revenue but instead dismissed the case against the 2nd Defendant regardless.
9. The trial Magistrate erred in law and in fact by misapplying the principle of privity of contract vis-àvis the prevailing evidence and circumstances of the case as normally applied in the sugarcane industry.
8) Based on those grounds, the Appellant prays that the appeal be allowed, that the portion of the judgment dismissing the suit against the 2 nd Respondent together with the consequential order on costs be set aside, and that appropriate relief, including the costs of the appeal, be granted.
C. Directions of the court.
9) The appeal was canvassed by way of written submissions.
D. THE PARTIES' SUBMISSIONS
i. The Appellant’s Submissions
10) The Appellant submits that, being a first appeal, this Court is under a duty to reconsider, re-evaluate, and re-analyse the entire evidence on record and arrive at its own independent conclusions while bearing in mind that it did not have the advantage of seeing or hearing the witnesses testify. In support of this proposition, reliance is placed on Wilson Kazungu Katana & 101 Others v Salim Abdalla Bakshwein & Another [2015] KECA 728 (KLR ), where the Court of Appeal reaffirmed the principles set out in Selle & Another v Associated Motor Boat Co. Ltd & Others (1968) EA 123, Ogol v Muriithi [1985] KLR 359, and Seascapes Ltd v Development Finance Company of Kenya Ltd [2009] KLR 384, that a first appellate court must revisit the evidence afresh, evaluate it independently and draw its own conclusions, while giving due allowance to the trial court's advantage of observing the witnesses.
11) On the merits of the appeal, the Appellant submits that the evidence on record unequivocally established the existence of a valid Sugarcane Growing and Supply Contract No. 40104 dated 1 st September 2017 between itself and the 1st Respondent. It argues that the contract was duly executed and substantially performed by providing seed cane, fertiliser, and other agricultural inputs, all of which were produced as exhibits before the trial court. According to the Appellant, the contract required the 1 st Respondent to supply three crop cycles to the Appellant exclusively, and the documentary evidence, including delivery notes, fertiliser issue notes, farmer crop details, and the IFRS statement, demonstrated that the contractual relationship was never disputed by the 1 st Respondent and remained valid throughout the material period.
12) The Appellant further contends that the 1 st Respondent blatantly breached the contract by selling the third crop (second ratoon) to the 2 nd Respondent while the cane was still within the contractual harvesting age. It argues that the sale was deliberately undertaken to defeat the Appellant's contractual right to harvest the cane and recover the substantial investment it had made through the supply of farm inputs. The Appellant maintains that the photographic evidence, crop records, and testimony of its witnesses proved that the 2 nd Respondent harvested, transported, and milled the contracted sugarcane despite protests by the Appellant's representatives.
13) The Appellant submits that the breach caused it quantifiable monetary loss amounting to KShs. 250,720.72, comprising KShs. 200,789.20 is the loss of revenue. 49,931.52 being unrecovered input costs for seed cane and fertiliser supplied to the 1 st Respondent. It argues that these losses were specifically pleaded, strictly proved through documentary exhibits and witness testimony, and therefore constituted recoverable special damages.
14) A substantial part of the Appellant's submissions is directed at establishing the liability of the 2 nd Respondent. It contends that the trial magistrate erred in holding that the 2 nd Respondent bore no responsibility merely because it was not privy to the contract. According to the Appellant, the evidence demonstrated that the 2 nd Respondent knowingly harvested, transported, weighed, purchased, and crushed sugarcane which it either knew or ought reasonably to have known belonged to the Appellant under an existing cane supply contract. The Appellant relies on the evidence of PW2, who testified that he personally informed the 2 nd Respondent's harvesting team during the harvest that the cane was contracted to the Appellant and demanded that they stop. Still, they ignored the warning and continued the exercise. The Appellant faults the trial court for disregarding this evidence and instead accepting the 2 nd Respondent's assertion that it was unaware of the contract.
15) The Appellant further argues that the admissions made by the 2 nd Respondent's own witness established active participation in the transaction. It submits that the witness admitted that the 2 nd Respondent purchased the cane, transported it to its factory, crushed it, and paid the 1 st Respondent. The Appellant maintains that the payment itself constituted an inducement which encouraged the 1 st Respondent to breach his contractual obligations. It further submits that the 2 nd Respondent benefited not only from the sugar produced but also from valuable by-products such as molasses, bagasse, and press mud, thereby profiting directly from the contractual breach.
16) The Appellant criticises the trial court for holding that whether the 2 nd Respondent knew that the sugarcane was contracted to the Appellant was irrelevant. It argues that such a finding ignored both the oral and documentary evidence demonstrating that the Appellant's officers had notified the harvesting team of the contract's existence. The Appellant also points to the 2 nd Respondent's admission during cross-examination that millers do not ordinarily place identification markers on contracted farms, thereby undermining the trial court's reasoning that the absence of signage excused the 2 nd Respondent's conduct.
17) To support its argument that the 2 nd Respondent is jointly liable for the breach, the Appellant relies principally on Joseph Ochieng & 2 Others t/a Aquiline Agencies v First National Bank of Chicago, Civil Appeal No. 149 of 1991, [1995-1998] 2 EA 183 (CAK), where the Court of Appeal adopted the statement in Bullen & Leake's Precedents of Pleadings, 12th Edition, that the tort of inducing breach of contract consists of four essential elements: knowledge of the contract, intentional interference or inducement causing breach, causation, and resulting damage. The Appellant submits that the evidence fully established all four elements, since the 2nd Respondent became aware of the existing contract through the Appellant's representatives, yet proceeded to harvest and purchase the cane, thereby causing the breach and resulting in monetary loss to the Appellant.
18) Finally, the Appellant submits that the trial court misapplied the doctrine of privity of contract by treating it as an absolute bar to liability on the part of the 2 nd Respondent. It argues that its claim against the 2 nd Respondent was not founded upon contractual privity but upon the latter's intentional participation in and inducement of the breach of contract. The Appellant therefore urges the appellate court to set aside the finding absolving the 2 nd Respondent of liability, enter judgment against both Respondents jointly and severally for KShs. 250,720.72, allow the appeal, and award the Appellant the costs of both the suit and the appeal on the basis that costs follow the event.
ii. The 2 nd Respondent’s Submissions
19) The 2 nd Respondent submits that the appeal is devoid of merit and urges the court to uphold the judgment of the trial magistrate dismissing the suit against it with costs. At the outset, the 2 nd Respondent acknowledges that its submissions before the trial court were not filed due to technical challenges with the Case Tracking System (CTS) but contends that the omission did not prejudice the determination because the evidence on record clearly demonstrated that no liability attached to it. The Respondent further submits that, as a first appellate court, this Court is obligated to reconsider and re-evaluate the entire evidence before arriving at its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. In support of this proposition, reliance is placed on Sumaria & Another v Allied Industries Ltd [2007] KLR 1.
20) The 2 nd Respondent argues that the learned trial magistrate correctly found that there was no privity of contract between the Appellant and the 2 nd Respondent and consequently no legal basis upon which liability could be imposed upon it. According to the Respondent, the pleadings and evidence unmistakably showed that the contractual relationship existed exclusively between the Appellant and the 1 st Respondent, who allegedly breached the sugarcane supply agreement by selling cane elsewhere. It is submitted that the Appellant itself pleaded that the 1 st Respondent breached the contract and sought a declaration to that effect, yet paradoxically sought damages against the 2 nd Respondent without establishing any contractual or legal obligation owed by the latter.
21) The Respondent further submits that the Appellant failed to establish its claim on a balance of probabilities as required under Sections 107, 108, and 109 of the Evidence Act. It maintains that although it denied all allegations in its defence and called evidence, the legal burden nevertheless remained with the Appellant throughout the proceedings. Reliance is placed on Philomena Mutheu Nzyoka (Legal Representative of the Estate of the Late TKM) v Transpares Kenya Limited [2016] eKLR, where the court held that even in the absence of rebuttal evidence, a plaintiff must still discharge the burden of proof before judgment can be entered in its favour.
22) The 2 nd Respondent further argues that the Appellant's plaint disclosed no reasonable cause of action against it. It submits that the pleadings contained no allegations of negligence, breach of statutory duty, breach of any duty of care, or any independent wrongful conduct attributable to the 2 nd Respondent. Instead, the plaintiff consistently blamed the 1st Respondent for breaching the contract. Consequently, the Respondent contends that it was improperly joined to the proceedings. In support of the principle that parties are bound by their pleadings and courts cannot determine matters not pleaded, reliance is placed on Dakianga Distributors (K) Ltd v Kenya Seed Company Limited [2015] eKLR , where the Court of Appeal emphasised that litigation must be confined to the issues raised in the pleadings. The Respondent also cites Investments and Mortgages Bank Limited v Nancy Thumari & 3 Others [2015] eKLR, which discussed what constitutes a reasonable cause of action and affirmed that a party improperly joined in proceedings may be struck out where no triable issue is disclosed. The Respondent additionally relies on DT Dobie & Company (Kenya) Ltd v Muchina [1982] KLR 1, Francis Kamande v Vanguard Electrical Services Ltd, and Olympic Escort International Co. Ltd & 2 Others v Parminder Singh Sandhu & Another [2009] eKLR for the proposition that a cause of action must disclose a bona fide triable issue.
23) On liability generally, the Respondent submits that Kenyan law recognises no liability without fault and that the Appellant neither pleaded nor proved any wrongful conduct attributable to it. It relies on Mboga v Mwambodze [2024] KESC 7376 (KLR), where the court reaffirmed the principle articulated in Dharmagma Patel & Another v T.A. (a minor suing through her mother and next friend H.H.) [2014] eKLR , which in turn cited Kiema Mutuku v Kenya Cargo Hauling Services Ltd [1991] 2 KAR 258, for the proposition that negligence or other actionable fault must be specifically pleaded and proved before liability can arise.
24) On the doctrine of privity of contract, the Respondent submits that there was absolutely no contractual relationship between itself and the Appellant. It argues that only the Appellant and the 1 st Respondent were parties to the sugarcane agreement, and none of the recognised exceptions to the doctrine of privity was pleaded or proved. The Respondent therefore contends that it could neither incur obligations under nor be sued for breach of a contract to which it was not a party. In support, it relies on Aineah Liluyani Njirah v Aga Khan Health Services [2013] KECA 481 (KLR), in which the Court of Appeal extensively discussed the doctrine of privity of contract and its limited exceptions.
25) The Respondent further argues that even if the Appellant intended to pursue a claim based on inducement of breach of contract, no such cause of action was pleaded or proved. It submits that the pleadings did not allege that the 2 nd Respondent knowingly procured or induced the 1 st Respondent to breach the contract. Moreover, there was no evidence demonstrating that the 2 nd Respondent knew about the contract or its terms. The Respondent relies on Joseph Ochieng & 2 Others t/a Acquiline Agencies v First National Bank of Chicago [1990] eKLR, where the Court of Appeal outlined the essential ingredients of the tort of inducing breach of contract and held that failure to plead the material particulars rendered such a claim legally deficient.
26) The Respondent also submits that the abolition of exclusive sugarcane zoning meant that it was legally entitled to purchase sugarcane from any willing farmer. It argues that there was no statutory prohibition preventing it from buying cane from the 1 st Respondent. Reliance is placed on Nzoia Sugar Company Limited v West Kenya Sugar Company Limited [2017] eKLR, where the Court affirmed that there are no exclusive sugar-growing zones for millers following the enactment of the Competition Act and the Crops Act.
27) Further, the Respondent contends that it purchased the sugarcane as a bona fide purchaser for value without notice. It submits that the 1 st Respondent voluntarily approached it as a willing seller, represented himself as entitled to sell the cane, and received payment for the produce. According to the Respondent, there was no evidence that it knew or ought to have known of any contractual restrictions affecting the sugarcane. Consequently, it acquired a good title to the produce. Reliance is placed on Moses Lutomia Washiali v Zephaniah Ngaira Angweye & Another [2018] eKLR , which adopted the definition of a bona fide purchaser for value without notice, and Mary Muriza Ondatto v District Lands Adjudication and Settlement Officer, Kilifi & 2 Others [2018] eKLR , where the court adopted the principles stated in Katende v Haridar & Company Ltd (2008) 2 EA 173 on the requirements of bona fide purchase.
28) Regarding damages, the Respondent submits that the Appellant failed to strictly prove the special damages claimed, particularly the alleged loss of revenue amounting to Kshs. 200,789.20. It argues that although the Appellant produced evidence relating to farm inputs valued at Kshs. 49,931.52, it tendered no evidence to justify the alleged loss of revenue. The Respondent further submits that general damages are ordinarily not recoverable for breach of contract. In support, it relies on South Nyanza Sugar Company Ltd v Hezron Ndarera Mogwasi [2010] eKLR, which reaffirmed the principle in Jivanji v Sanyo Electrical Company Ltd (2003) 1 EA 98 and Coast Bus Service Ltd v Murunga & Others (1992) LLR 318 (CAK) that special damages must not only be specifically pleaded but must also be strictly proved.
29) Finally, the Respondent submits that the appeal is fundamentally defective because the Appellant merely seeks to set aside the dismissal of the suit against the 2nd Respondent without proposing the specific orders that ought to replace the impugned judgment. It argues that the Appellant already possesses a valid judgment against the 1st Respondent for Kshs. 250,720.72 and has failed to demonstrate any legal basis for imposing a second liability upon the 2nd Respondent arising from the same transaction. The Respondent therefore maintains that the learned trial magistrate properly dismissed the claim against it and urges this Court to dismiss the appeal with costs.
iii. The Appellant’s Supplementary Submissions
30) In its supplementary submissions, the Appellant sought to distinguish the authorities and arguments relied upon by the 2 nd Respondent and urged the appellate court to find that, notwithstanding the doctrine of privity of contract, the 2 nd Respondent was liable for inducing and facilitating the breach of the sugarcane supply contract between the Appellant and the 1 st Respondent. The Appellant submitted that the appeal did not seek to enforce contractual obligations against the 2 nd Respondent as a contracting party, but rather to impose tortious liability arising from the 2 nd Respondent's deliberate interference with an existing contractual relationship.
31) The Appellant acknowledged that the doctrine of privity of contract is firmly established in Kenyan law and relied on Savings & Loan (K) Ltd v Kanyenje Karangaita Gakombe & Another [2015] eKLR, where the Court affirmed that contractual rights and obligations are enforceable only between parties to the contract. Similar reliance was placed on Agricultural Finance Corporation v Lengetia Ltd [1985] KLR 765, in which the Court of Appeal held that a contract cannot confer rights or impose obligations upon persons who are not parties to it. However, the Appellant argued that these authorities merely restate the general rule and do not exclude liability founded on tortious conduct by third parties.
32) According to the Appellant, Kenyan jurisprudence recognises several exceptions to the doctrine of privity, including agency, trusts, collateral contracts, assignment, statutory exceptions, restrictive covenants, third-party rights, contracts for the benefit of third parties, and novation. More importantly, the Appellant submitted that the present appeal falls within the recognised exception of tortious interference with contractual relations, inducement of breach of contract, unjust enrichment, and accessory liability, contending that these principles impose liability independently of contractual privity.
33) The Appellant maintained that the evidence before the trial court established the essential ingredients of the tort of interference with contractual relations, namely the existence of a valid sugarcane supply contract, the 2 nd Respondent's knowledge of that contract, its intentional procurement of the breach, and the loss suffered by the Appellant. Reliance was placed on Gimalu Estates Ltd & 4 Others v International Finance Corporation & Another [2016] eKLR , which was cited for the proposition that a third party who knowingly interferes with contractual relations may incur liability in tort notwithstanding the absence of contractual privity. The Appellant submitted that the 2 nd Respondent knowingly purchased sugarcane that was contractually committed to the Appellant, paid the 1 st Respondent for that cane, facilitated the diversion of the contracted crop, and thereby intentionally procured the breach of the supply agreement.
34) The Appellant further argued that the 2 nd Respondent possessed both actual and constructive knowledge of the contractual relationship. It is submitted that as an established participant in the sugar industry, the 2 nd Respondent was fully conversant with the regulatory framework governing sugarcane contracting and could not plausibly claim ignorance of the existence of grower-miller contracts. According to the Appellant, every licensed miller is required to demonstrate the existence of contracted cane before obtaining a milling licence, making it inconceivable that the 2 nd Respondent could lawfully operate while professing ignorance of industry contracting arrangements. The Appellant therefore contended that the 2 nd Respondent was deemed to have constructive notice of competing contractual obligations and could not shield itself behind the doctrine of privity.
35) The Appellant also advanced the doctrine of unjust enrichment, arguing that the 2 nd Respondent derived financial benefit by purchasing and milling sugarcane that ought to have been supplied to the Appellant under the existing contract. It is submitted that equity does not permit a party to retain benefits obtained through wrongful interference with another's contractual rights and urged the Court to require restitution of the profits earned from the impugned transaction.
36) Further, the Appellant submitted that the 2 nd Respondent incurred accessory liability by actively facilitating and financing the breach of contract through payment to the 1st Respondent. It argued that the purchase price constituted the inducement that enabled the contractual breach and that the 2 nd Respondent's conduct amounted to active participation rather than passive receipt of sugarcane.
37) On the issue of whether liability could arise independently of contractual privity, the Appellant reiterated that the cause of action before the Court was founded on tort rather than contract. It is submitted that payment to the 1 st Respondent was the very mechanism by which the breach was procured and that such conduct attracted liability irrespective of the absence of contractual relations between the Appellant and the 2nd Respondent. It therefore urged the Court to hold the 2nd Respondent jointly and severally liable with the 1st Respondent for the losses occasioned by the breach.
38) The Appellant devoted considerable attention to the statutory regulation of the sugar industry, arguing that the sector operates under a comprehensive legal framework that imposes obligations beyond ordinary contractual relationships. It is submitted that sugar factories are licensed participants within a regulated supply chain and therefore cannot be treated as innocent third-party purchasers. In support of this position, reliance was placed on John Okoth Ochieng v Kibos Sugar & Allied Industries Ltd [2021] KEELRC 1926 (KLR), where the Court emphasised the necessity of proving unauthorised third-party harvesting in disputes concerning sugarcane contracts. The Appellant also cited Ogake v Transmara Sugar Co. Ltd, Miscellaneous Application No. 29 of 2022 [2023] KEHC 20993 (KLR) (20 July 2023) for the proposition that contractual obligations within the sugar industry are governed strictly by agreed contractual terms and the applicable statutory framework.
39) The Appellant further submitted that Kenyan courts have consistently recognised the highly regulated nature of the sugar industry. It relied on South Nyanza Sugar Company Ltd v Attorney General [2016] eKLR, in which the High Court recognised that sugar millers operate within a statutory regulatory framework that establishes structured relationships between growers and millers. It also cited Gedion Angachi Anyinya & 9 Others v West Kenya Sugar Co. Ltd [2016] eKLR, where the Court of Appeal observed that growers, millers, and other stakeholders are all participants within the statutory sugar industry framework and that the regulatory regime governs disputes concerning cane supply. According to the Appellant, these authorities demonstrate that sugar factories are not neutral purchasers but regulated actors subject to obligations that extend beyond common-law contractual principles.
40) The Appellant further relied on Transmara Sugar Company Limited v David Nyabuto Sindani [2022] eKLR, arguing that the decision reaffirmed that sugarcane contracts are governed by statutory obligations concerning harvesting, transport, and processing, and that contractual arrangements must comply with the prevailing regulatory framework. It also cited Elena Olala v South Nyanza Sugar Co. Ltd [2018] eKLR, in which the Court of Appeal upheld the enforceability of sugarcane contracts and imposed liability for failure to harvest mature cane, thereby illustrating judicial protection of contrac
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