[2025] KEHC 6762 (KLR)

Achuku v South Nyanza Sugar Company Ltd (Civil Appeal E149 of 2022) [2025] KEHC 6762 (KLR) (3 April 2025) (Judgment)

Neutral citation: [2025] KEHC 6762 (KLR)

Republic of Kenya

In the High Court at Migori

Civil Appeal E149 of 2022

A. Ong’injo, J

April 3, 2025

Between

Joyce Akoth Achuku

Appellant

and

South Nyanza Sugar Company Ltd

Respondent

(Being an appeal from the judgment and decree of Hon. R. K. Langat (RM) delivered on 29th November 2022 at Rongo in PMCC No. 198 of 2016)

Judgment

Background. 1. By way of a plaint dated 14th July 2016, the Plaintiff/Appellant initiated a suit before the trial court against the Defendant/Respondent seeking judgement for damages for breach of contract, costs and interest of the suit.

2. The Plaintiff/Appellant stated in her plaint that by an agreement dated 30th August 2012, the Defendant/Respondent contracted the Plaintiff/Appellant to grow sugarcane and sell to it on her land parcel being plot No. 462 in fieId Number 95 in Kamwango sub-location measuring 3. 26 hectares. The Plaintiff duly signed the agreement and was assigned account number 460382 and planted the sugarcane as agreed.

3. The Appellant stated that it was a term of the contract that the agreement would commence on 30th August 2012 and remain in force for a period of five years or until one plant crop ratoon crops of sugarcane are harvested on the plot aforesaid. In breach of the contract, the Defendant/Respondent failed to harvest the plant crops when it was ready and matured.

4. The Appellant pleaded particulars of loss and damage and stated that the plot was capable of producing an verage of 135 tonnes per hectare for plant crop and 135 tonnes for the ratoon crop and the rate of payment per ton was Kshs. 3,200/=. The appellant prayed for damages for three cycles particularized as follows;a.Expected yield for plant crop-135 tonnes x 3. 26ha x Kshs. 3,200/=Kshs. 1, 408, 320/=b.Expected crop yield for 1st ratoon crop-135 tonnes x 3. 26 ha x Kshs. 3,200/= Kshs. 1, 408,320/=c.Expected crop yield for 2nd ratoon crop-135 tonnes x 3. 26 ha x Kshs. 3,200/= Kshs. 1, 408,320/=Total= 4, 224,960/=

5. In response to the plaint, the Defendant entered appearance and filed a statement of defence dated 11th August 2016. In its defence, the Defendant/Respondent denied the contents of the plaint as to the existence of the agreement on account No. 460382 made on 30th August 2012 between the parties on the Defendant/Respondent’s parcel being plot number 462 filed number 95 measuring 3. 26 (ha). The Respondent denied privity of contract with the appellant.

6. The Respondent pleaded that it is its policy not to cut or harvest poorly mainatined cane and that the Appellant having signed the agreement failed to employ the recommended crop husbandry to the extent that the crop was overshadowed and dwarfed by weeds and totally destroyed and the Respondent was not entitled to harvest contractually. The claim is in the nature of specific damages and ought to be specifically pleaded.

7. The Respondent averred that the appellant executed an agreement for purposes of oobtaining inputs and services on credit from the Respondent with the motive not to plant the crop and later bring a suit for having signed an agreement and received the services and inputs.

Evidence 8. The matter proceeded for hearing on 21st March 2018. PW1-Joyce Akoth Achuku in her testimony stated that she adopted her statedment and list of documents. In her statement she stated that she is a Farmer at Kamwango Sub-location. That on 30th August 2012 she made a contract with Sony for cane growing for five years and three years harvest were to be made. She stated that Respondents were to harvest the plant crop at 22-24 months and ratoon at 16-18 months. That she planted sugar cane and maintained it and it matured but the Respondent did not harvest it and It dried up and got wasted and she lost all three crop cycles. She expected 135 tonnes per hactre at Kshs. 3,200/= per tonne. She sought compensation for the loss and cost of the suit.

9. On cross examination, she stated that she signed a contract in 2012 which was to last for 5 years. She filed a suit in 2016 and the contract was to expire in 2017. She never terminated the contract. The Respondent gave her fertilizer, ploughed and furrowed her land. She said land was 3. 26 Ha and she did not employ a Farm Manager. She also stated that she did not develop 1st and 2nd ratoon. On re examination, she stated that plant crop was never harvested and the plant was to take 22-24 months. It was stated that breach occurred before expiry of the contract.

10. On 30th August 2022, DW1-Justus Otieno George in his evidence stated that a statement dated 10th November 2018 was filed by his collegue and adopted the same as his evidence together with the documents filed. He averred that there was no signed contract between the parties. The contract must be signed by the Farmer and a representantive of the Respondent. It must be dully completed and stamped be served to the Farmer. He stated that the contract was fraudulently obtained. The offer said the parcel indicates plot area is 1. 6 ha and not 3. 6ha. The appellant did not sign the alleged contractand the stamp does not belong to the Defendant/Respondent.

11. During cross examination, he stated that all contracts of Kawango start with 46 index, it has name of the farm, logo and company name. It has promo for Sony sugar, Farmer and the chief’s signature. The contract has a signature, there is name of Joyce Akoth Achuku and stamp for Sony Sugar. The stamped agreement produced does not belong to the appellant but to show the requirements of proper agreement Kakmasia and Kamwango are not the same.

12. At the close of the defence case, the trial court delivered its judgment on 29th November 2022 dismissing the plaintiff’s claim with costs to the Defendant.

13. Being aggrieved with the judgment and decree of the trial court, the appellant prefferred an appeal before this court vide a Memorandum of Appeal dated 16th December, 2022 setting forth the following grounds of appeal that;i.The learned trial Magistrate erred in law and in fact in concluding that the plaintiff did not execute the contract despite there being evidence of such execution of the contract.ii.The learned trial magistrate erred in law and in fact in failing to establish the existence of a contract and finding further that the said contract was performed by the appellant.iii.The learned trial magistrate erred in law and in fact in failing to find for the appellant and to award her damages.

14. The appellant prays for orders that;a.The decision of the trial magistrate dated 29th November 2022 in PMCC No. 198 of 2016 be set aside.b.The court do give judgment for the appellant and do acess and award the appellant damages for breach of contract.c.There be an order for interest, the same to accrue from the date of filing suit.d.The costs of this appeal and of the suit in the subordinate court be borne by the Respondent.

15. The appeal herei proceeded by way of written submissions. Both parties filed their rival submissions. The appellant’s submissions are dated 23rd August 2024 whereas the Respondent’s submissions are dated 6th November 2024.

Appellant’s submissions. 16. The Appellant submitted that the trial magistrate erred in concluding that the she did not execute the contract despite there being evidence of such execution. DW1 testified that the Appellant could not have signed the document through long hand as it is their Field Supervisor that fills the contract agreement and the Appellant was only expected to sign. It was submitted that the Respondent’s stamp, signature and name clearly appears on the space in the contract marked as Pexhibit-1. The Company’s name and logo are also inscribed in the contract. The contract has an account number for Kamwango area index 46 and all contracts for Kamwango start with 46 index.

17. The Appellant argued ed that Section 119 of the Evidence Act provides that the court may presume the existence of any fact which it think likely to have happened, regard being to the common course of natural events, human conduct and private and public business, in relation to the facts of the particular case.

18. The Appellant cited the Court of Appeal decision in Ali Abid Mohammed vs Kenya Shell & Company Limited (2017) eKLR, where it held that a contract can exist where no words have been used but where it can be inferred from the conduct of the parties that a contract has been concluded.

19. The Appellant submitted that there was a contract which was breached and the Magistrate ought to have assessed the damages. It is trite law that failure to harvest the plant crop compromises the development of the successive cycles, hence the basis of claiming 3 crop cycles. She relied on Migori High Court Civil Appeal No. 10 of 2016, South Nyanza Co. Ltd vs Joseph Onyango.

20. The Appellant urged this court to award damages for breach of contract as pleaded in the plaint, costs and interest of this appeal and the subordinate court.

Respondent’s submissions. 21. The Respondent submitted that Section 107 of the Evidence Act provides that when one wishes judgment to be entered in support of a certain fact, then it is incumbent upon him to prove that the said facts exist. The burden of proof rests on the Plaintiff/Appellant. The Respondent relied on Evans Nyakvvana vs Cleophas Bwana Ongaro (2015)eKLR. In the instant appeal, it was submitted that the Appellant was not able to prove that the 1st and 2nd ratoon were nurtured and well taken care of by weeding and application of fertilizer. No evidence was availed of mature cane and report of full time Farm Manager in court that the cane matured well and was ready for harvest.

22. The Respondent argued that the Appellant never developed the 1st and 2nd ratoon and the Appellant was the one in breach of clause 3. 1.2 of the contract. DW1 produced a cane yield report for farms located in the Appellant’s area confirming that the expected yield was 135 tonnes per cycle. Both the Appellant and Respondent’s witness confirmed that the Respondent provided the Appellant with 1 bag of urea and 1 bag of DAP fertilizer.

23. It was submitted that the Appellant failed to prove her case on a balance of probabilities as she is the one who breached the contract by diverting her cane to third parties and later she was warned about and she also failed to nurture the 1st and 2nd ratoon. The plant crop was never harvested. As per clause 3. 1.2 of the contract signed by both parties states that inspect cane and determine its maturity before authorizing the grower or out grower to harvest and deliver the same to the miller’s weighbridge. It is not the Respondent’s contractual duty or obligation to harvest cane. Harvest is to be done by the grower/farmer upon authorization by the company. Therefore any party to the contract has a right to harvest the cane and deliver the same at the factory not necessarily the Respondent. The Respondent cited Philip Okoth Matuga vs South Nyanza Sugar Co. Ltd Civil Case No. 97 of 2012 where the suit was dismissed by court after interpreting clause 3. 1.2 that the legal obligation to harvest and transport cane is contractually upon the plaintiff and the defendant’s responsibility begins once the cane arrives at the weighbridge.

24. The Respondent contended that the record of appeal does not contain the Respondent’s pleadings and submissions for the lower court and a proper record of appeal shall contain the decree appealed from. Therefore in the absence of the decree rendersthis appeal incompetent and fatally defective. Reliance was placed on Civil Appeal No. 7 of 1983 Municipal Council of Kitale vs Fedha (1983)eKLR where the Court of Appeal held that failure to nclude the decree appealed from in the rcord of appeal rendered the appeal incompetent. The Judge went further to state that the omission could not be cured by the decree in a supplementary record.

25. In Paul Kurenyi Leshuel vs Ephantus Kirithi Mwangi & another (2015) eKLR Ngaah J. struck out the appeal with costs to the 1st Respondent for failure to include a decree appealed from in the record of appeal.

26. According to the Respondent, the Appellant pleaded special damages but they were not particularized before proof was offered. The Respondent relied on CA 192/92 Coast Bus Service Ltd vs Sisco E. Murunga Ndanyi & 2 others (UR).

27. In conclusion, the Respondent urged this court to dismiss this appeal with costs and uphold the judgment of the trial court.

Analysis and Determination. 28. This being the first appeallate court, I am reminded that my duty is to re-evaluate, re-assess and re-analyze the evidence adduced before the Trial court and arrive at its own independent conclusion. This was the position espoused in Abok James Odera t/a A.J Odera & Associates vs John Patrick Machira t/a Machira & Co. Advocates [2013] e KLR, where the court held that:“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.”

29. This court will not normally interfere with a finding of a trial court unless the finding of fact that is challenged on appeal is based on no evidence or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching the finding. This is the position held in Mwanasokoni vs kenya Bus Services Ltd [1985] KECA 82 (KLR).

30. I have considered the grounds of appeal, the record of appeal and the rival submissions by the aprties. The issues arising for determination by this court are: -i.Whether there was a contract between the Appellant and the Respondentii.Whether the said contract if any was breached.iii.Whether the Appellant was entitled to damages for breach of the contract.iv.Who bears the cost?

31. 30. On the first issue,the Appellant claimed having entered into a contract with the Respondent dated 30th August 2012 where the parties had agreed that the Appellant would grow and and sell sugarcane on her land plot number 462 measuring 3. 26 hactares to the Respondent. The agreement that the Appellant produced to support her claim does not appear to have been signed by her and the hand that wrote her name on the 1st,2nd and the last page appear to be similar and it is doubtfull that she was the one that it was made by her hand. The Appellant wrote a statement in support of her claim and there is hand written name on it that does not resemble the handwriting used in writing her name on the contract and this court is not satisfied that she signed the contract.

32. The parcel of land for which the Appellant claimed was the subject of the contract was also shown by the Respondents that it belonged to a 3rd party and the Appellant did not endeavor to prove she had any nexus to the said plot. There was no attempt to explain why other pertinent parts of the contract document were not signed to give it the required authenticity.

33. The Area Assistant Chief who is purported to have signed the contract was also never called to testify in this matter yet that was a very crucial evidence to support the Appellant’s case.In the absence of any proper explanation why the Appellant did not sign the contract, this court forms the opinion that there was no contract capable of being breached and/ or performed by the parties.

34. Having found that there was no proof of the existence of a contract capable of being breached and/ or performed this court finds that the appeal lacks merit and the same is dismissed with costs to the Respondent. It is so ordered.

SIGNED DATED AND DELIVERED AT MIGORI THIS 3RDDAY OF APRIL, 2025. A. ONG’INJOJUDGE