https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11600

Obonyo v South Nyanza Sugar Co. Ltd (Civil Appeal E24 of 2022) [2026] KEHC 11600 (KLR) (23 July 2026) (Judgment) Neutral citation: [2026] KEHC 11600 (KLR) Republic of Kenya In the High Court at Migori Civil Appeal E24 of 2022 ACA Ong’injo, J July 23, 2026 Between Andrew Anyim Obonyo Appellant and South Nyanza Sugar Co. Limited Respondent (An Appeal from the Judgement and Decree of Hon. R. K LANGAT Principal Magistrate (PM) dated and delivered on 3rd February 2022 in Rongo PMCC No. 274 of 2022) Judgment 1.This appeal arises from the judgement and decree of Hon. R. K LANGAT Principal Magistrate (PM) dated and delivered on 3rd February 2022 in Rongo PMCC No. 274 of 2022. 2.By a plaint dated 21st August 2017 and filed on the 23rd August 2017, the Appellant (formerly the plaintiff) sued the Respondent (formerly the defendant) for damages for breach of contract and the total value of the unharvested sugarcane for 3 cycles. 3.It was the Plaintiffs case that by a written agreement dated 22nd may 2008, the appellant entered into an agreement with the respondent to cultivate sugarcane on Plot Number 1192 Field Number 55D, vide Account Number 483791. By the express terms of the agreement, the agreement was to commence on 22nd May 2008 and remain in force for a period of five (5) or until one plant crop and two ratoon crops of sugarcane are harvested on plot located in Kakmasia sublocation. 4.That the Respondent failed to harvest/purchase the sugarcane, breaching the terms of the agreement, causing loss to the Appellant. The appellant outlined the particulars of damage to have been approximately 135 tons for the plant crop and another 135 tons for each of the 2 ratoons. Further, the respondent also pleaded that the price per ton at that time was Kshs. 2,500/=. 5.The appellant filed a statement of defence dated 4th October 2017 and filed on 16th October 2017. Liability was denied and the respondent was put to strict proof thereof. The Respondent stated despite being assisted by the Defendant, the Plaintiff refused to develop sugar cane and therefore there was no sugarcane capable of being harvested. 6.After the hearing, the trial court dismissed the Plaintiffs Claim with cost to the Defendant for being time barred. 7.Being dissatisfied with the judgement and decree, the appellant filed a Memorandum of Appeal dated 1st of March 2022 with five (5) grounds of appeal as follows:i.That the learned trial magistrate erred in law and in fact when he failed to give effects to express provisions of the contract between the parties as to the duration of the contract, which was to the effect that the contract was to last for one year or until one plant crop and 2 ratoon crops were harvested, whichever evet occurred first.ii.That the trial magistrate erred in law and in fact when he failed to give effect to express statutory provision to wit Oder 4 of the Civil Procedure Rules and to judicial precedents set by court of appeal and which precedent was binding on the trial magistrate to the effect that plea of limitation of time must be pleaded.iii.The learned trial Magistrate failed to properly evaluate the evidence before the court in computing the period of duration of the contract, by failing to find the contract in issue was in its nature a continuing contract.iv.That the trial Magistrate erred in law in coming to a conclusion that the point raised on limitation of action and time could be entertained by court as a point of law without any evidence being led in support or in proof of that assertion as a fact.v.The learned trial Magistrate erred in law in failing to distinguish and evaluate properly the alleged conflicting decision of the high court in t he interpretation of the duration of the contract in issue and his decision was arbitrary and pre judicial to the appellant.The appellant prayed that:i.That the entire judgment and decree of the trial court PMCC no.274 of 2019 Rongo Court ate dated 3rd February 2022 be set aside.ii.There be judgement for the Appellant as prayed for in the plaint or in the alternative, this court do assess and award to the Appellant damage for the breach of contract.iii.The Respondent do bear the costs of this appeal and of the subordinate courtiv.There be an order for payment of interest as prayed in the plaint. 8.Directions were taken that the appeal be canvassed by way of written submissions. Though the Respondent did not enter appearance in this appeal, the Appellants filed submissions dated 10th March 2022. 9.The Appellant submitted that Respondent did not plead time limitation in the statement of defence as the same was only raised at the time of hearing the defence case through the witness testimony. It as their submission that the same fell shot to the provisions of Order 2 Rule 4 of the Civil Procedure Rules and that parties are bound by their pleadings. They relied on the case of David Sironga Ole Tukai v. Francis Arap Muge & 2 others HCCA no. 76 of 2014 (2014) eKLR thus:“It is well established in our jurisdiction that the court will not grant a remedy, which has not been applied for, and that it will not determine issues, which the parties have not pleaded. In an adversarial system such as ours, parties to litigation are the ones who set the agenda, and subject to rules of pleadings, each party is left to formulate its own case in its own way. And it is for the purpose of certainty and finality that each party is bound by its own pleadings. For this reason, a party cannot be allowed to raise a different case from that which it has pleaded without due amendment being made. That way, none of the parties is taken by surprise at the trial as each knows the other’s case is as pleaded. The purpose of the rules of pleading is also to ensure that parties define succinctly the issues so as to guide the testimony required on either side with a view to expedite the litigation through diminution of delay and expense.The court, on its part, is itself bound by the pleadings of the parties. The duty of the court is to adjudicate upon the specific matters in dispute, which the parties themselves have raised by their pleadings. The court would be out of character were it to pronounce any claim or defence not made by the parties as that would be plunging into the realm of speculation and might aggrieve the parties or, at any rate, one of them. A decision given on a claim or defence not pleaded amounts to a determination made without hearing the parties and leads to denial of justice.” 10.The Appellants further submitted that the trial court erred by neglecting precedents violated fundamental policy of the law. That the issue of time bar was a fundamental issue requiring of calling and adducing evidence. Reliance was placed in Mohamed vs. Sammy Kagiri 7 another HCCA 102 thus:“(6)As I have promised, I will now turn to the other crucial matter on the purport of Order 2 rule 4 of the Civil Procedure Rules. For clarity I will reproduce Order 2 rule 4 of the CPR which provides that:“4.(1)A party shall in any pleading subsequent to a plaint plead specifically any matter, for example performance, release, payment, fraud, inevitable accident, act of God, any relevant Statue of Limitation or any fact showing illegality –(a)which he alleges makes any claim or defence of the opposite party not maintainable;(b)which, if not specifically pleaded, might take the opposite party by surprise; or(c)which raised issues of fact not arising out of the preceding pleading(2). . .(3). . . 11.It was their argument that since the issue arose during hearing, the court ought to have ignored it. Further it was submitted that reliance by the trial court on the decisions of Justice Mrima J in South Nyanza Co. Limited vs. Dickens Aoro Owuor was done in error since the Judge himself had in several occasions recanted, recalled and refused to follow his own decisions as they had been in error. The court was thus called to find in favour of the Appellant. Analysis And Determination 12.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. 13.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.” 14.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:i.Whether the case before the trial court was time barred 15.The Appellant contended that the Learned Trial Magistrate erred in dismissing the suit on the ground that it was statute-barred, arguing that limitation was never pleaded by the Respondent as required under Order 2 Rule 4 of the Civil Procedure Rules. The Appellant maintains that parties are bound by their pleadings and that the issue of limitation having been raised for the first time during the defence hearing ought not to have been entertained by the trial court. 16.Indeed, Order 2 Rule 4(1) of the Civil Procedure Rules requires a party relying on any statute of limitation to plead it specifically. The Court of Appeal in Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 Others [2014] eKLR reiterated the settled principle that parties are bound by their pleadings and that a court should not determine a dispute on matters that fall outside the pleadings. Likewise, as correctly cited by the Appellant in David Sironga Ole Tukai v Francis Arap Muge & 2 Others [2014] eKLR, the Court emphasized that litigation in our adversarial system is conducted on the basis of pleadings and that neither the parties nor the court should depart from the issues thereby framed. 17.The contract as seen by the court was to run for a period of 5 (five) years from the date of execution, 22nd May 2008. The Respondent was to harvest three times within the contract period. The Appellant in his statement stated that he planted the Plant Crop but the Respondent did not harvest. On cross examination, he confirmed that he did not develop the ratoon. The simplest explanation for not developing the ratoon according to this court is failure by the Respondent to harvest the plant crop. Ratoon could only be developed upon harvest of the Plant Crop. 18.The contract was entered into on the 22nd May 2008. Since the parties did not disclose the date of planting, the court will presume that planting date was 22nd May 2008 or soon thereafter as stipulated in the contract. This then means that time limitation started running from 21st May 2013. That being the case, the Appellant then had up to 13th May 2019 to file his claim. He filed the claim on 23rd August 2017, which was within the time limitation. It therefore follows that the Trial Magistrate erred in time computation in reaching his findings that the suit was time barred and the same is hereby set aside. 19.In 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.” 20.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. 21.This court finds that the Respondent 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. 22.The expected yield for plant crop was pleaded at 135 tonnes on a 0.4 Ha at a rate of Kshs.2500/ and the same was to be applied to the two ratoons. The court hereby awards the damages as pleaded in the Plaint.Accordingly, the appeal succeeds, the judgement/ decree of the Trial Magistrate is substituted with an order awarding damage as prayed in the Plaint. The award will be subject to cost of harvesting, transport and cess.The Appellant shall have the cost of this appeal as well as costs of the lower court. The damages shall attract interest at court rates from the day of filing of the suit.It so ordered. DATED, SIGNED AND DELIVERED AT MIGORI THIS 23RD DAY OF JULY 2026A. ONGI’NJOJUDGEIn the presence of:C/A- Victor and CalvinsMs. Theuri advocate for the AppellantOkongo Wandago for the Respondent- No Appearance