[2018] KEHC 8361 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

CIVIL APPEAL NO. 242 OF 2011

OKULU GONDI……………………....……APPELLANT

VERSUS

SOUTH NYANZA SUGAR CO. LTD........ RESPONDENT

(An appeal from the judgment and decree of Hon. P.L. SHINYADA (Senior Resident Magistrate) dated and delivered on the 26th day of October 2011 in the ORIGINAL KISII CMCC NO. 668 OF 2005. )

JUDGMENT

1. The appellant herein, OKULU GONDI, sued the respondent before the subordinate in Kisii CMCC 668 of 2004, for interalia, “damages for breach of contract and an order that the defendant do compensate the plaintiff for loss of one (1) crop on 0. 9 hectares of land at the rate of 135 tonnes per hectare and the payment of Kshs. 1,730/= per tonne.”

2. The appellant’s case was that he on9th March, 2000 entered into a written and signed agreement with the respondent who contracted him to grow and sell to it sugarcane on his 0. 9 hectare land being plot No. 247 in field number 4A in Kakmasia sub location, but that contrary to the express terms of their said agreement, the respondent only harvested the plant crop and the 1st ratoon but neglected to harvest the 2nd ratoon when it matured thereby causing him loss and damage.

3. In its defence, the respondent denied the appellant’s claim in its entirety and on a without prejudice basis stated that the appellant’s sugarcane was not properly developed in compliance with its recommended crop husbandry techniques and that it was its policy not to harvest such cane.

4. The respondent further denied that the appellant’s cane could have yielded the stated harvest of 135 tonnes per hectare. The case proceeded to hearing in which both parties presented the evidence of one witnesses each and at the close of the case the trial magistrate dismissed the appellant’s case thereby igniting the instant appeal in which the appellant has listed the following grounds in his memorandum of appeal:

1. The Learned Trial Magistrate erred in holding that the pleadings in the plaintiff’s suit was not in the nature of a special damage claim yet the cause of action sufficiently disclosed the nature of the plaintiff’s claim in contract.

2. The Learned Trial Magistrate failed to appreciate that from the nature and circumstances of the case, the pleadings were sufficient and properly served the purpose and requirement in law of putting the defendant on notice as to what it was expected to meet at the trial.

3. The Learned Trial Magistrate erred in law in holding that damages were not awardable in the suit, yet she had enough material and proof to enable her make the award and indeed did make an assessment as was required in law.

4. The Learned Trial Magistrate erred in law in failing to find that the plaintiff’s claim was a liquidated claim and/or was for services rendered upon a contract duly proved.

5. The Learned Trial Magistrate erred in law in relying and putting emphasis on style and form rather than substance in the pleadings and thereby arrived at a wrong decision.

6. In all circumstances of the case, the defendant did not suffer any prejudice and the Learned Trial Magistrate ought to have awarded the plaintiff the assessed amount, costs and interest.

5. At the hearing of the appeal, parties opted to canvass it by way of written submissions which I have considered.This being a first appeal, it is trite law, that this Court is not bound necessarily to accept the findings of fact by the court below and that an appeal to this Court from a trial by the lower court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect. See Selle and Another v AssociatedMotor Boat Company Limited and others[1968] EA 123 andWilliamson Diamonds Ltd. V. Brown[1970] E.A.L.R.

6. Courts have also held that they will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum. In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled. This is the principle enunciated in Rook v Rairrie [1941] 1 ALL E.R. 297. It was echoed with approval by this Court in Butt v. Khan [1981] KLR 349 when it held as per Law, J.A that:

“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.”

7. In the instant case, the appellant testified as PW1 and produced the agreement he made with the respondent as Pexhibit 1. His testimony was that following the signing of the agreement he planted cane on his 0. 9 hectare plot which cane was on maturity, harvested by the respondent twice but that the last ratoon was not harvested and ended up drying on the farm. His further evidence was at that 1 hectare produced 80 tonnes at Kshs. 2000 per tonne but that at the time of the harvest it was valued at Kshs. 2,015/= per tonne.

8. On cross examination he stated that the first harvest yielded 40 tonnes while the 1st ratoon yielded 60 tonnes and that he did not expect the 2nd ratoon to yield more than 100 tonnes. He also stated that he was not sure of the size of his land.

9. DW1, Richard Muoka was the respondent’s farm supervisor. His testimony was that he knew the appellant as he (appellant) had a cane development contract with the respondent but that the appellant did not develop the cane and was therefore not entitled to any payment. On cross examination he admitted that the plant crop yielded 40 tonnes while the first ratoon gave 21 tonnes. He however stated that he did not have the appellant’s statement for the first ratoon and could not recall how much he was paid for it. He further claimed that the appellant abandoned his farm but did not have the census report to prove the same. He however admitted that the appellant’s farm measured 0. 9 hectares according to JCC for harrowing and the debit advice note for cane supply.

Analysis and determination

10. I have carefully considered the record of appeal and the parties’ respective written submissions. The main issue for determination is whether the appellant properly pleaded and proved his case against the respondent to the required standards.

11. It was not in dispute that the appellant and the respondent entered into a cane growing and supply agreement over the appellant’s 0. 9 hectares farm. It was further not disputed that the agreement was for 3 harvests being the plant crop and 2 ratoons and that the respondent harvested the cane twice but failed to collect the last ratoon thereby leaving it to dry up in the farm and as a consequence thereof, the appellant suffered loss and damage.

12. The trial magistrate however dismissed the appellant’s case on the basis that he did not properly plead his claim and added that had the case been properly pleaded, she would have awarded the appellant the sum of Kshs. 210,195/= being Kshs. 1,300 x 0. 9ha x 1 cycle x 135 tonnes.According to the trial magistrate, the appellant’s claim was for a loss which he had already suffered and which was therefore capable of being specifically pleaded after a mathematical computation. In effect, the trial court found that the appellant’s claim was for special damages which should not have been left for speculation.

13. The trial court summarized the issues for determination to be whether there was a breach of contract and whether the appellant was entitled to an award of damages.On the issue of breach of contract, the trial magistrate held:

“The defendant on the other hand alleges that the plaintiff abandoned the ratoon crop and that he never maintained it. However no census report was ever produced to prove that the plaintiff’s crop was abandoned and given that the plaintiff’s plant crop and ratoon crop gave good harvests, if at all the defendant felt that they ought to have invoked paragraph 11JK of the agreement. No notification was ever given to the plaintiff and thus I am satisfied that the defendant breached the contract and one is to be held liable.”

14. My humble view is that having found that the respondent had breached the contract, the trial court was enjoined to move to the next level of making an award for the loss suffered following the said breach in line with the principle of equity that there can be no wrong without a remedy.

15. The trial court however held that since the appellant’s claim was for general damages for breach of contract, the same could not be allowed because there law is that general damages are never awarded for breach of contract. I find that this was an erroneous interpretation of the law as the correct legal position, as was expressed in the case of Dharamishi vs Karsan (1974) E.A 41 is that general damages are not awardable for breach of contract where the damages are quantifiable. In the present case, I find that the damages claimed are quantifiable as the appellant had clearly pleaded in his plaint, that his claim was for loss of one(1) crop on 0. 9 hectares of land at the rate of 135 tonnes per hectare payable at Kshs. 1,730/= per tonne.

16. That the damages were quantifiable was demonstrated in the manner in which the trial court when applied the formula provided by the appellant in his prayers in calculating the award that she would have made to the appellant had he properly pleaded his case.

17. On the issue of whether or not the appellant’s case was properly pleaded, the trial magistrate was of the view that the case was for special damages which ought to have been specifically pleaded and proved and she thus faulted the appellant for failing to properly plead his case. I do not agree with the trial court’s findings on the issue of pleadings for special damages. I am guided by the decision of the court of Appeal in the similar case of Richard Okuku Oloo vs South Nyanza Sugar Co. Ltd [2013] eKLR wherein it was observed.

“We agree with the learned judge that a claim for special damages must indeed be specifically pleaded and proved with a degree of certainty and particularity but we must add that, that degree and certainty must necessarily depend on the circumstances and the nature of the act complained of.

In the Jivanji case (supra), a decision of this court differently constituted, it was held that the degree of certainty and particularity depends on the nature of the acts complained of. The following passage which partly quotesCoast Bus Service Limited v Murunga & Others Nairobi CA No. 192 of 1992 (ur) appears in the Jivanji case:

“It is now trite law that special damages must first be pleaded and then strictly proved. There is a long line of authorities to that effect and if any were required, we would cite those of Kampala City Council vs Nakaye [1972] EA 446, Ouma v Nairobi City Council [1976] KLR 297 and the latest decision of this Court on this point which appears to be Eldama Ravine Distributors Limited and another v Chebon Civil appeal number 22 of 1991 (UR). In the latest case, Cockar JA who dealt with the issue of special damages said in his judgment:

“It has time and again been held by the courts in Kenya that a claim for each particular type of special damage must be pleaded. In Ouma v Nairobi City Council [1976] KR 304 after stressing the need for a plaintiff in order to succeed on a claim for specified damages. Chesoni J quoted in support the following passage form Bowen LJ’s judgment at 532-533 in Ratcliffe v Evans [1892] QB 524, an English leading case of pleading and proof of damage.

“The character of the acts themselves which produce the damage, and the circumstances under which those acts are done, must regulate the degree of certainty and particularity with which the damage done ought to be stated and proved. As much certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.”

18. In the said Richard Okuku Oloo case (supra), the Court of Appeal further held the fact that damages cannot be assessed with certainty does not relieve the wrong doer of the necessity of paying damages for his breach of contract. The court went further to find that the trial judge had erred in dismissing the appellants case on the ground that the same had not been specifically proved in the face of a finding that the special damages had been sufficiently pleaded wherein the appellant had specified the acreage of the land, the cane proceeds per acre and the price per tonne.

19. Going by the dictum in the Richard Okuku Oloo case (supra), which decision has overtaken the similar decisions cited by the respondent in his submissions view of the fact that it is a Court of Appeal decision, I similarly find that the instant appeal is merited and I accordingly allow it.

20. The orders of the trial court are hereby set aside and in its place, I enter judgment for the appellant as prayed for in the plaint and award him the sum of Kshs. 210,195/= made up as follows:

1,730 x 0. 9ha x 1 cycle x 135 tonnes =210,195/=

21. The appellant shall have the costs of the appeal and costs of the subordinate court case.

Dated, signed and delivered in open court this 28th day of February, 2018

HON. W. A. OKWANY

JUDGE

In the presence of:

Mr. Soire for the Appellant

N/A for the Respondent

Omwoyo court clerk