[2022] KEHC 3315 (KLR)

Okumu v Sukari Industries Limited (Civil Appeal 52 of 2021) [2022] KEHC 3315 (KLR) (7 July 2022) (Judgment)

Neutral citation: [2022] KEHC 3315 (KLR)

Republic of Kenya

In the High Court at Migori

Civil Appeal 52 of 2021

RPV Wendoh, J

July 7, 2022

Between

Stanslaus Otieno Okumu

Appellant

and

Sukari Industries Limited

Respondent

(Being an appeal from the Judgement and Decree of the Senior Principal Magistrate, Rongo dated 19/8/2020 R.K. Langat in PMCC No. 137 of 2018)

Judgment

1. The appellant herein, Stanslaus Otieno Okumu, commenced this appeal via a Memorandum of Appeal dated 8/7/2021. The background of the suit rise to this appeal is a plaint dated 10/10/2017 filed in Civil Case No. 138 of 2018 before the Principal Magistrates Court in Rongo. The facts are that the appellant entered into an agreement dated 8/4/2011 with the respondent to grow and sell to it sugarcane on her land parcel plot no. 553 in Kakmasia sub location measuring 0. 4 hectares. The agreement was to run for a period of 5 years. The appellant pleaded that the respondent breached the agreement by failing to harvest the plant crop and the 2 ratoons. For the aforementioned reasons, the appellant alleged that he suffered loss and damage which he particularized at Kshs. 567,000/=.

2. The respondent entered appearance through the firm of Olendo, Orare & Samba LLP Advocates and filed a defence dated 11/5/2018. The respondent denied the particulars in the plaint and put the appellant to strict proof thereof. The respondent alleged and particularized claim of fraud on the part of the appellant.

3. On 8/1/2020, the respondent filed a notice of preliminary objection on grounds that the trial court lacked jurisdiction in view of the judgement and/or ruling by Karanja J in Homabay High Court Civil Appeal No. 60 of 2017 Sukari Industries Limited vs Jeremiah Otieno Madara.

4. The trial court rendered its judgement on 19/8/2020 and upheld the objection which gave rise to this appeal. The appeal is premised on the following grounds:-i.That the trial magistrate erred in law and in fact in completely disregarding the gist, tenor and impact of the submissions of the appellant (plaintiff) and thus came to a wrong decision.ii.The learned Magistrate erred in law and in fact in failing to appreciate the fact that the provision of the Crops Act 2013, requires a petition to be preferred to the High Court deals with administrative and regulatory issues in the Sugar Industry and was not in themselves an ouster of the municipal authority of the subordinate courts to deal with mundane commercial transactional and municipal issues arising in relation within the sugar industry players such as the parties therein before it.iii.That the trial Magistrate erred in law in failing to take up jurisdiction as conferred to it by the Constitution and the Magistrates Courts Act.The appellant prayed as follows:-i.The appeal be allowed and the ruling and order of the trial court in PMCC No. 138 of 2018 dated 19/8/2020 be set aside.ii.The suit in PMCC No. 138 of 2018 be remitted back to the magistrates court for trial on merit.iii.Costs of the appeal and suit be awarded to the appellant.

5. The appeal was canvassed by way of written submissions and both parties filed their respective submissions.

6. The appellant filed his submissions dated 1/3/2022 on 2/3/2022. The appellant adopted and reiterated his submissions dated 12/2/2020 filed on 18/2/2020 in the trial court. It was also submitted that the High Court and the Court of Appeal have made decisions on the issue raised in the Preliminary Objection and have to the conclusion that the subordinate court has jurisdiction to hear and determine suits such as was filed in PMCC No. 138 of 2018. Reliance was placed in the cases of Sukari Industries Limited vs Ezra Odondi Adero HCCA No. 110 of 2019; Court of Appeal decision in Jeremiah Otieno Madara vs Sukari Industries Limited KisumuCMCC NO. 257 of 2018.

7. The respondent filed its submissions dated 14/3/2022 on 21/3/2022. It was submitted that the conditional leave to file the appeal was flouted as it was filed after 9 days instead of 7 days from 30/6/2021; that court orders must be strictly complied with and it should go ahead to dismiss and strike out appeals that had been on conditional leave to file appeal out time. The respondent referred to the cases of Rosalia Wakaguyu Gakurumi vs Hellen Wakirunda Gakurumi (2008) eKLR; Bernadette Wangi Wakini vs Lawrene Kinyua Muchiri (2016) eKLR; Fidelity Shield Insurance Company Limited vs Danson Kombo Mwalimo (2021) eKLR; Chase Bank (K) Ltd vs Coninx Industries Limited(2021) eKLR and the Court of Appeal cases in Eres N. V & Another vs Maina Murage & Co. Advocates (2014) eKLR; Gregory Kiema Kyuma vs Marietta Syokau (1988) eKLR and Keren Buaron vs Sony Holdings Limited & 2 Others (2017) eKLR.

8. On of jurisdiction, it was submitted that the alleged breached contract was entered into on 8/4/2011 and yet the Crops Act commenced on 1/8/2014 which means that the contract was not governed by the Act but the repealed Sugar Act; that by dint of Section 42 of the Act proffers a remedy which makes the Act applicable to the contract in Section 41 (1) and 2 (a) of Crops Act and also in the finding of Sukari Industries Limited vs Jeremiah Otieno Madara (2019) eKLR.

9. The respondent further submitted that by dint of Sections 38, 5, 2 and Part 1 of the 1st Schedule, the subject matter of the alleged contract between the plaintiff and the defendant falls under the Act as was held in the case of Sukari Industries Limited vs Jeremiah Otieno (supra).

10. On the recourse for a breach of contract under the Crops Act, it was submitted that it lies to a person as per Section 38 of the Act; that the Court of Appeal in Jeremiah Otieno Madara vs Sukari Industries Limited(2021) eKLR erroneously attempted to clothe the Magistrate’s court with jurisdiction to entertain such a dispute as between the appellant and the respondent.

11. Further, the respondent submitted that a reading of Section 40 of the Act will show that the Court of Appeal fell into error. The respondent relied on Part III of the Crops (Sugar) General Regulations 2020 and in particular 17 and 20 (2) and submitted that the appellant chose the wrong forum of seeking redress.

12. In conclusion, it was submitted that the principles of common law cannot supersede the Crops Act and Section 40 of the Act and the Regulations2020 clearly set out the term, rights and liabilities of the farmer and miller through a standard form contract which cannot be varied either by inclusion of any implied term in common law. The respondent asked this court to find that the trial court had no jurisdiction to entertain the matter.

13. I have considered the grounds of appeal, the entire record of appeal and the rival submissions. The main issue for determination is whether the trial court has jurisdiction to determine the suit before it.

14. This being the appellate court, has a duty to re-evaluate and analyse all the evidence tendered in the lower court and arrive at its own conclusions. It has to establish whether the decision of the lower court was well founded. See the decision in Selle & Another vs Associated Motorboat Co. Ltd (1968) EA 123.

15. It is also settled law 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.

16. Before delving into the first issue, the respondent has asked this court to find that the appeal had not been filed within time as directed by the court and hence it should be dismissed. I have carefully considered and appreciated the decisions relied upon by the respondent. I do also appreciate that court orders are never issued in vain and must be obeyed. Timelines are important in litigation and a delay of even one day is still a delay. However, the issue of the delay has been raised for the first time in submissions. The appellant has not shown to this court the proceedings where leave to file appeal were not exhibited. That is an issue that should have been served at the earliest time possible and evidence to that effect availed. It would be more prejudicial to dismiss the appeal before hearing the other party. I shall therefore exercise the court’s wide discretion conferred upon this court and find the appeal to have been duly filed and properly on record.

17. The locus classicus case on jurisdiction is the case ofOwners of the Motor Vessel “Lillian S” -Vs- Caltex Oil (Kenya) Ltd (1989) KLR 1, where Nyarangi J held that at the earliest opportunity, the issue of jurisdiction ought to be raised and the court seized with the matter should make a decision on the issue right away. Jurisdiction is everything and without it a court should not make any step.

18. Jurisdiction is conferred upon a court, tribunal, person or authority either by the constitution or statute. It is trite law that once that jurisdiction is conferred, it must be exercised in accordance with the law. In the case of Samuel Kamau Macharia & Another -Vs- Kenya Commercial Bank Limited & 2 Others (2012) eKLR, the Supreme Court stated that: -“…A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law…”

19. The contentious provision under the Crops Act is Section 38 which provides as follows:-“Any person who has reason to believe that the provisions of this Act have been, are being, or are about to be violated, may petition the High Court for:-a.A declaration that the provisions of this Act are being, have been, are about to be contravened;b.An injunction, restraining any specified person from carrying out the contravention;c.A writ of mandamus against an officer or a person who has failed to perform a duty imposed by or under this Act; ord.Any lawful remedy.”

20. Mrima J in Sukari Industries vs Ezra Ododi Ahero (supra) a persuasive decision to this court, discussed extensively Section 38 of the Crops Act. The court observed that the section does not oust the jurisdiction of the Magistrate Courts. The court went ahead to find that even if the position is that one can find a remedy under limb of “any other lawful remedy” it does not oust the Magistrate’s jurisdiction since the wordings of the provision uses the word “may petition to the High Court.” The word “may” connotes discretion on the parties.The court further held that:-“A careful consideration of the Crops Act brings forth the fact that disputes between the farmers and other crop dealers do not therefore fall within the application and the domain of Section 38 of the Crops Act. Such disputes were to be dealt with by way of arbitration. However, the rules governing the intended arbitration are yet to be put in place. even with such a void there can never be a legal vacuum. In such a scenario the courts, subject to jurisdiction, must adjudicate on the disputes…I hence find and hold that Section 38 of the Crops Act was not aimed at ousting the jurisdiction of the Magistrates’ Court over all disputes under the Crops Act.”

21. The Appellate Court in the case of Jeremiah Otieno Madara (supra) considered the question of whether the Crops Act in stating that the forum for disputes in the event of a violation of the Act, makes it obligatory to utilize that forum and oust the jurisdiction of other courts. The learned Judges observed that in the dispute before them, the statute which created the rights and obligations of growers and millers pertaining to sugar agreements, created a special forum (Sugar Tribunal) to adjudicate disputes arising from cane farming and supply contracts. The Appellate Court further stated that the appellant before them had the right to elect to pursue either a common law remedy or the remedy provided under statute.It was further held:-“A perusal of the Crops Act clearly shows that it does not create any rights, liabilities or specific requirements directly to growers and millers concerning sugar agreements. More importantly, this court has not been directed to the substantive provisions under this Act that have been breached which would initiate proceedings under Section 38. In our view, the appellant’s cause of action must be found in the substantive provisions of the statute in question. The forum under Section 38 is obligatory only where it provides an exclusive method of determining questions which relate to breaches of the provisions in the Act and only then can they deprive other courts jurisdiction which they ordinarily possess. It is trite law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. Under Section 5 of the Civil Procedure Act, courts have jurisdiction to try all suits of a civil nature except suits of which its cognizance is either expressly or impliedly barred. It seems to us that, courts with competent jurisdiction are not specifically barred from entertaining claims relating to scheduled crops except where it is shown that substantive provisions of an Act have been breached and where a liability not existing at Common Law is created by a statute which gives a special and particular remedy for enforcing it.”

22. I am of the view that the provisions of Section 38 of the Sugar Act particularly provided for remedies a party may seek from the High Court if substantive provisions of the Sugar Act have been violated. The provision does not provide that disputes arising out of contractual obligations have to be handled by the High Court in the place of the Magistrate’s Court. The remedies which an aggrieved party would be seeking under Section 38 of the Sugar Actare public law in nature; the likes of injunctions and judicial review writs like mandamus. In commercial disputes, like the one before the trial court, it is in conceivable for the court to issue public law remedies in private commercial matters.

23. It is this court’s finding that the Magistrate’s Court had jurisdiction to hear and determine the suit before it.

24. The respondent faulted the Court of Appeal’s decision in the Jeremiah Otieno Madara (supra) case on grounds that the Appellate Court judges fell into error when the court clothed the Magistrate’s courts with jurisdiction. Essentially, what the respondent is asking this court to do, is to critique the decision of the Court of Appeal and depart from it. While it is true that the High Court has original and exclusive jurisdiction to determine any or all questions in law, it cannot sit as an appellate court other a Court of Appeal’s decision.

25. The doctrine of stare decisis binds this court to the findings of the Court of Appeal and the Supreme Court. The objective of adherence to the doctrine is: certainty, clarity, predictability and legitimacy within the law when deciding on similar issues.

26. The importance of this doctrine was enumerated in the case of Dodhia v National & Grindlays Bank Limited and Another (1970) EA 195, Duffus, V.P. expounded on the principle of stare decisis by holding that;“The adherence to the principle of judicial precedent or stare decisis is of utmost importance in the administration of justice in the Courts in East Africa, and thus to the conduct of the everyday affairs of its inhabitant; it provides a degree of certainty as to what is the law of the country and is a basis on which individuals can regulate their behavior and transactions as between themselves and also with the State. There can be no doubt that the principle of judicial precedent must be strictly adhered to by the High Courts of each of the States and that these courts must regard themselves as bound by the decision of the Court of Appeal on any question of law, just as in the former days the Court of Appeal was bound by a decision of the Privy Council, or in England as the Court of Appeal or the High Courts are bound by the decisions of the House of Lords, and of course, similarly the magistrates courts or any other inferior court in each State are bound on questions of law by the decisions of the Court of Appeal and, subject to these decisions, also to the decisions of the High Court in the particular State.”

27. The Supreme Court of Kenya in Supreme Court Petition No. 4 of 2012 (2013) eKLR Jasbir Singh Rai & 3 Others v. Tarlochan Singh Rai & 4 Others stated:-“Adherence to precedent should be the rule and not the exception ....; the labour of judges would be increased almost to breaking point if every past decision could be reopened in every case, and one could not lay one’s own course of bricks on the secure foundation of the courses laid by others who had gone before him.”

28. The Supreme Court in Geoffrey M. Asanyo & 3 others v Attorney-General (2020) eKLR referred to the Canadian decision in David Polowin Real Estate Ltd. v. The Dominion of Canada General Insurance Co. (2008), 244 O.A.C. 151 (CA);2008 ONCA 703, where Judge Laskin, J.A. held:-“[t]he values underlying…stare decisis are well known: consistency, certainty, predictability, and sound judicial administration. Adherence to precedent promotes these values…Adherence to precedent also enhances the legitimacy and acceptability of judge-made law and by so doing enhances the appearance of justice. Moreover, courts could not function if established principles of law could be reconsidered in every subsequent case.”

29. From the above findings, I cannot fault the decision of the Court of Appeal. The respondent can move the Supreme Court appropriately to consider the decision of the Court of Appeal as the next appellate court.In the end, I make the following orders:-a.The appeal is merited.b.The Notice of Preliminary Objection dated 27/5/2021 is hereby dismissed.c.The Ruling and Order of 19/8/2020 is hereby set aside.d.The Suit is remitted to the trial court for hearing.e.The appellant will have costs of this appeal assessed as Kshs. 30,000/= to be paid within 30 days of this ruling.

DATED, DELIVERED AND SIGNED AT MIGORI THIS 7TH DAY OF JULY, 2022. R. WENDOHJUDGEJudgment delivered in presence of;-No appearance for AppellantMr. Jura holding brief Mr. Olando RespondentNyauke - Court Assistant