[2022] KEHC 13547 (KLR)

Onguta v Sony Sugar Co. Limited (Civil Appeal 29 of 2020) [2022] KEHC 13547 (KLR) (3 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13547 (KLR)

Republic of Kenya

In the High Court at Migori

Civil Appeal 29 of 2020

RPV Wendoh, J

October 3, 2022

Between

Hezron Odhiambo Onguta

Appellant

and

Sony Sugar Co. Limited

Respondent

(An Appeal from the Judgement and Decree of the Senior Resident Magistrate (SRM) Rongo dated and delivered on 30/12/2019 by Hon. Kamau C.M. in PMCC No. 209 of 2016)

Judgment

1. The appellant, Hezron Odhiambo Onguta preferred the instant appeal dated July 1, 2020 against the judgement and decree of Hon C M Kamau (SRM) dated and delivered on December 30, 2019. The appellant is represented by the firm of Oduk & Co Advocates.

2. By a plaint dated February 25, 2015 filed in court on June 14, 2015, the appellant (formerly the plaintiff) sued the respondent (formerly the defendant) for damages for breach of contract, costs of the suit, interest from June 7, 2007 and any other relief.

3. It was the appellant’s case that by an agreement dated June 7, 2007, the respondent contracted him to grow and sell to it sugarcane on his land parcel, plot number 1518A in Field No 138 in South Kabuoch sub - location measuring 0. 8 hectares; that the appellant was assigned account number xxxx; that it was both an express and implied term of the contract that the agreement would remain in force for a period of 5 years or until one plant crop and two ratoon crops of sugarcane are harvested on the plot whichever period shall be less.

4. It was contended that in breach of the said agreement, the respondent failed, refused and/or neglected to harvest the plant crop and the two ratoon crops when the same matured and the crop deteriorated and went to waste. The appellant pleaded the particulars of loss and damage to be a total of Kshs 810,000/=.

5. The respondent through the firm of Moronge & Co Advocates, filed a statement of defence dated June 30, 2016 in which liability was denied and the appellant put to strict proof thereof. The respondent averred that if the appellant indeed suffered any loss, which was denied, then he is the author of his own misfortune by failing to properly maintain his crop to the required standards or at all to warrant the same being harvested by the miller. It was also averred that the appellant’s claim was defective and time barred and it would raise a preliminary objection at the hearing.

6. The respondent further averred that in the event the court found for the appellant, it should take into account the sum total of the costs of the goods and services provided to the appellant as well as the transport and harvest charges.

7. The trial court heard the parties and their respective witnesses and rendered its judgement on December 30, 2019 in favour of the respondent and dismissed the appellant’s suit.

8. The decision by the trial magistrate gave rise to this appeal dated July 1, 2020. The appellant raised six (6) grounds of appeal as follows: -i.The trial magistrate erred in law in relying on unpleaded evidence to wit that the plant crop had been harvested on or about May 13, 2008 when the same was not an issue raised in the defence and the alleged evidence led in proof not credible;ii.In the alternative and without prejudice to ground 1 above, the trial court erred in failing to come to a finding that in harvesting the plant crop on or about May 13, 2008, the said plant crop was immature and the alleged action, was, in itself, a breach of the contract dated June 7, 2007 to wit paragraph 1 (f) thereof;iii.In the further alternative, the learned trial court erred in relying on a purported letter dated September 15, 2008 as proof that the appellant had not maintained or planted the crop when the very said plant crop was alleged by the defence to have been harvested;iv.That the trial court erred in placing reliance on a made-up document, namely the letter dated September 15, 2008 which letter neither excused the defendant from performing the contract, nor constituted a default termination notice, and was effectively not compliant within the provisions of the contract;v.That the trial court failed to properly or adequately evaluate the evidence on record so as to arrive at a just and proper determination of the suit;vi.The trial magistrate erred in law by failing to make a determination on the award of damages applicable.

10. The appellant prayed: -i.That the judgement and decree of the trial court dated December 30, 2019 be set aside.ii.That this court do enter judgement in favour of the appellant and do assess the damages payable.iii.The costs of this suit and of the subordinate court be borne by the respondent.iv.There be an award in interest as prayed in the plaint.

11. The appeal was canvassed by way of written submissions and both parties filed.

12. In his submissions, the appellant consolidated grounds 1, 2 and 3 and submitted that the issues raised by DW1 at the defence hearing had no bearing at all to the defence as pleaded; that the defence did not allege that the plant crop had been harvested or that the ratoon crop was not tramlined and was exposed to cattle grazing. The appellant highlighted paragraph 7 of the respondent’s defence and submitted that it was an admission that no harvesting took place and the evidence produced should be ignored. The appellant urged the court to consider the decision in Henry O Otieno v South Nyanza Sugar Co Ltd HCCA No 144 of 2019 where it was held that a court’s finding on an issue must first have its basis firmly rooted on the pleadings.

13. It was submitted that at the time when the plaintiff’s cane was contracted on June 7, 2007, it was already 5 months old; that on May 13, 2008 when the respondent alleged it was harvested, the cane was approximately 11 months thus it was a premature cane for plant crop to be harvested and it would be in breach of paragraph 1 (f) of the contract. Thus, it was not open for the court to accept this deceit as evidence as it was not true.

14. The appellant invited the court to consider DEX3 being the final statement for the plant crop; which referred to plot number 1518B and not 1518A and stated that his farm was on plot No 1518A. Further, it was submitted that the document dated September 15, 2008 which was produced as a warning letter was a lie as the respondent in its defence statement stated that it had harvested the plant crop and the ratoon was not harvested over failure to maintain it; that the letter referred to “cycle P C” meaning plant crop but the plant crop had been harvested on May 13, 2008. Reliance was placed on the decision of Joseph Akech Nundu v South Nyanza Sugar Co Ltd HCCA No 36 of 2016 where a letter contained incorrect information.

15. The appellant also submitted on ground 4 of the appeal on whether the impugned letter dated January 15, 2008 was genuine. It was submitted that there is no evidence that the letter reached the appellant and it was not compliant with the contractual requirement. It was submitted that the letter accused the appellant of not translining the farm and allowing the livestock to graze on the cane but it did not terminate the contract. The appellant relied on the findings in Henry O Otieno v South Nyanza Sugar Co Ltd HCCA No 144 of 2019 and Joseph Aketch Nundu v South Nyanza Sugar Co LtdHCCA No 36 of 2016 and submitted that as per the special conditions of the contract, it was the respondent who was in breach.

16. On Ground 5, the appellant faulted the trial magistrate for relying on DW1’s evidence which was suspect and incredible; that the letter he relied on was misleading. The trial magistrate ought to have found that the issues raised were unpleaded and therefore he was enjoined under the law to ignore the defence evidence.

17. The appellant asked this court to allow the appeal as prayed and award damages in the sum of Kshs 810,000/= together with costs of the suit and this appeal together with interest from the date of filing suit.

18. The respondent filed its submissions dated June 2, 2022. On ground 1 of the appeal, the respondent submitted that there was no provision of the law that litigants should plead their evidence, but only facts as provided for under order 2 rule 3 of theCivil Procedure Rules; therefore, the ground of appeal should fail. Further, the respondent submitted that it did not breach the contract as the plant crop was harvested and the appellant paid a sum of Kshs 0 26, 247. 90 upon attainting 14. 120 tonnes. The payment was done on November 7, 2008 vide chequeNo 037118; that the pleading that the plant crop was not harvested was misleading. On the ratoon crops, the respondent submitted that on cross examination the appellant admitted that he did not develop the ratoon I and II but they proved that they harvested the plant crop hence there was no reason why the respondent did not develop the ratoons. To rebut this position, the respondent relied on the findings in Migori HCCA No 94 of 2018 South Nyanza Sugar Co Ltd v Melkizedeki Namwel Ragira.

19. On the age of the plant crop, it was submitted that the contract entered into was an Initially Non - Contracted Cane (INCC) meaning that the cane was already growing on the plot at the time of the contract. It was pleaded by the appellant that the crop was already 5 months old at the time of entering the contract on June 7, 2007; that based on the two conflicting ages of the plant crop, the plant crop could have been planted between May 7, 2006 andJanuary 7, 2007; that the harvest which was done on May 13, 2008 would put the age of the plant crop between 17 - 24 months. Hence, the plant crop was harvested within the requisite period. It was further submitted that the appellant did not call any witness or adduce any evidence to corroborate his testimony that the contract was entered into when the plant crop was at 5 months.

20. On the reliance placed on the letter, it was submitted that there is no letter on record dated September 15, 2008. However, there is a letter dated January 15, 2008 warning the appellant on exposure of the plant crop to livestock damages and the letter was sent before the plant crop was harvested on May 13, 2008. The destruction by the livestock led to a low tonnage of 14. 120 tonnes upon harvesting.

21. On the failure to properly and adequately evaluate the evidence, the respondent submitted that the trial Magistrate did not err as he perused the pleadings and found that the appellant had pleaded for 3 cycles; that the trial court found that there was evidence which showed that the plant crop had been harvested and the appellant did not challenge the farmer’s final statement showing the harvest of the plant crop; that even in the memorandum of appeal, he has only challenged the letter allegedly dated September 15, 2008.

22. On the failure to tabulate the award payable, it was submitted that since the trial court found that there was no breach of contract, then there was no need to make any tabulations. The respondent asked the court to dismiss the appeal with costs.

23. This being the first appellate court, it has a duty to re-evaluate and analyse all the evidence tendered in the lower court and arrive at its own conclusions but bearing 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. See the decision in Selle & another v Associated Motorboat Co Ltd [1968] EA 123.

24. 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 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.”Guided by the above decisions, I have carefully considered the memorandum of appeal, record of appeal and the appellant’s submissions. The issues for determination are: -i.Whether the respondent was in breach of the contract.ii.Whether the appellant was entitled to damages.

25. On the first issue, the appellant’s case was that the respondent failed to harvest the plant crop, thus leading to loss of the 1st and 2nd ratoon crops. He pleaded three crop cycles. It was the appellant’s further submission that the plant crop was harvested prematurely at 16 months in breach of the terms of the contract. The respondent stated that it harvested the plant crop well within the requisite period within 17 months and paid the appellant.

26. The appellant’s position is that at the time of signing the contract, the plant crop was approximately 5 months. The respondent through its witness DW1 testified that the plant crop was approximately 13 months old. None of the parties produced a report which was made at the time of signing the contract, to ascertain how old the plant crop was. It cannot be conclusively said what the age of the cane was, at the time of harvest. Be that as it may, the undisputed fact which the appellant failed to disclose to the trial court is that the plant crop was harvested and he was paid. The appellant cannot therefore be heard to now allege that the cane was harvested prematurely. On cross - examination of the respondent’s witness, counsel for the appellant did not challenge this harvest and the payment made by the respondent through a statement dated August 6, 2008.

27. In as much as the appellant has tried to deny the farmers’ statement by stating that it showed plot No 1518B and not 1518A, the rest of the information in the document including the name of the famer, field and the account number are in consonance with the information on the agreement signed between the parties. It is therefore the finding of this court that the appellant did not prove his case on the allegations that the plant crop was not harvested.

28. I have also noted that, the appellant has not challenged the finding of the trial court that the plant crop had been harvested and paid to the appellant. There is also no evidence on record to show that the appellant developed the 1st and 2nd ratoon crops.

29. As to whether the warning notice is dated January 15, 2008, it was alleged to have been served in accordance with clause 9 by delivery to the chief as the trial court rightly held. The said warning was given before the crop was allegedly harvested as the harvest was on May 13, 2008.

30. The foregone conclusion is that the appellant failed to prove his case and the appeal is hereby dismissed with costs to the respondent.

DATED, DELIVERED AND SIGNED AT MIGORI THIS 3RD DAY OF OCTOBER 2022. R. WENDOHJUDGEJudgment delivered in the presence of;N/A for the Appellant.NA/ for the Respondent.Nyauke- Court Assistant.