https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8398

South Nyanza Sugar Co. Ltd v Midega (Civil Appeal E040 of 2023) [2026] KEHC 8398 (KLR) (4 June 2026) (Judgment) Neutral citation: [2026] KEHC 8398 (KLR) Republic of Kenya In the High Court at Migori Civil Appeal E040 of 2023 DKN Magare, J June 4, 2026 Between South Nyanza Sugar Co. Ltd Appellant and Andrew Owuor Midega Respondent Judgment 1.This appeal arises from the judgment of Hon. J.M. Munguti (SPM) delivered on 17.5.2023 in Migori CMCC No. 4 of 2018. The appellant was the defendant in the lower court. The court below entered judgment for the crop and two ratoons. 2.The Memorandum of Appeal dated 15.6.2023 raised the following material grounds:a.The learned magistrate erred in law and fact in failing to find that the suit was not proved and failing to dismiss it.b.The learned magistrate erred in finding that there existed a contract between the parties dated 17.9.2009.c.The learned magistrate erred in law and fact by awarding compensation without legal basis. 3.The plaint dated 4.1.2018 claimed compensation for 3 unharvested sugarcane cycles due to breach of contract on the part of the appellant, and costs and interest. The respondent averred that on or about 17.9.2009 the appellant and the respondent entered into contract where the appellant was to harvest the sugarcane that the respondent planted on his 0.6 ha plot No. 1168, Field No. 6J vide Account No. 483483 upon maturity and pay the respondent the value. 4.The appellant failed to harvest the sugarcane upon its maturity which compromised the development of the 1st and 2nd ratoons. The respondent lost 90 tons and the price per ton was Ksh. 3,500/=. 5.The appellant filed defence dated 3.4.2018 denying the allegations in the plaint. It is not clear from the defence whether they were denying the contract or liability related to the alleged breach. There were no particulars related to any breach, fraud or failure to comply with terms of the contract on part of the respondent. In other words, the defence filed was evasive. Proceedings 6.PW1 was the respondent. He relied on his list of documents dated 4.1.2018 and his witness statement of the same date. He testified that he was a sugarcane farmer. He prayed that the reliefs sought be granted. On cross examination, it was his case that by the time he entered into the contract dated 17.9.2009, he had not developed the sugarcane. The appellant supplied fertilizer and seed cane and also ploughed the farm. Sugar could mature in 18-24 months. His sugar matured after 18 months. The appellant did not harvest. He could not prepare the 1st and 2nd ratoon. He expected to get 90 tons. The price was Ksh. 3,500/= per ton. 7.The respondent called DW1, George Ochieng, a Senior Surveyor. He relied on his witness statement and list of documents dated 2.3.2023. On cross examination, he stated that the contract book was not signed by the farmer. The production order was not pleaded. The sugarcane was not harvested. Submissions 8.The appellant filed submissions on 5.1.2026. It was submitted that existence of contract and breach of contract was not proved. The original contract was not produced. Only a partial copy was produced, containing 4 pages. Reliance was placed on an array of authorities including James A. Niala V South Nyanza Sugar Co. Ltd [2019] KEHC 7185 (KLR), South Nyanza Sugar Co. Ltd V Mary A. Mwita & Another [2018] KEHC 6635 (KLR). They further submitted that once the crop dried there was no ratoon to be harvested. 9.The respondent filed submissions dated 22.1.2026. It was submitted that the respondent proved breach of contract. The plant was planted, matured but not harvested. They cited clause 2 (a) of the Growers’ Cane Farming and Supply Contract of 17.9.2009. 10.Reliance was placed on the case of Martin Akama Lango V South Nyanza Co. Ltd HCCA No. 20 of 2000 (KSM) where it was held inter alia that:“The contract must be interpreted in the spirit that it was made and that is… it was meant to benefit both parties unconditionally and for the appellant to maximize his profits. 11.They submitted that interest should be from the date of filing. It is unclear what this was responding to. Analysis 12.This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a subordinate court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand. This court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong. In the case of Mbogo and another V. Shah [1968] EA 93, the court stated:“…that this court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.” 13.The duty of the first appellate court was set out in the case of Selle And Another V Associated Motor Board Company And Others [1968]EA 123, where the Judges in their usual gusto, held as follows;-“.. This court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... Is by way of re-trial and the court of appeal is not bound to follow the subordinate court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.” 14.The court is to bear in mind that it had neither seen nor heard the witnesses. It is the subordinate court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them. In Fidelity & Commercial Bank Ltd V Kenya Grange Vehicle Industries Ltd (2017)eKLR, the Court of Appeal, Ouko, Kiage and Murgor JJA held as doth;-“Courts adopt the objective theory of contract interpretation, and profess to have the overriding aim of giving effect to the expressed intentions of the parties when construing a contract. This is what sometimes is called the principle of four corners of an instrument, which insists that a document's meaning should be derived from the document itself, without reference to anything outside of the document (extrinsic evidence), such as the circumstances surrounding its writing or the history of the party or parties signing it. 15.In Gerald Dworkin, Odgers' Construction of Deeds and Statutes (5th edn, Sweet & Maxwell 1967), the learned author at p. 106 states as follows:“Parol Evidence and written documents. It is a familiar rule of law that no parol evidence is admissible to contradict, vary or alter the terms of a deed or any written instrument. The rule applies as well as deeds as to contracts in writing. Although the rule is expressed to relate to parol evidence, it does in fact apply to all forms of extrinsic evidence.As it stands this is not a rule of interpretation but of law, and means that the interpretation of the document must be found in the document itself with the addition if necessary of such evidence as we have previously seen is admissible for explaining or translating words and expressions used therein” 16.This court’s jurisdiction to review the evidence should be exercised with caution. In the cases of Peters Vs Sunday Post Limited [1958] EA 424, the court therein rendered itself as follows:-“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…but the jurisdiction to review the evidence should be e4xercised with caution: it is not enough that the appellate court might have come to a different conclusion…” 17.This court does not have the advantage of seeing and hearing the witnesses as did the lower court, yet it must reconsider the evidence, evaluate it itself and draw its own conclusions. The appellant urged the court to find that the lower court erred in allowing the suit without evidence of contract and breach thereof. This court is entitled to reevaluate by way of a retrial the pleadings and evidence at the lower court. On the proof of the allegations of breach of contract in Raghbir Singh Chatte V National Bank of Kenya Limited [1996] KECA 99 (KLR) the court of appeal stated thus:“When a party in any pleading denied an allegation of fact in the previous pleading of the opposite party, he must not do so evasively, but answer the point of substance. Thus, if it be alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum, or any part thereof, or else set out how much he received. And so, when a matter of fact is alleged with divers circumstances, it shall not be sufficient to deny it as alleged along those circumstances, but fair and substantial answer must be given.”……first of all a mere denial is not a sufficient defence in this type of case there must be some reason why the defendant does not owe the money. Either there was no contract or it was not carried out and failed. It could also be that payment had been made and could be proved. It is not sufficient therefore simply to deny liability without some reason given.” 18.The burden was with the respondent to prove his case against the appellant. On this subject, section 107 -109 of the Evidence Act, cap 80 laws of Kenya provides that:107. (1)whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.108.The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.109.The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” 19.A party who invokes the aid of the law and asserts affirmative of an issue has the burden to prove the matters in issue. In Anne Wambui Ndiritu –Vs- Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, The court of appeal held that:“As a general proposition under section 107 (1) of the evidence act, cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in sections 109 and 112 of the act.” 20.The question then is what amounts to proof on a balance of probabilities. Kimaru, J In William Kabogo Gitau V George Thuo & 2 Others [2010] KEHC 4124 (KLR) stated that:“In ordinary civil cases a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely that not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.” 21.Courts have established that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Lord Nicholls of Birkenhead In Re H and others (minors) [1996] AC 563, 586 held that;“The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the even was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriated in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability…” 22.The preponderance of probabilities as degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. Furthermore in Palace Investments Limited V Geoffrey Kariuki Mwenda & Another [2015] KECA 616 (KLR) the judges of appeal held that:“Denning J, in Miller –Vs- Minister of Pensions [1947] 2 ALL ER 372 discussing the burden of proof had this to say;-“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that a tribunal can say: we think it more probable than not; the burden is discharged, but, if the probabilities are equal, it is not.This burden on a balance or preponderance of probabilities means a win however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept where both parties…are equally (un) convincing, the party bearing the burden of proof will lose because the requisite standard will not have been attained.” 23.In the instant appeal, the plaint dated 4.1.2018 claimed compensation for 3 unharvested cycles of sugarcane. This was based on the contract reportedly entered into between the appellant and the respondent on 17.9.2009. The said contract was disputed on the basis that it was incomplete and not signed by the respondent. This is not correct. The appellant raised the question of a production order too late in the day. Parties are bound to plead their cases fully. In the case of Migore V South Nyanza Sugar Co Ltd [2018] KEHC 5465 (KLR), A C Mrima, J, stated as follows:11.It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded. That settled position was re-affirmed by the court of appeal in the case of independent electoral and boundaries commission & ano. Vs. Stephen mutinda mule & 3 others (2014) eklr which cited with approval the decision of the supreme court of nigeria in adetoun oladeji (nig) vs. Nigeria breweries plc sc 91/2002 where adereji, jsc expressed himself thus on the importance and place of pleadings: -…..it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded………in fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.In the case of malawi railways ltd vs nyasulu [1998] mwsc 3, malawi supreme court of appeal stated as doth when the learned judges cited with approval an article by sir jack jacob entitled the present importance of pleadings published in [1960] current legal problems at p 174 whereof the learned author posited that: -As the parties are adversaries, it is left to each one of them to formulate his case in his own way subject to the basic rules of pleadings …….for the sake of certainty and finality; each party is bound by his own pleadings and cannot be allowed to raise a different fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as bound by the pleadings of the parties as they are themselves. It is no part of the duty court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties. To do so would be to enter upon the realm of speculation. Moreover in such event, the parties themselves, or at any rate one of them might well feel aggrieved; for a decision given on a claim or defence not made or raised by or against a party is equivalent to not hearing him at all and thus be a denial of justice….In the adversarial system of litigation therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to. In such an agenda, there is no room for an item called any other business in the sense that points other than those specific may be raised without notice. 24.In respect to the essence of pleadings, the Supreme Court of Kenya in its ruling on inter alia scrutiny in the case of Raila Amolo Odinga & Another Vs. Iebc & 2 Others (2017)eKLR found and held as follows in an election petition:58.In the case of Arikala Narasa Reddy V Venkata Ram Reddy Reddygari & Anr, Civil Appeal Nos 5710-5711 of 2012; [2014] 2 SCR the supreme court of India held that [paragraph 8]:….52.further, the court went on and observed that:“In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings. The court cannot exercise discretion of ordering recounting of ballots just to enable the election petitioner to indulge in a roving inquiry with a view to fish material for dealing the election to be void. The order of recounting can be passed only if the petitioner sets out his case with precision supported by averments of material facts. 25.The appellant pleaded that the sugarcane would yield 90 tons and price per ton was Ksh. 3,500/=. The field was 0.6 ha in size. The payment formula was set out in the contract. The contract dated 17.9.2009 was produced as well as other documents as per the list. It was a standard form contract known as cane farming and supply contract. It demonstrated the cane farming and harvesting arrangement between the parties. It is not the duty of this court to amend or redraft a contract. 26.The appellant had signed the provided signature pages. The appellant could not be heard to deny the contract and must have provided to court its complete copy thereof as the issuer, to prove that there were no such terms as the respondent claimed. It did not. The court could not thus rewrite the contract having established that it existed. In the case of National Bank Of Kenya Ltd V Pipeplastic Samkolit (K) Ltd & Another [2001] KECA 362 (KLR) [Tunoi, Shah & Keiwua JJ A] the court held as follows: -A court of law cannot re-write a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded and proved. There was not the remotest suggestion of coercion, fraud or undue influence in regard to the terms of the charge.As was stated by shah JA in the case of fina bank limited vs spares & industries limited (civil appeal no 51 of 2000) (unreported):“it is clear beyond peradventure that save for those special cases where equity might be prepared to relieve a party from a bad bargain, it is ordinarily no part of equity’s function to allow a party to escape from a bad bargain. 27.The respondent therefore proved contract. The court could not require more than what was provided. There would be no other purpose for which the yield assessment report and schedule of sugarcane prices produced in evidence were to serve than support the performance of the contract between the parties. This was not a claim for special damages but for failure to harvest the cane that was contracted. 28.The appellant has a duty to disclose the annual prices as a basis for determining contractual terms. The price was pleaded to be a sum of Ksh. 3,500/= per ton. This was the prices applicable with effect from 1.3.1998. Farming is not an exact science. It is based on the best available evidence and admissions. The court cannot fail to award when the cane was planted but was not harvested upon maturity with no fault of the respondent. 29.While addressing the question of special damages and damages arising from breach as the one that occurred here, in the case of John Richard Okuku Oloo V South Nyanza Sugar Co Ltd [2013] KECA 73 (KLR), the court stated as follows: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 Gulthamed Mohamedali Jivanji t/ a Jivanji Agencies v Sanyo Electrical Company Ltd [2003] KECA 196 (KLR), 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 quotes Coast Bus Service Limited V Murunga & Others Nairobi CA NO. 192 OF 1992 (UR) appears in the Gulthamed Mohamedali Jivanji case (supra):“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 V 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 judgement:“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 from 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.”(Disambiguation mine) 30.What the respondent was required to and indeed proved was the fact that the sugarcane, having matured was not harvested. However, the sugar came dried and could not produce other ratoons. The appellant cannot thus be liable for ratoons which were not replanted. The respondent had a duty to mitigate costs. In the case of Hahn V Singh [1985] KECA 129 (KLR), the court of appeal stated as follows:So must the third fail because the judge could not do anything else but find that the appellant did not take reasonable steps to mitigate the loss which he sustained consequent upon the negligence of the respondent and pinto so the appellant could not claim for the airport charges, aircraft charges, aircraft flights, hotel bills and loss of pay which he ought reasonably to have avoided by driving it into zambia and having it repaired there once the tail light had been replaced and covered with appropriate coloured plastic or glass. The respondent and pinto said this was what he ought to have done so they had to prove it. 31.Being total loss, ratoons could have yielded zero. Therefore, by failing to mitigate, it would have yielded nothing. The court therefore was wrong in allowing amounts for the 1st ratoon and 2nd ratoon. Only amounts related to the plant were to be awarded. The court therefore sets aside the award for the three seasons. Only the plant loss will be awarded. 32.The court found that the plant crop will yield 38.7 tons. There is no material to show that the workings were wrong or that the court relied on irrelevant material. The amount the court relied on was Ksh. 3,500/=. This works the gross value of the crop as Ksh. 135,450/=. Harvesting charges were Ksh. 305/= and Ksh. 690/= totaling to Ksh. 995/=. The total costs will be Ksh. 38,506.50/= while Cess is Ksh. 1,345/=. The gross will this be reduced by a sum of Ksh. 1,345/= being cess and costs of Ksh. 38,506.60/=. This leaves the amount due as Ksh. 95,598.40/=. 33.The net effect is that the appeal is partly allowed. The court established contract and found breach based on the evidence presented by the respondent and crop amount is payable as only Ksh. 95,598.40/=. The award of a sum of Ksh. 140,600/= is thus set aside. 34.Regarding interest in matters of special damages, the same are payable from the date of filing suit. Interest was addressed in the case of South Nyanza Sugar Company Limited V Oreko [2022] KECA 570 (KLR), where the court of appeal [F Tuiyott, PO Kiage & M Ngugi, JJA] stated as follows:33.The objective for awarding interest is to ameliorate the loss suffered by a party who has been kept out of use of money that would otherwise be due to him. Although, by dint of the words of section 26, the grant of interest is discretionary, it is a discretion to be exercised judiciously. One way of proper exercise of this discretion is to make an award that is in consonance with the underlying objective for which an order of interest is made. The indubitable outcome is that interest on special damages will be from the date of filing of suit as the money would have been due to the claimant at the very least on that date. General damages, which is the product of an assessment process by the court, is due on the date when the assessment is made which is in the judgment date.34.I have found that the damages due to the respondent are special in nature and I see no reason to depart from what is almost conventional that interest on such damages ought to run from the date of filing suit as the money will have been due to the respondent from that date. This result is also in consonance with the spirit of statutory law that governed the contract between the respondent and the appellant at that material time. The contract was then subject to the provisions of the repealed sugar act (repealed on 1st august 2014 by the crops act). The effect of paragraph 9(1)(e) as read together with 9(2) of the second schedule of the act was that a miller who failed to pay an out-grower institution within thirty days of sugar cane delivery was liable to pay interest. The spirit is to compensate the farmer by way of interest for late payment. I see no reason why the same principle should not be extended to where there is breach by the miller, like here.35.The argument of the appellant that the delay in hearing and finalizing the litigation has placed on it an onerous burden of interest when it is not to blame for the slow speed of the wheels of justice can also be said of the loss suffered by the respondent who has been kept out of money for a long period due to the delay in completing the trial, a current feature of our court system. There is no reason why the respondent should be the one to get the short end of the stick. The solution may lie in the party which may eventually find itself at fault putting away some contingency funds to cover the interest it may be liable to pay. Whatever the solution it is not in denying interest to the victim of breach. 35.This leaves the issue of costs, which is governed by section 27 of the Civil Procedure Act, which provides as follows:(1)subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.(2)The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such. 36.Costs are generally discretionary. However, the discretion is not arbitrary. The court of appeal in the case of Farah Awad Gullet V Cmc Motors Group Limited [2018] KECA 158 (KLR) had this to say:It is our finding that the position in law if that costs are at the discretion of the court seized up of the matter with the usual caveat being that such discretion should be exercised judiciously meaning without caprice or whim and on sound reasoning secondly that a court can only withhold costs either partially or wholly from a successful party for good cause to be shown. 37.The supreme court set forth guiding principles applicable in the exercise of that discretion in the case of Rai & 3 Others v Rai & 4 Others [2014] KESC 31 (KLR), as follows:18.It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation.22.Although there is eminent good sense in the basic rule of costs - that costs follow the event- it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings - a position well illustrated by the considered opinions of this court in other cases. The relevant question in this particular matter must be, whether or not the circumstances merit an award of costs to the applicant. 38.The results have been mixed. Each party will bear their own costs. Determination 39.In the upshot, I make the following orders:a.The appeal is merited and allowed partly. The award of Ksh. 140,600/= for the crop and two ratoons is set aside and a sum of Kshs. 95,598.40/= awarded for the plant crop only.b.Damages for the ratoons were not proved and thus set aside.c.Interest on Kshs. 95,598.40/= shall be from the date of filing suit.d.Each party will bear their own costs for the appeal.e.14 days right of appeal.f.The file is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 4TH DAY OF JUNE, 2026. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of: -No appearance for partiesCourt Assistant – Martin