[2022] KEHC 16329 (KLR)

South Nyanza Sugar Co. Ltd v Ligure (Civil Appeal 163 of 2018) [2022] KEHC 16329 (KLR) (7 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16329 (KLR)

Republic of Kenya

In the High Court at Migori

Civil Appeal 163 of 2018

RPV Wendoh, J

December 7, 2022

Between

South Nyanza Sugar Co. Ltd

Appellant

and

John Okwach Ligure

Respondent

(An Appeal from the Judgement of the Hon. Langat (SRM) at Rongo dated 15/10/2018 in Rongo PMCC No. 1 of 2016)

Judgment

1. The appellant, South Nyanza Sugar Company Limited preferred the instant appeal dated November 12, 2018 against the judgement and decree of the Hon RK Langat (SRM) dated and delivered on October 15, 2018. The appellant is represented by the firm of Otieno Yogo Ojuro & Co Advocates. The respondent, John Okwach Ligure is represented by the firm of Ochillo & Co Advocates.

2. By a plaint dated January 13, 2016, the respondent (formerly the plaintiff) sued the appellant (formerly the defendant) for damages for breach of contract for the loss of the Sugarcane crop on 0. 5 hectares at the rate of 50 tonnes and payment of 2,500/= per tonne for the expected three (3) crops, cost of the suit, interest at court rates from March 10, 2008 and any other relief.

3. It was the respondent’s case that by an agreement dated March 10, 2008, the appellant contracted him to grow and sell to it sugarcane on his land parcel being plot number 1945 in S/Kabuoch Sub - Location measuring 0. 5 hectares; that the respondent duly signed the agreement and was assigned account number 482682. He planted the cane as agreed. Further, it was the respondent’s case that the agreement commenced on March 10, 2008 and to remain in force for a period of five (5) years or until one plant crop and two ratoon crops of cane are harvested on the plot whichever period was to be less.

4. The respondent pleaded that in breach of the said agreement, the appellant failed to harvest the cane when the same was mature and ready for harvesting leading to waste and loss. For the aforementioned reasons, the respondent suffered loss and expected profit from the three-crop cycle. The respondent further pleaded that the plot was capable of producing an average of 50 tonnes and the rate of payment then applicable wasKshs 2,500/= per tonne.

5. The appellant entered appearance and filed a statement of defence dated February 10, 2016. The appellant denied the existence of any agreement on account no. 482682 made on March 10, 2008 between the appellant and the respondent and that it failed to harvest any plant crop or ratoon crops; that the appellant did not owe the respondent loss of crop on 0. 5 hectares of land at the rate of 50 tonnes per hectare and payment of Kshs 2,500 per tonne for the expected two (2) crops or any duty or that it breached any such duty as pleaded in the plaint. The appellant further denied that it failed to harvest the plant crop or any ratoon crop or that it abandoned the same nor had the respondent suffered loss and damages. The appellant also averred that the plant crop having not been harvested, there could not have been any ratoon to grow and be available for harvest; that the respondent’s claim is in the nature of specific damages and that the same ought to have been particularly pleaded and prayed for; that respondent executed the agreement with a fraudulent and ulterior motive not to plant the crop and later bring this suit having signed the agreement and received the services and inputs, the respondent totally abandoned the farm and undertook no husbandry at all.

6. The appellant also averred that the trial court did not have jurisdiction to handle the dispute as it was a preserve of the Sugar Act. The appellant denied that the respondent suffered any loss or damage and no damages are available in contract under the law and on the facts pleaded. The appellant urged the trial court to dismiss the suit.

7. The suit was heard by way of viva voce evidence on April 13, 2017. The respondent testified in support of his case while the appellant defended its case through Richard Muok, its Senior Field Supervisor. At the end of the hearing, the trial court found in favour of the respondent and awarded him Kshs 124, 380. 75/= being the damages for the plant crop and two ratoon crops. The respondent was also awarded costs of the suit and interest to run from the date of filing suit.

8. The appellant was aggrieved by the trial court’s decision and filed the instant appeal on the following six (6) grounds as follows: -1. The trial magistrate erred in law and in fact by wrongly evaluating the evidence on record and hence coming to a wrong conclusion;2. The trial magistrate erred in law and fact by entering judgement on the rate of interest that was neither contracted nor permitted by law and which was not proved by evidence on record;3. The trial magistrate erred in entering judgement on interest from date of filing suit when the same was not a liquidated claim as the amount could only be ascertained after trial;4. The trial magistrate erred in law and in fact in failing to evaluate the contract between the parties and to determine the obligation of the parties before entering judgment and also failing to consider the documents relied on in court;5. The judgement is unlawful and contrary to the law as the trial court awarded three (3) cycles of crop not taking into account the evidence of the plaintiff that they did not develop the last two cycles;6. The trial magistrate completely misinterpreted the contract between the parties and the evidence, that he arrived at a wrong conclusion as to the import and effect of the evidence placed before him.

9. The appellant prayed that this appeal be allowed and the judgement of the lower court be set aside and in its place an order be made dismissing the respondent’s suit with costs.

10. Directions on the appeal were taken. The appeal was canvassed by way of written submissions and both parties complied. The appellant filed its submissions on May 16, 2022 and the respondent filed his submissions on May 23, 2022. I have duly considered the rival positions taken by both parties.

11. 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.

12. 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.”

13. I have carefully considered the memorandum of appeal, record of appeal and the parties’ submissions. The issues for determination are: -1. Whether the respondent developed the plant and the 2 ratoon crops.2. Whether the respondent was entitled to damages.3. When should interest start to run?

14. On the first issue, the appellant submitted that the respondent failed to prove that the plant crop, 1st and 2nd ratoons were nurtured and well taken care of by weeding and application of fertilizer at the appropriate time. It was also submitted that the respondent failed to adduce evidence in the form of photos of mature cane and an expert report, therefore, breaching clause 3(3. 8) of the agreement. The appellant further submitted that during cross - examination, the respondent confirmed that he did not develop the 1st and 2nd ratoons as the plant crop burnt down; that if one party fails to adhere or do his part of the contract, he should not be compensated for all the cycles. The appellant referred to the findings in the case of Pancras O Onyango v South Nyanza Sugar Co Ltd Civil Suit No 49 of 2005 where the plaintiff was compensated one ratoon cycle. It was further submitted that the respondent did not produce an expert report to show that his farm would actually yield 64. 53 tonnes per cycle claimed for the three cycles.

15. There is no dispute that a contract was signed between the parties. The appellant’s witness Richard Muok, confirmed as much in both his testimony in chief and on cross examination that there was contract. On whether the respondent developed the plant and the two ratoon crops. The respondent testified as follows: -“I informed Sony Sugar cane was ready. They visited my land but never harvested. It was 0. 5 ha. The sugar cane stayed for 22 months. There was fire and it burnt it.”

16. On cross examination, the respondent testified: -“Sony provided me with seedlings. They ploughed for me. 1st and 2nd harrowing. They did furrowing. They surveyed the land. I was not supplied with fertilizer. I used urea. I do not have receipts. I went and informed Sony on several occasion. I did try to get permission by they kept telling me they will harvest. I went there personally. Nothing in writing. My plane (sic) crop burn (sic) down. After it burnt down there was no sugar cane. I did not prepare the 1st and 2nd ratoon. I informed Sony my cane had burnt up. They came and harvested some. Some of the cane was harvested. I was not paid for harvested cane.”

17. The appellant’s witness testified: -“I visited the field in 2007. The cane was not there. I have no report in court. Plant crop was developed and abandoned.”

18. The respondent’s position is that he visited the appellant’s office several times to ask them to harvest but they did not and part of the plant crop was burnt down. It was his testimony that the unburnt plant crop was harvested but he has not been paid. The appellant denied existence of the cane although he later on admitted that the plant crop was developed but abandoned. From the evidence on record, it is more probable than not, that the plant crop was actually planted and developed. The appellant cannot now be heard to claim that there was no plant crop which was developed. The circumstance of this case, points to the fact that the plant crop was planted and developed. The question is whether the same was harvested.

19. The testimony of the respondent was contradictory. At first, he said that after the cane got burnt, there was no sugar cane. He later changed his narrative and said that a part of the plant crop got burnt and the appellant harvested the unburnt plant crop. Therefore, there was no way that the 1st and 2nd ratoon would have been developed if the initial plant crop was burnt. The scenario would have been different if the plant crop was left to wither in the plot due to the negligence of the appellant to harvest the same. It is this court’s finding that the 1st and 2nd ratoon crops were not developed. I also noted that the respondent departed from his pleadings when he testified that the crop got burnt and only part of it was left for harvest.

20. The pleadings by the respondent and his testimony does not elaborate on the tonnage of the plant crop that was harvested after a part of it got burnt. There was nothing to guide the trial court on the amount of damages that the respondent was entitled to on the harvested plant crop. The above being the position, the respondent was not entitled to any damages for the alleged breach of contract.

21. From the foregoing, the respondent did not prove his case on a balance of probability and the trial court ought to have found as such and dismiss the suit. The third issue for determination i.e. interest, falls by the way. The appeal therefore succeeds and the following orders do issue: -1. The judgement and Decree of Hon R K Langat (SRM) dated and delivered on October 15, 2018 is hereby set aside.2. Costs of the appeal and lower court are awarded to the appellant.

DATED, DELIVERED AND SIGNED AT MIGORI THIS 7TH DAY OF DECEMBER, 2022. R. WENDOHJUDGEJudgment delivered in the presence of;Mr. Bunde for the Appellant.Mr. Odhiambo for the Respondent.Nyauke Court Assistant.