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South Nyanza Sugar Company Limited v Ongonga (Civil Appeal 178 of 2020) [2026] KECA 1507 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] KECA 1507 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Civil Appeal 178 of 2020 MS Asike-Makhandia, HA Omondi & LK Kimaru, JJA July 24, 2026 Between South Nyanza Sugar Company Limited Appellant and Caleb Ogungo Ongonga Respondent (Being an appeal from the Judgment and decree of the High Court of Kenya at Migori, (Mrima, J.) dated 11th June, 2020inHCCA No. 114 of 2018) Judgment 1.To put matters into perspective regarding this second appeal, it is necessary to give the genesis, which was a dispute that originated in the Chief Magistrate’s Court at Migori wherein Caleb Ogungo Ongonga, the respondent herein sued South Nyanza Company Ltd, the appellant for compensation, asserting that under a sugarcane farming contract between himself and the appellant, the appellant harvested the plant crop but failed to harvest the first ratoon crop leading to the loss of both the first and second ratoon crops. 2.The appellant denied breaching the contract and contended that it did not owe the respondent any money. During the trial, the appellant introduced a witness statement alleging that the respondent had wrongfully cut and sold his sugarcane to an unauthorized local jaggery factory. 3.In its judgment delivered the 13th August 2018, the trial court allowed the respondent’s claim awarding the respondent the net value of the 1st and 2nd ratoon crops amounting to Kshs. 295,506.00 with interest and costs. 4.Aggrieved by the trial court's judgment, the appellant moved to the High Court seeking to set aside and overturn that decision. Upon re-evaluating the evidence, the learned judge (Mrima, J.) in the now impugned judgment delivered on the 11th June 2020 found all grounds of appeal unmeritorious and dismissed the appeal with costs, thereby affirming the judgment of the trial court in favour of the respondent. 5.Dissatisfied with the judgment and decree of the High Court, the appellant lodged the present second appeal on eight grounds summarized as follows: The appellant contends that the High Court erred in law by finding that the respondent had proved the planting, maintenance, and maturity of the first ratoon crop and in holding that the appellant breached the contract by failing to harvest it. The appellant further argues that there was no basis for awarding compensation for the second ratoon crop, that damages for the three crop cycles were not specifically proved as required for special damages, and that the respondent failed to mitigate his loss. It also challenges the award of interest from the date of filing suit, contending that the judge misapprehended the evidence and issues before the court and relied on speculation rather than evidence. Consequently, the appellant submits that the respondent’s suit ought to have been dismissed with costs. 6.The appeal was canvassed by way of written submissions but only the appellant’s submissions were on record as at the time of writing this judgment. The appellant only wished to address the Court on 2 matters, namely:a.The affirmation of equivalent awards of KShs.129, 753/-, gross, for each ratoon.b.The award of interest on the net award, from the date of filing the primary suit. 7.With regard to the award, the appellant submitted that there was no evidential basis for awarding Kshs.129,753.00 for each ratoon crop, arguing that the lower courts relied solely on projected yields and acreage without proof of actual loss. It contended that the respondent neither pleaded nor proved that the failure to harvest the first ratoon crop resulted in the loss of the second ratoon crop, rendering the award for the latter speculative. It contended that the respondent neither pleaded nor proved that the failure to harvest the first ratoon crop resulted in the loss of the second ratoon crop, rendering the award for the latter speculative, and there appears to be no basis, in the judgment, for the Kshs.129,753/- that was awarded; that the learned judge simply picked expected gross yields and multiplied those expected yields by the size of the respondent's plot, and decided to affirm that award as the due compensation. 8.The appellant urges us to bear in mind that nowhere in the respondent's pleadings were there specifics, that the appellant's failure to harvest the respondent's 1st ratoon within contractual parameters compromised the development of the respondent's 2nd ratoon. The contention here is that since this was an absent pleading, then there being no evidence on that issue, there was no lawful justification for the award of Kshs.129, 753.00 for the 2nd ratoon crop. In support of this proposition, the appellant refers us to the position taken by Chitembwe, J, in Migori HCCA No. 47 of 2019 - South Nyanza Sugar Company Ltd v Francis Aderi Dedege, which is described as more realistic. 9.In this regard, the appellant contends that it cannot be assumed that merely because the respondent developed the 1st ratoon, then it is to be expected, realistically, that the respondent would have developed the 2nd ratoon crop; that it should be understood that so much happens in the lives of sugarcane farmers and as sugarcane does not grow on its own, it must be taken care of, so as to grow profitably. 10.We are urged not to lose sight of the fact that the contract between the parties also envisaged that the respondent would also have terminated the contract, if it suited him, and that he too, would have breached the contract, or that force majure would have frustrated the contract. 11.On interest, the appellant’s lament is that the learned judge awarded interest without laying a lawful basis for that award of interest, and simply acted as though interest was a matter of course, and without assigning his reasons. The appellant challenged the award of interest from the date of filing suit, maintaining that damages for breach of contract become payable only upon assessment by the court. We are urged to hold that the damages awarded do attract interest from the date of judgment; that the date when the damages are assessed is the date when the appellant's duty to pay arises; and that date in their view would be the date when the court determined the sum due from the appellant to the respondent as damages for that breach. 12.The appellant believes that this interest was an error of law; and the nature of the matter offered sufficient reasons for the Court to depart from the principle that interest accrues from the date of judgment, as the respondent never pleaded the sum to be awarded for interest. It therefore urged that interest, if awarded, should run from the date of judgment rather than the date of filing the suit. 13.This is a second appeal and under Section 72 of the Civil Procedure Act, our mandate is confined to consideration of matters of law only. This scope has been delineated in many decisions of this Court including but not limited to Kenya Breweries Ltd v Godfrey Odoyo [2010] eKLR, where the court held that:“In a second appeal, the Court confines itself to matters of law unless it is shown that the courts below considered matters they should not have considered or failed to consider matters they should have considered or that the decision is plainly perverse.” 14.Having carefully reviewed the record, the submissions of counsel, the judgments of the two courts below, the authorities cited and the law, we are satisfied that the appeal turns on thetwo key issues which the appellant has already delineated in the written submissions. 15.From the delineated issues we are able to flesh out and conclude that within the two issues, we are called upon to determine the following issues:a.Whether the learned judge decided the appeal based on issues not properly raised on appeal,b.whether the learned judge relied on material which was not properly on record,c.whether the respondent proved his case on a balance of probabilities,d.whether the award of damages was justified in the circumstances,e.whether the award of interest was lawful. 16.In considering the impugned decision of the High Court, we note that the High Court, sitting as a first appellate court, re- evaluated the evidence and upheld the trial court’s finding that the appellant had breached the sugarcane farming contract by failing to harvest the respondent’s mature first ratoon crop. The Court found that the respondent had properly pleaded and proved his claim and relying on established jurisprudence from this court in holding that the particulars of acreage, expected yield, and cane prices were sufficient to sustain the claim for compensation. 17.On liability, the Court held that there was clear evidence that the respondent had maintained the crop to maturity and that the appellant harvested the plant crop but failed to harvest the first ratoon crop. The appellant’s contention that the respondent sold the crop to a jaggery was rejected because it had not been pleaded in the defence and was therefore a non-issue. The Court emphasized that parties are bound by their pleadings. 18.Regarding damages, the Court affirmed that where a miller fails to harvest a mature ratoon crop, the farmer is entitled to compensation for both the lost first ratoon crop and the consequential loss of the second ratoon crop, subject to the contract and pleadings. The Court found that the non- harvesting of the first ratoon crop inevitably compromised the development of the second ratoon crop. 19.On mitigation of loss, the court held that mitigation is a question of fact that must be specifically pleaded and proved by the defendant. Since the appellant neither pleaded nor led evidence on mitigation, it could not raise the issue for the first time on appeal. The Court further noted that the terms of the standard sugarcane contract left little room for a farmer to mitigate losses arising from the miller’s breach. 20.The Court also upheld the trial court’s assessment of damages, finding that it was properly based on the acreage, the KESREF yield report, the appellant’s cane price schedules, and that the award had been subjected to the applicable statutory and contractual deductions. 21.Juxtaposing the findings of the 1st appellate court against the Memorandum of Appeal before us, it is evident that the learned judge in considering the evidence afresh arrived at a correct conclusion that the respondent had proved his case on a balance of probabilities whereas the appellant abandoned his defense and elected to pursue a frolic of his own in advancing the contention that the respondent sold the crop to a jaggery. 22.The duty of a first appellate court was well stated in Abok James Odera T/A A.J. Odera & Associates v. John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR, where this Court held:“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re- evaluate, re-assess and re-analyze the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way.” 33.We take note of the appellants urging that the most realistic approach is the one adopted by Chitebwe J, in South Nyanza Sugar Company Ltd v Francis Aderi Dedege (supra), but we hasten to point out that this reasoning was debunked by this Court in South Nyanza Sugar Company Ltd v Mary Anyango (Suing as Administratrix of the Estate of Jared Onyango Onguka (Civil Appeal No. 171 of 2019) [2024] KECA 694 KLR (21 June, 2024) (Judgment), where the Court frowned at the attempts to conflate the duty to mitigate damages and the alleged failure to produce evidence of breach of contract to the required standard applies in this case. The Court pronounced itself thus:“The view that the respondent, on record, satisfied her burden of proof is fortified by looking at Clause 11 of the Agreement between the parties. While the appellant has heavily relied on the decision of Chitembwe, J. (as he then was) in South Nyanza Sugar Company Ltd vs. Francis Aderi Dedege (supra), wherein he held that it was the outgrower’s responsibility to inform the sugar Page 21 of 26 company when the ratoon crop was ready and that the failure of a farmer to prove that they did so is fatal to a claim of this nature, Clause 11 of the Agreement between the parties provides as follows:……..The wording of the said clause clearly indicates that there are scheduled visits by the Company to the farmer’s shamba and notification thereof of the farmer by the Company of any works or operations that may be required to be done. Therefore, it goes without saying that it was the duty of the appellant to inform the respondent or his representative of the appointed date of each harvesting or any other works or operations. This is to say, according to the wording of the contract, it was not the duty of the respondent to notify the appellant that the plant crop or the first ratoon was ready for harvesting. The contract reveals that there is a system developed by the appellant to ensure scheduled and/or follow up visits to the farmer’s shamba to ensure that the farmer has maintained, cultivated and tended his shamba for purposes of obtaining satisfactory yield. It is telling that despite that elaborate system, the appellant did not have any evidence whatsoever to demonstrate that the respondent had failed to maintain the shamba satisfactorily; or that it had valid reasons to rescind its contract with the farmer on account of breach of contract on her part.”We are satisfied that the learned judge did not determine the appeal on impermissible un-appealed issues, as he had an obligation as the first appellate court to re-evaluate the evidence de novo. 23.On interest, the Court held that the issue had already been settled by the Court of Appeal and that interest in such claims properly runs from the date of filing suit; that the respondent had been deprived of the use of his money for many years and was therefore entitled to interest from that date. The appellant was of a different disposition, arguing that that no specific sum was pleaded or prayed for. the governing provision of the law being section 26 of the Civil Procedure Act. That section provides as follows:Where and in so far as a decree is for the payment of money, the court may, in the decree, order interest at such rate as the court deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree in addition to any interest adjudged on such principal sum for any period before the institution of the suit, with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks fit.Where such a decree is silent with respect to the payment of further interest on such aggregate sum as aforesaid from the date of the decree to the date of payment or other earlier date, the court shall be deemed to have ordered interest at 6 per cent per annum. 23.The cited provision is explicit that the court has discretion to award interest on the principal sum where the decree is for the payment of money and further that the court has discretion to determine the appropriate rate of such interest. Indeed, this Court has on several pronouncements to refrain from interference with a trial judge’s exercise of discretion unless it is satisfied that the lower court proceeded upon some erroneous principle or was plainly and obviously wrong. See the case of South Nyanza Sugar Company Ltd v Lawi [2025] KECA 1G11 (KLR). 24.This was a liquidated claim based on a breach of contract.; and we hold the considered view that there is absolutely no justification to limit the interest payable on account of the fact that the ultimate amount payable was not specifically determinable at the time of filing suit. We have no reason to fault the learned judge’s application of his discretion in the award of interest. 25.Taking all the aforementioned into consideration, we find no reasons to depart from the findings of Mrima J. We also do notfind any consideration of matters that were perverse or not placed before it. We thus hold that the finding of the High Court was based on proper appreciation of the law and evidence. Accordingly, we find no merit in this appeal which is hereby dismissed. 23.As regards costs, we note that the respondent did not participate in these proceedings; consequently, we shall make no orders on costs. DATED AND DELIVERED AT KISUMU THIS 24TH DAY OF JULY, 2026.ASIKE-MAKHANDIAJUDGE OF APPEAL.......................................H. A. OMONDIJUDGE OF APPEAL.......................................*L. KIMARUJUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR