[2022] KEHC 10436 (KLR)

South Nyanza Sugar Company Limited & another v Opiko & another (Civil Appeal 76 of 2018 & 77 of 2019 (Consolidated)) [2022] KEHC 10436 (KLR) (23 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10436 (KLR)

Republic of Kenya

In the High Court at Migori

Civil Appeal 76 of 2018 & 77 of 2019 (Consolidated)

RPV Wendoh, J

June 23, 2022

Between

South Nyanza Sugar Company Limited

Appellant

and

Awour Gwako Opiko

Respondent

As consolidated with

Civil Appeal 77 of 2019

Between

Awour Gwako Opiko

Appellant

and

South Nyanza Sugar Company Limited

Respondent

(An Appeal from the Judgement and Decree of Hon. M.M. Wachira Senior Resident Magistrate (SRM) dated and delivered on 29/5/2018 in Migori PMCC No. 426 of 2014)

Judgment

1. The dispute before this court is one between a sugar cane miller and a contracted farmer. South Nyanza Sugar Company Limited (the appellant) is the sugar cane miller and Awour Gwako Opiko (the respondent) is the farmer.

2. The respondent filed a suit in the lower court Migori PMCC No 426 of 2014 dated October 13, 2014 seeking for judgement against the appellant for among others, value of the unharvested cane.

3. It was pleaded by the respondent that on or about 12/1/2004, the appellant and the respondent entered into an agreement whereby the respondent agreed to cultivate sugarcane on Plot No 892, measuring approximately 0. 2 Ha, Field No 56 vide Account No 4815xx and the appellant agreed to harvest and/or purchase the cane upon maturity.

4. It was the respondent’s case that the appellant failed to harvest the 1st and 2nd ratoons and as a result, she lost approximately 20 tons of each ratoon. The price range of the ratoons at the time of the contract ranged between Kshs 2,000/= - 3,500/= which she had suffered loss.

5. The appellant filed a defence. The appellant denied the existence of a contract between the parties herein and denied any allegations of breach on its part in relation to the harvest of the 1st and 2nd ratoon crops. It was further denied that the plot size where the cane was grown could yield 60 tons but instead the appellant averred the plot could only realize 30 tons. The price range of Kshs 4,500/= - 4,800/= was also denied.

6. At the hearing, both parties were represented by counsel. The trial court rendered its judgement on 29/5/2018 and entered judgment in favour of the respondent for the sum of Kshs 71,409. 60 plus costs and interest from the time of filing judgement together with costs of the suit.

7. Both parties were aggrieved by the judgement and decree of the hon MM Wachira. The appellant filed Civil Appeal No 76 of 2018 while the respondent filed Civil Appeal No 77 of 2019.

8. The appellant preferred ten (10) grounds of appeal. The grounds can be summarized as follows: -a.The trial Magistrate erred both in law and in fact when he awarded damages of Ksh 33,094. 80/= in respect of ratoon I as if the respondent has delivered the sugarcane to the appellant which amount had neither been pleaded in the plaint nor specifically proved at the trial;b.The trial court erred in fact and in law when it failed to appreciate that the claim in respect to ratoon 1 was statute barred and had been filed outside the period set out in the law, Limitation of Actions Act;c.That the trial court erred in both in law and in fact when he awarded damages of Kshs 33,094. 80/= in respect of ratoon 2 which never existed as it was never developed by the respondent and which award is not only speculative but had not been pleaded in the plaint;d.That the trial court failed to appreciate that in claims based on contracts, there must be specific pleadings in respect of quantified and calculated loss in the nature of special damages;e.That the trial court erred in law and in fact when it failed to hold and find that the documents referred to in the suit before him were not formally produced as exhibits in support of the suit;f.That trial court erred in both law and in fact when it failed to take into account that the respondent was under duty to mitigate his losses and in failing to apply the principle of mitigation of losses in determining the dispute before it.

9. The appellant prayed that the appeal be allowed with costs and the respondent’s suit in the lower court be dismissed.

10. The respondent challenged the judgement on one ground. That the trial court erred in finding that interest should run from the date of judgement instead of the date of filing suit.

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

12. In support of its appeal, the appellant submitted that the respondent did not prove breach of the pleaded contract as the respondent did not adduce the contract as an exhibit thus it was not evidence. It was further submitted that the original contract, or the whole copy was not even filed. Only a portion of it was filed. The filed contract had six clauses none of which contained the parties’ obligations regarding harvesting of the sugarcane. The appellant relied on several decisions of this court and concluded that the respondent did not prove that the appellant breached its contractual duties.

13. It was also submitted that from the evidence in the trial court, the respondent developed the 1st ratoon to maturity but it was not harvested and the respondent developed the 2nd ratoon in the same plot which was also not harvested. Based on the aforementioned, the appellant stated that the respondent sold the ratoons to third parties without its consent.

14. On whether the 2nd ratoon was developed, the appellant submitted that the respondent testified that she did not develop the 2nd ratoon. The appellant stated that either party was at liberty to terminate the contract thus it was speculative to assume that the respondent was going to cultivate the 2nd ratoon.

15. The appellant also asked this court to strike out the cross appeal as it was filed out of time. In addition, the cross- appeal was not filed within this appeal thus it is a distinct appeal but it was only consolidated for ease of disposal; further, that it was filed over a year after the judgment without leave of the court.

16. The respondent submitted on the issue of when the interest should run and stated that the same should run from the date of filing suits at court rates.

17. I have carefully considered the pleadings, proceedings in the trial court, the judgement, grounds of appeal and the rival positions taken by both parties. I am of the view the following issues are for consideration: -a)Whether the respondent proved her case.b)Whether the respondent was entitled to the damages.c)Whether the cross - appeal is competent.

18. It is a common principle that this being the first appellate court, the court 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 Motor Boat Co. Ltd [1968] EA 123.

18. On whether the respondent proved her case, the appellant took the position that the respondent did not formally produce as an exhibit in court, the contract which she intended to rely on. In addition, the appellant stated that only a portion of the contract was filed. The portion had six clauses none of which contained the obligations regarding the harvesting of the cane. Of further interest, the appellant submitted that the respondent’s case was anchored on a contract made on 20/9/2006.

19. The respondent testified on 15/7/2015 as PW1. In relation to the documents which she filed in support of her case, she testified: -“I would like to use the statement and documents as evidence in court.”

20. Order 11 of theCivil Procedure Rules (Rules) provides for pre-trial conference. The purpose of the pre-trial conference is for the parties to agree on how to conduct the trial. Order 11 rule 7 (1) (d) provides that one of the issues which the parties should agree on is the receiving in evidence of any exhibit.

21. Further, Order 18 of the rules gives guidance on the hearing of a suit, examination of witnesses and taking of evidence. In particular, rule 2(1) provides: -“On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of his case on the issues which he is bound to prove.”

22. Further, Order 42 rule 13 of the Rules provides on what happens at the appellate stage when the Judge is giving directions before hearing and in particular sub - rule 3 provides in part: -“The Judge in chambers may give directions concerning the appeal generally and in particular directions as to the manner in which the evidence and exhibits presented to the court below shall be put before the appellate court…”

23. The above provisions envisage that evidence which a party intends to rely on must be presented in court in the form of exhibits unless parties agree otherwise. The words by the respondent “I would like to use the statement and documents as evidence in court.” Cannot be construed or interpreted to have transformed the alleged documents to be exhibits. The documents should be produced by consent of both parties as exhibits and/or under the rules of evidence.

24. The Court of Appeal in Kenneth Nyaga Mwige v Austin Kiguta & 2 Others [2015] eKLR held that: -“…A witness must produce the document and tender it in evidence as an exhibit and lay foundation or its authenticity and relevance to the facts of the case. Once this foundation is laid, the witness must move the court to have the documents produced as an exhibit and be part of court record. If the document is not marked as an exhibit, it is not part of the record. If admitted into evidence and not formally produced and proved, the document would be hearsay, untested and unauthenticated account.”

25. The respondent was not acting in person but was represented by Counsel who is well acquainted with the rules and procedure in trial advocacy. Counsel unfortunately decided to take short cuts to the detriment of his client. The Court of Appeal in the case ofJames Njoro Kibutiri v Eliud Njau Kibutiri 1 KAR 60 [1983] KLR 62; [1976-1985] EA 220 cautioned on taking shortcuts. It held:-“…that the ingenious lawyers are advised that short cuts are fine, as long as you are absolutely sure that they won’t land you in a ditch”.

26. In view of the foregoing and since the documents produced were not formally produced at the trial in conformity with the rules of procedure, I must say with tremendous respect, the trial Magistrate fell into error in relying on documents that were not produced as exhibits. The trial magistrate relied on the purported contract in entering judgment in favour of the respondent. There was no basis for the trial magistrate’s decision. Further to the above, I have noted that the complete contract document was not annexed to the documents the respondent filed in court. Only parts of the contract were exhibited. Paragraph 5 to 11 of the said contract were not exhibited. The whole contract must be produced in court for the court to ascertain what the terms were and whether indeed there was breach. In view of the foregone, I find that there is no proof of breach of contract and this court need not delve into the other issues. They fall by the way.

27. As regards the cross appeal, it was filed on 5/7/2019, over a year after the judgment was read on 29/5/2018. There is no evidence that leave of court was sought to file it out of time. It is a non starter and is dismissed.

28. To this end, the appeal succeeds and the following orders do issue: -a)The judgement and decree of hon MM Wachira dated and delivered on 29/5/2018 is hereby set aside;b)The suit in the trial court PMCC No 426 of 2014 is hereby dismissed;c)The cross - appeal being Civil Appeal No 77 of 2019 is hereby dismissed with costs to the respondent / appellant;d)The appellant shall have costs of this suit as well as costs of this appeal.

DATED, DELIVERED AND SIGNED AT MIGORI THIS 23RD DAY OF JUNE, 2022R. WENDOHJUDGEJudgment delivered in the presence ofMr. Odero fro the AppellantMr. Kerario Marwa for the Respondent Absent.Nyauke Court Assistant.