[2022] KEHC 3157 (KLR)

South Nyanza Sugar Company Limited v Soti (Civil Appeal 152 of 2018) [2022] KEHC 3157 (KLR) (12 May 2022) (Judgment)

Neutral citation: [2022] KEHC 3157 (KLR)

Republic of Kenya

In the High Court at Migori

Civil Appeal 152 of 2018

RPV Wendoh, J

May 12, 2022

Between

South Nyanza Sugar Company Limited

Appellant

and

Michael Okoth Soti

Respondent

(An Appeal arising from the Judgement and Decree of Hon. R.K. Langat Senior Resident Magistrate (SRM) dated and delivered on 24/9/2018 at Rongo in Rongo SRMCC No. 105 of 2017)

Judgment

1. This is an appeal by South Nyanza Sugar Company Limited against the judgement and decree of the Hon. R.K. Langat (SRM) dated and delivered on 24/9/2018.

2. The appellant is represented by the firm of Moronge & Co. Advocates whilst the respondent is represented by the firm of Jura Nelson & Co. Advocates.

3. By a plaint dated 5/5/2017 filed on 16/5/2017, the respondent (formerly the plaintiff) sued the appellant (formerly the defendant) for compensation for the two (2) unharvested cycles of sugarcane, costs of the suit and interest.

4. It was the respondent’s case that on or about 25/2/2012, the appellant and the respondent entered into an agreement for the respondent to develop sugarcane on Plot No. 988, Field No. 376 vide Account No. 374683. By the terms of the contract, the appellant was to purchase/harvest the sugarcane on maturity and pay the respondent the value thereof.

5. The respondent pleaded that he developed the sugar cane on his plot measuring approximately 0. 59 Ha and upon maturity, the appellant failed to harvest the plant crop thereby compromising the development of the 1st and 2nd ratoons. It was further pleaded that the price for cane at that time wasKshs. 4,300/= per tonne. The respondent particularized the breach by the appellant and sought compensation for the 2 unharvested cycles.

6. The appellant filed a statement of defence dated 14/7/2017 on 18/7/2017 in which liability was denied and it put the respondent to strict proof thereof.

7. The appellant averred that if indeed there was any loss suffered, which was denied, the respondent was the author of his own misfortunes by failing to properly maintain his crop to the required standard. The appellant admitted to the existence of cane price lists but denied the alleged price per ton indicated by the respondent.

8. It was further averred by the appellant that it would ask the court to deduct the costs of goods and services provided to the respondent as well as the eventual costs for transport and harvest charges. The appellant asked the trial court to dismiss the respondent’s case with costs.

9. After the hearing, the trial court entered judgement in favour of the respondent for Kshs. 241,825/= being the value of the two cycles of ratoon crops less the harvesting and transport costs. Costs and interest were also awarded to the respondent and interest was to run from the date of filing the suit.

10. Being dissatisfied with the judgement and decree, the appellant filed a Memorandum of Appeal dated 24/10/2018 and preferred six (6) grounds of appeal as follows: -i.That the learned trial magistrate erred in both law and in fact when he awarded damages for breach of contract in the sum of Kshs. 241,825/= which amount was neither pleaded in the plaint nor proved at the trial as required by law;ii.That the trial court erred in both law and in fact when it failed to appreciate and give due regard to the defendant’s submissions and evidence therefore resulting in a finding prejudicial to the appellant;iii.The trial learned magistrate erred in both law and in fact when he awarded a price of Kshs. 4,500/= instead of Kshs. 3,200/= as proved by the defendant;iv.The trial magistrate erred when he granted ratoon II which cycle was not developed by the plaintiff;v.The trial magistrate erred when he awarded a global compensation to the respondent in respect of crop cycles which were never developed by the respondent and therefore never existed at all, thereby failing to take into account the fact that the respondent was under duty to mitigate his/her losses in failing to apply the principle of mitigation of losses;vi.That the learned trial magistrate decided the case against the weight of evidence contrary to the law and known legal principles, thereby exercised his discretion wrongly when he failed to dismiss the respondent’s suit with costs.

11. The appellant prayed: -i.That this appeal be allowed with costs.ii.The respondent’s suit in the court below be dismissed with costs.iii.The court being the first appellate court do re-evaluate the evidence and arrive at its own independent findings and allow the appeal as sought.

12. The appeal was canvassed by way of written submissions and both parties complied.

13. The appellant filed its undated submissions on 18/3/2021. The appellant addressed grounds 2, 5 and 6 together. It submitted that the plaint contradicted the witness statement of the respondent; that the plaint in paragraph 4 stated that the defendant failed to harvest the plant crop but, in the statement, he confirmed that the appellant harvested the plant crop; The appellant submitted that parties are bound by their pleadings. The respondent did not seek to amend the plaint be it orally or formally in writing to reflect the intention of the respondent. The testimony therefore did not support the alleged breach of contract as pleaded.

14. It was further submitted that the appellant led evidence to prove that it harvested the plant crop; that the respondent pleaded that the development of the 1st ratoon was compromised due to the alleged failure of the harvest of the plant crop; it therefore follows that the respondent admitted in his pleadings that he did not develop the 1st ratoon hence he cannot be compensated for the same. That being the position, the allegation of breach of contract having been disproved, then the suit ought to have been dismissed with costs.

15. On grounds 1, 3, and 4, the appellant submitted that the prices per ton pleaded by the respondent was Kshs. 4,300/=; that the price the respondent was referring to was at the time of the contract but on maturity the price was Kshs. 3,200/=; that this was the figure that the court should have considered in applying its judgement less the harvesting and transport charges of Kshs. 24,489. 20

16. The appellant concluded that having failed to prove the allegations of breach as pleaded, the respondent’s suit failed and ought to have been dismissed.

17. The respondent filed submissions dated 7/5/2021 evenly. He submitted that the appeal is incurably incompetent as the decree appealed against was not extracted and filed as part of the record of appeal. The law provides under Order 48 Rule 13 (4) of the Civil Procedure Rules that the decree appealed from must form part of the record of appeal. It was submitted that superior courts have held that failure to include the decree or order appealed from, makes the appeal incurably defective.

18. It was further submitted that the respondent specifically pleaded and proved the damages as were awarded; that the respondent testified on 31/9/2017 and in his adopted witness statement, paragraph 3 stated that the appellant harvested his plant crop but failed to harvest the 1st ratoon therefore compromising the development of the 2nd ratoon.

19. It was also submitted that the respondent produced a yield assessment report to support the yield estimates which was not challenged by the appellant and they failed to produce a counter report. On whether the trial court erred in awarding damages for the 1st and 2nd ratoons, the respondent relied on the findings of the court in Migori High Court No. 72 of 2017 Charles Oluoch Agutu vs South Nyanza SugarCo. Limited.

20. On when interest should run, the respondent submitted that it is settled in matters like this; that interest should run from the time of filing suit since it is a claim for special damages. He relied on the case Court of Appeal Case in Kisumu Civil Appeal No. 278 of 2010 John Richard Okuku Oloo vs South Nyanza Sugar Co. Ltd.

21. I have considered the record of appeal, rival submissions and the lower court proceedings. The issues which arise therefrom are:-i.Whether the appeal is competent.ii.Whether the respondent proved his claim.iii.Whether the respondent is entitled to the damages awarded.iv.From which date should the interest be awarded?

22. 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 vs Associated MotorboatCo.Ltd (1968) EA 123.

23. It is also settled that an appellate court will not ordinarily interfere with findings of fact by the trial Court unless they are not based on no evidence, 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.”

24. On whether the appeal filed is competent, the respondent submitted that the appeal is incompetent as the decree appealed against was not extracted and filed as part of the court record.

25. Order 42 Rule 13 (4) of the Civil Procedure Rules, 2010 (The Rules) provides:-“Before allowing the appeal to go for hearing, the Judge shall be satisfied that the following documents are on the court record, and that such of them as are as not in the possession of either party have been served on that party, that is to say:-the memorandum of appeal;the pleadings;(c)the notes of the trial magistrate made at the hearing;(d)the transcript of any official shorthand, typist notes electronic recording or palantypist notes made at the hearing;(e)all affidavits, maps and other documents whatsoever put in evidence before the magistrate;(f)the judgment, order or decree appealed from, and, where appropriate, the order (if any) giving leave to appeal…”

26. Order 42 Rule 13(4) (f) of the rules is clear that what is required at the first appellate court is the judgment, order or decree appealed from. The use of the word ‘OR’ in the above provisions is that it is not a mandatory requirement for an appellant to include both the judgment and the decree of the subordinate court in the record of appeal.

27. It would however not be useful to attach a decree and leave out the judgment of the trial court. This is because a decree is an extract of the judgment appealed from. A decree is defined under Section 2 of the Civil Procedure Act as:-“decree” means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final; it includes the striking out of a plaint and the determination of any question within section 34 or section 91, but does not include—(a)any adjudication from which an appeal lies as an appeal from an order; or(b)any order of dismissal for default:Provided that, for the purposes of appeal, “decree” includes judgment, and a judgment shall be appealable notwithstanding the fact that a formal decree in pursuance of such judgment may not have been drawn up or may not be capable of being drawn up;

28. Order 42 Rule 13 (4) of the rules mandates the Judge to be satisfied that the documents outlined under the rule are in the court file and parties have been served. The proviso (ii) thereto allows the Judge to exercise discretion and exclude some documents other than those mentioned in (a), (b) and (f). If the mandatory documents are not on record the solution is found in Order 42 Rule 2 of the rules that:-“Where no certified copy of the decree or order appealed against is filed with the Memorandum of Appeal, the Appellant shall file such certified copy as soon as possible and in any event within such a time the court may order, and the court need not consider whether to reject Appeal summarily under Section 79B of the Civil Procedure Act until copy is filed.”

29. In the persuasive case of Nyota Tissue Products v Charles Wanga & 4 Others (2020) eKLR, when addressing the issue of failure by an appellant to file a decree, the court stated thus-“The rule applicable to the appeals to the High Court makes provision under Order 42 rule 13 (f) of the Civil Procedure Rules for the filing of a copy of the “judgment, order or decree appealed from and does not make it mandatory to attach the judgment and the decree. The Record of Appeal herein attached the Judgment of the trial court according to the requirements of Order 42 rule 13 (4) (f) of the Civil Procedure Rules, and in my respectful view, I would agree with the Court in Silver Bullet Bus case on the point, that it would be too draconian to strike out the appeal in these circumstances."

30. Recently, in Joel Mwangangi Kithure v Priscah Mukorimburi(2022) eKLR in determining whether an appeal was incompetent for want of a copy of decree appealed against, it was held that;“Whereas the Appellant failed to annex a certified copy of the decree, he did attach a certified copy of the judgment which would suffice in the absence of a certified copy of the decree. Further, it has not been shown what prejudice the Respondent suffered by the failure to annex the certified copy of the decree. I therefore find that the Appellant’s failure to annex the certified copy of the decree cannot be the basis for dismissing the appeal.”

31. It is also this court’s view that failure to attach a decree is not detrimental to the appeal as a whole. No particular prejudice or miscarriage of justice has been alluded to or will occur for failure to attach a decree.

32. On whether the respondent proved his claim, it has been submitted by the appellant that the respondent’s testimony contradicted his pleadings and in particular that the appellant neglected to harvest the plant crop. There was no amendment made to the pleadings to reflect the intended position of the respondent. It is on this basis that the trial court ought to have dismissed the respondent’s case.

33. In paragraph 4 of the plaint, the respondent pleaded as follows:-“Pursuant to the said contract/agreement, the plaintiff developed sugarcane on a plot measuring approximately 0. 59 (Ha) and on its maturity asked the defendant to harvest/purchase the said sugarcane as per the agreement, but the defendant unreasonably and in breach failed to harvest the plant crop thereby compromising the development of the 1st and 2nd ratoons.

34. On the particulars of breach, in paragraph 5 (a) the respondent pleaded the breach as:-Failing or neglecting to harvest the 1st ratoon, thereby compromising the development of the 2nd ratoon.

35. The respondent prayed for judgement against the appellant for compensation of the two (2) unharvested cycles.

36. In his testimony, the respondent adopted his witness statement dated 5/5/2017. It was his testimony that the respondent harvested his plant crop but failed to harvest the 1st ratoon thereby compromising the development of the 2nd ratoon. On cross-examination, the respondent stated that his claim is for 3 cycles but later on changed his position that the appellant only harvested the plant crop and he is claiming for the 1st and 2nd ratoons.

37. DW1 George Ochieng in his adopted statement of 8/3/2018 stated that the plant crop was harvested but they suspended the services as per clause 15. 1 of the contract.

38. The Court of Appeal in Dakianga Distributors (K)Ltdvs Kenya Seed Company Limited (2015) eKLR quoted Bullen and LeakeandJacob's Precedents of Pleadings, 12th Edition, London, Sweet & Maxwell (The Common Law Library No. 5) where the learned authors declared: -“The system of pleadings operates to define and delimit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the court will be called upon to adjudicate between them. It thus serves the two-fold purposes of informing each party what is the case of the opposite party which he will have to meet before and at the trial, and at the same time informing the court what are the issues between the parties which will govern the interlocutory proceedings before the trial and which the court will have to determine at the trial.”

39. Similarly, the said Court considered an article entitled “The Present Importance of Pleadings” published in (1960) Current Legal Problems by Sir Jack Jacob and which article was quoted with approval by the Supreme Court of Malawi in Malawi Railways Limited v Nyasulu [1998] MWSC 3 states of the importance of pleadings:“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 or 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 of the 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.” (emphasis mine)

40. As observed by Bullen and Leake and Jacob's Precedents of Pleadings (supra) the purpose of pleadings is to inform the opposite party what case they will have to meet at the trial and at the same time, inform the court the issues between the parties. In the article “The Present Importance of Pleadings” (supra) the author stated that in pleadings, the parties cannot be allowed to raise a different or fresh case without amendments. In the matter before me, it is true that at paragraph 4 of the plaint, the respondent pleaded that the appellant failed to harvest the plant crop thereby compromising the development of the 1st and 2nd ratoons.

41. However, reading the respondent’s pleadings as a whole, the main issue in controversy is the development of the 1st and 2nd ratoons which is the respondent’s claim. This is the same position which stood out in his testimony. The respondent is in no way now claiming 3 cycles as opposed to 2 cycles. The appellant also confirmed as much through its witness that it harvested the plant crop. The learned trial Magistrate also made a finding on the 2 cycles only. It is this court’s opinion that the variance in the pleadings and testimony did not prejudice the case to warrant its dismissal. There are no new issues raised by the respondent, at the trial to alter the nature of the case.

42. On the damages awarded, the appellant submitted that the figure which the trial court ought to have used was Kshs. 3,200/= in arriving at its decision less the harvesting and transport charges of Kshs. 24, 894. 20/=. The respondent submitted that his claim was for the 1st and 2nd ratoons and he pleaded Kshs. 4,300/= as the price per tonne and produced in evidence the schedule of prices (PEXH3) which was not challenged by the appellant.

43. The appellant testified that after harvesting the plant crop, the farmer had a negative pay of Kshs. 44, 178. 05. The appellant thereafter invoked clause 15. 1 of the contract and suspended its services to the famer. I have considered the contract produced on record. There is no clause 15. 1 which the appellant is referring to. I have also considered the statement detailing the payment made to the farmer (DEXH4). It shows that there is a deficit of Kshs. 44,178. 05 owed to the miller by the farmer. This amount ought to have been best claimed by the appellant in a counterclaim which it did not.

44. The contract on record was not complete. It only contains four pages; the outer cover, schedule A which contains the names of the parties, the first page which has some definitions and the execution page. The development of the 1st and 2nd ratoons would have been dependent on particular timelines. The contract does not contain or clause(s) which outline the time span of the maturity of the 1st and 2nd ratoons. The question that begs is how did the trial court conclude that the respondent was entitled to the damages of the 1st and 2nd ratoons in the absence of the crucial timelines? What if the missing clauses of the contract did not make proviso for the development and harvesting of the ratoons?

45. It is a longstanding principle that courts cannot re-write contracts on behalf of parties. The Court of Appeal in National Bank of Kenya Ltd vs Pipe Plastic Samkolit (K)Ltd (2011) eKLR held: -“A court of law cannot rewrite 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.”

46. In this case, the crucial terms of the contract which would have helped prove the alleged breach, are missing. On what basis therefore did the trial court arrive at its findings? It seems the trial court imputed imaginary terms into the contract. This, I must say with tremendous respect, the trial court erred in entering judgment in favour of the Respondent.

47. Consequently, this court grants the following final orders thus:-i.The appeal has merit and it is hereby allowed.ii.The Judgement and the Decree of the trial court dated and delivered on 24/9/2018 be and are hereby set aside.iii.Costs of the appeal and the lower court to the appellant.

DATED, DELIVERED AND SIGNED AT MIGORI THIS 12TH DAY OF MAY, 2022. R. WENDOHJUDGEJudgment delivered in the presence ofMr. Odero holding brief Mr. Moronge for the Appellant.No appearance for the Respondent.Nyauke Court Assistant.