[2022] KEHC 14136 (KLR)

South Nyanza Sugar Company Ltd v Aoro (Civil Appeal 59 of 2019) [2022] KEHC 14136 (KLR) (13 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14136 (KLR)

Republic of Kenya

In the High Court at Migori

Civil Appeal 59 of 2019

RPV Wendoh, J

October 13, 2022

Between

South Nyanza Sugar Company Ltd

Appellant

and

Benard Ouma Aoro

Respondent

(An Appeal from the Judgement of the Hon. R.K. Langat (SRM) at Rongo dated 28/5/2018 in PMCC No. 74 of 2016)

Judgment

1. The appellant, South Nyanza Sugar Company Limited preferred the instant appeal dated 10/4/2019 against the judgement and decree of the Hon RK Langat (SRM) dated and delivered on 28/5/2018. The appellant was represented by the firm of Otieno Yogo & Co Advocates. The respondent Consolata Achieng Agutu was represented by the firm of Ochillo & Co Advocates.

2. By a plaint dated 2/2/2016, the respondent (formerly the plaintiff) sued the appellant (formerly the defendant) for damages for breach of contract, cost of the suit, interest from 28/8/2009 and any other relief.

3. It was the respondent’s case that by an agreement dated 28/8/2009, the appellant contracted him to grow and sell to it sugarcane on his land parcel being plot number 1193D in K/Masia Sub - location measuring 3. 6 hectares; that the respondent was assigned account number 264483 and planted the cane as agreed. It was also the respondent’s case that the agreement would commence on 28/8/2009 and remain in force for a period of five (5) years or until one plant crop and two ratoon crops of cane were harvested on the plot whichever period was less.

4. It was contended 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. The respondent further pleaded that the plot was capable of producing an average of 360 tonnes and the applicable rate of payment then, was Kshs 2,850/=per tonne.

5. The appellant entered appearance and filed a statement of defence dated 22/2/2016. The appellant denied the existence of the contract and that it failed to harvest any plant crop or ratoon crops. The appellant further averred that it was its policy not to cut or harvest poorly maintained cane; that the respondent failed to employ the recommended husbandry to the extent that the cane was overshadowed and dwarfed by weeds and totally destroyed, hence it was contractually entitled to decline to harvest. The appellant urged the trial court to dismiss the suit.

6. The suit was heard by way of via voce evidence on 10/10/2016. The respondent testified in support of her case while the appellant defended its case through Richard Muok, Senior Field Supervisor . At the end of the hearing, the trial court found in favour of the respondent and awarded him Kshs 661,770. 72 together with costs of the suit and interest to run from the date of filing suit.

7. The appellant was aggrieved by the said decision and filed the instant appeal, based on the following six (6) grounds;1. The trial magistrate erred in law and in fact by wrongly evaluating the evidence on record and hence arriving at 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 the 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 by the appellants especially the survey certificate of 0. 4. plot area;5. The judgement is unlawful and contrary to the law;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.

8. 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.

9. Directions there were taken that the appeal be canvassed by way of written submissions and both parties complied. I have duly considered the rival position taken by both parties.

10. 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 Motorboat Co Ltd(1968) EA 123.

11. 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.”

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

13. 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 developed the 2 ratoons; 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 vs South Nyanza Sugar Co LtdCivil 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 200 tonnes per cycle claimed for the three cycles.

14. It is not in dispute that the plant crop was harvested and the respondent paid for the same. The appellant alleges that the respondent failed to prove that he nurtured the ratoon crops. On cross - examination, the respondent testified that he developed the 1st ratoon and he informed the appellant that it was ready for harvesting. He used it as firewood when it dried up. It is now well settled that the duty to harvest the plant crop and the subsequent ratoons rests with the appellant. The appellant did adhere to this and it harvested the plant crop. It therefore follows that the appellant had the duty to harvest the ratoon crops too.

15. The appellant failed to fulfil this part of its obligation. Had the appellant gone to the plot to harvest the ratoons as required, it would have been easy to establish whether or not the respondent had nurtured of the ratoons to the required standard and the tonnage that the land would have yielded. It is an impossible task which the appellant now wants to place on the respondent that it ought to have proved its case through photographs that it nurtured the ratoon crop. It is the finding of this court that it is the appellant who breached the terms of the contract. The respondent proved its case on the allegations of breach of contract.

16. In finding in favour of the respondent, the trial court relied on the findings of the court in Kisumu HCCA No 20 of 2000 Akam Lango vs South Nyanza Sugar Co Ltdwhere the court held that one plant crop and two ratoon crops must be harvested in the fulfilment of the obligation of the parties’ agreement. The trial court also relied on the findings of Mrima J in Civil Appeal No 10 of 2016South Nyanza Sugar Co Ltd vs Jospeh O Onyango where the learned judge found that failure to harvest the 1st ratoon hindered the development of the 2nd ratoon and therefore, a farmer is entitled to the same. This court adopts the same position. The success of the 2nd ratoon is dependent on the harvesting of the 1st ratoon which obligation rested on the appellant.

17. In making a finding on the damages payable, the trial magistrate relied on the report from the appellant on the prevailing cane prices. On the tonnage to be harvested, the magistrate held: -"The defendant’s witness also relied on the same report where the plant crop and the ratoon crop would yield 66. 56 and 48. 76 tons per hectare respectively in Kakmasia where the plaintiff’s farm was located. The plaintiff realized 57,298 tons for the entire plant crop thus there is no way the ratoon crops would have yielded 360 tons per hectare. I adopt the yield cane report rates.”

18. Hence, the trial magistrate did not find that the ratoon crop cycles would have yielded 360 tons per hectare but he reduced the tonne per hectare. I find that the magistrate did not err in calculating the damages payable to the respondent on the 2 ratoon cycles. The magistrate did also factor in the statutory deductions for the plant crop which was harvested. Since the ratoon cycles were not harvested, the court cannot apply their deductions herein.

19. On the issue of interest, it is trite law that award of interest, is a matter of discretion. The respondent submitted that the nature of the claim is that of a liquidated amount and it is in the nature of special damages. Therefore, interest should be awarded from the date of filing the suit. The respondent relied on the findings of Mrima J in Millicent Adhiambo Odingo vs South Nyanza Sugar Co LtdMigori HCCA No 88 of 2017 andEdward Kennedy Alolo vs South Nyanza Sugar Co Ltd HCCA No 87 of 2016. In both cases, the learned judge held that in cases of this nature, the interest should run from the date of filing the suit. The Court of Appeal in the case of John Richard Okuku Oloo vs South Nyanza Sugar Co Ltd Civil Appeal No 278 of 2010 also found that interest should run from the date of filing the suit. I see no need to depart from the same.

20. The upshot therefore is that the appeal is devoid of merit and the same is dismissed with costs to the respondent.

DATED, DELIVERED AND SIGNED AT MIGORI THIS 13TH DAY OF OCTOBER, 2022. R. WENDOHJUDGEJudgment delivered in the presence of;Mr. Odhiambo for the Appellant.Mr. Bunde for the Respondent.Nyauke Court Assistant.