[2021] KEHC 13668 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT HOMA BAY

CIVIL APPEAL NO.14 OF 2019

BETWEEN

SUKARI INDUSTRIES CO. LIMITED…………………………………...……APPELLANT

AND

MICHAEL ONDURU…………………………..………………………………RESPONDENT

(Being an Appeal from the judgment in Ndhiwa Senior Resident Magistrate’s SRMCC No. 491 of 2016 by Hon. S.K Arome –Senior Resident Magistrate).

JUDGMENT

1. Sukari Industries Co. Limited, the appellant herein was the defendant in Ndhiwa Senior Resident Magistrate’s SRMCC No. 491 of 2016. The Company had been sued for compensation for three crops on allegations of breach of contract. The learned trial magistrate delivered judgment dated 6th February, 2019 in favour of the respondent. The appellant was ordered to pay Kshs.433, 200. 00.

2. The appellant was aggrieved by the said judgment and filed this appeal. The appellant was represented by the firm of Ogejo, Olendo & Company Advocates. The appellant raised the following grounds of appeal:

a) That the learned trial magistrate erred in law and in fact in treating the evidence and submissions before him superficially and consequently coming to the wrong conclusion on the same.

b) That the learned trial magistrate erred in and in fact in ignoring the principles applicable in awarding quantum of damages and the relevant authorities on quantum cited in the written submissions presented and filed by the appellant.

c) That the honourable learned magistrate erred in law and in fact in finding that the respondent had proved his case on a balance of probabilities.

d) That the honourable learned magistrate erred in law and in fact in ignoring the pleadings and submissions of the defence.

e) That the honourable learned magistrate erred in law and in fact in failing to appreciate sufficiently or at all the evidence tendered in favour of the appellant controverted and rebutted the respondent’s evidence thus lowering the respondent’s probative evidentially value.

3. The respondent was represented by the firm of Tom Mboya & Company, Advocates who raised the following grounds:

a) That the contract in issue was under the Sugar Act, 2001 which governed harvesting of the sugar cane under 2nd schedule part 2 paragraph 6.

b) That the respondent discharged his obligation by informing the appellant when the sugar cane was ready for harvest.

4. This Court is the first appellate court. I am aware of my duty to evaluate the entire evidence on record bearing in mind that I had no advantage of seeing the witnesses testify and watch their demeanor. I will be guided by the pronouncements in the case of Selle vs. Associated Motor Boat Co. Ltd. [1965] E.A. 123, where it was held that the first appellate court has to reconsider and evaluate the evidence that was tendered before the trial court, assess it and make its own conclusions in the matter.

5. The learned trial magistrate had two main issues to address his mind to. These were whether there was a contract between the two parties and if so whether there was a breach of the same.

6. The respondent in his statement that was adopted as evidence stated that on 12th March 2014 he entered into a Cane Farming and Supply Contract with the appellant. The contract was governed by the Sugar Act, 2001. He produced the copy of agreement. This was denied in the pleadings by the appellant.

7. The learned trial magistrate made a finding that the two parties entered into a valid contract. His finding was based on the copy of contract that was filed in court. The two parties had signed the same. His finding cannot be impugned.

8. Parties are bound by their pleadings. This was emphasized by the Court of Appeal in the case of Global Vehicles Kenya Limited v Lenana Road Motors [2015] eKLR where it stated:

Pleadings serve several fundamental purposes. Firstly, they define the nature and contours of the dispute that the parties have submitted to the court for resolution. Secondly it is through pleadings that the fair hearing that is promised by Article 50(1) of the Constitution is actualized. That provision guarantees every person who has a dispute that can be resolved by the application of the law, the right to have it decided in a fair and public hearing by a court or independent and impartial tribunal or body. That right to a fair hearing comes alive in pleadings, which make known to each party the exact case it has to prove or rebut.

Thirdly, pleadings contribute immensely to speedy resolution of dispute and cost-efficient delivery of justice. Because pleadings ensure that the dispute is focused and precisely defined, they not only eliminate ambushes and surprises, but also wastage of time and unnecessary expenses involved in calling witnesses to prove or disprove matters that are not in dispute before the court. It can therefore be argued that pleadings also contribute immensely to the realization of the cardinal constitutional principle that justice shall not be delayed.

Jessel M. R.articulated this view very well in THORP V. HOLDSWORTH, (1876) 3 Ch. D, 637 at 639, as follows:

The whole object of pleadings is to bring the parties to an issue and the meaning of the rules…was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to the definite issues, and thereby to diminish expense and delay, especially as regards to the amount of testimony required on either side at the hearing.

In her pleading, the appellant denied any existence of the contract between the two parties but was proved wrong by the production of the agreement.

9. clause 7. 2 of the agreement states:

The grower shall offer for delivery on maturity in accordance with clause (1) above and deliver to the miller all such cane as is derived from his contracted field and no other using the Miller’s transport or the Grower’s appointed transporter approved in advance by the Miller.

10. Both in the written statement which was filed in court and adopted as evidence and in the oral evidence in court, the respondent did not testify that he informed the appellant when the sugar cane was ready for harvesting. In my view, he had an obligation to inform the appellant that his sugar cane was ready for harvesting. The appellant could not therefore be held to be in breach of contract.

11. If we assume that the appellant was in breach, which I have found not to be the case, then the respondent ought to have complied with clause 3 of their contract in order to mitigate the loss. Clause 3 provides:

Should either party commit a breach of this Agreement and fail to remedy such breach within thirty (30) days after receipt of a notice in writing to the effect that the other party serving such notice, the party not in breach may, by further notice in writing shall be at liberty to terminate this Agreement from the date of completion of delivery of cane from the next ensuing harvest.

The respondent ought to have mitigated any further loss as envisaged the above cited clause.

12. I therefore set aside the finding on breach of contract and the award by the trial magistrate which flowed from the said breach. The appeal therefore succeed with costs in the trial court and in this court.

DELIVEREDandSIGNEDatHOMA BAYthis27th day of July, 2021

KIARIE WAWERU KIARIE

JUDGE