[2023] KEHC 25263 (KLR)

Sukari Industries Limited v Adek (Civil Appeal E070 of 2022) [2023] KEHC 25263 (KLR) (14 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25263 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Civil Appeal E070 of 2022

KW Kiarie, J

November 14, 2023

Between

Sukari Industries Limited

Appellant

and

Risper Odira Adek

Respondent

(Being an Appeal from the judgment in Ndhiwa Principal Magistrate’s SRMCC No.3 of 2016 by Hon. Mary A. Ochieng –Principal Magistrate)

Judgment

1. In Ndhiwa Principal Magistrate’s Court civil case No.3 of 2017, Sukari Industries Company Limited was the defendant, in a lawsuit filed by the respondent for a claim of breach of contract. The respondent sought compensation for three unharvested cycles. On 19th July 2022, Hon. Onzere delivered the judgment on behalf of the trial magistrate who ruled in favor of the respondent and ordered the appellant to pay Kshs.586, 400. 00.

2. The appellant was aggrieved by the said judgment and filed this appeal. The appellant was represented by the firm of Olendo, & Samba Advocates LLP. The appellant raised the following grounds of appeal:a.The learned trial magistrate erred in law and fact in treating the evidence and submissions before him superficially and coming to a wrong conclusion on the same.b.The learned trial magistrate erred in fact and law in ignoring the principles applicable in awarding the quantum of damages and the relevant authorities on the quantum cited in the written submissions presented and filed by the appellant.c.The learned trial magistrate erred in fact and law by awarding the respondent exemplary damages, yet in the plaint, the respondents did not plead for the said award.d.The learned trial magistrate erred in fact and law in finding that the respondent had proved his case on a balance of probability.e.The learned trial magistrate erred in fact and law in ignoring the pleadings and submissions for the defence.f.The learned trial magistrate erred in fact and law in failing to appreciate sufficiently or at all that the evidence tendered in favour of the appellant controverted and rebutted the respondent’s evidence thus lowering the respondent’s probative evidentiary value.g.Without prejudice to foregoing the award of damages in the circumstances was excessive.

3. The respondent was represented by the firm of Odingo & Company Advocates. The respondent did not file any response or submissions.

4. As the first appellate court, it is my responsibility to carefully review all of the evidence presented and take into consideration that I did not have the opportunity to observe the witnesses testify and their demeanor. I will follow the principles outlined in the Selle v Associated Motor Boat Co. Ltd. [1965] EA 123, which states that the first appellate court must examine and assess the evidence presented in the trial court, and then come to its conclusions on the matter.

5. The trial magistrate had two main issues to consider: whether there was a contract between the parties and if there was a breach.

6. In the statement of defence, the appellant denied the existence of a contract between the parties. However, the Cane Farming and Supply Contract No.00038627 contradicted this denial. On page 6 of the agreement, both parties signed the contract. Silas Onyango Ogutu, the assistant chief of the Kanyabala sub-location, witnessed it.

7. The learned trial magistrate's determination that the contract presented in court and signed by both parties was valid is sound.

8. The duties of the Grower (respondent) are spelled out in clauses 7. 1 to 7. 15. 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.

9. After analyzing the clause, it is apparent that the grower was responsible for informing the miller when the sugar cane was ready for harvesting. The phrase "The Grower shall offer for delivery on maturity" explicitly states this.

10. The respondent argued that she had informed Jacob Otieno, who was an agent of the appellant, that the cane was ready for harvesting at his home. However, she failed to provide any evidence to back up her claim. She also did not prove that she had issued a notice to the appellant as per clause 3 of the agreement in case they failed to harvest the cane. As a result, she failed to fulfill her obligation. I accordingly find that the respondent did not prove that the appellant was in breach of contract.

11. From the foregoing, therefore, I set aside the finding by the trial magistrate that the appellant was in breach of the contract as well as the award. The appeal is allowed with costs.

DELIVERED AND SIGNED AT HOMA BAY THIS 14TH DAY OF NOVEMBER, 2023. KIARIE WAWERU KIARIEJUDGE