[2023] KEHC 25585 (KLR)

Sukari Industries Limited v Agwaya (Civil Appeal E046 of 2022) [2023] KEHC 25585 (KLR) (21 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25585 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Civil Appeal E046 of 2022

KW Kiarie, J

November 21, 2023

Between

Sukari Industries Limited

Appellant

and

Consolata Auma Agwaya

Respondent

(Being an Appeal from the judgment in Ndhiwa Principal Magistrate’s SRMCC No. 289 of 2016 by Hon. Mary A. Ochieng –Principal Magistrate)

Judgment

1. In Ndhiwa Principal Magistrate’s Court civil case No.289 of 2016, Sukari Industries Co. 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 7th June 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.221, 600. 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 respondents 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 Ochillo & Company Advocates who raised the following grounds:a.That the appeal is time-barred;b.That the respondent did not prove his case;c.That exemplary damages were awarded erroneously; andd.That the appeal lacked merit.

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 behavior. I will follow the principles outlined in the case of Selle vs. Associated Motor Boat Co. Ltd. [1965] E.A. 123, which states that the first appellate court must examine and assess the evidence that was presented in the trial court, and then come to its conclusions on the matter.

5. The record of the trial court indicates that the judgment was delivered on the 7th day of June 2022. This appeal was filed on the 21st of July 2022. The filing was clearly out of time. Section 79 G of the Civil Procedure Act provides:Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order:Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.The issue of the appeal being time-barred was not raised at the appropriate time and the respondent is therefore estopped from raising it now.

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

7. In the statement of defence, the appellant denied the existence of a contract between the parties. However, the Cane Farming and Supply Contract No. 0001471 contradicted this denial. On page 6 of the agreement, both parties signed the contract. It was witnessed by Joseph A. Nyingila, the assistant chief of the Kakmasia sub-location.

8. The determination by the learned trial magistrate that the two parties had entered into a valid contract, based on the copy of the contract that was presented in court and signed by both parties, cannot be faulted.

9. The duties of the Grower (respondent) are spelled out at 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.

10. I have analysed the clause and determined that it was the Grower's responsibility to inform the Miller when the Sugar Cane was ready for harvesting. This is evident from the phrase "The Grower shall offer for delivery on maturity." However, the respondent failed to provide any evidence that she notified the appellant about the maturity of the cane. She also did not serve the envisaged notice mentioned in clause 3 of the contract. During cross-examination, the respondent admitted that she did not know the date of the cane’s harvest. Therefore, I conclude that the appellant did not breach the contract as the respondent did not fulfill her obligation to inform the appellant about the maturity of the cane for their necessary action.

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 21ST DAY OF NOVEMBER, 2023. KIARIE WAWERU KIARIEJUDGE