[2023] KEHC 25586 (KLR)

Sukari Industries Limited v Ombok (Civil Appeal E044 of 2022) [2023] KEHC 25586 (KLR) (21 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25586 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Civil Appeal E044 of 2022

KW Kiarie, J

November 21, 2023

Between

Sukari Industries Limited

Appellant

and

Samwel Obonyo Ombok

Respondent

(Being an Appeal from the judgment in Ndhiwa Principal Magistrate’s SRMCC No. 280 of 2016 by Hon. Mary A. Ochieng –Principal Magistrate)

Judgment

1. In Ndhiwa Principal Magistrate’s Court civil case No.280 of 2016, 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 June 21, 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.134, 200. 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 in 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 in 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 in law by awarding the respondent Exemplary Damages, yet in the plaint, the respondent did not plead for the said award.d.The learned trial magistrate erred in fact and in law in finding that the respondents had proved his case on a balance of probability.e.The learned trial magistrate erred in fact and in law in ignoring the pleadings and submissions for the defence.f.The learned trial magistrate erred in fact and in 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. The respondent contended that the appeal lacked merits.

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 trial magistrate had two main issues to consider;i.whether there was a contract between the parties; andii.if it existed whether 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. 0001358 contradicted this denial. On page 6 of the agreement, both parties signed the contract. It was witnessed by Nyamburi Vincent, the assistant chief of the Kakmasia sub-location.

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 analysing the clause, it is apparent that the grower had the responsibility to inform the miller when the sugar cane was ready for harvesting. The phrase "The Grower shall offer for delivery on maturity" explicitly states this. The respondent did not prove that he notified the appellant about the maturity of the cane. Since there is no evidence of the notice being issued, it can be concluded that the respondent did not fulfill his obligation to inform the appellant about the maturity of the cane and issue a Notice as stipulated in clause 3 of the agreement when there was a failure to harvest.

10. I accordingly make a finding 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 21ST DAY OF NOVEMBER 2023KIARIE WAWERU KIARIEJUDGE