[2023] KEHC 25254 (KLR)

Sukari Industries Limited v Ooko (Civil Appeal E064 of 2022) [2023] KEHC 25254 (KLR) (14 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25254 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Civil Appeal E064 of 2022

KW Kiarie, J

November 14, 2023

Between

Sukari Industries Limited

Appellant

and

Elijah Onyango Ooko

Respondent

(Being an Appeal from the judgment in Ndhiwa Principal Magistrate’s SRMCC No.60 of 2016 by Hon. Mary A. Ochieng –Principal Magistrate)

Judgment

1. In Ndhiwa Principal Magistrate’s Court civil case No.60 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 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.160, 800. 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 Kerario Marwa & 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 behavior. I will follow the principles outlined in the Selle v Associated Motor Boat Co. Ltd. [1965] E.A. 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.11106 contradicted this denial. On page 6 of the agreement, both parties signed the contract. Joash Ogutu, the assistant chief of the Kobita 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 analysing 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. The respondent contended that he notified the appellant that the cane was ready for harvesting but he did not produce any evidence to support this claim. He also admitted that he did not issue a notice as required in clause 3 of the agreement, in case of failure by the appellant to harvest the cane. He, therefore, did not discharge his obligation.

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 14TH DAY OF NOVEMBER 2023KIARIE WAWERU KIARIEJUDGE