https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11004

Trans-Mara Sugar Company Ltd v Ogango & another (Civil Appeal E025 of 2025) [2026] KEHC 11004 (KLR) (16 July 2026) (Judgment) Neutral citation: [2026] KEHC 11004 (KLR) Republic of Kenya In the High Court at Migori Civil Appeal E025 of 2025 WN Molonko, J July 16, 2026 Between Trans-Mara Sugar Company Limited Appellant and John Okuna Ogango 1st Respondent Kennedy Ochieng Agai 2nd Respondent (Being an appeal from the Judgment and Decree of Hon. S. MUTAVA R.M Rongo, dated 22nd January 2025 in MCCC No. 329 of 2019) Judgment Background 1.This is an appeal arises from judgment delivered on 22nd January, 2025 in Migori MCCC/329/2019. The suit originated from the Plaint dated 30th December, 2019 and filed by John Okuna Ogango being the Plaintiff in the lower court (hereinafter the 1st Respondent) and against Trans-Mara Sugar Company Limited (the 1st Defendant, herein after the Appellant) and Kennedy Ochieng Agai (enjoined as a third party, hereinafter the 2nd Respondent). 2.In the suit, the Respondent sought reliefs against the Defendants in the nature of general damages, specific damages of Kshs.1,253,880/- being expected yield from the cane, damages for trespass to land and goods, aggravated damages for wrongful interference with a contract, costs and interests of the suit. The dispute arose out of an alleged trespass by Appellant and the 2nd Respondent to Plot No. 1115 where they cut down sugar cane growing on the said plot and transported a portion to the Appellant’s milling factory while leaving the rest of the cane to waste on the said plot. 3.The Appellant filed its statement of defence dated 24th March, 2022 and contended that the 2nd Respondent was their contracted farmer who approached the Company to have his cane harvested from the suit land. In the process of the harvest, the 1st Respondent’s agent together with the Area Chief stopped the harvest when they had harvested 9.1 tones. The 2nd Respondent had claimed that he had entered into an arrangement/and or agreement with the 1st Respondent (who he stated was his brother) regarding the cane. 4.The Appellant further lodged an application dated 8th November 2022 to serve a Third-Party notice against the 2nd Respondent for indemnity or contribution and costs for the extent of any sums which the Plaintiff now 1st Respondent may recover against the Defendant/Appellant, as he was the one who requested the Appellant to harvest the cane and part of the proceeds were paid to him. The Third- Party notice was allowed and the 2nd Respondent was duly served. 5.Kennedy Ochieng Agai (third-party) who is the 2nd Respondent did not enter appearance or file a defence with respect to the case. 6.The suit proceeded to full hearing with the testimonies of both the Appellant and the 1st Respondent. The 1st Respondent called two witnesses while the Appellant called one witness. Upon close of submissions, the trial court delivered judgment on 22nd January, 2025 against the Defendants jointly and severally in the total of Kshs.600,000/- exemplary damages for the lost 1st and 2nd ratoon crop, costs of the suit and interest from the date of judgment at court’s rate until payment in full. 7.Aggrieved with the outcome, the Appellant preferred this appeal premised on the following grounds-i.That the learned trial Magistrate erred in law and in fact by failing to properly analyze the evidence on record demonstrating that the 2nd Respondent ought to have been ordered to indemnify the Appellant herein against the Judgment and Decree.ii.The learned trial Magistrate erred in law and fact by failing to make any determination and or finding concerning the 2nd Respondent (read the third Party) and the Appellant.iii.The learned trial Magistrate erred in law by failing to evaluate the evidence and pleadings concerning the Third Party who was joined for the purposes of compensation.iv.The learned trial Magistrate erred in law and in fact by applying wrong principles of the law and thus arriving at the wrong conclusion.v.In finding and holding that the Appellant and 2nd Respondent were liable jointly and severally the learned Trial Magistrate failed to appreciate as a matter of principle and law that where a Third Party fails to enter appearance after service of the Notice, like in the instant case, he is presumed to have accepted to settle the entire claim by the 1st Respondent as set out in the Third-Party Notice if a decree is passed against the Appellant after trial.vi.In finding and holding that there was no contractual relation between the Appellant and the 2nd Respondent on grounds that there was no document in the CTS, the learned trial Magistrate erred in law and fact as it failed to request the Appellant to avail the hard copy documents and/or failed to mention during trial and/or Pre-Trial Conference that the court did not have the documents lodged by the Appellant on the 25th March 2022 hence arrived at an unjust, erroneous and slanted decision which ignored the Exhibits produced by the appellant.vii.The learned Trial Magistrate erred in fact and law when she held that the 1st Respondent had only proved that the subject plot yielded only 74 tones at Kshs.3,200/= per ton while there was no evidence placed before the trial court to prove as such.viii.In finding and holding that the Appellant did not prove that only 9.1 tons of sugarcane was harvested as per the instruction by the 2nd Respondent, the learned Trial Magistrate ignored the D EXH 1 and 2 produced in Court hence arriving at a slanted decision.ix.The Learned Trial Magistrate erred in fact and law in awarding the 1st Respondent Kshs.600,000/= as exemplary damages which was not only exorbitantly high but also un-apportioned noting there was a Third-Party notice and the 2nd Respondent failed to enter appearance.x.The learned Trial Magistrate erred in fact and law when same failed to act on a request for Judgment lodged in court against the Third Party (2nd Respondent) hence the whole Judgment is erroneous and has not determined the issues in the Third-Party Notice.xi.The learned Trial Magistrate failed to properly evaluate, appraise and/or analyze the entire evidence on record and thereby failed to decipher the salient features of the Appellant's case and thereby arrived at a conclusion contrary to the weight of evidence on record.xii.The Learned trial Magistrate failed to properly evaluate, appraise and/or analyze the submissions and/or Authorities advanced by and/or on behalf of the Appellant and thereby mistook and/or misconceived the crux of the Appellants' Case and hence the Learned Trial Magistrate arrived at a slanted Decision and/or Judgment. 8.The Appellant therefore seeks to have the trial Court’s judgment set aside accordingly and the Appeal be allowed with costs. 9.On the second limb, the 1st Respondent being aggrieved with the outcome, filed a cross appeal premised on the following grounds-i.The learned trial Magistrate erred in law and fact by failing to come into conclusion that the Appellant was a trespasser on the 1st Respondent’s farm and goods, and conversion of the same goods (cane) to its own use without lawful authority and to the detriment of the 1st Respondent;ii.The learned trial Magistrate erred in law in coming into a conclusion that a trespass can only be committed when the land is owned by the person claiming trespass, and the decision went against the law and evidence adduced at the trial.iii.The learned trial Magistrate erred in law by failing to adequately, properly, sufficiently or at all, quantify the 1st Respondent’s loss on sugar cane damaged on and converted from his farm.iv.The learned trial Magistrate grossly and erratically misdirected herself on the award of damages for trespass to land, trespass to goods, conversion, wrongful interference with a party's existing contract, and in the process arrived at the wrong decision, a wrongful and an exceedingly and manifestly a low award in damages and/or none at all.v.The trial Magistrate exhibited a lack of understanding of the nature of and the reasons for awarding damages as urged and prayed for by the 1st Respondent.vi.The trial Magistrate erred in the award and interest and failed to apply the correct or proper principle by awarding only interest from the date of the judgment. 10.The 1st Respondent therefore seeks to have the Appeal dismissed with costs, the trial Court’s judgment set aside accordingly and the cross- appeal be allowed with costs from the date of filing the suit. 11.Directions were subsequently taken that the appeal and cross appeal be canvassed by way of written submissions. 12.The Appellant’s Counsel, through their written submissions dated 19th June, 2025 condensed the grounds of appeal into three issues (a) whether the learned trial Magistrate erred in law and fact by failing to consider the Appellant’s submissions and evidence on record; (b) whether the trial court failed to properly consider the third party proceedings and the legal effect of the failure by the third party to enter appearance; (c)whether the award of damages was excessive and un-apportioned to the third party. 13.On the first issue, counsel submitted that the learned Magistrate failed to properly evaluate the Appellant’s evidence, submissions and authorities advanced thereby ignoring critical documents and arriving at unjust decision. It was argued that the trial court failed to consider the evidence concerning the relationship between the Appellant and the 2nd Respondent, resulting into a one-sided judgment. Counsel maintained that had at the trial court analyzed the evidence on record, it would have found that the Appellant and the 2nd Respondent had a contractual relationship and the 2nd Respondent would have been solely liable for loss incurred by the 1st Respondent. 14.On the 2nd issue relating to third party proceedings, the Appellant submitted that the learned Magistrate failed to properly consider the legal effect of the failure by the third party to enter appearance after being duly served with the third-party notice. He pointed out Order 1 Rule 17 of the Civil Procedure Rules which provides that a third party who fails to appear is deemed to admit the validity of the decree obtained against such Defendant. 15.On the 3rd issue, Counsel submitted that the learned Magistrate failed by awarding damages which were exorbitantly high. He contended that failure to apportion the same to the third party unfairly imposed full liability to the Appellant instead of granting indemnity against the third party. 16.Regarding the cross appeal, the Appellant submitted that trial court ignored the evidence that the 2nd Respondent contracted it and authorized the harvesting of the cane. Counsel further contended that the 2nd Respondent should have been held solely responsible for the loss and he should have been sued by the 1st Respondent. 17.Regarding award of damages, the Appellant submitted that the yield expected by the 1st Respondent was not proved by any credible expert and therefore the claim could not be ascertained. 18.Regarding trespass to land and goods, the learned counsel submitted that the court could not award damages for lack of jurisdiction. He further contended that the 1st Respondent could not pray for damages in trespass to goods and at the same time seek for compensation. 19.He further contended that the 1st Respondent was bound to prove the allegation contained in the plaint and cited the case of Watu Nominees Company Limited vs. Dama (Misc. Application E087 of 2023) [2023] KEHC 26774 (KLR) where the court held that the Plaintiff has to prove. Introduction of a third party does not offload the burden of proving the case against the Defendant by the Plaintiff. 20.On the legal effect of failure by the third party to enter appearance, Counsel submitted that the court would have found the failure a presumption that the 2nd Respondent had admitted liability and judgment should have been entered against him. He highlighted Rule 21 which provides that “Where a third party makes default in entering an appearance in the suit, and the suit is tried and results in favour of the Plaintiff, the court may either at or after the trial, enter such judgment as the nature of the suit may require….”. Counsel relied on the case of Sammy Traders Limited vs, Daniel Mwaura Mohe (2024) eKLR where the court held that non-appearance of the third party and failure to file a defence despite service to controvert the evidence adduced against it, implies admission. 21.Counsel further averred that the Judgment and Decree of the trial court failed to comply with the requirements of the rules as the decree was expected to be satisfied by the Appellant and the 2nd Respondent. The trial court overlooked the third-party notice and failed to consider the non-appearance of the third party and failing to enter judgment against it. 22.The 1st Respondent filed his written submissions dated 20th November, 2025. Counsel for the 1st Respondent condensed his submissions into one main issue, award of damages. 23.Counsel faulted the trial court for failing to award Kshs.1,253,880/- being compensation for two ratoon crops which were not developed by the 1st Respondent due to trespass and disruption by the Appellant and the 2nd Respondent. It was argued that the 1st Respondent had a contract with South Nyanza Sugar Co. Ltd and he would have gained the said amount. He further argued that the main aim of the law is to put the Plaintiff into as good position as he would have been if the misapprehension did not happen. He also pointed out that the contract with South Nyanza Sugar Co. Ltd had been part performed. On or about 19th July, 2016, the 1st Respondent had harvested and delivered 74 tonnes of sugar cane valued at Kshs.237,129/- at the rate of 3, 200/- per tonne. 24.On trespass to land, Counsel submitted that the trial court erred by concluding that a claim in trespass may only be instituted by the owner or proprietor of the land. He further pointed out that trespass to land is actionable without proof and the test is possession not ownership. 25.On trespass to goods, Counsel submitted that the trial court completely ignored the claim without assigning any reason. He pointed out that having established that the cane belonged to the 1st Respondent, and he had not consented to its taking, there was established a tort of trespass to goods. He relied on the case of Rosebella Awino Othoo -vs- South Nyanza Sugar Co. Ltd HCCA No. 245 of 2011. 26.On aggravated damages, Counsel submitted that the trial court awarded Kshs.600,000/- which the trial court renamed it exemplary damages. He submitted that this award can be retained for the Appellant’s and 2nd Respondent’s bad conduct, wanton and reckless disregard of the 1st Respondent’s interests which conduct was extreme. 27.In conclusion, Counsel submitted that the conduct of the Appellant and the Respondent were reckless and outrightly a dishonest enterprise, a theft and conversion. 28.The 2nd respondent did not file any submissions. 29.The court has considered the record of appeal, the cross appeal, the pleadings and original record of the proceedings as well as the submissions by the respective parties. This being the first appeal, it is well settled that the role of this Court is to revisit the evidence on record, evaluate it and reach its own conclusion in the matter. (See the case of Selle & Ano. vs. Associated Motor Boat Co. Ltd (1968) EA 123). This court nevertheless appreciates that an appellate Court will not ordinarily interfere with findings of fact by the trial Court unless they were based on no evidence at all, or on a misapprehension of it or the Court is shown demonstrably to have acted on wrong principles in reaching the findings. This was the holding in Mwanasokoni – versus- Kenya Bus Service Ltd. (1982-88) 1 KAR 278 and Kiruga –versus- Kiruga & Another (1988) KLR 348). 30.Upon review and appreciation of the pleadings filed in the Appeal, the cross appeal and the rival submissions, it is in this Court’s view that the appeal and the cross appeal raises two issues; whether the finding of the trial court on liability was well founded and whether the award on damages was proper and justified. This court will proceed to address the issues in the appeal and cross appeal concurrently. 31.On the first issue on liability, the court found the Appellant and the third party liable jointly and severally for the destruction of the 1st Respondent’s cane. It held that the Appellant was liable for milling the cane while the third party was responsible for instigating the unauthorized harvesting of the cane. 32.On the effect of the third- party proceedings and liability, the Appellant strongly contended that the trial Court overlooked and failed to evaluate the effect of the third party’s default to enter appearance and to file a defence which warranted indemnification of the Appellant. 33.It is in the Appellant’s case that it filed a third-party notice upon Kennedy Ochieng Agai who failed to enter appearance nor file a defence. The Appellant submitted that the third party’s failure to file a defence in the trial court implied an admission on the part of the third party who is deemed to admit liability to indemnify the Appellant. 34.A perusal of the trial court’s judgment, the court did not make any orders to address the default in appearance on the part of the third party. In response to the application by the Appellant for judgment in default, the trial court had indicated that the same would be addressed in the judgment. This did not materialize. 35.Third Party proceedings are governed by the Order 1 Rule 15 of the Civil Procedure Rules, 2010. The Appellant submitted that it duly served the Third-Party Notice upon Kennedy Ochieng Agai on 10th February, 2023. Further, the third party despite service, did not enter appearance or file a defence to counteract the Appellant’s claims. 36.Consequences of non- appearance by a third party is provided for under Order 1 Rule 19 of the Civil Procedure Rules which states-“Where a third party makes default in entering an appearance in the suit, or in delivering any pleading, and the Defendant giving the notice suffers judgment by default, such Defendant shall be entitled, after causing the satisfaction of the decree against himself to be entered upon the record, to judgment against the third party to the extent claimed in the third-party notice; the court may upon the application of the Defendant pass such judgment against the third party before such Defendant has satisfied the decree passed against him…”. 37.This Court finds therefore that non-appearance of the third party and failure to file a defence despite service to controvert the evidence against him implies admission on his part. The court further finds that, and as rightly pointed out by the 1st Respondent, the default is between the Appellant and the third party (2nd Respondent) and not between the 1st Respondent and the third party. See Kenya Commercial Bank vs Suntra Investment Bank Ltd (2015) eKLR. 38.On the award of damages, the Appellant strongly submitted that they had a contractual relationship with the 2nd Respondent who authorized the harvesting of the subject cane. The Appellant further pointed out that there was no wrong doing on their part and the claim should have fallen on the 2nd Respondent and ought to have been sued by the 1st Respondent. 39.Regarding the yield, the Appellant contended that the trial court erred in its indication that the 1st Respondent had proved that he lost 74 tons of cane while it was on record that only 9.1 tons was harvested by the Appellant upon instructions of the 2nd Respondent. This court has perused the documents on record and points out that the job completion card dated 23rd February, 2019 and the cane collection slip dated the same day adduced in evidence both indicate that the cane harvested and delivered was 9.1 tons (9100kg). In its judgment, the trial court estimated the yield of lost ratoon crops at 74 tons which was contested by the Appellant. 40.It is the view of this court, and as rightly observed by the trial court, that the 1st Respondent lost the expected yield from the two ratoon crops arising out of the disruption by the Appellant and the 2nd Respondent. It is not in dispute that the 1st Respondent had a contract with South Nyanza Sugar Company Limited as an assignee for farming and supply of sugar cane. The plant crop was harvested on 10/7/2017 yielding Kshs. 237,129/- and the two ratoons crops as per the contract were yet to be fully developed and delivered. The Appellant’s and the 2nd Respondent’s action and part harvesting of the cane meant that apart from suffering loss of income from the said harvest, he also suffered loss from the expected harvest of the subsequent ratoon crop which was never developed. 41.Having found merit in the compensation for expected yield of the two ratoon crops, this court proceeds to evaluate if the special damages of Kshs.1,253,880/- claimed by the 1st Respondent for the two lost ratoon crops is justified. From the record, this court noted that the trial court stated that it took judicial notice that the yield from a ratoon crop is usually lower than the plant crop. It also noted that there is no document placed on record to guide the court in calculating the expected yield. The court proceeded to award Kshs.600,000/- as exemplary damages for the 1st and 2nd ratoons. 42.The Appellant pointed out that there was no proof as to how the 1st Respondent arrived at the estimated yield of lost ratoon crops at 135 tons. It was further contended that the cane variety was not stated in the contract between South Nyanza Sugar Co. and the 1st Respondent and the paper presented to court as attached was for yields between 1993-2001. They also faulted the 1st Respondent’s reliance on the productivity sublocation wise pointing out that it was applicable to the years 1995-1996/97 and not 2019. The Appellant contended that there was no proof as to how the 1st Respondent arrived at the figure of Kshs.1,253,880/- as this was not strictly proved. 43.From the record, the 1st Respondent indicated that on or about 19/7/2016 South Nyanza Sugar Co. Ltd harvested the plant crop which yielded Kshs.237,129/-. It is not clear to this court whether the cane productivity sublocation wise for 1995/96 and 1996/97 and the 2005 Report by the Kenya Sugar Research Foundation adduced in evidence could be relied on in calculating the expected yield for the year 2019. The contract between South Nyanza Sugar Co. Ltd and the 1st Respondent is not clear either on how the yield and pricing would be calculated. 44.This court further notes that the trial court awarded Kshs.600,000/- as exemplary damages for the loss of two ratoon crops. Exemplary damages are different from ordinary damages, which are usually compensatory in nature and specifically pleaded. What the 1st Respondent sought was specific damages for the lost income from ratoon crops at Kshs.1,253,880/. They further sought damages for trespass to land and goods, general damages and aggravated damages for wrongful interference with a contract. What the trial court awarded amounts to general damages for the loss. 45.With the absence of a clear formula on how to calculate the expected yield and income, this court is of the view that the 1st Respondent should be compensated at the rate of the plant crop that is Kshs.237,129/- per ratoon crop making it Kshs.474, 258/- as compensation from the two lost ratoon crops. 46.As for exemplary damages, the locus classicus in this regard is the decision of this Court in Obongo & Another vs Municipal Council of Kisumu [1971] EA 91 in which the Court followed the House of Lords decision in Rookes vs Bernard and others [1964] AC 1129, and accepted the law to be as laid out in Rookes vs Bernard (supra) that:-“…exemplary damages for tort may only be awarded in two classes of cases (apart from any case where it is authorized by statute): these are first, where there is oppressive, arbitrary or unconstitutional action by the servants of the government and secondly, where the Defendant’s conduct was calculated to procure him some benefit, not necessarily financial, at the expense of the Plaintiff. As regards the actual award, the Plaintiff must have suffered as a result of the punishable behaviour, the punishment imposed must not exceed what would be likely to have been imposed in criminal proceedings if the conduct were criminal: and the means of the parties and everything which aggravates or mitigates the Defendant’s conduct is to be taken into account. It will be seen that the House took the firm view that exemplary damages are penal, not consolatory as had sometime been suggested.” 47.Further, in Godfrey Julius Ndumba Mbogori & another v Nairobi City County [2018] eKLR this Court addressing a claim for exemplary damages stated:-“Exemplary damages are essentially different from ordinary damages. The object of damages in the usual sense of the term is to compensate. The object of exemplary damages is to punish and deter. We are guided by the case of Rookes V Barnard [1964] AC 1129 where Lord Devlin set out the categories of cases in which exemplary damages may be awarded which are:(i).in cases of oppressive, arbitrary or unconstitutional action by the servants of the government.(ii)cases in which the Defendant’s conduct has been calculated to make a profit for himself which may well exceed the compensation payable to the Plaintiff and;(iii)where exemplary damages are expressly authorized by statute. Lord Devlin also gave expression to three considerations which must be borne in mind in any case in which an award of exemplary damages is being claimed. The first category is that the Plaintiff himself must be the victim of the punishable behaviour; the second category is that the power to award exemplary damages must be used with restraint for it constitutes a weapon and can be used either in defence of liberty or against liberty and thirdly, the means of the Defendant, irrelevant in the assessment of compensation, are material in the assessment of exemplary damages.” 48.In William J Butler v Maura Kathleen Butler [1984] eKLR this Court cautioned that:-“The assessment of damages is more like an exercise of discretion by the trial judge and an appellate court should be slow to reverse the trial judge unless he has either acted on wrong principles or awarded so excessive or so little damages that no reasonable court would; or he has taken into consideration matters he ought not to have considered, or not taken into consideration matters he ought to have considered and, in the result, arrived at a wrong.” 49.In the circumstances of this case, it is evident that the conduct of the Appellant and the 2nd Respondent amounted to a calculation to make a profit out of the 1st Respondent’s cane. In the circumstances, this court finds that this case warrants an award of exemplary/punitive damages of Kshs.1,000,000/- 50.On trespass to land and goods, the 1st Respondent submitted that he was entitled to damages arising out of the Appellant’s and the 2nd Respondent’s entry into the 1st Respondents farm without his consent and taking thereof cane belonging to the 1st Respondent. 51.In Fleetwood Enterprises Ltd vs. Kenya Power & Lighting Co. Ltd [2015] eKLR, the proposition is that the award of damages for trespass is discretionary in nature but which discretion should however be exercised by the Court judiciously after taking into consideration all relevant factors. 52.Halsburys Laws of England 4th Edition Vol. 45 at para 26 page 1503 enumerates guidelines that guide the court when assessing and awarding damages for trespass, namely, where there is no proof of actual damage, the aggrieved party is entitled to recover nominal damages; where the trespass has caused the aggrieved party actual damage, he is entitled to receive such amount as will compensate him for his loss; where the trespasser has made use of the aggrieved party’s land, the aggrieved party is entitled to recover by way of damages such sums as would reasonably be paid for that use; where there is an oppressive, arbitrary or unconstitutional trespass by the trespasser or where the trespasser cynically disregards the rights of the aggrieved party on the land with the object of making a gain by his unlawful conduct, exemplary damages may be awarded; and lastly, if the trespass is accompanied by aggravating circumstances which do not allow an award of exemplary damages, the general damages may be increased. 53.In the circumstances of this case, this court is of the view that the loss suffered by the1st Respondent arising out of trespass by the Appellant and the 2nd Respondent is fully compensated by the award of damages for the loss of the two ratoon crops and the exemplary damages. 54.On interest, the 1st Respondent faulted the trial Magistrate for failing to apply the correct or proper principle by awarding only interest from the date of the judgment. 55.In the absence of a contract, the statutory basis on which a court awards interest is found in section 26 of the Civil Procedure Act which reads:-“ 26.Interests-(1)Where and in so far as a decree is for the payment of money, the court may, in the decree, order interest at such rate as the court deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree in addition to any interest adjudged on such principal sum for any period before the institution of the suit, with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks fit. (2)Where such a decree is silent with respect to the payment of further interest on such aggregate sum as aforesaid from the date of the decree to the date of payment or other earlier date, the court shall be deemed to have ordered interest at 6 per cent per annum. 56.The objective for awarding interest is to ameliorate the loss suffered by a party who has been kept out of use of money that would otherwise be due to him. Although, by dint of the words of Section 26, the grant of interest is discretionary, it is a discretion to be exercised judiciously. One way of proper exercise of this discretion is to make an award that is in tandem with the objective for which an order of interest is made. Interest on special damages will be from the date of filing of suit as the money would have been due to the claimant as at that date. General damages, which is the product of an assessment process by the court, is due on the date when the assessment is made which is in the judgment date. 57.In this instance the damages due to the respondent areboth special and general in nature. The interest on special damages ought to run from the date of filing suit as the money would have been due to the respondent from that date. The interest on exemplary damages will run from the date of this judgment. FINAL ORDERS 1)This Court finds merit in both the appeal and the cross appeal and make the following orders-i.The appeal partially succeeds only to the extent that the court finds that the Appellant is entitled to indemnity from the third-party Kennedy Ochieng Agai and to the extent of damages.ii.The cross-appeal partially succeeds only to the extent of award of exemplary damages and interest on costs. 2)Consequently, and for avoidance of doubt, the court makes the following final orders-i.The finding on liability against the Appellant in favour of the Respondent is upheld;ii.Judgement is entered in favour of the Appellant against the 2nd Respondent Kennedy Ochieng Agai for full indemnity in respect of the decretal sum payable to the 1st Respondent.iii.The award of Kshs.600,000/= in the trial court’s judgement is set aside and substituted therefore with the following-a.The 1st Respondent is awarded Kshs.474,258/= plus interest from the date the suit was filed, being the losses he suffered as a result of the lost 1st ratoon and 2nd ratoon crops.b.The 1st Respondent is awarded Kshs.1,000,000/= as exemplary damages plus interest from the date of this judgment.c.Each party to bear its own costs of the appeal. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 16TH DAY OF JULY, 2026……………………………………..W.N. MOLONKOJUDGEJudgment delivered virtually in the presence of:Omolo for the AppellantOduk for the 1st RespondentN/A for the 2nd Respondent.Susan Nzioka – Court Assistant