[2022] KEHC 14008 (KLR)

Transmara Sugar Company Limited v Kereri (Civil Appeal 56 of 2019) [2022] KEHC 14008 (KLR) (13 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14008 (KLR)

Republic of Kenya

In the High Court at Migori

Civil Appeal 56 of 2019

RPV Wendoh, J

October 13, 2022

Between

Transmara Sugar Company Limited

Appellant

and

Henry Kereri

Respondent

(An Appeal from the ruling/decision of Hon. Nyaga, dated and delivered on 13th day of December 2018 in the original CMCC No. 1497 of 2016)

Judgment

1. This is an appeal by Transmara Sugar Company Limited. The memorandum of appeal is dated January 10,2019 and it is against the ruling/decision of Hon Nyaga dated and delivered on December 13, 2018 in Migori CMCC No 1497 of 2016. The appellant is represented by the firm of Oyagi, Ong’uti, Magiya & Co Advocates. The respondent is represented by the firm of Odingo & Co Advocates.

2. By a plaint dated May 14, 2016 and filed in court on October 31, 2016, the respondent (formerly the plaintiff) filed a suit for claiming general damages of the 3 cycles, of sugar cane harvest, costs of the suit, interest and any other relief. It was pleaded that on the February 15, 2010, the parties entered into a written agreement for the harvest and purchase of the sugar cane existing in the respondents’ plot No 1071B measuring 0. 8 hecatres situated at Nyataro sub - location Nyasankia Location, Gucha South District within Kisii County.

3. The appellant (formerly the defendant) entered appearance and filed a statement of defence dated January 10,2017. The appellant generally denied the contents of the plaint. The appellant averred that if at all there existed a duly executed agreement as averred by the respondent, then the same has a legally binding effect upon the parties thereto. It was further averred that the appellant has never been invited for arbitration proceedings for the purposes of resolving the dispute. The appellant further denied being issued with a demand notice in respect of the alleged breach of contract. The appellant asked the court to dismiss the respondent’s suit with costs.

4. After the hearing, the trial court entered judgement in favour of the respondent in the sum of Kshs 640,000/= less statutory and contractual charges payable at the time together with costs and interest from the time of filing suit.

5. Being aggrieved by decision of the learned Magistrate, the appellant preferred the instant appeal. Before delving into the merits of the appeal, I am constrained to make some observations which the respondent has also made in his submissions. In its memorandum of appeal dated January 10,2019 and filed in court on April 9, 2019, the appellant referred to:-“An appeal from the ruling and order of Hon Nyaga, SRM, dated and delivered on the 13th day of December 2018 in the original CMCC No 1497 of 2016. ”

6. The appellant further filed different sets of record of appeal on July 29, 2020 and October 27, 2021 in which the appellant referred to:-“Appeal arising from the judgement and decree of Hon EM Nyagah Principal Magistrate Migori dated and delivered on the 13th day of November 2018 in Migori CMCC No 1497 of 2016. ”

7. The appellant prays that this court do allow the appeal and set aside the entire ruling and/decree of the Magistrate’s court dated December 13, 2018 in CMCC No 1497 of 2016.

8. The court record shows that the judgement and decree the appellant intended to appeal from, is the one dated November 13, 2018 but not a ruling and order dated and delivered on December 13, 2018. It is trite law that parties are bound by their pleadings. There is no ruling or order on record dated December 13, 2018 which is being appealed from. The appellant ought to have amended the memorandum of appeal to reflect the decision appealed against, that is, the judgement and decree of November 13, 2018. The appeal as it stands, is incompetent and should be struck out.

9. Be that as it may, this court will proceed to determine the merits of the appeal for completeness of the record. The appellant preferred fifteen (15) grounds of appeal which can be summarized in the following four (4) grounds:-i.The learned Magistrate applied unknown principles of law in arriving at the judgment awarding the plaintiff an outrageous amount in compensation of a cane that never was;ii.That the learned magistrate ignored all the defence evidence on record and all principles of good law that guide the administration of justice in order to appease the plaintiffs;iii.That the learned magistrate neglected, refused and or failed to acknowledge that there is no loss that could not be addressed by damages by the plaintiff that would compel him to refuse the appellant an opportunity to call its witnesses;iv.That the learned magistrate grossly erred in finding liability on the appellant.The appellant prayed as follows:-i.That the appeal against the ruling herein be allowed and the entire ruling and decree/orders of the Magistrate’s court dated December 13, 2018 (where the Magistrate found liability on the appellant to the tune of Kshs 640,000/= be set asidein its entirety along with the judgement dated December 13, 2018).ii.That the court be pleased to allow the appeal and set aside the entire judgement and decree/orders of the Magistrate’s court dated December 13, 2018 and the judgement dated December 13, 2018 and orders of the Magistrate in CMCC No 1497 of 2016 to be set aside.iii.That the costs of this appeal and the costs incurred in the trial court and superior court be borne by the respondent.iv.Such further relief and/or relief (s) as the court may deem necessary, just and expedient.

10. The appeal was canvassed by way of written submissions. The appellant filed its undated submissions on July 29, 2020. In brief, the appellant submitted that the respondent did not prove his case as was required by Section 107 of the Evidence Act; that the respondent sued the appellant for an alleged breach of contract without using photographs or even an eyewitness that the cane actually dried up in the farm. The appellant further submitted that the trial court ignored the principle that courts cannot rewrite contracts but only had the duty to interpret them but proceeded to rewrite the contract between the parties.

11. Further to the foregoing, it is the appellant’s submission that it was a clear term of the contract that the miller shall provide transport services to the farmer; that the respondent could have requested the miller to harvest the cane and then advise the miller to make deductions for such costs; that in the alternative, if the miller refused or even failed to, then the farmer should have invoked the provisions of clause 9 of the contract for purposes of any dispute settlement which the farmer failed on both fronts.

12. The appellant submitted that the respondent alleged that the arbitration clause was not clear while the same was clear that all questions and differences between the parties would be referred to arbitration; that the respondent’s reliance on the Sugar Act, 2001 does not help since at the time of writing these submissions, it was repealed by the Crops Act 2013 and it is no longer available; that even if the Act was still subsisting, it is the position in law that statutes do not create contracts.

13. Further, the appellant submitted that general damages are not applicable in breach of contract. The appellant submitted that the respondent did not prove any case on a balance of probabilities; that the respondent claimed three harvests at a gross cost of Kshs 4,300/= per ton for the three harvests. The appellant agreed with the trial court on the use of Kshs 3,800/=price for plant crop and Kshs 3,100/= for the ratoon crops but faulted the arrival at the decision since the duty to transport the cane was placed on the famer. It was further submitted that the net proceeds should have been Kshs 381,312/= if the duty to harvest rested on the miller.

14. The appellant also submitted that the ratoons reduce by 25% therefore the net proceeds should be Kshs 310,000/= for the three harvests which the court should considered as the realistic figure payable to the respondent.

15. The respondent filed submissions dated 3/3/2022. He submitted that the case against the defendant was proved on a balance of probabilities.

16. On the nature of the contract, the respondent submitted that the court has a duty to interpret contracts but not to rewrite them; that the said contract was entered into during the operation of the Sugar Act which provided for the establishment, powers and functions of the Kenya Sugar Board; that the Act of Parliament supersedes the provisions of the agreement as far as Section 6 (a) of theSugar Act is concerned and therefore an attempt by any party to the agreement to oust the provisions of an Act of Parliament can only be void and severable as far as the attempt is concerned. The respondent submitted that the contract offends the provisions of the Sugar Act in respect to the duty to harvest the cane. The respondent relied on the findings in Migori Civil Appeal No 11 of 2017 Zaddock N. Ndande vs South Nyanza Sugar Co Ltd.

17. The respondent further submitted that he served the appellant with a demand notice dated 8/1/2012 which the appellant did not object to in its pleadings; that the denial by the respondent of the said notice necessitated to the filing of the lower court cause and the notice shows that the appellant was in breach of the contract.

18. On general damages, the respondent submitted that he is entitled to special damages because of the nature and/or circumstances of the contract as the loss occurred and the evidence were adequate to enable the trial court to assess the special damages; that the respondent gave oral evidence, relied on his exhibits, witness statement which enabled the trial Magistrate to reach a at a figure of Kshs 640,000/=. Reliance was placed on the findings of the Court of Appeal in Kisumu Civil Appeal 278 of 2010John Richard Okuku Oloo vs South Nyanza Sugar Co Ltd.

19. On the statutory deductions applicable, the respondent submitted that the appellant did not exhibit and/or give evidence in court and therefore the court cannot award and/or give what is not prayed for. The respondent posited that even if the trial Magistrate went ahead in his judgement to award the respondent less the statutory deductions the same should not be taken into account in the absence of such particulars. The respondent urged the court to dismiss the appeal with costs.

20. This being the first appeal, the court has a duty to re-evaluate and analyse all the evidence tendered in the lower court and arrive at its own conclusions. It has to establish whether the decision of the lower court was well founded. See the decision in Selle & Another vs Associated Motor Boat Co Ltd(1968) EA 123.

21. It is also settled that an appellate court will not ordinarily interfere with findings of fact by the trial Court unless the findings were not based on evidence at all, or on a misapprehension of it or on demonstrably wrong principles not supported by evidence or on wrong principles of the law. This was the finding of the Court of Appeal in Mbugua Kiruga v Mugecha Kiruga & another [1988] eKLR where the Court of Appeal held: -“An appeal court cannot properly substitute its own factual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong. An appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand but his is a jurisdiction which should be exercised with caution.”

22. Guided by the above decisions, I have considered the grounds of appeal, the record of appeal and the rival submissions by both parties. The issues which arise therefrom are:-i.Who has the duty to harvest, weigh and transport the cane?ii.Whether the respondent was entitled to damages.There is no dispute that the parties herein entered into an agreement dated June 5, 2011 for the development and harvest of sugar cane. The agreement was duly executed by both parties. The respondent’s claim was for the plant crop, 1st and 2nd ratoons which he alleged the appellant failed to harvest thus they dried up and he suffered loss.

23. The respondent testified as PW1 on June 26, 2018. The defence hearing was scheduled for October 9, 2018 but the defendant (the appellant) did not appear in court. In addition, it is only the respondent who filed his submissions.

24. I have found it necessary to point out the proceedings before the trial court in order to highlight the effect of a party not presenting its case before the trial court apart from filing a defence. In the case of Janet Kaphiphe Ouma & Another v Marie Stopes International (Kenya) HCCC No 68 of 2007 the court held:-“In this matter, apart from filing its statement of defence the defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1st plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations…Section 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support the same by way of evidence.”

25. In the case of Motex Knitwear Limited v Gopitex Knitwear Mills Limited Nairobi(2009) e KLR Lesiit, J citing the case of Autar Singh Bahra and Another v Raju Govindji, HCCC No548 of 1998 held that: -“Although the Defendant has denied liability in an amended Defence and counterclaim, no witness was called to give evidence on his behalf. That means that not only does the evidence rendered by the 1st plaintiff’s case stand unchallenged but also that the claims made by the Defendant in his Defence and Counterclaim are unsubstantiated. In the circumstances, the Counter-claim must fail."

26. In North End Trading Company Limited (Carrying on the Business under the registered name of Kenya Refuse Handlers Limited v City Council of Nairobi(2019) eKLR it was held: -“It is my view, that a party to a case having filed his pleadings should call evidence where the matter is considered to proceed by way of evidence. It is trite law that where a party fails to call evidence in support of its case, the party’s pleading are not to be taken as evidence, but the same remain mere statements of fact which are of no probative value since the same remain unsubstantiated pleading which have not been subjected to the required test of cross-examination. A defence in which no evidence is adduced to support it cannot be used to challenge the plaintiff’s case. The failure to call evidence means that the evidence adduced by the plaintiff remain uncontroverted and therefore unchallenged. In such a situation the plaintiff is taken to have proved its case on balance of probability in absence of the defendant’s evidence. In the instant case the plaintiff gave evidence, which was not challenged, proved documents in support of her claim. I find the plaintiff’s evidence to be credible and I am satisfied the plaintiff pleaded and proved her claim for special damages.”

27. In the absence of a rebuttal from the appellant in the trial court where it failed to adduce evidence in support of its case, the respondent’s case remained unchallenged. This being an appeal court, its role is limited to only re-evaluating and analyzing the evidence before the trial court as set out in the cases of Selle & Another (supra) and Mbugua Kiruga (supra). The appellate court cannot be an avenue through which an indolent litigant can introduce new evidence through submissions, with the hope that the odds will tilt in its favour. The respondent’s case as it stands was not challenged and therefore the appellant cannot be heard to state that the Magistrate applied wrong principles and ignored the evidence presented by the appellant in reaching his findings. The Magistrate after evaluating the evidence on record, did make a correct finding. Even without delving into the other issues for determination, the appeal has no merit.

28. The only issue which this court can consider is the applicability of statutory deductions which the trial court asked to be taken into account in calculation of the damages. The statutory deductions which the trial Magistrate applied are the harvesting, transportation and other levies charges. The issue of statutory deductions and other expenses is a matter of fact and should be produced in evidence. If at all the plant crop and the ratoons were not harvested, there is no justification in awarding the same. In addition, the plant crop was already existing in the respondent’s farm. Therefore, the appellant did not contribute to the expenses involved in planting the plant crop. The finding that the statutory deductions should apply was made in error.

29. Having found that the appeal was incompetent and the respondent’s case was unchallenged, the foregone position is that the appeal dated January 10,2019 is devoid of merit. The following orders do issue:-a.The judgement and decree of the trial court dated and delivered on November 13, 2018 is upheld.b.The respondent is hereby awarded the sum of Kshs 640,000/= as damages together with costs and interest from the time of filing suit.c.Costs of this appeal is awarded to the respondent.

DATED, DELIVERED AND SIGNED AT MIGORI THIS 13TH DAY OF OCTOBER, 2022. R. WENDOHJUDGEJudgement delivered in the presence of;Ms Akoya for the Appellant.No appearance for the Respondent.Nyauke - Court Assistant.