REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MIGORI

CIVIL APPEAL NO. 18 OF 2019

SOUTH NYANZA SUGAR COMPANY LIMITED....................................APPELLANT

-VERSUS-

JOHN GITUKI GOMBA...............................................................................RESPONDENT

(An Appeal arising from the Judgement and Decree of Hon. R.O.

Odenyo Senior Principal Magistrate (SPM) Migori dated and

delivered on 24/12/2018 in Migori PMCC No. 423 of 2005)

JUDGMENT

This is an appeal by South Nyanza Sugar Company Limited against the judgement and decree of the Hon. R.O. Odenyo (SPM) dated and delivered on 24/12/2018.

The appellant is represented by the firm of Okong’o Wandago & Co. Advocates whilst the respondent is represented by the firm of Kerario Marwa & Co. Advocates.

By a plaint dated 20/7/2005, filed in court on 10/8/2005, the respondent (formerly the plaintiff) sued the appellant (formerly the defendant) for damages for breach of Growers Cane Farming and Supply Contract entered into the year 1994. The respondent also asked the trial court to award him the value of unharvested sugar cane at the rate of Kshs. 1,730/=, together with costs of the suit and interest.

It was the respondent’s case that the appellant contracted him to grow and sell to it sugarcane on his land parcel being plot number said 519 Field No. 245 vide Account No. 442029; that pursuant to the agreement, the respondent planted and developed the sugarcane on the plot measuring approximately 0.2 HA and, on its maturity, the appellant harvested and transported the plant crop as per the agreement but it failed to harvest the first and second ratoon crops thus breaching the terms of the contract. The respondent particularized the negligence and breach of contract and alleged that he incurred a loss of Kshs. 1,730/= per tonne for which he sought compensation.

The appellant filed a statement of defence dated 26/9/2005 in which liability was denied and it put the respondent to strict proof thereof.

The appellant averred that the respondent did not develop the said plot as alleged and therefore did not avail the sugarcane for harvesting; that the said 0.2HA cannot yield 34 tonnes of sugarcane but rather it could have only produced a gross yield of only 13 tonnes and no more. It was the appellant’s further claim that the respondent’s claim was statute barred and therefore incompetent. The appellant asked the trial court to dismiss the respondent’s case with costs.

After the hearing, the trial court entered judgement in favour of the respondent for Kshs. 58,258/= being the value of the unharvested sugar cane, costs of the suit and interest at court rates from the date of filing the suit till payment in full.

Being dissatisfied with the judgement and decree, the appellant filed a Memorandum of Appeal dated 14/1/2019 and preferred ten (10) grounds of appeal but the appellant’s counsel Mr. Odero elected to submit on the first three (3) grounds of appeal as follows: -

i. That the learned trial magistrate erred in law and fact in failing to find and hold that the suit before him was not proven in law and in failing to dismiss that suit for bad pleadings;

ii. That the learned trial Magistrate erred in law and fact when he found and held, that despite there being evidence from the appellant to the contrary, that the appellant breached the contract in issue, by failing to harvest the first ratoon and, in consequence thereof, development of the second ratoon was compromised, and which finding thus led him to a wrong finding that the respondent thus deserved Kshs. 58,258/= as the compensation for the two lost cane cycles.

iii. That the trial Magistrate erred both in law and in fact in failing to find and hold that the evidence which the respondent led in an attempt at proving his claim was at variance with his pleadings and failed to find that the respondent did not prove his claim in that suit.

The appellant prayed: -

i. That this appeal be allowed with costs to the appellant.

ii. That this court re-evaluates the evidence and arrive at its own conclusion and findings on the whole of the respondent’s suit at the trial court.

iii. The suit in the trial court be dismissed with costs.

iv. This court be pleased to order that any interest on a sum of money awarded as damages if any be calculated from the date of judgement if this court were to find that damages are due.

The appeal was canvassed by written submissions and both parties complied.

This being the first appellate court, the court has a duty to re-evaluate and analyse all the evidence tendered in the lower court and arrive at its own conclusions but bearing in mind that it neither saw nor heard the witnesses testify. It has to establish whether the decision of the lower court was well founded. See the decision in Selle & Another vs Associated Motorboat Co. Ltd (1968) EA 123.

It is also settled law 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 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 Mbogua 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.”

I have carefully considered the grounds of appeal and the rival arguments. The issues for determination are: -

a. Whether the respondent’s pleadings and evidence were at variance.

b. Whether the respondent proved his claim.

c. Whether the respondent was entitled to damages.

On whether the appellant’s pleadings were at variance with the evidence: the appellant submitted that the respondent’s pleadings and the evidence were at variance. The appellant submitted that i paragraphs 3, 4 and 5 of the plaint and the oral testimony in chief of the respondent were at variance on when the contract was entered into between the parties. To the contrary, respondent submitted that there was no variance as the contract date is consistent.

The respondent’s plaint is the one dated 20/7/2005. The paragraphs in contention are:-

Paragraph 3 states as follows: -

“On or about the year 1994, the plaintiff and the defendant entered into an agreement/contract whereby the plaintiff was to cultivate sugar cane on plot number 519, Field No. 245 Account No. 442029…”

At Paragraphs 4 and 5 of the plaint there is no mention of the year when the contract was entered into between the parties. The plaint outlines the acreage where the sugarcane was planted and the particulars of negligence by the appellant.

In his oral testimony in chief, the respondent testified as follows: -

“On the year 2004, I planted the sugarcane after entering into agreement with the defendant…”

  In cross - examination the appellant mentioned that: -

“The date of the contract was 2004…”

In his pleadings and even the contract that was produced in evidence, the respondent pleaded that the contract was dated 1994. In his testimony in chief, however, the respondent testified that he planted the sugar cane in the year 2004 after entering into a contract with the appellant. That is to mean, the sugarcane was planted in the year 2004 almost 10 years after the parties allegedly signed the contract. DWI George Ochieng the Senior Supervisor of the appellant confirmed in his testimony in chief that the contract between the parties was entered on 26/5/1994. During cross examination the respondent again testified that the contract was dated 2004. I do agree with the appellant’s submission and it is trite law that no party can be allowed to depart from his pleadings.

In Raila Amomolo Odinga & Another vs IEBC & 2 Others (2017)eKLR the court said:-

“In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings.

See also David Sironga Ole Tukai v Francis Arap Muge & 2 Others (20140eKLR:-

“In an adversarial system such as ours, parties to litigation are the ones who set the agenda, and subject to rules of pleadings, each party is left to formulate its own case in its own way. And it is for the purpose of certainty and finality that each party is bound by its own pleadings. For this reason, a party cannot be allowed to raise a different case from that which it has pleaded without due amendment being made. That way, none of the parties is taken by surprise at the at the trial as each knows the other’s case is pleaded. The purpose of the rules of pleading is also to ensure that parties define succinctly the issues so as to guide the testimony required on either side with a view to expediate the litigation through diminution of delay and expense.

the court, on its part, is itself bound by the pleadings of the parties. the duty of the court is to adjudicate upon the specific matters in dispute, which the parties themselves have raised by their pleadings. The court would be out of character were it to pronounce any claim or defence not made by the parties as that would be plunging into the realm of speculation and might aggrieve the parties or, at any rate, one of them. A decision given on a claim or defence not pleaded amounts to a determination made without hearing the parties and leads to denial of justice.”

 I agree with the appellant’s submission that the Respondent pleadings were totally at variance with his testimony as to when the contract was entered into and that variation was fatal to the Respondent’s case.

On whether the respondent proved his claim, the respondent’s claim is based on the value of the unharvested sugar cane at the rate of Kshs.1,730/= per tonne. The appellant submitted that the suit before the subordinate court was filed on 10/8/2005 when the breach of the subject of the suit had not occurred; that as per the respondent’s evidence, the sugarcane crop had not yet matured for harvesting either for the plant crop, the 1^st and/or the 2^nd ratoon.

In his testimony in chief, the respondent testified that he planted the plant crop in the year 2004. The record does not show that there was re-examination of the respondent to confirm whether or not the statement was true. Similarly, the pleadings and the written statements do not indicate when the plant crop was planted and harvested.

Concerning the time when the harvest was done, DW1 Mr. George Ochieng an employee of the appellant as a Senior Supervisor testified: -

“The contract would remain in force for a period of 5 years…plant crop was harvested on 22/1/1998. Raton 1 would mature on 22/1/1999. By that time the contract would have ended. The plaintiff never applied for extension of the contract. ratoons matured out of the contract and thus the defendant could not harvest the ratoons. The contract was expiring when the cane was only 16 months and thus was it was still not mature enough to be harvested for milling.” (emphasis)

On cross -examination, DW1 testified: -

“I am not blaming the plaintiff for the delay in harvesting. There is room for extension of the contract. It is clause 3. The extension is done at the notice of the farmer. The ratoon crop matured outside the contract period.”

In awarding the damages for the 1^st and 2^nd ratoons, the trial Magistrate determined the question of whether the defendant’s failure to harvest the plaintiff’s 1^st ratoon was on the part of the defendant’s negligence and held as follows: -

“In my view, the answer is in the positive. It is admitted that there was a contract which was to last five years. Within those five years the plaintiff’s sugarcane ought to have been harvested three times. By harvesting the plant crop on 2/1/1998 - almost two years after is matured and without any explanation, I am persuaded that the defendant was on the wrong. The plant crop ought to have been harvested on or about 26/5/1996. By the time plaint crop was being harvested, two cycles ought to have been harvested. I have thus come to the conclusion that the plaintiff’s loss was due to the defendant’s action/inaction. The defendant thus ought to compensate the plaintiff.”

The appellant has strenuously submitted that the plant crop could not have been matured for harvesting as the same was only planted in the year 2004 as testified by the respondent while the claim was filed in the year 2005. Be that as it may, the appellant’s witness testified to the trial court that the plant crop was harvested on or about 22/1/1998. On cross examination, DW1 confirmed that the contention was whether by the time 1^st and 2^nd ratoons had matured for harvest the contract was still in force.

In order to determine whether the respondent was entitled to damages of the 1^st and 2^nd ratoon, it is important to examine whether at the time the 1^st and 2^nd ratoons were being developed, the contract was still in force. The terms of the contract were as follows: -

“This agreement shall come into force on and from the …….day of……19…..and shall (unless previously determined in accordance with the provisions hereof) remain in force for a period of five years or until one plant and two ratoon crops of sugar cane are harvested on the Plot aforesaid whichever period shall be less.

PROVIDED THAT the said period may be extended by the parties hereto for such a longer period as shall be mutually agreed subject to the terms and conditions herein contained by a memorandum of extension and endorsed thereon.”

The contract period between the parties was conditional on two - fold: -

i. For a period of five years OR

ii. Until one plant and two ratoon crops of sugarcane are harvested whichever period was less.

According to DW1, the plant crop was harvested on 22/1/1998. The 1^st ratoon crop would be due for harvest on 22/11/1999. If the contract was to run for a period of five years, then it would terminate on or about 26/5/1999.

The conditional time period of the contract was “whichever period was less.” If at all the harvesting of the plant crop and the 1^st and 2^nd ratoon would have come earlier than 26/5/1999 when the contract was to terminate, and the appellant failed to harvest the same, then the respondent would have had a claim for the unharvested ratoon crops. Since the plant crop was harvested on 22/1/1998 but the 1^st and 2^nd ratoon crops were to be harvested before the expiry period of five (5) years, then the respondent could not make any claim for the unharvested 1^st and 2^nd ratoon crops. At this point, there was no existing contract between the parties that the respondent would rely on to make a claim on the 1^st and 2^nd ratoon crops.

Suppose that one were to go by the Respondent’s version that the contract was entered into in 2004, and this suit was filed on 16/8/2005, then the breach of contract which is the subject of this had occurred as the sugarcane planted in 2004 would not have matured.

Respectfully, I differ with the findings of the trial Magistrate that within the five years of the contract, the sugarcane was to be harvested three times; that the harvesting of the plant crop ought to have been done on or before 25/6/1998 and by harvesting the plant crop on 2/1/1998 almost two years later, after maturity the appellant was on the wrong.

In my perusal of the trial court record, there was no proper indication by either the appellant or the respondent on when the sugarcane was planted. The finding that the plant crop ought to have been harvested on or before 25/6/1998 was erroneous. On the second and third issue for determination, the respondent did not prove his claim to warrant an award of damages for the 1^st and 2^nd ratoons.

The upshot is that the appeal succeeds as follows:-

d. The judgement and decree of the Hon. R.O. Odenyo dated and delivered on 24/12/2018 be and is hereby set aside.

e. The Appellant is awarded the costs of the lower court and interest thereon from the date of judgment.

f. The Appellant is also awarded costs of this appeal.

DATED, DELIVERED AND SIGNED AT MIGORI THIS 17^TH DAY OF MARCH, 2022.

R. WENDOH

JUDGE

Judgment delivered in the presence of

Mr. Odero for the Appellant.

Mr. Nyangi for the Respondent.

Emma Court Assistant.