9.After considering the lower court record, the grounds of appeal and submissions , the broad issues for determination are ;1.Whether evidence can be led through submissions before trial court.2.Whether there was breach of contract by the Appellant.3.Whether damages awarded were specifically pleaded and proved.4.Whether interest should have been awarded from date of filing the suit or date of judgment.
10.This being a first Appeal, this court is duty bound to re-evaluate the facts afresh and come to its own independent findings and conclusions while bearing in mind that unlike the trial court, this court has neither seen nor heard the witnesses when they testified as stated in Selle & Another v. Associated Motor Boat Co. LTD & Others (1968) EA 123.
11.As this Court has highlighted herein, only the Respondent testified before the trial court and produced documents in support of her case. She was cross examined by counsel for the Appellant. The Appellant did not call any witness. Both the Respondent and Appellant’s case was marked as closed. Submissions were filed by both parties where the Appellant attempted to introduce evidence which they had failed to produce during trial.
12.A look at the judgment by the trail court after evaluating the evidence before him and the submissions by parties, reveals that the trial magistrate was alive to this issue and which he captured while citing the case of Fibre Link Limited v Star Television Production Limited  eKLR that where it was held that pleadings and submissions are not evidence. The trial magistrate;
13.That is the correct position in law and trial magistrate was properly guided. The Appellant has attempted even in this appeal to adduce evidence in submissions. This court emphasises that the Appellant cannot use submissions in lieu of evidence it would have adduced during trial for the other party to have a chance to cross examine and after which the court to ultimately consider the same in its judgment. To attempt to do that would be a mockery of justice and throwing well established rules of procedure in the dustbin.
14.The Appellant’s attempt to do its calculations of what could have been the yield per hectare and come up with perceived correct figures and gross damages as he refers to is a nullity and disallowed. Further, this Court must clarify that despite earlier intentions to amend the plaint, the lower court record shows that the plaint was not amended and the trial court made no reference to the same even in this judgment. Any attempt by the Appellant to refer to it in its submissions mut be disregarded.
15.Perhaps this Court should at this juncture consider the impact of failure by a Defendant to call any witness for its case. Courts have variously held that the failure leaves the Plaintiff unchallenged. For example, in Trust Bank Limited v Paramount Universal Bank Limited & 2 others  eKLR, Lesiit J (as she then was) stated:-
16.The Court of Appeal in Charterhouse Bank Limited (Under Statutory Management) v Frank N. Kamau  eKLR dealt with the issue of failure by defence to call witnesses and while citing several cases on this issue including the case of Trust Bank Limited v Paramount Universal Bank Limited & 2 others  eKLR , and clarified that :-
17.This therefore means that the trail court had to be satisfied that despite finding that the Respondent’s evidence was unchallenged go ahead and determine that the Respondent adduced evidence which in absence of rebuttal evidence by the Appellant proved her claim on a balance of probabilities.
18.In this case, there is no dispute that there was a contract between the parties as stated by the Respondent. This therefore leads to the second issue as to whether the Appellant was in breach of the contract. The Appellant faulted the trial court for not appreciating the fact that the Respondent was also in breach of the contract. It was also the Appellant’s contention that the evidence relied upon by the Respondent was at variance with the pleadings before court.
19.It is not in doubt that the Appellant was in breach of the contract by failing to harvest the 1st and 2nd ratoon crops. From the plaint, the Respondent had pleaded that the plot was capable of producing 135 tonnes per hectare at the rate of Kshs 1,730/=. Rebuttal by the Appellant in its defence that the Respondent’s plot was only capable of producing a maximum of 65 tonnes per hectare is not support by evidence. Further , the averments in the Appellant’s statement of defence justifying tribal clashes as the reason for the breach remain a mere statement which was not even put to the Respondent during cross examination. In his judgment, the trial magistrate observed that failure of the defendant to harvest the ratoon crops after they were harvested amounted to breach of contract. I find no fault in that finding.
20.The Appellant termed the estimate in the award as unjust because the amount realized in the first crop could not be the same quantity as the 1st and 2nd ratoon. In coming up with his assessment, the trial magistrate relied on the cane productivity report for Kakmasia area produced by the Appellant . The Appellant did not produce evidence to show that the cane ought to be assessed at the estimate of 60 tonnes . Indeed, the Respondent produced documentary evidence in support of her case and which were not challenged by any other evidence to the contrary. In this regard, I find fault in that assessment.
21.Further, the sum of Kshs. 186,840/= was arrived at as a result of calculating the plot estimate and the price per ton for the two ratoons. I find that the damages were specifically pleaded and ascertained. The issue of damages is the discretion of the court . This award is not so high or low to warrant interference by this Court .
22.On the issue as to whether interest should have been awarded form date of filing the suit or date of judgment, the Respondent had prayed in her plaint that that same be calculated from the 23rd August 1996 until payment in full. In holding that the interest would be from date of filing the suit, the trail magistrate relied on the High Court case of Speed building Technologies Ltd v County Government of Migori  eKLR where H.A. Omondi J awarded interest from date of filing for breach of contract.
23.While some Superior Courts award from date of filing of the suit others have awarded interest from the date of judgment for cases which have been pending in court without prosecution. Taking advantage of this prevailing situation, both parties have cited case law that support their rival position on which date interest should be calculated.
24.The Appellant urges the Court to award interest from the date of judgment while citing various authorities including South Nyanza Sugar Co. Ltd v John Chora Omolo  eKLR where Majanja J awarded interest from the date of judgment as the lower court case filed in 2010 remained in limbo until September 2016 when it first came for hearing and found that the Appellant should not be penalised for the Respondent’s failure to prosecute the suit with diligence.
25.On the other hand, the Respondent relies on the case of Mathews O. Ogot v South Nyanza Sugar Co. Ltd eKLR where the court A.C. Mrima J held that it is now settled in law and has been held over time, that interest on special damages starts running from the time of filing the suit. In that case , the Judge cited the Court of Appeal case of John Richard Okuku v South Nyanza Sugar Co. Ltd  eKLR where the suit was filed in 1998 and judgment rendered in 2013 but the Court held that interest must run from the date of filing the suit.
26.The issue of when interest should run therefore is basically discretionally and the Court would not normally interfere with such discretion unless the exercise of that discretion has caused miscarriage of justice. From the conduct in this matter, I find no reason to interfere with the trial magistrate’s discretion.
27.In conclusion, I find no merit in this appeal and as a consequence, the appeal is dismissed with costs.
DATED, SIGNED AND DELIVERED BOTH OPEN COURT & VIRTUALLY AT KISII THIS 6TH DAY OF JULY 2023.PATRICIA GICHOHIJUDGEIn the presence of:N/A for AppellantMs Theuri for RespondentKevin Isindu, Court Assistant