1.In Ndhiwa Principal Magistrate’s Court civil case No.4 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 23rd August 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.586, 400.00.
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:
3.The respondent was represented by the firm of Odingo & 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 case of Selle vs. Associated Motor Boat Co. Ltd.  E.A. 123, which states that the first appellate court must examine and assess the evidence that was 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 it existed, whether 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. 0000898 contradicted this denial. On page 6 of the agreement, both parties signed the contract. It was witnessed by Joash Ogutu, the assistant chief of the Kobita sub-location.
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:
9.After analysing the clause, it is apparent that the grower had the responsibility to inform 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 failed to prove that she had notified the appellant about the maturity of the cane, despite claiming to have done so. As there is no evidence of the notice being issued, it can be concluded that the respondent did not fulfill her obligation to inform the appellant about the maturity of the cane and issue a notice as required in clause 3 of the agreement, in case of failure to harvest.
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.