South Nyanza Sugar Company Limited v Opiyo (Civil Appeal 215 of 2019) [2025] KECA 1631 (KLR) (3 October 2025) (Judgment)
Neutral citation:
[2025] KECA 1631 (KLR)
Republic of Kenya
Civil Appeal 215 of 2019
HA Omondi, LK Kimaru & JM Ngugi, JJA
October 3, 2025
Between
South Nyanza Sugar Company Limited
Appellant
and
Peres anyango Opiyo
Respondent
(Being an appeal from the judgment and decree of the High Court at Migori (Mrima, J.) dated 9th April, 2019 in HCCA No. 21 of 2017)
Judgment
1.The respondent herein filed a suit at the Kehancha Principal Magistrate’s Court vide a plaint dated 21st September, 2004, seeking for a declaration that the appellant herein was in breach of the cane contract between themselves; for the value of the unharvested sugar cane at the rate of Kshs. 1,730 per tonne; costs of the suit and interests.
2.In summary, the respondent’s averments in her pleadings were that she had entered into an agreement with the appellant in 1996 whereby she was to cultivate sugar cane on Plot No. 241 A Field No. 5 vide Account No. 142982; and that by the terms of the contract, the appellant was to harvest, purchase, and transport the sugar cane to the factory on its maturity and pay the respondent for its value.
3.The respondent averred that pursuant to the agreement, she grew the sugar cane on a parcel of land measuring 0.8 Ha and on its maturity asked the appellant to harvest and purchase it as per the agreement but that the appellant only harvested eight (8) stalks of the plant crop and failed to harvest the rest of the plant crop, the 1st and 2nd ratoon, in breach of the contract thereby causing the sugar cane to get abandoned, damaged and dried up on the farm. Consequently, the respondent sought compensation for the total value of the sugar cane and the 1st and 2nd ratoon crops as per the contract.
4.In its statement of defence dated 2nd November, 2004, the appellant admitted the existence of a contract between itself and the respondent but denied breaching it. Instead, the appellant claimed that no sugar cane was cultivated by the respondent in a manner that could achieve satisfactory yield in total breach and complete disregard to the provisions of their contract; and that, therefore, no liability accrued to the respondent against the appellant.
5.The appellant also claimed that it was not bound to purchase the sugarcane from the respondent as alleged. Rather, it was only bound to harvest sugarcane from plots that had been well maintained and from which satisfactory sugarcane yield could be reasonably expected to be achieved; and that the respondent’s plot was poorly maintained, neglected and abandoned. It further claimed that if the sugarcane got abandoned, damaged or dried up as alleged, the same was solely occasioned by the respondent as it was her responsibility to take care of her plot and protect it against waste and damage. In any event, the appellant alleged that the respondent never availed to it any sugarcane which could be economically harvested and milled, therefore, no loss or damage was suffered by the respondent.
6.When the matter was listed for hearing on 27th August, 2014, the two advocates for the parties agreed to prepare and file witness statements, supporting documents and written submissions and the court adopted the same as its directions. Later on 19th March, 2015, the two advocates for the parties entered into a consent to have the matter heard by way of written submissions upon filing statements and exchanging documents.
7.Subsequently, the respondent complied with the directions while the appellant did not. Judgment was eventually delivered on 20th August, 2015, wherein the learned magistrate dismissed the respondent’s claim and held thus:
8.The respondent was aggrieved by the decision of the lower court and filed an appeal in Migori High Court Civil Appeal No. 21 of 2017. Her grounds of appeal were that:1.The learned magistrate erred in law and fact when he failed to consider, evaluate and balance the pleadings, evidence and submissions thereby reaching to a wrong conclusion that the appellant had failed to prove that she developed any crop.2.The learned magistrate erred in law and in fact by purporting to raise the threshold of standard of proof to a level higher than that required by the law.3.The learned magistrate was biased against the appellant.
9.Directions were taken and the appeal was canvassed by way of written submissions.
10.In his judgment dated 9th April, 2019, the learned judge found that it was indisputable that a contract existed between the parties and that the plant crop was developed up to maturity. However, the appellant failed to harvest the 1st ratoon crop, which compromised the development of the 2nd ratoon crop; thus, breached the contract. The learned Judge coined one issue for determination, which was: whether the respondent was entitled to any compensation in such circumstances; and held as follows:
11.The learned judge then assessed damages payable to the respondent as follows:
12.The appellant is aggrieved by the judgment of the High Court and had listed sixteen (16) grounds of appeal in her Memorandum of Appeal which are that:1.The learned judge erred in law when in the circumstances of the appeal as was before him, he awarded damages in respect of the appellant’s alleged failure to harvest ratoon 1 and ratoon 2 sugarcane which were never developed and which never existed at all.2.The learned judge erred in law when he held that the respondent had proved the claim against the appellant when no evidence at all was led, when no such contract was availed and produced in evidence and on the face of the clear denial of the alleged breach of such a contract by the appellant.3.The learned judge erred in law when having held that the respondent did not lead any evidence, he nevertheless used figures which were never led in evidence by the respondent to award compensation to him, thereby violating the appellant’s rights to a fair hearing.4.The learned judge erred in law when he made an erroneous conclusion that since the existence of the contract was admitted in the defence, such an admission in the pleading amounted to proof of the respondent’s claim as had been pleaded.5.The learned judge erred in law when he made an erroneous conclusion that the respondent’s testimony was never controverted, when the respondent in fact never led any such testimony before the trial court, and in relying on documents which were never formally produced as exhibits before the trial court to award compensation and in the absence of proof.6.The learned judge erred in law when he held that the alleged ratoon 1 crop mature and was ready for harvest by December, 1999, and that the average yield were 85 tons per hectare and that the ratoon 2 crop was expected to mature by July 2001, when no such was led before the trial court and thus such finding were not supported by the record.7.The learned judge erred in law when he ordered the appellant to pay damages of Kshs. 231,590/= on the basis of an alleged expected earnings for three crop circles to the respondent, contrary to the claim in the pleadings where only ratoon 1 and 2 were claimed, and in the face of lack of evidence led before the trial court that the respondent had developed the three crops and thus the appellant’s alleged failure to harvest them did not arise, as they never existed and against the background that only special damages, specifically pleaded and strictly proved by way of evidence can be awarded for breach of contract.8.The learned judge erred in law and wrongly exercised his discretion when he held that interest on the speculative amounts he awarded as compensation were to be calculated from the date of filing suit, when such compensation was only assessed by the court and awarded, and not proved as damages, on the date of judgment and thus obligation to pay them only arose on the date of the appellate judgment and decree.9.The learned judge erred in law when he awarded speculative damages to the respondent as against the appellant based on an alleged estimate of expected yields and using information from documents which were not formally produced as exhibits before the trial court by a party who was not called as a witness, and disregarding the appellant’s direct evidence on yields.10.The learned judge erred in law when he truly misapprehended the appeal before him and claim which was before the trial court and decided the case in favour of the respondent based on no evidence at all but purely conjecture and speculation and ignored empirical documentary evidence of the actual yields led by the appellant and the value thereof.11.The learned judge erred in law when he held that without evidence that there was loss of yield for the plant crop, and that such loss compromised the development of the ratoon crops whose alleged value he subsequently awarded to the respondent on the basis of gross loss which the respondent allegedly suffered.12.The learned judge erred in law when he held that the respondent was entitled to compensation arising from three crop circles, contrary to the known principles of law that only special damages lay for breach of contract, and for such damages to be awarded, they must be specifically pleaded and claimed in the plaint and thereafter strictly proved by way of evidence during trial which was not done in the appeal which was before him.13.The learned judge erred in law when he multiplies the plot size, average yield and cane price and held that the sum of Kshs. 231,590/= which he arrived at from his own calculations, and not from evidence led by the respondent, was the damage which the respondent had suffered and in proceeding to allow the same against the appellant.14.The learned judge erred in law when he failed to hold that the respondent had a duty to but failed to mitigate his losses, if at all any, in respect of the contract despite finding and holding that termination of the contract and contracting cane to another miller was an open option to the respondent.15.The learned judge, in having awarded to the respondent compensation in respect of three crop circles, in respect of a contract, and which amount had neither been pleaded nor proved by evidence and was not supported by the record of the trial court which was availed before him.16.The judge decided the case against the weight of evidence purely on speculation and without proof and in failing to dismiss the respondent’s appeal as was before him with costs.
13.The appeal before us was argued by way of written submissions. Only the appellant filed its written submissions while the respondent failed to do so despite being served with the notice of the hearing. Mr. Odero, learned counsel, appeared for the appellant, while there was no appearance for the respondent.
14.This is a second appeal. As such, we are limited to considering matters of law only unless it can be demonstrated that the courts below considered matters they should not have considered or failed to consider matters they should have considered or the decision of the superior court is, on the whole, perverse. See Charles Kipkoech Leting vs. Express (K) Ltd & another [2018] eKLR.
15.We must state that this is the fifth in a series of cases involving the appellant and several respondents. In the series, the trial and the first appellate court proceedings took similar trajectory with similar judgments; and the series of appeals raise the same five issues. They are as follows:a.Whether the learned judge decided the appeal based on issues not properly raised on appeal.b.Whether the learned judge relied on material which was not properly on record.c.Whether the respondent proved his case on a balance of probabilities.d.Whether the award of damages was justified in the circumstances.e.Whether the award of interest was lawful.
16.In the present appeal, the appellant raise a sixth issue which is particular only to this appeal: whether it was a manifest error of law for the learned Judge to award compensation for all three cycles of the sugarcane crop (the crop plant as well as the 1st and 2nd ratoons) yet the respondent had only pleaded for compensation for two cycles. The appellant also argues that it was a manifest error for the learned Judge to reach the conclusion that the size of the land was 0.5 Ha yet the plaint identified the size as 0.8 Ha and the contract produced by the respondent also provided for the size of 0.8 Ha. We will deal with the other five issues whose determinations follow the other precedents in the series and then return to this issue.
17.On the first issue, the appellant submitted that the learned judge failed to confine himself to the three grounds of appeal that had been placed before him, despite the settled principle that parties are bound by pleadings; and that on appeal, the grounds of appeal are akin to the pleadings of the parties. In particular, the appellant contended that grounds 1 and 2 as framed did not raise the question of breach of contract, which nonetheless became an issue in the appeal.
18.The respondent’s grounds of appeal before the learned judge were as follows:a.The learned magistrate erred in law and fact when he dismissed the appellant’s case on a mere ground that the appellant did not have any job completion certificate yet it was the duty of the respondent to issue the appellant with the said job completion certificate if any.b.The learned trial magistrate erred in law and in fact by purporting to raise the threshold of standard of proof to as level higher than that required by the law.c.The learned trial magistrate was biased against the Appellant.
19.The appellant further maintained that, on the basis of the respondent’s plaint, the judge’s task was limited to determining whether the respondent proved cultivation of the plant crop, the 1st ratoon, and the 2nd ratoon, and whether the appellant failed to harvest the plant crop in breach of contract. Reliance was placed on Raila Amolo Odinga & Another v. IEBC & 2 Others [2017] eKLR, which underscores that courts must remain within the confines of the parties’ pleadings.
20.On that footing, the appellant argued that the judge made pronouncements on unpleaded issues.
21.Citing David Sironga Ole Tukai v. Francis Arap Muge & 2 Others [2014] eKLR, the appellant argued that the finding of breach of contract and award of damages was based on assumptions unsupported by evidence, and that in doing so the learned judge exceeded the appellate powers set out under section 78 of the Civil Procedure Act
22.On the question whether the learned judge determined the appeal on impermissible or un-appealed issues, we find that he did not. As the first appellate court, his duty was to re-evaluate the evidence de novo.
23.The trial magistrate had dismissed the claim on the basis that the respondent failed to provide documentary proof of cultivation of the plant crop, holding that as a contracted farmer, the respondent had not established that he developed the cane. In contrast, upon re- evaluating the record, the learned judge found that the respondent’s case turned on the appellant’s failure to harvest the plant crop, which in turn undermined the development of the ratoons.
24.This Court has already addressed this very issue in South Nyanza Sugar Company Limited v. Mboga [2025] KECA 546 (KLR), where we stated:
25.Our conclusion in this appeal is the same.
26.The appellant next contends that the learned Judge improperly relied on documents not formally produced in evidence. To support this, the appellant invoked James A. Niala v South Nyanza Sugar Co. Ltd [2019] eKLR for the principle that mere production of a document does not prove its contents. The appellant also cited other authorities affirming the settled rule that a document can only be relied upon if formally tendered in evidence. This was well expressed in Kenneth Nyaga Mwige v Austin Kiguta & 2 others [2015] eKLR where the Court stated:
27.This argument, however, is misconceived. As outlined earlier, the parties expressly agreed by consent to rely on all witness statements and documents filed in the trial court. By that agreement, the documents were deemed produced in evidence. For the respondent, this included his written statement, the contract, and the Yield Assessment Report by the defunct Kenya Sugar Research Foundation. Moreover, as the learned Judge correctly noted, the respondent’s testimony stood unchallenged, as the appellant called no witness and filed no documents. There is, therefore, no basis for alleging that the Judge relied on unproduced documents.
28.The appellant further asserts that “there was no justification, in the law or in the record for the judge to find and hold that the appellant did not harvest 2 ratoon crops, in breach of the pact between the appellant and the respondent. Sugarcane never develops itself.”
29.The appellant’s curious argument is that because the respondent pleaded that he had “developed” the ratoon crops, his claim must fail, since failure to harvest the plant crop automatically compromised the ratoons. To bolster this, the appellant relied heavily on South Nyanza Sugar Company Ltd v Francis Aderi Degeri (Migori HCCA No. 47 of 2019), where Chitembwe, J. (as he then was) reasoned:
30.The appellant now urges us to adopt Chitembwe J.’s reasoning, contending that the respondent should have mitigated his loss by either removing the unharvested crop and replanting, or selling the cane to other millers.
31.We rejected this reasoning in South Nyanza Sugar Company Ltd v Mary Anyango (Suing as Administratrix of the Estate of Jared Onyango Onguka) (Civil Appeal No. 171 of 2019) [2024] KECA 694 KLR (21 June 2024). Our analysis in that case applies squarely here, particularly our clarification on the conflation between the duty to mitigate damages and the standard of proof in breach of contract claims. We stated in that case:
32.The penultimate issue is whether the learned Judge erred in awarding interest from the date of filing. The appellant objects on three grounds: first, that interest should only run from judgment since the sum was indeterminate until quantified by the High Court; second, that awarding interest from 2011 (the date of filing) is unfair given the delays, which were not attributable to the appellant; and third, that interest from filing would unduly inflate liability against a public company.
33.In essence, the appellant argues that awarding interest from the date of filing was unjust and disproportionate, as the claim was not for a fixed sum but one made certain only at judgment. Accordingly, it contends that interest should have been awarded from judgment. For this proposition, it relies on New Tyres Enterprises Ltd v Kenya Alliance Insurance Company Ltd [1988] eKLR, where Kwach, JA observed:
34.We have considered both the cited authority and the governing provision — section 26 of the Civil Procedure Act — which provides: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.
35.The statute is clear: the court has discretion both to award interest on the principal sum and to determine the rate. None of the appellant’s proposed limitations appear in the text. This was a liquidated claim based on breach of contract, and the award of interest from filing was justified. We do not read Kwach, JA’s words in New Tyres Enterprises Ltd as establishing a rigid rule; rather, they explain why, in that case, the Court upheld the trial judge’s discretion. Similarly, neither delay in litigation nor the appellant’s public status excuses it from its obligations. The termination clause in the contract, too, has no bearing on the calculation of interest.
36.Indeed, in New Tyres Enterprises Ltd, this Court also emphasized:
37.That, in our view, is the correct position in law. We, therefore, find no fault in the Judge’s exercise of discretion in awarding interest. This ground of appeal accordingly fails.
38.We now turn to the final issue. The appellant complains that the learned Judge committed a manifest error of law by awarding damages for all the three cycles of sugarcane while the respondent, in her own pleadings and evidence had claimed compensation for only two cycles. The appellant further complains that the judgment ought to be set aside because it contains an obvious error: the judge uses 0.5 Ha as the size of the land while the evidence on record and the pleadings clearly show that the respondent’s land was, in fact, 0.8 Ha.
39.We have carefully scrutinized the pleadings, the record, and the evidence. The Contract at Clauses 11 (a), (c) and (e) identifies the area of cultivation as 0.8 Ha. Contrary to the appellant’s arguments, the plaint, at paragraph 4 identifies Plot No. 241 as measuring 0.8 Ha. The judgment dated 9th April, 2019 in paragraph 2 also identifies the parcel as “Plot No. 241 Field No. 5 measuring 0.8 Hectares in Kogelo sub-location within Migori County.” However, at paragraph 13 of the same judgment, the learned Judge uses 0.5 Ha as the size of the land. It would appear that this is merely typographical error and would be a harmless one but for the next issue.
40.At paragraph 4 of the plaint, the respondent avers that:
41.In the particulars of negligence listed in paragraph 5(a) of the plaint, the respondent states that:
42.In paragraph 5(b), the respondent complains that the:
43.In the respondent’s witness statement, which was tendered as evidence as aforesaid, the respondent pithily states as follows:
44.It is readily obvious from the respondent’s own pleadings as well as her tendered evidence that she was only claiming compensation for the 1st and 2nd ratoon crops – but not for the main plant crop. It is also clear from her evidence, which was uncontroverted at trial that she placed her total loss at 80 tonnes for both cycles. It is, finally, clear that she sought compensation at Kshs. 1,730 per ton – a figure which the learned Judge concluded found support in the appellant’s cane prices’ schedule.
45.In the circumstances, it was a manifest error for the learned Judge to award the total figure of Kshs. 231,590 based on the expected earnings of the three cycles when it was clear that the respondent only claimed compensation for two cycles. We, therefore, set aside that award. Instead, we award the respondent Kshs. 138,400 based on her uncontroverted and credible evidence that she expected the 2nd and 3rd ratoon crops to garner a yield of 80 tonnes in total at the expected, published can price of Kshs. 1,730 per tonne.
46.The result is that the appeal partially succeeds. The awarded sum of Kshs. 231,590 is hereby set aside and in its place an award of Kshs. 138,400 is entered in favour of the respondent as against the appellant. That sum shall attract interest at court rates from the date of the filing of the plaint. Since the appeal has partially succeeded, each party shall bear their own costs.
47.Orders accordingly.
DATED AND DELIVERED AT KISUMU THIS 3RD DAY OF OCTOBER, 2025.H. A. OMONDI…………………………JUDGE OF APPEALL. KIMARU………………………JUDGE OF APPEALJOEL NGUGI…………………………JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR