South Nyanza Sugar Company Limited v Omoke (Civil Appeal 305 of 2019) [2025] KECA 2180 (KLR) (28 November 2025) (Judgment)
Neutral citation:
[2025] KECA 2180 (KLR)
Republic of Kenya
Civil Appeal 305 of 2019
MS Asike-Makhandia, HA Omondi & LK Kimaru, JJA
November 28, 2025
Between
South Nyanza Sugar Company Limited
Appellant
and
Ezekiel Omambia Omoke
Respondent
(Being an Appeal from the Judgment and decree of High Court of Kenya at Migori, (Mrima J.) dated 8th August,2018 in HCCA No. 98 of 2017)
Judgment
1.This is an appeal lodged by South Nyanza Sugar Company Limited, “the Appellant”, against the judgment and decree of the High Court of Kenya at Migori (Mrima. J.) delivered on 8th August 2018 in Civil Appeal No. 98 of 2017. By dint of that judgment the High Court allowed the appeal lodged by Ezekiel Omambia Omoke, “the Respondent”, against the judgment and decree of the Senior Resident Magistrate’s Court at Rongo which had partially dismissed the appellant’s initial claim for damages for breach of sugarcane supply contract. In lieu thereof, the first appellate court allowed the claim and awarded him damages amounting to Kshs.2,312,640.
2.Dissatisfied with that decision, the appellant now challenges it before this Court on multiple grounds. It contends that the first appellate court erred in law and fact by: awarding speculative damages based on estimated yields without empirical proof; failing to appreciate that the respondent had not developed the ratoon crops, and that no evidence was adduced to support compensation for the two cycles; misapprehending the evidentiary record; relying on conjecture; and improperly exercising discretion in awarding interest from the date of filing of the suit rather than from the date of judgment. Additionally, the appellant raises a jurisdictional objection, arguing that the subordinate court lacked competence to entertain the original suit in view of Section 38 of the Crops Act, which prescribes dispute resolution mechanisms within the agricultural sector.
3.In light of these grounds, the appellant seeks that the appeal be allowed in its entirety.
4.The dispute traces its origin to a plaint filed by the respondent in the Senior Resident Magistrate’s Court at Rongo. The respondent in the suit sought judgment against the appellant for breach of contract, general damages, costs, and interest. He had averred that he entered into a Growers Cane Farming and Supply Contract with the appellant on 6th September 2013, for the cultivation and supply of sugarcane to the appellant from his 5.0-hectare parcel of land. The contract contemplated three crop cycles being; plant crop, Ratoons I, and II respectively. The respondent averred that he duly planted and maintained the plant crop to maturity, but the appellant failed to harvest it, thereby frustrating the development of the subsequent two ratoon crops. He estimated his total loss at Kshs.2,400,000, based on projected yields and prevailing market rates.
5.The appellant in its Statement of Defence denied the existence of the contract and asserted that, in any event, the respondent had failed to maintain the crop to the required standards. It further alleged that the contract if at all, was fraudulently obtained and that the respondent’s account number did not exist in its records. The appellant contended further that the respondent failed to plead and prove special damages with the requisite specificity, and that any claims for the ratoon crops were unsupported by evidence.
6.The suit proceeded before trial court wherein the respondent testified that he had developed the cane in terms of the contract using his own resources and had notified the appellant upon maturity of the cane for harvesting, but it was never harvested. He confirmed that no ratoon crops were developed thereafter due to the failure by the appellant to harvest the initial crop. Consequently, he sought appropriate compensation in terms of damages for breach of contract.
7.The appellant called, Mr. Richard Muok, a Senior Field Supervisor, who testified that the alleged contract, if at all, was not valid and that the alleged respondent’s account number did not exist in the appellant’s records. He also asserted that the contract book was fraudulently obtained and that it was not responsible for harvesting of the cane under the terms of a self-developed cane contract.
8.In its judgment the trial court partially found in favour of the respondent, holding that the appellant had breached the contract by failing to harvest the mature cane. The court accepted the respondent’s evidence that the plant crop had been properly developed and was ready for harvest, and that the appellant’s failure to act resulted in direct financial loss to the respondent. In computing damages, the trial court applied a yield rate of 63.82 tons per hectare at a market rate of Kshs.3,200 per ton, resulting in an award of Kshs.1,021,120 for the plant crop. However, the court declined to award damages for the two ratoon crops, on the basis that they had not been specifically pleaded in the plaint nor strictly proved by way of evidence. The trial court emphasized that special damages must be expressly claimed and substantiated, and that the respondent’s reference to ratoon losses in testimony could not substitute for proper pleading. The court also declined to entertain claims for consequential loss or speculative earnings, noting that such claims were unsupported by documentary evidence and fell outside the scope of provable contractual damages.
9.These latter two findings formed the basis of the first appeal by the respondent in the High Court of Kenya at Migori. The High Court, (Mrima, J.) upon hearing the parties to the appeal framed a single issue for determination as being whether the trial court erred in not awarding damages for the first and second ratoons having found that the appellant had breached the contract. In answering the question, the first appellate court held thus: “I have carefully and keenly read and understood the proceedings and judgment of trial court and as well as the grounds and the parties submissions on appeal. I have previously dealt with the issue in the appeal at the length in Migori High Court Civil Appeal NO.92 of 2015 James Maranya vs South Nyanza Sugar Company Limited (2017) eKLR where on the guidance of the Court of Appeal in Kisumu of Civil appeal 278 of 2010 John Richard Okuku Oloo vs South Nyanza Sugar Co. Ltd. (2013) eKLR, I found that in a contract similar to the one in this matter a farmer is not only entitled to the value of the proceeds from the plant crop but also from the ratoon crop.However, it all depend on how the party tailored its pleadings. In this case the appellant pleaded in paragraph 5 of the plaint that he “lost Ksh2,400,000/= worth of sugarcane of each crop cycle “. He then sought a declaration that the Respondent was in breach of the contract and damages for the breach of the contract. The contract was clear on the duration and expected yields. The appellant was to earn from the plant crop and two ratoon crops and as such he was entitled to such compensation …. there is no dispute that the expected yield for the ratoon was 40.36 tons per hectare. Likewise, there is no contention on the size of land and the prevailing cane prices. The appellant was hence entitled to judgment for the two ratoon crops at Ksh.1,291,520/=thereby bringing the total compensation to 2,312,640/=. These figures must however be subjected to transport and harvesting charges….” The first appellate court also awarded interest on the damages from the date of filing the suit and costs to the respondent.
10.Dissatisfied with the first appellate Court’s aforesaid decision, the appellant, initiated the present second and perhaps last appeal on grounds already set out elsewhere in this judgment.
11.When the appeal was called out for plenary hearing, Mr. Odero Henry, learned counsel appeared for the appellant, whereas Oduor Henry, learned counsel appeared for the respondent.
12.The appellant in the main, challenged the first appellate court’s judgment on two principal grounds: the award of Kshs.1,291,520 for each ratoon crop; and the award of interest on the damages from the date of filing the primary suit and the validity of the notice of appeal filed by the appellant, arguing that it was incompetent as it failed to comply with the requirements of Rule 85(2)(I) of the Court of Appeal Rules.
13.On the first issue, counsel for the appellant submitted that the first appellate Court erred in awarding Kshs.1,291,520 for each ratoon crop without evidentiary or contractual basis. He submitted that the court merely extrapolated expected yields and applied them across the respondent’s 5-hectare plot without verifying whether the ratoon crops had been developed or pleaded with precision. The appellant emphasized that the respondent had not pleaded, nor led evidence, to show that the failure to harvest the first crop compromised the development of the other ratoons. As such, the award for the two ratoon crops was speculative and contrary to the principles governing the award of special damages.
14.In support of this position, counsel cited Migori HCCA No. 47 of 2019 – South Nyanza Sugar Co. Ltd v Francis Aderi Dedege, where Chitembwe, J. held that damages for undeveloped ratoon crops cannot be presumed merely from the existence of a contract. The court emphasized that sugarcane farming is subject to multiple variables, and compensation must be based on actual development and proof of loss. Equally, he cited South Nyanza Sugar Co. Ltd v Mary Anyango (Civil Appeal No. 171 of 2019) [2024] KECA 694, where this Court cautioned against blanket awards based on theoretical yields, reiterating that damages must be grounded on pleaded facts and supported by evidence. Similarly, in South Nyanza Sugar Co. Ltd v Mboga (Civil Appeal No. 141 of 2019) [2025] KECA 546, the Court declined to award damages for ratoon crops where the farmer had not demonstrated actual development or pleaded the loss with specificity.
15.On the second issue, counsel challenged the award of interest from the date of filing the suit, arguing that such interest should only accrue from the date of judgment, when liability is determined and damages are assessed. The appellant submitted that the court awarded interest as a matter of course, without assigning reasons or establishing a legal basis for departing from the general rule.
16.To reinforce this argument, the appellant cited South Nyanza Sugar Co. Ltd v Oreko [2022] KECA 570, where this Court held that interest on unliquidated damages should ordinarily run from the date of judgment unless exceptional circumstances are shown. The appellant also relied on South Nyanza Sugar Co. Ltd v Peres Anyango, Civil Appeal No 215 of 2019 where the Court emphasized the need for judicial reasoning when awarding interest outside the standard framework.
17.In opposing the appeal, counsel for the respondent challenged the procedural competence of the appeal, arguing that the Notice of Appeal was incurably defective. He submitted that the notice was fatally defective and inconsistent as it referred to both the first appellate and the trial courts’ judgments, and failed to comply with Rule 85(2)(I) of this Court Rules. Citing the Supreme Court’s decision in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR, counsel emphasized that a valid Notice of Appeal is a jurisdictional prerequisite and cannot be substituted or cured by supplementary filings.
18.On the merits of the appeal, counsel submitted that the first appellate court properly reappraised the evidence and reached a reasoned conclusion. He relied on the case of John Richard Okuku Oloo v South Nyanza Sugar Co. Ltd [2013] eKLR, where it was held that a farmer is entitled to compensation for all contracted crop cycles being plant and ratoons, where breach by the miller frustrates performance. The Court further clarified that while special damages must be pleaded and proved, the degree of certainty depends on the nature of the claim. In that case, the Court found that pleadings on yield and price per ton were sufficiently specific to support an award, and that interest on such damages should run from the date of filing suit.
19.Counsel also referred to South Nyanza Sugar Co. Ltd v Awino Oreko, Kisumu (supra), where the Court affirmed that interest on damages for breach of cane contracts accrues from the date of filing of the suit, as the sums become due upon breach. He argued that the first appellate court’s reliance on the appellant’s own cane yield schedules and pricing circulars was not speculative but based on the appellant’s own documentation. That the appellant did not in any event, dispute the plot acreage, expected yield, or prevailing price per tone. He further noted that the appellant failed to cross-appeal the trial court’s award for the plant crop and raised no jurisdictional objection during trial, thereby submitting to the court’s authority. The respondent concluded by asserting that the appeal was procedurally defective and legally unmeritorious and prayed for its dismissal with costs.
20.This is a second appeal and before delving into its merits, we remind ourselves of our duty as a second appellate court which is to confine ourselves to matters of law only. It is not our duty to re-evaluate the evidence unless we are satisfied that the first appellate court failed to do so or misapprehended the evidence in a manner that occasioned a miscarriage of justice. See Kenya Breweries Ltd v Godfrey Odoyo [2010] eKLR.
21.This principle is further codified in Section 72(1) of the Civil Procedure Act, which limits second appeals to questions of law arising from the decision of the first appellate court. Accordingly, our mandate is to interrogate whether the first appellate court correctly applied the law in its reappraisal of the trial court’s findings.
22.Having carefully examined the record of appeal, parties’ respective written submissions, authorities cited and the law, four key issues arise for determination. First whether the notice of appeal is incompetent; second, whether the first appellate court erred in awarding damages for the two Ratoon crops; third, whether the award of interest from the date of filing the suit was legally tenable and fourth, whether the first appellate court misapprehended the evidentiary record.
23.On the first issue, the respondent has challenged the validity of the notice of appeal filed by the appellant, arguing that it was incompetent as it failed to comply with the requirements of Rule 85(2)(I) of the Court of Appeal Rules. He contended that the notice was convoluted, improperly titled, and did not clearly indicate that the appeal was against the judgment and decree of the first appellate court, thereby rendering the subsequent appeal incurably incompetent. He pointed out that the notice of appeal referred to the judgment and decree of the first appellate court as well as appeal arising from the judgment and decree of the trial court. That the notice was also intituled “in the High Court of Kenya at Migori”.
24.While these procedural concerns are not without merit, this Court is guided by the overriding objective that substantive justice must prevail over form, especially where no demonstrable prejudice has been occasioned to the affected party. In Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others (supra), the Supreme Court underscored the importance of procedural compliance but also recognized the Court’s discretion to cure defects in the interests of justice. The Court stated:
25.In the present appeal, the appellant filed a Notice of Appeal dated 5th December 2019 and subsequently lodged a Memorandum of Appeal dated 27th December 2019. The respondent was duly served and actively participated in the appellate process, including filing submissions and attending the hearing. While the drafting of the notice may have lacked precision, it did not mislead the parties or this Court as to the nature or scope of the appeal. Accordingly, we find that the procedural objection, though noted, does not go to the root of jurisdiction and is therefore not fatal to the appeal.
26.In any event under Rule 86 of the Court of Appeal Rules, if the respondent felt strongly that the notice of appeal was fatally defective, he ought to have moved the Court under this rule to have it struck out provided he honoured the timelines stipulated in the proviso to the rule. Having failed to do so, he is now barred from raising the issue now.
27.Turning to the merits of appeal, the appellant contends that the first appellate Court erred in awarding Kshs.1,291,520 for each ratoon crop without specific pleading or proof thereof. It is argued that the respondent did not develop the ratoon crops and that the award was speculative. However, the first appellate Court found that the contract contemplated three crop cycles and that the failure to harvest the plant crop frustrated the development of the subsequent ratoons. In John Richard Okuku Oloo v South Nyanza Sugar Co. Ltd (supra), this Court held that:
28.In the present appeal, the respondent specifically pleaded the expected yield per hectare and the prevailing market price. The first appellate Court relied on the appellant’s own cane yield schedules and pricing circulars, which were not disputed. The pleadings and evidence were sufficiently specific to support the award. Both courts below concurred that the plant crop was developed and ready for harvest. The first appellate Court merely extended the logical consequence of the breach to the ratoon cycles, which were contractually anticipated as the respondent would not have developed the 1st and 2nd ratoon crops if the first crop was not harvested as required of the appellant as per the contract. The appellant’s breach and failure to harvest the first crop directly impacted on the development of the subsequent ratoons. It cannot therefore be heard to say that there was no evidence that the respondent developed those ratoon crops. The development of subsequent ratoons was solely dependent on the harvesting of the first crop in order to give way to the development of the ratoon crops.
29.On the third issue, the appellant challenged the award of interest from the date of filing, arguing that interest should have accrued from the date of judgment. In South Nyanza Sugar Co. Ltd v Awino Oreko, (supra), the Court held that:
30.Similarly, in John Richard Okuku Oloo v South Nyanza Sugar Co. Ltd (supra), the Court awarded interest from the date of filing, recognizing that the farmer’s loss crystallized at that point. The first appellate Court’s decision aligns with this jurisprudence. The respondent’s claim was liquidated and based on contractual terms. It was specifically pleaded and proved. We accordingly find no legal error in the award of interest from the date of filing.
31.On the last issue, the appellant alleges that the first appellate Court relied on speculative calculations. However, the record shows that the Court adopted the same yield and pricing metrics used by the trial court for the plant crop. The figures were drawn from the appellant’s own documentation. In Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] KECA 606 (KLR) this Court noted that it will not interfere with the exercise of discretion by the court below unless satisfied that the decision is clearly wrong because of some misdirection, or because of failure to take into consideration relevant matter or because the court considered irrelevant matters and as a result arrived at a wrong conclusion, or where there is a clear abuse by the court of his discretion. Whenever a court exercises a discretion, there is always a presumption of correctness of decision which is reversible only upon showing of a clear abuse of discretion. We are satisfied that the first appellate Court’s assessment of evidence was beyond reproach. There was no misapprehension of evidence therefor as claimed by the appellant.
32.In conclusion, we find no error of law in the first appellate court’s judgment. The appeal is accordingly devoid of merit and is hereby dismissed with costs to the respondent.
DATED AND DELIVERED AT KISUMU THIS 28TH DAY OF NOVEMBER, 2025ASIKE-MAKHANDIA…………………………………JUDGE OF APPEALH.A. OMONDI…………………………………JUDGE OF APPEALL. KIMARU………………………………JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR