South Nyanza Sugar Company Ltd v Ongonga (Civil Appeal 178 of 2020) [2026] KECA 1507 (KLR)
The bottom line
#The Court of Appeal dismissed a sugar company's appeal, confirming Kenyan farmers can claim for both lost sugarcane crops plus interest from filing suit.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned judge decided the appeal based on issues not properly raised on appeal
- 2.Whether the learned judge relied on material which was not properly on record
- 3.Whether the respondent proved his case on a balance of probabilities
- 4.Whether the award of damages was justified in the circumstances
- 5.Whether the award of interest was lawful
Key legal issues
#Scope of a second appeal
The appeal was confined to the two matters raised by the appellant: the equivalent awards for each ratoon and the interest start date; the judge did not decide the appeal on impermissible unappealed issues.
Section 72 of the Civil Procedure Act limits a second appeal to matters of law. The High Court, sitting as a first appellate court, had an obligation to re-evaluate the evidence de novo, so considering issues afresh was permissible. The Kenya Breweries formulation was applied, and the Court found no perversity or reliance on matter not placed before the judge.
Compensation for loss of the second ratoon crop
The award of equal gross sums for each ratoon stood; failure to harvest the first ratoon inevitably compromised the development of the second ratoon, and particulars of acreage, expected yield and cane prices sufficed to sustain the claim.
The Court endorsed the first appellate court's reliance on established jurisprudence that where a miller fails to harvest a mature ratoon, compensation covers both ratoons. It rejected the 'more realistic' approach of Chitembwe, J in Dedege, noting that reasoning was debunked in Mary Anyango, where the contract obliged the company, not the farmer, to schedule harvesting visits.
Interest from date of filing suit
The award of interest from the date of filing suit under section 26 of the Civil Procedure Act was lawful; damages for breach became due though the precise amount was determinable only later.
The claim was liquidated and based on breach of contract. Section 26 confers discretion to order interest from the date of the suit to the decree. The Court found no justification to limit interest merely because the ultimate amount was not determinable at filing, and no basis to disturb the judge's discretionary award.
Liability and proof
The respondent proved the planting, maintenance and maturity of the first ratoon on a balance of probabilities; the appellant abandoned its defence and pursued the unpleaded jaggery allegation.
The Court juxtaposed the first appellate findings against the memorandum of appeal and found the judge, having considered the evidence afresh, reached a correct conclusion. The unpleaded assertion that the respondent sold cane to a jaggery was a non-issue, the appellant having abandoned its defence to advance it.
Legal principles established
#- In a second appeal under section 72 of the Civil Procedure Act, the Court of Appeal is confined to matters of law unless the lower courts considered matters they should not have, failed to consider matters they should have, or the decision is plainly perverse.
- A first appellate court must re-evaluate, re-assess and re-analyse the evidence on the record and give reasons for its own conclusions.
- Where a miller fails to harvest a mature first ratoon crop, the farmer is entitled to compensation for both the lost first ratoon and the consequential loss of the second ratoon, subject to the contract and pleadings.
- Mitigation of loss is a question of fact that must be specifically pleaded and proved by the defendant; it cannot be raised for the first time on appeal.
- Under section 26 of the Civil Procedure Act, the court has discretion to award interest on a money decree from the date of the suit, and an appellate court will not interfere unless the discretion was exercised on an erroneous principle or was plainly wrong.
- An appellate court will refrain from interfering with a trial judge's exercise of discretion unless the lower court proceeded upon an erroneous principle or was plainly and obviously wrong.
- Parties are bound by their pleadings; a defence never pleaded cannot be raised on appeal.
Court orders
#- 1.The appeal is dismissed
- 2.No orders as to costs, the respondent having not participated in the proceedings
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya (first appeal from Chief Magistrate's Court at Migori)
- null
- Jurisdiction invoked
- Section 72 of the Civil Procedure Act (second appeal confined to matters of law)
Relief refused
#Setting aside or varying the awards for the first and second ratoon crops
The High Court correctly affirmed the trial court's assessment based on acreage, KESREF yield report and cane price schedules
Reversal of the award of interest from the date of filing suit
The Court of Appeal had settled that interest in such claims runs from the date of filing suit and the trial judge's discretion was properly exercised
Costs
No orders on costs; the respondent did not participate in the proceedings, so each party bears its own costs of the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In a second appeal, the Court confines itself to matters of law unless it is shown that the courts below considered matters they should not have considered or failed to consider matters they should have considered or that the decision is plainly perverse.
where a miller fails to harvest a mature ratoon crop, the farmer is entitled to compensation for both the lost first ratoon crop and the consequential loss of the second ratoon crop, subject to the contract and pleadings
mitigation is a question of fact that must be specifically pleaded and proved by the defendant. Since the appellant neither pleaded nor led evidence on mitigation, it could not raise the issue for the first time on appeal
Accordingly, we find no merit in this appeal which is hereby dismissed.
As regards costs, we note that the respondent did not participate in these proceedings; consequently, we shall make no orders on costs.
Issues in the judgment
#Internal paragraph numbering is inconsistent: the number 23 is used three times and other numbers repeat, leaving gaps (e.g. jump from 22 to 33 and back to 23).
The delivery date reads 24th July 2026, which appears to be a typographical error given the internal references to 2024 and 2025 decisions.
The name of the third judge, L. Kimaru, is marked with an asterisk without explanation in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "South Nyanza Sugar Company Ltd v Ongonga (Civil Appeal 178 of 2020) [2026] KECA 1507 (KLR)", Case Analysis (2026). Second Appeal from Migori (High Court appeal judgment of 11 June 2020; originating suit in Chief Magistrate's Court at Migori). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1507/eng@2026-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.