South Nyanza Sugar Company Limited v Pelesia Adhiambo

and transport the cane upon maturity and pay the respondent its value. Page 2 of 11

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[2] The respondent pleaded that despite the cane maturing, the appellant unreasonably and negligently failed to harvest it, causing the crop to dry up in the farm thereby resulting in loss. She sought a declaration of breach of contract, compensation for the value of the unharvested cane at Kshs.1,730 per ton, costs, and interest at court rates. [3] The appellant countered the respondent’s case by filing a Statement of Defence in which while admitting the existence of the contract, it denied liability and averred that it was the respondent’s duty to properly plant, tend, and avail to it cane of satisfactory yield. It contended that the respondent failed to maintain the crop and therefore no harvestable cane was available, and that any loss suffered was solely attributable to the respondent’s neglect. The appellant further pleaded that the suit was vexatious, frivolous, incompetent, statute-barred, and an abuse of the court process. Finally, it averred that special damages had not been specifically pleaded and that general damages could not lie for breach of contract. Ultimately, it prayed for the dismissal of the suit in its entirety. [4] At the hearing, the respondent testified, reiterated the terms of the contract which the deceased had strictly complied with but which the appellant deliberately breached by failing to harvest the plant crop, Page 3 of 11

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which dried in the field, and as a result subsequent ratoon crops were not developed. She then prayed for the orders sought in the plaint. Page 4 of 11

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[5] The appellant in support of its defence called Richard Muok, its Senior Field Supervisor as a witness. He admitted the existence of the contract and stated that the plant crop had been harvested and paid for but the respondent had abandoned the ratoon crop. In the circumstances the appellant could not be held responsible for the loss if at all. [6] Upon due consideration of the evidence tendered by both sides, the trial court in its judgment found that the appellant had breached the contract by failing to harvest the first ratoon crop, which in turn compromised the development of the second ratoon crop. The court adopted the pleaded yield of 85 tones per hectare and the price of Kshs.1,730 per tone, and deducting therefrom transport and harvesting charges, awarded the respondent compensation for both ratoon crops, amounting to Kshs.190,570, together with interest from the date of filing suit until payment in full, plus costs of the suit. [7] Dissatisfied with the judgment and decree of the trial court, the appellant filed an appeal in the High Court of Kenya at Migori, “the first appellate”, contending, inter alia, that the trial court erred in law and fact in: holding that the respondent had proved her claim, finding that the appellant breached the contract by failing to harvest the first ratoon crop, awarding compensation for two ratoon crops, and Page 5 of 11

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in awarding interest from the date of filing the suit. Page 6 of 11

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[8] The first appellate court, after revisiting the pleadings, proceedings, evidence, and submissions, rendered judgment in which it held that the existence of the cane farming contract was not in dispute and that the appellant had indeed harvested and paid for the plant crop. However, on the issue of ratoon crops, it found that the appellant failed to issue the requisite contractual notice to the respondent alleging breach, and further failed to prove that the respondent had abandoned the ratoon crop. On the contrary, the respondent’s testimony demonstrated that the first ratoon was properly developed but was not harvested by the appellant. The court therefore concluded that the appellant was in breach of the contract for failing to harvest the first ratoon crop at maturity, which in turn compromised the second ratoon. [9] Ultimately, it affirmed the trial court’s award of compensation. It also upheld the award of interest by the trial court from the date of filing suit, noting that in claims for special damages, interest runs from the date of filing as the respondent had been deprived of the use of her money for a prolonged period of time. The appeal was in the end dismissed with costs. [10] Unsettled with the decision of the first appellate court, the appellant lodged the instant appeal arguing that the respondent’s suit Page 7 of 11

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before the subordinate court was incompetent, null and void as no valid grant of representation had been obtained by the respondent and the deceased Page 8 of 11

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had not been properly substituted therefor; in holding that there was indeed breach of contract by the appellant and awarding damages and interest thereof that were not specifically pleaded nor proved; for affirming findings of the trial court based on evidence that was fundamentally at variance with the pleadings, and for holding that the respondent had proved breach of contract without sufficient proof. [11] The appellant also disputed the figure of Kshs.190,570, for the two ratoon crops arguing that it was not established, and further contended that the respondent had a duty to mitigate loss, for instance by selling the cane to another miller or in the open market. [12] Additionally, the appellant contested the award of interest from the date of filing suit, claiming it was unreasonable and disproportionate given the age of the suit and the respondent’s delay in prosecuting it. Finally, the appellant faulted the first appellate court for relying on prior holdings in similar cases without independently evaluating the peculiarities of the present contract and evidence. [13] The appeal was heard by way of written submissions with limited oral highlights. When it came up for plenary hearing, Mr. Odero, learned counsel appeared for the appellant while Mr. Achola, learned counsel represented the respondent. Page 9 of 11

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[14] At the very commencement of the hearing of the appeal, counsel for the appellant pointed out that despite the several grounds of appeal raised the appeal turned on a single, central issue—namely, whether the respondent’s suit before the subordinate court was competent in law. Indeed, that was the only issue addressed in his written submissions. Consequently, we take it that the appellant abandoned all the other grounds of appeal. Accordingly, this is the only issue determinant of this appeal. In support of the issue, Counsel for the appellant argued that no grant of representation was ever filed or tendered in evidence to demonstrate that the respondent was the duly appointed personal representative of the estate of the deceased. He stressed that a mere description of the respondent as a personal representative of the deceased was insufficient without proof of a valid grant, and therefore the respondent prosecuted the suit in a capacity she did not lawfully possess. [15] He further contended that in the absence of lawful capacity to sue, all proceedings undertaken by the respondent before the subordinate court were incompetent and irredeemable. In support of this position, counsel relied on Coast Bus Service Limited v Samuel Mbuvi Lai [1997] KECA 278 (KLR). He pointed out that the deceased was the original plaintiff, but appeared to have died before Page 10 of 11

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the suit was filed. That he was never substituted with the respondent in accordance with Order 24 of the Page 11 of 11

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Civil Procedure Rules, and the alleged grant of representation was made long after the suit had already been filed, meaning it could not retroactively validate the proceedings. [16] On that basis, counsel urged the Court to find that the suit was incompetent ab initio, and that both the judgments of the two courts below were nullities in law. He submitted that the High Court, sitting as the first appellate court, erred gravely in failing to correct that defect, and invited this Court, as the second and final appellate court, to rectify the error and uphold the integrity of the law. The appellant accordingly prayed that the appeal be allowed, the judgments of both courts below be set aside, the respondent’s suit dismissed, and costs be awarded to the appellant both in this appeal and in the two courts below. [17] Counsel for the respondent in opposing the appeal submitted that the appellant’s position was misconceived. He contended that a grant of letters of Administration ad litem had indeed been availed in the trial court, and that the appellant’s own submissions acknowledged its existence. Counsel argued that the appellant was improperly attempting to raise new issues at the second appellate stage, which had not been pleaded or determined in the two courts below. He urged the Court to uphold the settled jurisprudence that new matters Page 12 of 11

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cannot be introduced for the first time on second appeal. In conclusion, counsel, maintained Page 13 of 11

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that the suit was properly instituted; that the appellant’s arguments on competence were misconceived; and that the appeal should be dismissed with costs. [18] We have anxiously considered the record, the grounds in support of the appeal, the rival submissions of counsel, and the law. We are conscious of our limited jurisdiction when dealing with a second appeal. Our understanding of the provisions of section 72(1) of the Civil Procedure Act, is that a second appeal only lies from the appellate decrees of the High Court, on matters of law only. Indeed, in Kenya Breweries Limited v Godfrey Odoyo [2010] eKLR (Civil Appeal No. 127 of 2007) Onyango Otieno, J.A. put it succinctly in the following words: “In a second appeal however, such as this one before us, we have to resist the temptation of delving into matters of facts. This Court, on second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.” [19] The sole issue raised by the appellant in this second appeal is the competence of the respondent’s suit before the trial court, specifically whether the respondent had the legal capacity to institute and prosecute the claim in the absence of a valid grant of representation. We note that and it is common ground that this issue was never Page 14 of 11

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pleaded and pursued in the trial court, nor was it made a ground of appeal before the first Page 15 of 11

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appellate court. Accordingly it is being raised for the first time in this second appeal. [20] The foundational authority in Kenyan jurisprudence explicitly prohibiting an appellant from raising a completely new point of law for the first time on appeal of whichever kind is the East African Court of Appeal decision in Alwi Abdulrehman Saggaf v Abed Ali Algeredi [1961] EA 767. This historic principle establishes that an appellate court will generally not entertain points of law that were not canvassed below, to prevent unfair surprise to the opposing party and to ensure the appellate court has the benefit of the lower court’s insights. The justification for that holding was that: “The appellate jurisdiction is conducted in relation to certain well-known principles and by familiar methods. The issues of fact and law are orally presented by counsel. In the course of the argument it is the invariable practice of the appellate tribunals to require that the judgements of the judges in the courts below shall be read. The efficiency and authority of a Court of Appeal, and especially a final Court of Appeal, are increased and strengthened by the opinions of the learned Judges who have considered these matters below. To acquiesce in such attempt as the appellants have made in this case is in effect to undertake decisions which may be of the highest importance without having received any assistance at all from the judges in the courts below.” [21] Further, this Court (in the words of Platt, JA.) in Wachira vs. Ndanjeru [1987] KLR 252 observed that: Page 16 of 11

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“…. the discretion to allow a point of law to be taken for the first time on appeal will not be exercised unless full justice can be done between the parties. It will not usually be allowed when to do so would involve disputed facts which were not investigated or tested at the trial. Nor will a party be allowed to raise on appeal, a case totally inconsistent with that which he raised in the trial court, even though evidence taken in that court supports the new case.” [22] Accordingly, a party cannot be permitted to raise a new point of defence for the first time on appeal, and to urge the Court to allow his appeal based on the same point, when the trial and first appellate courts had no opportunity to interrogate it and pronounce itself thereon. [23] It is a well-settled principle of civil law that parties are strictly bound by their pleadings, and a court cannot determine issues that were not formally pleaded. [24] The locus classicus for this rule is Galaxy Paints Co. Ltd v Falcon Guards Ltd [2000] eKLR, which held that cases must be decided on the issues on record and that courts err when they go on a frolic of their own to determine unpleaded issues. This position has been robustly reinforced in subsequent jurisprudence, most notably by the Supreme Court in Independent Electoral and Boundaries Commission (IEBC) v Republic [2018] eKLR, which reiterated that pleadings form the foundational boundaries of a lawsuit, and allowing Page 17 of 11

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a court to venture outside those boundaries violates the core tenets of adversarial litigation and fair trial. Page 18 of 11

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[25] In this appeal, the issue of capacity of the respondent to sue was never pleaded nor was it raised in the first appellate court, and therefore this Court cannot properly entertain it. [26] The appellant’s attempt to introduce the issue afresh at this stage is contrary to settled jurisprudence. The sole issue raised by the appellant fails. The appeal is accordingly dismissed with costs to the respondent. Dated and delivered at Kisumu this 25th day of September, 2026. ASIKE-MAKHANDIA ……………….………………… JUDGE OF APPEAL E.C. MWITA ……………….………………… JUDGE OF APPEAL B. ONGAYA ………………...……………… JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR Page 19 of 11

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