Lesiolo Limited v Kenya Seed Company Limited [2017] KEHC 798 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CIVIL CASE NUMBER 72 OF 2012

LESIOLO LIMITED.............................................PLAINTIFF

-VERSUS-

KENYA SEED COMPANY LIMITED.............DEFENDANT

JUDGMENT

1. BACKGROUND AND PLEADINGS

The plaintiff is a company engaged in large wheat farming at Njoro within Nakuru County.

The defendant is engaged in production, marketing and selling of certified seed to farmers within the Republic of Kenya.

2. In February 2011 the plaintiff purchased “certified wheat” seed from the defendant for planting at a cost of Kshs.11,200,000/= at its farms at Menengai and Njoro within Nakuru County for the months April-May 2011 planting season at its about 2000 acres.

Upon planting in May 2011, the plaintiff states that only 40% of the seed germinated and upon the defendants visit and inspection of the farm, it took away the alleged defective seed and delivered 1000 bags of fresh certified seed to replace the alleged defective seed out of which the plaintiff paid for the extra 79 bags.

3. It is further alleged by the plaintiff that the defendant upon request failed to deliver certification documentation for the seed it sold to the plaintiff following which it angaged three independent seed certification agencies to test the failed seed. The findings where that the seed sold to the plaintiff by the defendant was defective, and not suitable for planting.

4. It is upon the above backdrop that the plaintiff filed this suit, alleged breach of contract and negligence against the defendant, and sought compensation for the loss in its plaint dated 8th March 2012 as follows:

SPECIAL DAMAGES

(a) Kshs.11,367,200/= loss for replanting 1039 acres at the Njoro farm and 100 acres in Menengai farm.

(b) Kshs.11,900,000/= being total loss from the Njoro farm.

(Total Kshs.28,404,196/=).

(b) General damages for breach of contract and costs of the suit and costs on (a), (b) and (c) above.

5. In its statement of defence dated 11th April 2012, the defendant denied all the plaintiff's allegations, but in the alternative admitted having sold what it called certified seed to the plaintiff contrary to its claim and attributed the seed's failure to germinate to the plaintiffs negligence in five areas thus:

a) Plaintiff the seed deep in the soil which hampered proper germination.

b) Planting the seed when there was no and/or low rainfall and insufficient moisture to sustain proper germination.

c) Re-ploughing and replanting the said farms before according the seed ample time to germinate properly.

e) Generally being negligent and employing improper farming practices hence causing improper germination of the seed.

6. The defendant further denied any loss or damage to the plaintiff from the aforesaid, and put the plaintiff to strict proof.

7. Both parties filed witness statements and bundles of documents in support of their respective rival cases. Expert seed testing and certification persons testified before me.

8. PLAINTIFF'S CASE

The plaintiff called four witnesses.

PW1 Frank Tundowas the plaintiff's Managing Director. His evidence was that in 2011, the company was farming 2000 acres at Menengai and 1500 acres at Njoro farms, that he purchased 400 bags of alleged certified wheat seed from the defendant for a sum of Kshs.11. 2 Million (PExt . 9) .

Upon planting, his testimony was that 60% of the seed did not germinate and upon informing the defendant for redress the defendant failed to do anything forcing him to engage three testing agencies and took various samples for testing in various laboratories. The result was that the seed was not viable for planting.

He produced photographs of the failed germination seeds at the various farms – PExt. 3A, 3B and 3C.

9. It was his testimony that the defendant failed to produce any seed certification certificates to confirm viability of the seed before selling to the plaintiff company in February 2011.

This witness further testified that upon inspection of the plaintiff's farms and crop, the defendant replaced the 921 bags of the bad seed and had to pay for an extra 79 bags, and that upon replanting, the seed germinated well.

10. He testified that as a result of the bad seed supplied by the defendant, the plaintiff suffered losses which he tabulated in the plaint as a special damage and costs of the leased farms, replanting costs, cost of fertilizer, fuel and other incidentals.

It was his testimony that the defendant failed to provide certification certificates to the company for the seed it sold to him in February 2011 and that the certificates it later produced when this suit was filed showed the seeds were bad seed, having been tested over two years before sale yet a certificate is valid for only one year.

11. PW1 further testified that upon getting no co-operation from the defendant, he engaged services of KEPHIS, Kenya Agricultural Research Institute(KARI) and E.A. Malting Ltd being accredited seed testing agencies to test the seed and upon such tests, the results were that the seed sold to the plaintiff was bad, dead and not viable for germination.

12. He produced the reports form KEPHIS and KARI PExt 3 and 5 that confirmed the seed was bad and dead.

He then attempted to prove the costs and special damages as stated in the plaint.

13. Upon cross examination PW1 testified that his fields were well prepared the same way he had done for 30 years, that the seed could not have been planted too deep as the process was mechanised, that however, he could not produce records of expenditure of the sum of Kshs.11,367,220/= stated in the plaint and that he did not obtain a loss and adjustment report from Ministry of Agriculture officials to ascertain the loss.

14. He further stated that he did not have any records to show the loss of profits due to the bad seed and the late replanting and drying costs.

15. The plaintiff's witness (PW1) summarised his losses as:

1) purchase of non germinating seed

2) purchase of replacement seed and fertilizer

3) cost of fuel and machinery to replant

4) Due to delay, it could not replant certain acrease which had already been leased for the year.

16. PW2 was Patrick Kirigia, a qualified seed tester, having been trained by the International Seed Testers Association. He tested seed samples from the plaintiffs farm that had failed to germinate at the East African Malting Limited Seed Laboratory in three batches to three different testing agents at:

(a) Kenya Plant Health Inspectorate Services (KEPHIS)

(b) Kenya Agricultural Research Institute(KARI) in Njoro

17. He testified that upon the seeds being subjected to testing processes recognised by the International Seed Testers Association (ISTA), the results were:

a) Batch I- percentage of average germination was 29%.

b) Batch 2 -germination percentage was 1%.

Following the above findings it was his evidence that the seed supplied by the defendant to the plaintiff for planting was not fit or viable due to the low germination being below the Kenya Bureau of Standards germination rates of at least 85%.

He produced a report dated 5th June 2011 – PExt 11 on his findings.

18. Upon cross examination it was his testimony that the defendant was not represented in the various testing agencies and that he did not invite it to the testing process. He could not explain why the defendant was not invited.

He however stated that Kenya Seed Company Ltd ought to test and certify the seeds before selling to farmers, and that the certificate is valid for one year after which it becomes bad and ought not be sold.

19. PW3 Johnson Kamwaga testified as an independent expert witness. He is a researcher at the Kenya Agricultural & Livestock Research Organization (KARO) where he is engaged in research on crops and livestock, and specifically on wheat and oil crops at the National Plant Centre. He holds a BSc. in Agriculture (UoN) and Master in Soil Fertility from University of Manitoba (USA), and previously working for KARI.

He prepared his report upon request by the plaintiff for advice over the wheat crop failure to germinate.

20. He testified that he visited the farms on the 30th April 2011 and attributed the failure to germinate of the seeds to poor health of the seed.

Upon testing the seed at their laboratory, it was his findings that the germination was very low. He produced his report – PExt 8(a) and 8(b) tabulating the different tests subjected on the seeds.

21. Upon cross examination the witnesses stated that KEPHIS is the agency that establishes seed testing centres and that certification certificates are issued by KEPHIS.

He owned up that he did not notify or invite the defendant's agents during the collection and testing of the seed.

22. He confirmed that KARI/KARO is an accredited seed tester and that other centres like Njoro is accredited under the umbrella body – KARI and that it has a fully equipped laboratory and personnel to test seeds.

23. PW4 was the Regional Manager at KEPHIS at Embu but at the material time was stationed at Nakuru. He is Jacob Chepchirchir Cheptaiwa. His evidence was that KEPHIS does seed testing for

(a) Purity analysis to confirm seed submitted is free from materials that are harmful.

(b) Germination test to confirm that the seed offered for salecan germinate.

24. He testified that KEPHIS capacity is based on Regulations and Rules under Act No. 326 of the Seeds and Plants Act.He took the court through the testing processes of official and private samples and upon testing that KEPHIS issues official results with certificates and lot numbers. He testified that a seed merchant is not allowed to sell seeds without a test certificate, but that upon request, a farmer can be allowed to buy seed awaiting the results after the seed is tested.

25. On the plaintiff's seeds, his testimony was that two samples were tested both for purity and germination That on purity, the result was 25% and 2nd sample on purity got 99. 9% and on germination got 0% on the seeds.

He produced two reports on the sample tests PExt 7(a) and (b). He clarified that for a seed to be viable for planting, it ought to have a 99% purity and 85% germination levels.

26. He further clarified that certificates issued by KEPHIS have a lifetime of one year, and a company ought to do validation tests after the one year period on the seed before selling it to farmers.

27. On cross examination the witness could not confirm whether the plaintiff followed the procedures for seed collecting or sampling nor did the plaintiff certify that the seed was from Kenya Seed Company.

He explained the methodology of seed testing in the report PExt 7(a) and 7(b).

He confirmed that the 2 samples presented to him for testing failed the validation test, but all the others passed the test and he issued and signed the certificates.

28. DEFENCE CASE

The defendant called two witnesses.

DW1 was Christopher Banda Odipo,working at the Defendants company in 2011, the material time, as the laboratory supervisor.

His evidence was that he received the plaintiffs seed for testing at the defendants company for validation. It was his evidence that upon testing he found it to have over 85% germination level.

29. He stated that the test done on 10th April 2011 showed the seed to be viable. He produced the report as DEXt 3. He also produced a testing report of the same seed form KEPHIS showing the seed was over 85% viable – DEx1, and testing certificates and seed analysis report – DExt 2, and that the seed was sold two months after testing. He denied the plaintiff's claim that the seed was not viable.

30. He took the court through the testing procedure upon which the certificates are issued – DExt 1 and DExt 2.

He also clarified that if seed is sold before certification, it is illegal and referring to PExt 12 – Delivery note of seed to the plaintiff (Lot No. 2057), he testified that the seed was delivered on 15th March 2011 and the tests were done in March and April 2011, and KEPHIS certificates were issued on 12th April 2011.

It is upon the above evidence that parties proceeded to file their respective submissions.

31. ISSUES FOR DETERMINATION

Each party stated its own issues. I have considered the same upon the backdrop of the pleadings and evidence tendered before the court. What emerges therefrom to be the salient issues, in my considered opinion are as follows:

(a) Whether the seed sold by the defendant to the plaintiff during the period February to May 2011 was liable in terms of purity and germination percentages.

(b) Whether the defendant was negligent and in breach of the contract of sale by selling dead/bad seed for the relevant period to the plaintiff and if so.

(d) Whether the plaintiff is entitled to compensation in special damages in the sum of Kshs.28,404,196/= and general damages.

(e) Costs.

32. ANALYSIS OF EVIDENCE AND FINDINGS

Though the defendant in its defence denied supplying the seeds to the plaintiff and the alleged losses, evidence adduced by both parties is evident that the defendant did indeed supply wheat seeds to the plaintiff during the month of February 2011 in readiness for planting in April-May 2011. This is admitted by the defendants witnesses.

33. It is not in dispute that some of the seed precisely 921 bags out of the total of 4000 bags purchased were taken back by the defendant after its inspection of the plaintiff's wheat fields and replaced on the 9th and 11th May 2011 and another 200 bags on the 11th May 2011. That forced the plaintiff to replant late and the late harvest necessitated the plaintiff to incur extra costs in drying the late harvested crop.

These undisputed facts form the basis of the plaintiffs claim in terms of the loss of profits from the failed crop and extra charges as a result.

34. The purchase price of Kshs.11,200,000/= Million was exhibited in PExt 9, and RTGS transmission of the same, a unit price of each bag of seed being Kshs.2,800/= . It is not disputed that the plaintiff paid the said sum being consideration for the 4000 bags of wheat seed.

35. Failure by the defendant to provide seed testing certificates to the plaintiff caused the Managing Director of the plaintiff to engage seed certification and testing agencies, Seed Certification and testing agencies, KEPHIS, KARI and E.A Malting Ltd to test the seeds to find out the quality and its viability and germination percentages as required by Law Cap 326 the Seeds and Plant Varieties Actbefore it could be sold.

36. PW4 KEPHIS regional Director testified that a seed must be tested for

(a) Purity, to confirm the seed is free from materials that are harmful.

(b) Germination to confirm that the seed offered by sale can germinate and

It was his testimony that such tests are based on regulations and Rules under the Act, Cap 236 as stated above.

37. The defendant failed to produce certification certificates for the relevant period, prior to the sell of the seed in February 2011-DExt 1 and 2. The certificates were signed and issued by KEPHIS in April and May 2011 after the plaintiff purchased the seeds. DW1 admitted that the certificates are valid for only one year and therefore within the time frame. DW1 further admitted that its DExt 2 showed that Seed Lot No. 2057had a germination capacity of 37% and as the minimum germination capacity ought to be 85%, there was no excuse for the seed to have been sold to the plaintiff. The conclusion therefore is that that lot No. 2057 was bad seed.

38. The evidence by PW2, PW3 and PW4 was collaborated by defence evidence of DW1 on viability of the seed, that it was bad and dead and it did not meet the minimum threshhold for germination capacity at 85%.

39. I have analysed the defence evidence that the plaintiff was negligent by “deep planting of the seed.” None of the defence witnesses called evidence to rebut the plaintiff 's evidence that the planting was mechanised, and that not all the seeds failed to germinate, as the none germination was scattered in patches of the farms which the defendants agents witnessed when they visited and carried back some of the seed 921 bags and replaced them. In itself, these actions confirm that the seeds first sold to the plaintiff in February 2011 were not viable and therefore not fit for planting.

40. The defendant further did not call any evidence to support its allegations of negligence in the other aspects against the plaintiff. Section 107-109 of the Evidence Act requires that any allegation of fact ought to be proved by evidence by the maker. The burden of proof lay upon the defendant to discharge . It did not.

See Civil Appeal No. 51 of 2013 Robert Ouma Njoya -vs- Benjamin Osano Ondoro (2016) e KLR Section 109states:

“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that poof of that fact lie on any particular person.”

41. The fact of inadequate rainfall was raised and pleaded by the defendant, it was its legal duty to prove that the rainfall was adequate, and the same goes for the allegation of poor planting, and poor storage.

42. I agree with the defendant's submission that the Seed and Plant Varieties Act, Cap 326 Sections 4(3) and 4(4) places the duty of testing seeds upon accredited bodies certified by KEPHIS.

A reading of the provisions of Section 4(3) and 4(4) the Act, I my view, presupposes a situation where, before a seller of seeds has sold the same, and when the intended purchaser wishes to ascertain the viability of the seed. Upon request, he may be allowed to purchase the seed.

43. It is to be noted that the seed sold to the purchaser (plaintiff) ought to have been certified before the sale as envisaged in the Act, and in this case certification of purity and viability ought to be provided prior to the purchase (Section 3B). The court was not told that the plaintiff requested, and was allowed to purchase the seed before certification.

No certificates were produced at all to attest to that fact that the seeds had been certified. Indeed the certificates produced by DW1 were signed after the seeds were sold, and they showed the seeds to have had only a 37% germination period as opposed to the statutory minimum of 85%.

KEPHIS as a seed testing authority tested the seed in question and gave it a per below average germination capacity.

44. Admittedly the plaintiff may not have procured a loss and adjustment report of an agricultural officer, but that does not preclude it from claiming loss arising from the defendants acts of omission and commission that in my view are compensatable, taking into account the unrebuttable negligence, loss and damage.

See Gladys Marjorie Akinyi -vs- Dorcas J Jahenda & Another (2015) e KLR.The plaintiff has shown the court how it was aggrieved by the defendants actions and the damage it suffered.

45. The defendants conduct in visiting the plaintiffs farms after the complaint of failed seed to germinate, and its taking away and replacing 921 bags out of the 4000 bags is clear admission of liability that part of the seed it sold was bad precisely 3079 bags of seed. Its failure too to prove by evidence any of its allegations of negligence against the plaintiff unsubstantiated leaves the plaintiff's case on negligence proved on a balance of probability. Miller -vs- Minister of Pensions, cited in D.T Dobie Co.(K) Ltd -vs- Wanyonyi Wafula Chebukati (2014) e KLRand that its farming practices were acceptable practices and that the only cause for the poor germination of the seeds was that the seeds were bad and dead as at 11th February 2011 when they were sold, contrary to legal provisions under the Seed and Plant Varieties Act Cap 326 and KEPHIS which is an accredited seed testing agency –Section 3B of the said Act.

46. In my considered opinion, the plaintiff did not have to prove that it had leased the two farms at Njoro and Menengai within Nakuru County. The defendant did not deny that it delivered the seeds by its vehicles or its agents vehicles to the said farms nor that its agents and officers visited the said farms to inspect the seed,nor that it carried away the bad seed of 921 bags for replacement and delivered to the said farms 1000 bags. This is therefore a none issue. (See delivery notes in PExt 2 and 12). To go into strict proof that the plaintiff had not leased or farmed on the said Njoro and Menengai farms would be going into technicalities that do not go into the substance of the case as opposed to looking at the merits.

SeeArticle 159(2) (d) of theConstitution and Section 1A, 1B and 3A of the Civil Procedure Act,and Court of Appeal decision in Standard Chartered Financial Services Ltd & Others -vs- Manchester of fitters (Suiting Division) Ltd & 2 Others (2016) e KLR.

It is not clear why the defendant failed to produce its generated report on the plaintiffs farm. That could only be construed to mean that the report may not have been favourable to its case.

47. In its totality, I am satisfied that the plaintiff has persuasively proved its case against the defendant in the matter of culpability to the required standards, upon a balance of probability. See Miller Case above Consequently, I find the defendant liable in negligence and damages but subject to strict proof of the same as pleaded as required under the law.

48. QUANTUMOF DAMAGES

It is trite law that a claim for special damages must not only be pleaded but also proved. The plaintiff claim is premised on a breach of contract of sale goods, resulting to losses and damage to the plaintiff – Capital Fish Kenya Ltd -vs- KPLC (2016) e KLR.

The financial loss incurred by the plaintiff as a result of the breach being the consideration and consequential losses paid for the bad/dead seed has to be considered and addressed. If proved, it ought to be allowed.

There is no dispute, nor was it denied that a unit price of one bag of seed was Kshs.2,800/= thus the cost of 4000 bags seed was Kshs.11,200,000/=. This sum was paid by RTGS(PExt 9). This too was not contested.

49. The evidence on record shows that 60% of the seed was bad seed, meaning 40% germinated well. It therefore follow that 60% of the consideration, being Kshs.6,820,332/= went to waste. On top of that, the plaintiff incurred extra costs as tabulated in the plaint.

Re-planting cost of 1039 acres

Loss of revenue form 175 acres

49. (a)As stated in the Court of Appeal decision Gitobu M'ibutu Karatho -vs- Christopher Muriithi Kubai (2014) e KLR, where breach of contract is clearly proved, an award of damages must follow.

Further in Kenya Wildlife Services -vs- Rift Valley Agricultural Contractors Ltd (2014) e KLR,the Court of Appeal held

“----that special damages must be proved and the fact that a party's loss was purely based on estimates was not a bar to awarding that which is proved after analysis what has been proved and what has not been proved.”

50. SPECIAL DAMAGES

Queuing from the above court of Appeal decision above, it is my duty to determine what has been proved and what has not been in respect of the pleaded special damages – See Paragraph 4 above.

The purchase price of the seed by the plaintiff from defendant, and payment of consideration was ably proved at Kshs.11,200,000/=.

That was the total price of Kshs.4000 bags of wheat seed.

I will sequentially deal with each loss as stated:

a) Out of the 4000 bags, 921 were taken back by the defendant, as bad seed. It thereafter re-supplied bad seed once again.

There is therefore a total loss of 921 bags at a price of Kshs.2800/=, thus total of Kshs.2,578,800/= per bag. This sum is satisfactorily proved. It is allowed. I do not agree with the plaintiffs submission that the total 4000 bags at Kshs.2,800/= per bag ought to be compensatable by way of general damages as it is pleaded as a special damage, and further that only 921 bags were returned as bad seed. No evidence was adduced that the rest of the seed failed to totally germinate. The alleged 60% bad seed was not proved.

b) Re-planting Costs:These costs though pleaded were not strictly proved. The plaintiff testified that he had no records of either of the costs of re-spraying, Re-planting or the harvesting costs. Civil Appeal No. 189 of 2014 at Nairobi in Capital Fish Kenya Ltd -vs- KPLC Ltd (2016) e KLR(Supra).

The learned Judges of Appeal failed to allow, on appeal from the High Court, a special damage caused by fluctuation and under voltage caused by damage to machinery and productivity. The loss was well tabulated but no receipts of the losses by way of invoices, audited accounts or way bills were produced to prove the special loss. It held that it was incumbent upon the claimant to specifically plead and prove the losses.

I have stated earlier that no documentary proof of the said losses were tendered. The plaintiff simply threw figures to the court without any credible evidence in support. See also Provincial Insurance Co. Ltd -vs- Moraekai Mwanga Nadwa KSM CACA 179 of 1995 (UR).

I am therefore unable to allow the replanting costs stated as Kshs.4,556,000/=.

c) Total loss of 175 Acres in Njoro (not re-planted).

Once again, no proof was tendered of this loss. As I have stated elsewhere above, no agricultural officer's loss and adjustment report or any other expert report was presented to court to prove the alleged loss.

As a special damage, it cannot be awarded without strict proof of the claim of Kshs.11,900,000/= as pleaded. See (b) above for explanation.

d) Costs of drying the late harvest wheat was pleaded as Kshs.5,136,976/=. This too has not been proved (by any tangible evidence. It is disallowed. No documentary evidence or other evidence was produced.

51. In its totality, the plaintiff performed below par in its attempt to prove the special damages as pleaded. The Court of Appeal case of Capital Fish Kenya Ltd (Supra)is quite comparable to the circumstances in this case. Though special losses were pleaded no proof whatsoever was tendered to prove the losses, by way of documentary evidence or otherwise. This is unfortunately the same situation facing the plaintiff herein. In his own evidence in chief PW1 testified that he could not prove any of the losses. He has only himself to blame.

He did not prove any of the items stated (b-d) as special damages save for the loss of 921 bags of seed at a cost of Kshs.2,800/= being Kshs.2,578,8000/=. This is the sum I shall allow as a special damages.

52. GENERAL DAMAGES FOR BREACH OF CONTRACT

The plaintiff's claim for general damages is premised on the direct and natural consequences of the breach.

It is based on the principle of restitution of the claimant to the position it would have been had the breach not occurred. However the breach must be proved.

The Court of Appeal dealt with the issue of damages for breach of contract in length in the following cases. Gitobu M'ibutu Karatho -vs- Christopher Muriithi Kubai (2014) e KLR and Gladys Morjorie Akinyi (Supra) as well as Provincial Insurance Co. Ltd (Supra).

The general principle running across all the authorities I have cited above is that no general damages may be awarded for breach of contract except in very exceptional circumstances.

53. In the Provincial Insurance Co. Ltd case, such exceptions were stated as:

a) Oppressive conduct

b) High handedness outrageous insolvent

c) or vindictive character and in such cases evidence has to betendered to bring it to the exceptions.

See also a Nigerian case of Marine Management Association & Another -vs- National Maritime Authority (2012) 18 NWLR 504quoted in the Provincial Insurance Co Ltd.

These are the general principles in law and widely applied in numerous decisions of the High Court as well as in the Court of Appeal.

I have interrogated the circumstances in this case. I find no special exceptions to warrant deviation from the general legal principles.

54. To award general damages to the plaintiff would be to unjustly enrich itself as the sum is claimed as a special damage, and which has not also been proved. The plaintiff in support of the loss by its submissions for the total cost of the 4000 bags of seed at Kshs.11. 2 Million would be in disregard of its own evidence that only 40% of the seed germinated, to the exclusion of the 60% that did not.

Order 2 rule 11(4) of the Civil Procedure Rules states

“Any allegation that a party has suffered damages and any allegation as to the amount of damages shall be deemed to have been traversed unless specifically admitted.”

55. A case belongs to the claimant. It is its duty to lead sufficient evidence to prove the claim and never the defendant to lead evidence to contradict the claimant's pleadings and evidence. It must prove its case on a balance of probability . The burden of proof is never shifted to the defendant. See also Section 107-109 of the Evidence Actthat:

“Whoever desires any court to give judgment as to any right or liability defendant on the existence of facts which he asserts must prove facts exist.”

In arriving at my findings above, I have analysed what the plaintiff has proved and what it failed to prove.

I am bound by the Court of Appeal decision in Kenya Wildlife Services -vs- Rift Valley Agricultural contractors Ltd (2014) e KLRabove in that regard.

56. In conclusion, the plaintiff has been able to prove a special loss of Kshs.2,578,800/= only.

57. Costs of a suit are in the discretion of the court and in any event to the successful party. See Section 27 of the Civil Procedure Act.

The plaintiff has partially lost its case not because it did not suffer loss and damages but because it was unable to prove the damages to the required standards set by law.

To that extent, the defendant shall pay costs of the suit to the plaintiff to the extent proved, i.e Kshs.2,578,800/=.

58. Consequently there shall be judgment entered for the plaintiff against the defendant as follows:

a) Special damages – Kshs.2,578,800/=

b) General damages - nil

c) Interest on (a) above on court rates from the date of filing of the suit.

d) Costs of the suit (See Par. 57 above).

Dated and Signed this 29th Day of September 2017.

J.N. MULWA

JUDGE

Delivered on this 12th Day of October 2017.

R. LAGAT KORIR

JUDGE