Equity Trust Fork Chronicles

Fork Chronicles – Equity and Trust Law: Madam Asiema Notes
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Contents
EQUITY LAW ............................................................................................................... 2
NATURE, HISTORICAL ORIGIN AND DEVELOPMENT OF EQUITY IN
ENGLAND ........................................................................................................................ 2
SYSTEMATIZATION OF EQUITY .............................................................................. 5
MAXIMS OF EQUITY .................................................................................................. 13
EQUITABLE REMEDIES ........................................................................................... 31
SPECIFIC PERFORMANCE ...................................................................................... 33
SPECIFICALLY ENFORCEABLE CONTRACTS .................................................. 35
CONTRACTS NOT SPECIFICALLY ENFORCEABLE ............................................... 38
DEFENCES TO AN ACTION FOR SPECIFIC PERFORMANCE ..................... 42
INJUNCTIONS .............................................................................................................. 49
PERPETUAL INJUNCTIONS..................................................................................... 52
INTERLOCUTORY INJUNCTIONS.......................................................................... 57
ENGLISH POSITION ON INTERLOCUTORY INJUNCTIONS ......................... 62
DEFENCES TO AN ACTION FOR AN INTERLOCUTORY INJUNCTION .... 67
APPLICATION OF EQUITY IN KENYA ................................................................... 68
LIMITATIONS TO THE APPLICATION OF EQUITY IN KENYA ...................... 70
EQUITY VERSUS AFRICAN CUSTOMARY LAW ............................................... 74
TRUST LAW ............................................................................................................... 76
HISTORICAL ORIGIN AND DEVELOPMENT OF THE TRUST ...................... 76
DEFINITION OF A TRUST ........................................................................................ 76
THE CONCEPT OF USE........................................................................................... 77
DISTINCTION BETWEEN A TRUST AND OTHER RELATIONSHIPS .......... 86
CLASSIFICATION OF TRUSTS ................................................................................ 95
EXPRESS PRIVATE TRUSTS ................................................................................. 101
THE THREE CERTAINTIES OF AN EXPRESS PRIVATE TRUST ............... 102
RESULTING, IMPLIED OR PRESUMPTIVE TRUSTS ..................................... 110
EXPRESS PUBLIC (CHARITABLE) TRUSTS ..................................................... 120
THE CYPRES DOCTRINE ....................................................................................... 130
At My Shadow Gallery
4th October 2018 Page 1
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EQUITY LAW
NATURE, HISTORICAL ORIGIN AND DEVELOPMENT OF EQUITY IN

ENGLAND
Definition of Equity: Equity has been defined as:

“Those principles of natural justice administered at first by the
King-in-Council, and later by the Chancellor, first as a member of
that Council and afterwards as an independent judge, to correct
and supplement the common law.”
The word “equity” is derived from the classical Latin word “aequitas”,
which means fairness or reasonableness. In its practical application,
“aequitas” signified the following of the spirit of the law, as opposed to
the strict letter. It connoted reasonable modification of the letter of the
ordinary law.
According to Hanbury and Maudsley, Modern Equity (16th Edition, Sweet
& Maxwell), page 3,
“Equity is a word with many meanings. In a wide sense it means
that which is fair, just, moral and ethical; but its legal meaning is
much narrower. Equity is the branch of law which, before the
Judicature Act of 1783 came into force, was applied and
administered by the Court of Chancery.”
From the foregoing, Equity therefore has two meanings:
1. Ordinary or popular meaning
2. Technical meaning
Ordinary Meaning
Equity in the ordinary sense is equivalent to natural justice, morality or
fair play.
Technical Meaning
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Equity in the technical sense refers to the body of rules or principles

which are not and are distinct from the common law. It is a body of rules
or principles which form an appendage to the general rules of law.
Historical Origin and Development of Equity in England

Before the evolution of equity, common law was the prevalent law in
England. Common law developed over the years through case law. It was
administered in the old royal courts by the King’s justices. There were
three common law courts, namely:
1. The Court of King’s Bench: This court takes its name from the
original concept of the monarch sitting with his judges “in banco”, that is
“on the bench”. It dealt with both civil and criminal cases in which the
King had an interest.
2. The Court of Common Pleas: This court heard civil cases brought by
one individual or citizen against another.
3. The Court of Exchequer: This court’s principal jurisdiction dealt with
cases involving the royal revenue. Later it acquired jurisdiction in cases
of debt between one citizen and another citizen. It eventually took many
cases of debt which should have been heard in the Court of Common
Pleas.
Rigidity of Common Law

The common law was rigid because before a person could get redress for
his grievance, he had to be issued with a writ disclosing a cause of
action. The King’s Chancellor issued this writ. Being an ecclesiastic, the
Chancellor was the “keeper of the King’s conscience” and represented the
“moral attitude” of the Crown.
Fetters to the Common law
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The common law courts were fettered by precedent. In addition, a statute

referred to as the Provisions of Oxford of 1258 restrained the Chancellor
from issuing new types of writ on his own initiative. These fetters
prevented the common law from developing fast enough to do justice in
all cases.
Moreover, in the rough days of the 13th century, a plaintiff was often
unable to obtain a remedy in the common law courts even when he
should have, owing to the strength of the defendant, who would defy the
court or intimidate the jury.
Petitions to the King

Due to the constraints of the common law, plaintiffs began to petition
the King in Council to exercise his extraordinary judicial powers on one
of two grounds, either: (a) that there was no remedy available; or (b) that
there was a failure to administer the available remedy. Thus, where the
rigidity of the common law worked unfairly or provided no remedy, an
appeal was made to that higher justice called “equity”, which resided in
the King, as the “fountain of all justice.” The King’s residuary power
permitted him to temper the inflexibility of the ordinary law and to do
justice according to reason, good faith, good conscience and the current
ideas of morality, when he was petitioned to do so. Equity was therefore
developed to mitigate the defects of ordinary law.
Establishment of the Court of Chancery

The practice of petitioning the King continued, giving rise to the
establishment of a Court of Chancery as an institution independent of
the King and his Council. Equity may therefore also be defined as “those
principles of natural justice administered at first by the King-in-Council,
and later by the Chancellor, first as a member of that Council and
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afterwards as an independent judge, to correct and supplement the

common law.”
In the middle Ages, the Chancellor’s jurisdiction was undefined. He
exercised his powers on the ground of conscience. In theory, conscience
was based on universal and natural justice rather than the personal
opinion or conscience of the Chancellor. In practice, however, the
standards varied with each Chancellor, hence the phrase “Equity is as
long as the Chancellor’s foot.”
The Chancellor pronounced a remedy where the common law did not
provide for one. For example, the common law courts had no power to
order specific performance or grant an injunction. The Chancellor would
also provide a remedy where a common law rule produced substantial
injustice in a particular case due to some unforeseen set of facts. Justice
required that the rule be amended or modified. If the rule could not be
amended or modified, justice required that there be a new rule to
mitigate the harshness and severity of the common law rule.
This new body of rules is what came to be known as equity. The rigidity
and deficiency of the common law led to the evolution of equity. In this
sense, equity can be seen as supplementing or filling in the gaps left by
the common law.
Equity is distinguishable from the general body of law and from the
common law, in particular, not because it seeks to achieve a different
end, since both equity and the common law seek to achieve justice.
Rather, equity is distinguishable because it appears at a later stage of
legal development.
SYSTEMATIZATION OF EQUITY
With time, Chancellors began to apply the same principles in all cases
instead of following the inclination of the moment necessitated by
circumstances under the notion of conscience. The Court of Chancery
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also became more highly organized. More judicial officers were appointed
and a Court of Appeal in Chancery was established. What had begun as
an irregular process of petitioning the Crown in extraordinary
circumstances had become a regular system of courts with a recognized
jurisdiction.
Rigidity of Equity
The systematization of the rules of equity in turn produced rigidity (“rigor
aecquitatis”). They became as fixed as those of the common law. One of
the most famous Chancellors, Lord Eldon (1801-1827) said the following
in Gee v. Pritchard (1818) 2 Swans 402 at 414:
“The doctrines of this court ought to be as well settled, and made

as uniform almost as those of the common law, laying down fixed
principles, but taking care that they are to be applied according to
the circumstances of each case. I cannot agree that the doctrines
of this court are to be changed with every succeeding judge.
Nothing would inflict on me greater pain, in quitting this place,
than the recollection that I had done anything to justify the
reproach that the equity of this court varies like the Chancellor’s
foot.”
It must not therefore be assumed that every injustice was the subject of
equitable intervention. Initially, it was never certain when equity would
apply since the Chancellor’s powers were wide but vague. Eventually, the
Chancellor had to rely on well-settled principles of equity. As per Jessel,
M.R. in Re National Funds Assurance Co. (1878) 10 Ch.D 118 at 128:
“This is not, as I have often said, a Court of Conscience, but a Court of
Law.” According to the Court of Appeal in Re Diplock [1948] Ch. 465 at
481: If the claim being made did exist,
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“it must be shown to have an ancestry founded in history and in

the practice and precedents of the courts administering equity
jurisdiction. It is not sufficient that because we may think that the
‘justice’ of the present case requires it, we should invent such a
jurisdiction for the first time.’
Harman, L.J. said the following in Campbell Discount Co. v. Bridge
[1961] 1 Q.B. 445 at 459:
“Equitable principles are, I think, perhaps rather too often bandied
about in common law courts as though the Chancellor still had
only the length of his foot to measure when coming to a
conclusion. Since the times of Lord Eldon the system of equity for
good or evil has been a very precise one and equitable jurisdiction
is exercised on well-known principles.”
The law of equity is therefore more concerned with the technical rather
than the ordinary meaning of equity. Any definition of equity must have
regard to two things, namely, firstly, form and history, and, secondly,
substance or principle of equity. However, it is to be noted that today
some aspects of equity are strict and technical, while others leave
considerable discretion to the court.
Equity versus Natural Justice

It is not entirely accurate to define equity solely in terms of natural
justice. The principles of equity administered in the courts are distinct
from the rules of natural justice. When the rules of natural justice
enforced by the courts are examined, it will be seen that many of them
are rules of the common law, many others are statutory, and some are
derived from ecclesiastical and other sources. Only a small fraction of the
whole can be said to be rules of equity in the technical sense. Therefore,
equity in the technical sense encompasses more than the traditional
rules of natural justice.
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Disadvantages of Separate Courts of Common Law and Equity

The Court of Chancery which was established following the
systematization of equity was separate from the three common law
courts – King’s Bench, Common Pleas and Exchequer. Soon the practice
of having different courts became cumbersome and inconvenient. Often
in the course of the same litigation, parties were driven to and fro
between common law and equity courts. For example, the common law
courts had no power to order specific performance or grant an
injunction. On the other hand, the Court of Chancery could not award
damages. A plaintiff who had obtained a judgment in his favor in a
common law court could be prevented from enforcing it by an injunction
granted by the Court of Chancery because in the opinion of the latter
court, the plaintiff obtained the judgment unfairly. This practice had
earlier evoked the bitter hostility of the common law courts, until the
dispute was resolved in favor of the Court of Chancery by King James I
after the Earl of Oxford’s Case (1615 1 Rep. Ch. 1 and App.; Holdsworth
H.E.L. Vol. 1 pp. 459-469.
Mitigation of the Disadvantages

Some of the disadvantages of having separate courts were mitigated by
the common law courts themselves. For instance, when a rule of equity
differed from a common law rule, the common law courts applied the rule
of equity in order to save the parties the expense of separate proceedings
in equity. However, this would be done only when it was plain in the
proceedings at common law what equity would do.
Other disadvantages were mitigated piecemeal by statute. For example,

the Common Law Procedure Act 1854 gave the common law courts a
limited power of granting injunctions. The Chancery Amendment Act
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1858, commonly known as Lord Cairns’ Act, gave the Court of Chancery
power to award damages either instead of, or in addition to, an
injunction or specific performance. The situation was therefore ripe for a
merger of the three common law courts and the Court of Chancery.
Merger of Common Law and Equity Courts: The merger was

accomplished through the enactment of the Judicature Acts of 1873
and 1875. The main purpose of these Acts was to amalgamate the
numerous courts into one Supreme Court of Judicature.
Consequently, the Queen’s Bench, Common Pleas, Exchequer, Court of

Chancery and Court of Appeal in Chancery were all replaced by one
Supreme Court consisting of:
1) the Court of Appeal; and

2) the High Court
The High Court had five divisions:

1) Queen’s Bench
2) Common Pleas
3) Exchequer
4) Chancery
5) Probate Divorce and Admiralty
These were reduced to three by the 1880 Order in Council. The three
were:
a) Queen’s Bench, replacing the King’s Bench, Common Pleas and
Exchequer;
b) Chancery; and
c) Probate Divorce and Admiralty.
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By the Administration of Justice Act 1970, Probate, Divorce and

Admiralty became the Family Division. Admiralty matters were taken to
an Admiralty Court within the Queen’s Bench Division.
The Supreme Court Act 1981 affirmed the three divisions, namely:
1) Queen’s Bench;
2) Chancery; and
3) Family Division
The Supreme Court was directed to administer both law and equity.
Rules of equity remained distinct from those of the common law but both
systems were administered in the same courts. As per Lord Cairns, “The
court is now not a court of law or a court of equity; it is a court of
complete jurisdiction.” Pugh v Heath (1882) 7 App Case 235 at 237. In
the words of Pollock in Leading Cases Done into English (1892), p. 57:
“The courts that were manifold dwindled to diverse divisions of one
(court).”
For the sake of administrative convenience, cases were allocated to the

Divisions according to their general subject matter. The Kenyan court
system derived from this English system.
Contribution of Equity to English Law

Equity has made the following contributions to English law:
1) Trusts and settlements in respect of property
2) The doctrine of “undue influence” in respect of contracts
3) Property for the separate use of married women which the common
law did not recognize
4) Superior remedies, e.g. specific performance and injunction
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Classification of the Jurisdiction of Equity

The jurisdiction of equity can be divided into three classes:
1) Exclusive jurisdiction –new rights. This category refers to the
rights that the Court of Chancery created which the Common Law
courts failed to enforce e.g. trusts, mortgages, partnerships,
administration of estates, bankruptcy.
2) Concurrent jurisdiction – new remedies. Equity developed a

wide range of remedies for the enforcement of common law rights
which were available in addition to the remedies provided by the
common law. This jurisdiction therefore covered cases which were
known to the common law, but which the Court of Chancery would
also adjudicate on, e.g. doctrine of estoppel (promissory and
proprietary estoppel at common law and in equity). The remedies
are e.g. specific performance, injunction, an order for an account.
3) Axillary jurisdiction –new procedure. The Court of Chancery

created procedural rules relating to e.g. discovery of documents,
testimony on oath, subpoena of witnesses and interrogation (now
referred to as disclosure, witness summons, requests for further
information).
Equity did not come to replace or supplant the common law but to assist
it as per the words of Lord Eldon in Lord Dudley v Lady Dudley (1705)
Pre. Ch. 241:
“Equity is no part of the law, but a moral virtue, which qualifies,
moderates and reforms the rigor, hardness and edge of the law,
and is a universal truth; it does also assist the law where it is
defective and weak…and defends the law of crafty evasions,
delusions and subtleties, invented and contrived to evade and
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delude the common law…Equity therefore does not destroy the law
nor create it but assist it.”
Equity is as long as the Chancellor’s foot. John Selden, Talk of John
Selden (ed. Pollock, 1927) quoted in Holdsworth, H.E.L., pp. 467-468:
“Equity is a roguish thing. For law, we have a measure…equity is
according to the conscience of him that is chancellor, and as that
is longer or narrower, so is equity…Tis all one as if they should
make the standard for the measure a chancellor’s foot.”
Distinction between Equity and Common Law
Per John A. Finch, Baron Finch of Fordwich (17 September 1584 – 27
November 1660), an English Judge and Speaker of the House of
Commons: The difference between the common law and equity is that:
“At common law you are done for at once. In equity you are not so
easily disposed of. The former is a bullet which is instantaneous
and charmingly effective. The latter, is the angler’s hook, which
plays its victim before it kills him. Common law is prussic acid
(cyanide), equity is laudanum.”
Per Sir William Blackstone (1723-1780), on the limitations of equity and
its discretionary nature (Public Courts of Common Law and Equity,
Volume Three, Chapter Four):
“Law without equity, though hard and disagreeable, is much more
desirable for the public good than equity without law, which would
make every judge a legislator and introduce most infinite
confusion, as there would be almost as many different rules of
action laid down in our courts as there are differences of capacity
and sentiment in the human mind.”
Excerpt from A.K.R. Kiralfy, Potter’s Outlines of English Legal History

(5th Ed.) p.1
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“English law is like a river. The channel widens and deepens as it

flows through the course of years and tributaries join it from time
to time. It was first fed by the springs of the common law, but the
fountain of equity and the wells of the law merchant and
ecclesiastical law have increased the waters of the growing
current…The English law is practical, not theoretical, pragmatic,
not dogmatic; it is built up day by day by the courts in deciding
disputes between living people and with full knowledge of the effect
the decision of the court will have on their destinies. The
legislature…must deal with wholly new situations not covered by
the older judge-made rules, but Parliament can only enact abstract
propositions of law; it is for the courts to translate them into
reality.”
MAXIMS OF EQUITY
There are certain general principles upon which the court of equity
exercises its jurisdiction. Many of these principles have been embodied in
the so-called “maxims of equity.” Some of the maxims overlap. A
particular maxim may contain by implication what another maxim
contains. These maxims do not cover all the situations in equity.
The most notable maxims are as follows:

1) He who seeks equity must do equity.
2) He who comes to equity must come with clean hands.
3) Equality is equity/Equity is equality.
4) Equity looks to the intent/substance rather than the form.
5) Equity regards as done that which ought to be done.
6) Equity acts in “personam”.
7) Equity will not assist a volunteer.
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8) Equity will not suffer a wrong to be without a remedy; where there

is a wrong there is a remedy (“Ibi jus ibi remedium”).
9) Equity does not act in vain.
10) Delay defeats equity; equity aids the vigilant and not the
indolent (“Vigilantibus non dormientibus jura subveniunt”).
11) Equity follows the law (“Acquitus sequitur legem”).
12) Where the equities are equal, the first in time shall prevail.
13) Where there is equal equity, the law shall prevail.
1. He who seeks equity must do equity
This maxim means that a person who comes to seek the aid of a court of
equity to enforce a claim must be prepared to submit in such
proceedings to any directions which the court may deem fit to give. He
must do justice as to the matters in respect of which the assistance of
equity is sought. The plaintiff must be prepared to do equity in its
popular sense of what is right and fair to the defendant. For instance, a
person seeking an injunction will not succeed if he is unable or unwilling
to carry out his own future obligations. This maxim is the foundation of
the equitable doctrine of election.
Illustrations of this maxim are as follows:
1. Contracts of employment and strikes
Chappell v The Times Newspapers Limited [1975] 2 All E.R. 233

The plaintiffs sought an interlocutory injunction to restrain their
employer from terminating their contracts of employment after a strike.
The court refused to grant the injunction because the plaintiffs refused
to give an undertaking not to engage in activities that were disruptive to
their employer’s business. The Court of Appeal stated that in seeking an
equitable remedy, the plaintiffs had to be prepared to do equity. By
refusing to give an undertaking not to disrupt newspaper production,
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they were in effect telling the employers that they must keep to their part
of the contract even though the plaintiffs were not themselves ready or
willing to keep to theirs. Accordingly, the plaintiffs were not entitled to
the relief claimed.
2. Illegal Loans
Lodge v. National Union Investment Company Limited (1907) 1 Ch.

300 B borrowed money from M and mortgaged certain securities to M. M
was not a registered moneylender as required by law. The transaction
was therefore illegal and void. B sued M for delivery up of his securities
on this basis. The court refused to make the order unless B repaid the
loan. Since B was seeking equitable relief, he had to do what was right
and fair that is, first repay the money owed by him to M.
Contrast: Kasumu v. Baba-Egbe [1956] A.C. 539 at 549.

The Privy Council in this case stated that the case of Lodge “cannot be
treated as having established any wide general principal that governs the
action of courts in granting relief in moneylending cases.” See also
Barclay v. Prospect Mortgages Ltd [1974] 2 All ER 672
Although courts do not enforce illegal contracts today, the case of Lodge
v. National Union Investment Company Limited is still important as
an illustration of the early application of the above maxim.
3. Consolidation:
Pledge v. White [1896] A.C. 187. This applies where a person has lent
money and is entitled to two mortgages made by the same mortgagor.
The lender may consolidate the mortgages and refuse to permit the
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mortgagor to exercise the equitable right to redeem one mortgage unless

the other mortgage is redeemed as well.
4. Notice to redeem mortgage:
A mortgagor who wishes to exercise his right to redeem his mortgage

before the due date of redemption must give his mortgagee reasonable
notice of his intention. Reason: This gives the mortgagee reasonable time
to find some other investment before payment is made by the mortgagor.
The mortgagor would otherwise be required to pay interest in lieu of
notice.
5. Election:
Where a donor gives his own property to E and in the same instrument
purports to give E’s property to X, E will be unable to claim the whole of
the gift to him unless he allows the gift to X to take effect. This is referred
to as the doctrine of election.
6. Equitable estoppel:
There are two types of estoppel, namely, promissory and proprietary
estoppel.
Promissory Estoppel
Promissory estoppel arises where by his words or conduct, one person, A,
makes some representation or promise to another person, B, and B relies
on that representation or promise and acts to his (B’s) detriment. Here,
equity will preclude A from resiling from his representation or promise.
For instance: If a landlord tells his tenant towards the end of the term
that he intends to demolish the leased premises after the term expires,
the landlord cannot subsequently claim damages from the tenant for
leaving the premises unrepaired or failing to re-decorate the premises at
the expiry of the term. See: Marquess of Salisbury v. Gilmore (1942) 2 KB
38.
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Also, if a landlord agrees to accept a reduced rent and the tenant acts on
this agreement to his detriment (e.g. he spends the extra money), the
landlord cannot thereafter demand the full rent. See: Central London
Property Trust Limited v. High Trees House Ltd (1947) KB 130. See
also: Combe v. Combe (1951) 2 KB 215
Notice to resile from the promise

The promisor can resile from his promise by giving the promise notice so
that the promisee has a reasonable opportunity to resume his former
position. It is only if resumption of the former position is impossible that
the promise becomes final and irrevocable. See: Ajayi v. R.T. Briscoe
(Nigeria) Ltd (1964) 1 WLR 1326 at 1330.
In the case of Tool Metal Manufacturing Co. Ltd v. Tungsten Electric
Co. Ltd (1955) WLR 761, it was Held: That where a patentee grants a
licence to a manufacturer in return for certain periodic payments and
later agrees not to enforce the payments, he may nevertheless again
enforce the payments when a reasonable time has elapsed, after giving
notice of his intention to do so. To the extent that the promisor can resile
from his promise on giving notice, promissory estoppel at equity is
temporary. In contrast, promissory estoppel at common law is
permanent.
Proprietary Estoppel
Proprietary estoppel arises where one person, A, knowing that another
person, B, is acting under some mistaken belief that he (B) has some
right to A’s property, actively or passively encourages B’s acts. Here,
equity will restrain A from acting contrary to the belief on which B has
acted. A will thus be precluded from denying B’s supposed rights in A’s
property.
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Promissory estoppel at equity may be temporary and merely provides a

defence (shield). On the other hand, proprietary estoppel is permanent in
its effect and can confer a substantive right of action (sword). Four
conditions must, however, be satisfied for proprietary estoppel to apply:
(a) Expenditure
B must have incurred expenditure or otherwise prejudiced himself. E.g.
B may have spent money on improving property which in fact belongs to
A, for instance, by building a house on A’s land. See: Inwards v. Baker
(1965) 2 QB 29.
(b) Mistaken Belief

B must have acted in the belief, and A must have actively or passively
encouraged B to believe either that he (B owns a sufficient interest in the
property to justify the expenditure, or that B will obtain such an interest.
See: Michaud v. City of Montreal (1923) 129 LT 417; Inwards v. Baker.
Thus if B improves A’s land believing that A will grant B a sufficient
interest in it, A cannot then evict B on the ground that no rent or price
has been agreed upon and therefore that there cannot be a contract
between them. See: Duke of Devonshire v. Eglin (1851) 14 Beaver 530.
(c) Conscious Silence

A must have known that B was incurring expenditure in the mistaken
belief, and that A was entitled to object but nevertheless stood by or
participated in the expenditure without enlightening B. See: Hopgood v.
Brown (1955) 1 WLR 213.
(d) No bar to Equity

No proprietary estoppel will arise in equity if enforcing the right claimed
would contravene a statute. See: Chalmers v. Pardoe (1963) 1 WLR 677.
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Contrast: Ward v. Kirkland (1966) 1 WLR 601 at 631.
2. He who comes to equity must come with clean hands

The distinction between the first maxim, “He who seeks equity must do
equity” and the second maxim, “He who comes to equity must come with
clean hands” is that the first maxim applies to a future obligation while
the second maxim refers to the past conduct of the plaintiff. E.g. A
tenant whose lease has been forfeited by the landlord for non-payment of
rent cannot expect relief against forfeiture if he has committed a breach
of covenant such as using the leased premises for a purpose other than
that allowed under the lease.
✓ Gill v. Lewis [1956] 2 Q.B. 1 at 13, 14 & 17
✓ Mountford v. Scott [1975] Ch. 258
✓ Litvinoff v. Kent (1918) TLR 298
✓ Hubbard v. Vosper [1972] 2 QB 84
The plaintiff must not only be prepared to do what is right and fair (as in
the previous maxim), but he must also show that his past record in the
transaction is clean, for "He who has committed Iniquity…shall not have
Equity.” See: Jones v. Lenthal (1669) 1 Ch. Ca. 154
Limit to this rule:

Where the plaintiff’s breach was only trifling or where he has broken a
much less important covenant than the one he seeks to enforce, the
maxim will not apply.
✓ Besant v. Wood (1789) 12 Ch.D 605
✓ Chitty v. Bray (1883) 48 LT 860
✓ Meredith v. Wilson (1893) 69 LT 336
✓ Hooper v. Bromet (19030 89 LT 37; affirmed: (1904) 90 LT 234, CA
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The unclean conduct of the plaintiff should be closely connected with

the relief being sought. In the case law, Duchess of Argyll v Duke of
Argyll [1967] Ch. 302 at 332; [1965]1 All ER 611 at 626; [1965] 2 WLR
790, The Duchess and Duke of Argyll had been married and were
divorced. During their marriage, they had exchanged certain confidential
information. After the divorce, the Duke sought to publish the
information. The Duchess applied for an injunction to restrain the Duke
from publishing the information, i.e. to restrain a breach of confidence by
her husband. The Duke argued that his wife had committed adultery and
was the cause of the divorce and in view of this the court should not
grant her the relief she sought. The court Held: That the wife’s alleged
conduct had no connection with her application for an injunction and
allowed her application. The court remarked that her conduct did not
license the husband “to broadcast unchecked the most intimate
confidences of earlier and happier days.”
NOTE: What bars the success of the plaintiff’s claim by using the maxim
is not a general depravity but rather, a depravity which has an
immediate and necessary relation to the equity sued for. The depravity
must be a depravity in a legal as well as moral sense. The maxim must
therefore not be interpreted too widely as allowing any unclean conduct
to defeat a plaintiff’s claim. “Equity does not demand that its suitors
shall have led blameless lives.” Per Brandeis J. in Loughran v. Loughran
(1934) 292 US 216 at 229
3. Equality is Equity/Equity is Equality

This maxim applies to a situation where two or more persons are entitled
to the same property. An important principle of equity which is
illustrated by this maxim is that in the absence of sufficient reasons
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for any other basis for division, those who are entitled to property
should have the certainty and fairness of equal division.
Equality in this sense does not mean literal equality but proportionate
equality. Equity therefore seeks to effect a distribution of property and
losses proportionately to the several claims or liabilities of the persons
concerned. This maxim has been applied in relation to property in a
variety of ways:
A. Presumption of a tenancy in common

Equity leans in favor of a tenancy in common as opposed to a joint
tenancy. In a joint tenancy, when one joint tenant dies, the whole estate
belongs to the surviving joint tenant. The estate of the deceased inherits
nothing. There is no equality here. Equity will, therefore, in a number of
instances, treat persons who are joint tenants at law as tenants in
common. Although at law the survivor is entitled to the whole estate, he
will hold in part as trustee for the estate of the deceased.
Three of these instances are as follows:

A (i) Purchase in unequal shares
If A and B purchase property with purchase money provided by both of
them in unequal shares, and they hold the property as joint tenants, on
A’s death, B becomes entitled to the whole of the property at law. In
equity, however, B is treated as a trustee for A’s estate proportionately to
the share of the purchase money contributed by A. Had the purchase
money been contributed in equal shares, B would have been entitled to
the whole property in equity and at law. This is because where two
purchasers contribute the money in equal shares, they may be
presumed to have purchased with a view to the benefit of survivorship.
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A (ii) Purchase in equal shares: Severance of joint tenancy

Even where the property is vested in the parties as joint tenants in equity
as well as at law, e.g. where they contribute money in equal shares,
equity will treat the joint tenancy as severed so as to exclude the
incidence of survivorship.
A (iii) Partnership property

Where partners acquire property, they are presumed to hold it as
beneficial tenants in common.
B. Equal division
As stated above, the maxim will be applied whenever property is to be
distributed between rival claimants and there is no other basis for
division. Illustrations:
B (i) Husband and Wife

The court will, after a divorce, refuse to dissect meticulously the joint
bank account which both the husband and wife drew upon and paid
their income into. Meticulous dissection here refers to division of funds
in the account proportionately to the amount drawn or deposited by each
spouse. The court will therefore divide the balance equally between the
spouses. Note: This principle does not apply where the husband and wife
are still living together. Reason: Their rights in a joint bank account are
not meant to be affected or interfered with by the court.
B. (ii) Trusts
Where property has been settled in unequal shares with a provision that
any share which fails to vest shall accrue to the other shares by way of
addition, the accrual takes place in equal shares and not in the
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proportions laid down by the settlor for the original shares. See: Re
Bower’s S.T. [1942] Ch. 97 This is the case notwithstanding that
equality is attained at the price of altering the proportions prescribed by
the settlor. See: A Critique in (1942) 58 L.Q.R. 311.
B. (iii) Copyright
Where an author bequeaths the manuscript of a work to A and the
copyright to B, and publication of the work is made possible only by
using the manuscript, the proceeds of sale of the copyright will be
divided equally between A and B. See: Re Dickens [1935] Ch. 267. For
another example of the operation of the maxim, see: Re Kavanagh
(1949) 66 T.L.R. 65.
4. Equity looks to the intent/substance rather than the form

The court makes a distinction between matters of substance and form.
Whenever there is a contradiction between the two, equity presumes that
matters of substance prevail over matters of form. This maxim can be
applied to trusts. For a person to create a trust, it is not necessary to use
technical words. The intention to create a trust can be inferred from
conduct. A court of equity will hold the existence of a trust even if the
word “trust” is not mentioned. E.g. “I hope he will hold the property
safely for my son’s benefit.” The court looks at the substance rather than
the form.
Another illustration is the equitable remedy of rectification where the

court, in ordering rectification of an instrument, looks at the intention of
the parties as per their agreement so that the instrument correctly
reflects and records their intention or agreement. See: Webster v. Cecil
(1861) 30 Beav. 62
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5. Equity looks upon as done that which ought to be done

This maxim is applied mostly to contracts, particularly agreements for
lease. Equity treats a contract to do a thing as if the thing were already
done. It does so only in favor of persons entitled to enforce the contract
specifically and not in favor of volunteers. E.g. if there is an agreement
for a lease of property and the lease requires to be registered, equity will
presume that the agreement is valid, notwithstanding the absence of
registration. See:
Walsh v. Lonsdale (1882) 21 Ch.D 9

FACTS: The defendant, a landlord, entered into a written agreement to
grant the plaintiff (tenant) a lease of a mill for 7 years. The agreement
provided that rent was payable in advance if the tenant so wished. The
law provided that if a grant for a lease exceeded 3 years, in order for it to
be enforceable, a deed must be prepared (i.e. a lease as distinguished
from an agreement). In this case, there was no deed. The tenant also
paid rent in arrears, not in advance. The landlord demanded the year’s
rent in advance. It was not paid and the landlord sought to obtain
possession of the premises. The tenant argued that the landlord’s suit to
recover possession of the premises was illegal as no 7-year lease had
been granted and therefore the agreement was not in accordance with
the law. As such, he was not bound to pay the rent demanded by the
landlord.
HELD: The agreement for the lease was as good as the lease itself. The
court would treat as done that which ought to be done.
Distinction between English law and Kenyan law regarding the

application of Walsh v. Lonsdale
Souza Figuerido v. Moorings Hotel (1960) EA 926
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FACTS: By a lease, the respondent landlord let certain premises to the

appellant tenant. The applicable law required such a lease, being for a
period of more than 3 years, to be registered. A lease was drawn but was
not registered. The tenant defaulted in payment of rent and the landlord
sued for recovery thereof. The tenant argued that he should not pay the
money as the lease was unenforceable since the provision requiring
registration had not been complied with.
HELD: An unregistered lease cannot create any interest, right or confer
any estate which is valid against third parties. However, the
unregistered lease operates as a contract inter partes, is valid as
between the parties and can therefore be specifically enforced. The
tenant was therefore liable to pay the arrears of rent.
The Kenyan position modifies or limits the application of the maxim. The
agreement for lease or unregistered lease, as the case may be, is not
equated with the registered lease, but is regarded as a contract between
the parties which gives a right to either party to sue for specific
performance of the contract.
Other English Cases

1) Zimbler v. Abrahams [1903] 1 KB 577
2) Gray v. Spyer [1922] 2 Ch. 22 (CA)
3) Manchester Brewery Company v. Coombs [1901] 2 Ch. 608
6. Equity acts in personam
A court of equity operates primarily “in personam” and not “in rem”. A
right in rem is a right in a specific piece of property. A right in personam
is a right that can be enforced only against a specific person rather than
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a thing. Originally, the court of Chancery did not itself interfere with the
defendant’s property. Instead, it made an order against the defendant
personally. If the defendant failed to comply with the order, the court
punished him for his disobedience by committal for contempt. In this
way, equity acted in personam. The same case applies today both in
England and Kenya.
However, in some cases, imprisonment was ineffectual to compel a

defendant to comply with an order of the court of equity. Accordingly, the
court of Chancery got the power to issue a writ of sequestration, under
which sequestrators were appointed to take possession of the property in
dispute, and eventually of all the defendant’s property, until he did the
act which he had been ordered to do.
This power of enforcing orders by committal of the defendant or

sequestration of property has been supplemented by statute. See: The
Civil Procedure Rules on Execution of Decrees and Orders. (The rules
refer to attachment rather that sequestration.)
Although at present equity is not confined to acting in personam, its

jurisdiction is still primarily over the defendant personally. It is therefore
immaterial that the property in question is not within the reach of the
court, provided that that the defendant himself is within the court’s
jurisdiction. Accordingly, in the leading case of Penn v. Lord Baltimore,
specific performance was ordered in respect of an agreement relating to
boundaries of land in America, with the defendant being in England.
Penn v Lord Baltimore (1750) 1 Ves Sen. 444

FACTS: The plaintiff and defendant had entered into an agreement as to
how the boundaries of certain lands were to be drawn. The land was in
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the USA (Baltimore, Maryland), while both the plaintiff and defendant
resided in England. The suit was filed in England. The defendant argued
that the court in England had no jurisdiction since the subject matter of
the dispute was in the USA.
HELD: that the defendant was nevertheless liable to perform his part of
the agreement. The court reasoned that the person on whom the order
was made, the defendant, was in England. In this way, the court acted in
personam.
7. Equity will not assist a volunteer/Equity favours a purchaser for

value without notice
A volunteer in this sense is a person who has not paid consideration for
a gift or property. As a general rule, a court of equity will not give any
assistance to a person who has not paid valuable consideration. It will
only grant an equitable remedy to a purchaser for value without notice.
The remedy of specific performance, for instance, can only be granted to
a person who has paid valuable consideration.
Exceptions to the application of this maxim

Trusts
Claimants of rights under a trust constitute an exception to the
application of this maxim. Trusts are a creation of equity. In a trust,
property is conveyed by the donor to the trustee to hold on trust for the
beneficiary even though the beneficiary has not paid any consideration. A
beneficiary can seek the assistance of the court of equity to order a
trustee to convey property to that beneficiary.
8. Equity will not suffer a wrong to be without a remedy

“Ibi jus, ibi remedium” (If there is a wrong, there is a remedy for it.)
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The meaning extracted from this maxim is that no wrong should be

allowed to go unredressed if it is capable of being remedied by courts of
justice. It must not, however, be assumed that every moral wrong should
be redressed by equity. The maxim refers only to rights which are
suitable for judicial enforcement, but were not enforced at common law
owing to some technical defect.
E.g. Enforcement of a trust: Where A ( a donor) conveyed land to B (a
trustee) to hold on trust for C (a beneficiary), and B kept the benefit of
the land for himself, C had no remedy at law. Yet such an abuse of
confidence was clearly a wrong capable of redress in a court of justice.
The court of Chancery therefore applied this maxim to enforce the trust
in favor of the beneficiary.
9. Equity does not act in vain

The court of equity will not grant a remedy which cannot be enforced.
This also applies where there has been a change of circumstances such
that the remedy is rendered nugatory or is overtaken by events e.g. “force
majeure”.
10. Delay defeats equity; Equity aids the vigilant and not the
indolent
“Vigilantibus, non dormientibus, jura subveniunt”

A court of equity “has always refused its aid to stale demands where a
party has slept upon his right and acquiesced for a great length of time.
Nothing can call forth this court into activity, but conscience, good faith
and reasonable diligence; where these are wanting, the court is passive
and does nothing.” As per Lord Camden in Smith v. Clay (1767) 3 Bro.
C. 639n at 640n Delay which is sufficient to prevent a party from
obtaining an equitable remedy is called “laches”.
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This maxim does not apply to equitable claims to which the Limitation
of Actions Act (Cap 22) applies, either expressly or by analogy.
Express Limitation: The act itself contains provisions on equitable
claims which are subject to limitation.
Implied Limitation/Limitation by Analogy: where a claim is not
expressly covered by any statutory period but is closely analogous to a
claim which is expressly covered, equity will act by analogy and apply the
same period. The class of cases to which the Act will be applied by
analogy is, however, extremely small. In all cases where the Act applies
expressly or by analogy, delay which is within the statutory limitation
period will not be a bar to a claim whether legal or equitable.
The doctrine of Laches

Laches essentially consists of the lapse of time coupled with the
existence of circumstances which make it inequitable to enforce the
claim. For instance, delay will be fatal to a claim for equitable relief if the
plaintiff has so acted as to induce the defendant to alter his position on
the reasonable faith that the claim has been released or abandoned. See:
Allcard v. Skinner (1887) 36 Ch.D 145
Ignorance, disability (lack of legal capacity), undue influence will be a

satisfactory explanation of delay and will not bar a plaintiff from
obtaining equitable relief. In addition, laches, unlike estoppel, is a
personal disqualification and will not bind successors in title. See:
Nwakobi v. Nzekwu [1964] 1 WLR 1019. Delay may also bar claims for
equitable remedies such as specific performance, rescission, rectification
and injunctions other than final injunctions to which a party is entitled
as of right.
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Delay-Action not barred:

Williams v. Greatrex [1957] 1 WLR 31; [1956] 3 All ER 705 The plaintiff
(purchaser) brought an action for specific performance of a contract
made 10 years previously. HELD: The purchaser was entitled to specific
performance of the contract notwithstanding the 10-year delay.
Delay-Action barred:
Lolkilite ole Ndinoni v. Netwala ole Nebele (1952) 19 EACA 1
The appellant was the son of a deceased who was alleged to have
committed homicide- he had killed another person. Some 35 years later,
a claim was made in the Native Tribunal for compensation for the killing.
The Native Tribunal rejected the claim but the Supreme Court supported
it. The Court of Appeal, however, HELD, inter alia: That it is repugnant
to natural justice to entertain a claim of this nature after so long. Note:
This maxim does not apply to cases to which the Limitation of Actions
Act (Cap 22) applies, either expressly or by analogy.
11. Equity follows the law (“Acquitus sequitur legem”)
This maxim means that equity treats the common law as laying the
foundation of all jurisprudence and it does not necessarily depart from
legal principles. Where a statutory or common law rule is direct and
governs the case, equity applies the rule of law as the appropriate
system. In such cases, the rules of law are in fact binding in equity as
they are in common law.
Where equity has to regulate the equitable interests which it has created,
it acts, so far as possible, on the analogy of the legal rules applicable to
the corresponding legal interests. It is only when there is some important
circumstance disregarded by the common law that equity interferes.
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Equity follows the common law as regards limitation of action. It applies

the Limitation of Actions Act as a bar to equitable claims either by way of
analogy or because the Act is binding on a court of equity.
12. Where the equities are equal, the first in time shall prevail
13. Where there is equal equity, the law shall prevail
These two maxims govern questions of the priority of rival claimants to
the same property in equity. See: SNELL (26th Ed.) Chapter 4 pp. 46-71
Illustrations:
1) Mortgages and charges
2) Purchasers of property (land) each of whom is claiming a prior
right to purchase the property
EQUITABLE REMEDIES
Equitable remedies have three features or characteristics:
1) They are discretionary.
2) They are remedies in personam.
3) They are granted only where the common law remedy of damages
is inadequate
1. Discretionary
The court looks at the conduct not only of the defendant but also the
plaintiff in exercising its discretion to grant or refuse an equitable
remedy. The court also takes into account circumstances surrounding
the case. The court will therefore refuse to grant relief to a plaintiff:
1) who had unclean hands; or
2) who was not willing to do equity; or
3) who slept on his rights; or
4) Whose claim would produce unfair results
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In addition, if a plaintiff has an adequate remedy at law that in itself will

be a ground for refusing equitable relief. This is perceived as part of the
discretionary nature of equity.
2. Equity acts “in personam”

Primarily, equity acts on the person rather than on the subject matter.
The defendant is ordered to perform his part of the obligation failing
which he is charged with contempt of court. See: Penn v. Lord
Baltimore (1950) 1 Ves. Sen. 444 ; [1558-1774] All E.R 99 Richard West
& Partners (Inverness) Ltd. v. Dick [1969] 1 All E.R. 289; affirmed [1969]
1 All E.R. 943; [1969] 2 Ch. 424 C.A.
3. Equity cures the inadequacies of the common law

Equitable remedies are granted where the common law remedy of
damages is inadequate to compensate a plaintiff for his loss or injury.
The rigidity of the common law also contributed to its inadequacy.
Equity therefore evolved to provide a diversity of remedies to supplement

the common law and cure its inadequacies. In the words of Barton, J. in:
Gilligan v. National Bank Limited [1901] 2 I.R. 513 at 542: A
remarkable feature of equity is “the ability and willingness of equity to
grant elastic remedies…. which were not obtainable at law.”
Two characteristics are discerned from the above quote:

(a) elastic, ability and willingness – discretionary nature
(b) not obtainable at law – inadequacy/rigidity of the common law which
equity cures.
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SPECIFIC PERFORMANCE
The remedy of specific performance is an order of the court requiring the
defendant to carry out his obligations under an instrument according to
its terms, e.g. a contract of sale/agreement for sale. However, not all
contracts are specifically enforceable. The contracts are therefore divided
into two categories, namely, contracts which are specifically enforceable
as a general rule and contracts which are not specifically enforceable.
Even in the case of contracts that are specifically enforceable, the court
may exercise discretion and decline to grant specific performance. The
discretion is, however, exercised on well settled principles.
Specific Performance a Discretionary Remedy

As a general rule specific performance is only available where the
common law remedy of damages is inadequate. Therefore, equity will
not interfere where damages at law will give a party full compensation to
which he is entitled and will put him in a position as beneficial to him as
if the agreement had been specifically performed.
On the other hand, there are also cases where the court will not grant
specific performance even if the remedy of damages is inadequate. The
court may take into account certain matters such as the conduct of the
plaintiff or the hardship which an order of specific performance would
inflict on the defendant. This is because specific performance is a
discretionary remedy. The discretion is a judicial discretion which
must be exercised on well settled principles.
Specific Performance a Remedy in Personam

In Penn v. Lord Baltimore, Lord Hardwick, L.C. granted specific
performance of an English agreement relating to boundaries between
Pennsylvania and Maryland, USA, despite the fact that the property was
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outside the jurisdiction of the court. The defendant was within the
court’s jurisdiction. Similarly, in Richard West’s case, specific
performance was granted in respect of a contract for the sale of land
outside the court'’ jurisdiction against a defendant within the
jurisdiction. The land was in Scotland.
Parties to an Action for Specific Performance

It is only parties to the contract or their representatives who can sue or
be sued for specific performance. In a contract for the sale of land, for
instance, only the seller or buyer can be sued. However, if the seller has
agreed to sell land to a purchaser and subsequently sells to a third party,
then unless the third party shows that he was a bona fide purchaser for
vale without notice, he should be joined as a co-defendant.
Ensuring Observance
Equity as distinguished from the common law can be characterized as a
proud system of law – it does not want to be embarrassed. One way in
which a court can be embarrassed is if it issues an order and that order
cannot be observed or enforced. To avoid possible embarrassment,
equitable remedies, in general, and specific performance, in particular,
will never be granted by the court unless the court is sure that they will
be observed or enforced – that the defendant is in a position to comply
with the court order. This is based on the principle that “equity does not
act in vain.” See: Tito v. Waddell (No. 2) (1977) Ch. 106
Positive Contractual Obligations

Specific performance is ordered for the enforcement of positive
contractual obligations. This is similar to a mandatory injunction which
orders the defendant to take positive steps to undo an act done or to do
an act omitted to be done in breach of a contract. It is different from a
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prohibitory injunction which restrains a defendant from committing an

act in breach of a negative contractual agreement. Where a plaintiff
wishes to enforce a positive contractual obligation, he may sue for an
injunction instead of specific performance. The advantage of such a
course is that an injunction can be obtained on an interlocutory basis
while specific performance cannot. Note, however, that specific
performance cannot issue against the Government. See: the
Government Proceedings Act (Cap 40 S.16). The proper remedy here
would be a declaration.
SPECIFICALLY ENFORCEABLE CONTRACTS
1. Contracts relating to Land

This is the most common situation where the court grants specific
performance. The contract may be for the sale of land or the grant of a
lease, charge or mortgage of land. Land is property which has a fixed
location. It is of special or unique value as no two pieces of land are
alike. It is therefore accepted as a general rule that an award of
damages is not adequate compensation for the purchaser or lessee. The
court, treating each person equally, will also give specific performance to
the vendor or lessor, even though in most cases damages would be
adequate. See: Cogent v. Gibson (1864) Beav. 557. If, for instance, a
vendor fails to comply with an order of specific performance, the
purchaser may apply to the court for an order nominating another
person to execute the conveyance/transfer in the vendor’s name.
2. Contracts relating to Personality/Chattels

In the case of chattels, the rule is that the court will not grant specific
performance unless it is shown that damages recoverable at law will not
in the particular case afford a complete remedy. This exception applies
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to a contract for the sale of an article of unusual value, beauty or rarity.

Below are illustrations: Unique value: damages inadequate – specific
performance granted: See:
1) Falcke v. Gray (1859) 4 Drew 651 (Two china flower vases)
2) Thorn v. Commissioners of Public Works (1863) 32 Beav. 490
(Stone from the old Westminster Bridge)
3) Phillips v. Lamdin [1949] 2 KB 33 (Adam door in a house)
Behnke v. Bede Shipping Co. [1927] 1 KB 649 at 661
The judge made an order for specific performance of a contract for the
sale of a ship, being satisfied that the ship was of “peculiar and
practically unique value to the plaintiff”.
Sky Petroleum Ltd v. V.I.P. Petroleum Ltd [1974] 1 All ER 594;
[1974] 1 WLR 576
A contract had been entered into where the plaintiff company would buy
all the petrol needed for its garages from the defendant company and the
defendant would supply the plaintiff with all its requirements. The
defendant, alleging breach, purported to terminate the contract in
November 1973, at a time when petrol supplies were limited so that the
plaintiff would have little prospect of finding an alternative source. An
interlocutory injunction was granted to restrain the withholding of
supplies.
The judge acknowledged that it amounted to specific performance but

HELD: That the court had jurisdiction to order specific performance of a
contract to sell chattels, although they were not specific or ascertained,
where the remedy of damages was inadequate. Further, the usual rule
that specific performance was not available to enforce contracts for the
sale of chattels was well established; but it was based on the adequacy of
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damages, and was therefore not applicable to the present case, where the
plaintiff might be forced out of business if the remedy was not granted.
No unique value: damages adequate – specific performance refused:

See:
Cohen v. Roche (1827) Ch. 169

The plaintiff agreed to purchase from the defendant a set of 8 Hepple
white chairs. The judge refused to order specific performance and
instead awarded damages on the ground that the chairs were ordinary
articles of commerce and were of no special value or interest.
In the case of a contract to deliver “specific or ascertained goods” within

the meaning of the Sale of Goods Act (Cap 31, S. 52), the court is given
the power to order specific performance of such a contract either
unconditionally or upon such terms as it may think fit. This power is
discretionary and it must be shown that damages are inadequate. In
Cohen v. Roche, the contract was for the sale of specific goods, but the
court nevertheless refused to grant specific performance.
3. Where the contract is to pay money to a third party
Unless specifically enforced, damages awarded will probably be nominal.

See: Beswick v. Beswick (1968) AC 58 Peter Beswick was a coal
merchant who wished to retire from the company. He made
arrangements with his nephew under which the business would be
transferred to the nephew. It was agreed that Peter would be employed
as his consultant. Peter was to be paid a wage of Stg 5 a week and after
his death, the payments were to be made to his widow for her life.
Payments were made to Peter but after his death no payments were made
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to his wife. The widow sued both as administratrix and in her own right
under the contract. The defendant contended that the agreement was for
the payment of money and was not the type of contract whose breach is
usually remedied by a decree of specific performance. The House of
Lords nevertheless HELD: That she was entitled, at least as
administratrix, to specific performance. The court said: “The court
ought to grant a specific performance order all the more because
damages are nominal. She had no other effective remedy.”
4. Where there is a contract for a secured loan (mortgage) and

money is lent before the mortgagor executes the mortgage
instrument
Specific performance may be obtained by the mortgagee to enforce

execution of the mortgage instrument. The remedy of damages would
clearly be inadequate here.
5. Where a contract is with a company to take up and pay for

debentures
The contract is specifically enforceable under the Companies Act (Cap

486).
CONTRACTS NOT SPECIFICALLY ENFORCEABLE

There are certain contracts which equity will not specifically enforce, as a
general rule. The following are examples:
1. Contracts requiring constant supervision

The general rule is that a court will not order specific performance of a
contract to do continuous successive acts which would require constant
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supervision by the court to ensure that the decree is obeyed. Reason:

Supervision would be impracticable and since “equity does not act in
vain”, the court will not issue a decree when it is not certain that the
decree can be enforced. See: Ryan v. Mutual Tontine Westminster
Chambers Association [1893] 1 Ch. 116
A lease of a flat in a block of flats contained an agreement by the lessor

to keep a resident porter who should be in constant attendance and
perform certain specified duties. The lessor appointed a person who got
his work done by deputies and absented himself for hours at a time
working as a chef at a neighborhood café. The lessee applied for an order
of specific performance but the court HELD: That it could not make
such an order because supervision would be impracticable.
Modern decisions, however, indicate a relaxation of this principle. The

real question is whether there is a sufficient definition of what has to be
done in order to comply with the order of the court. In Beswick v.
Beswick, specific performance was granted in respect of a contract to
make regular money payments to the plaintiff for her life.
Building contracts as contracts requiring constant supervision

The general rule is that specific performance will not be granted in
respect of a contract to build or repair. This is because enforcement of
the order would require constant supervision. Agreements to construct
buildings are often indefinite and require the performance by the parties
of a very large number of individual acts.
Exceptions:
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The court will order specific performance of a contract to build if 3

conditions are satisfied. The conditions were stated in: Wolverhampton
Corporation v. Emmons (1901) KB 515
The conditions are that:

1. The building work must be sufficiently defined by the contract, e.g. by
reference to detailed plans.
2. The plaintiff must have a substantial interest in the performance of
the contract of such a nature that damages would not compensate
him for the defendant’s failure to build. Hanbury states that if the
building is to take place on the plaintiff’s land, damages will normally
be adequate because another contractor can be paid to do the job and
any increase in price can be recovered as damages.
3. The defendant must be in possession of the land so that the plaintiff
cannot employ another person to build without committing a
trespass. The plaintiff cannot enter upon the land in order to do the
work himself or through agents.
See also: Carpenters Estates Limited v. Davies [1940] Ch. 160,

explaining Wolverhampton.
2. Contracts for personal services/involving personal skill
Contracts whose performance involves personal skill, knowledge or

inclination will not be specifically enforced. Reasons:
1) The court is not prepared to assume the burden of deciding on

subsequent applications whether there has been a proper
performance of the obligation in question. Hanbury p. 457 –
singing contract. Megarry J. suggests that the reasons are “more
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firmly bottomed on human nature”. See: C.H. Giles & CO. Ltd v.
Morris [1972] 1 All E.R. 960 at 969.
2) If proceedings are successfully brought to force a defendant to
maintain the relationship of employer and employee, the
inconvenience and mischief to the defendant would be greater than
anything which could possibly happen to the plaintiff if the court
declined to order specific performance.
The second ground appears to be based not merely on inconvenience or
hardship to a particular defendant but rather upon a general
undesirability from the view of public policy to force persons to maintain
certain personal relationships even though they had earlier agreed to do
so. “The courts are bound to be zealous lest they should turn contracts
of service into contracts of slavery.” See: Fry, L.J. in De Francesco v.
Barnum (1890) Ch.D 430 at 438. See also: Lumley v. Wagner (1952) 1
De G.M. & G 604; (1852) Vol. 19 LTR 127 and 264 Opoloto v. A-G (1969)
EA 631
3. Contracts lacking Mutuality

Where a decree of specific performance is available to a purchaser or
lessee, the remedy will also be available to the vendor or lessor. The
vendor or lessor can compel the purchaser or lessee to purchase the
property or accept a lease as the case may be even though damages may
be adequate compensation. The basis of the vendor, purchaser, lessor or
lessee obtaining an order of specific performance is the doctrine of
mutuality.
The rule states that in order to be specifically enforceable, a contract

must be mutually binding. The court will therefore not grant specific
performance at the suit of one party when it could not do so at the suit of
the other party. For a contract to be specifically enforced, it must be
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such that it can be enforced by either of the parties against the other. If
the contract cannot be enforced against one party for any reason, such
as personal incapacity, that party will not be able to enforce the contract
against the other. E.g. An infant/minor cannot obtain an order of
specific performance because the court cannot compel specific
performance against him: Flight v. Boland (1828) 4 Russ. 298. On
mutuality,
4. Contracts specifically enforceable in part only
Generally, where an agreement comprises two or more matters, some of

which are enforceable, the court will not enforce the enforceable matters
if they are dependent on the others. See: Frith v. Frith [1906] A.C 254
Where the terms of an agreement are legal and the others are illegal, the
court will sometimes specifically enforce the legal terms if the illegal
terms are clearly severable.
5. Agreements without consideration

Equity will not enforce an agreement which is merely voluntary, even if it
is contained in a deed. “Equity does not aid a volunteer”. Trusts are,
however, an exception to this rule.
DEFENCES TO AN ACTION FOR SPECIFIC PERFORMANCE

The general rule is that equity will hold the defendant to enforcement of
his bargain. Defences are exceptions.
1. No Effective Contract
There can be no specific performance unless there is a complete and
definite contract. There is a complete and definite contract where an
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offer has been accepted without qualification and the letters of offer and
acceptance contain all the terms agreed on between the parties.
2. Absence of Writing for Land Transactions

In order that an action may be brought for the specific performance of a
contract for the sale of land, there must be a written memorandum of the
contract, signed by the defendant or his duly authorized agent.
In the case of an oral contract, this means that no action may be brought
in respect of that oral contract until a memorandum is signed. The
contract is not void, but merely unenforceable – it is valid as between the
parties (valid ‘inter partes’), but no action can be brought on it in court.
The so-called contract inter partes must, however, satisfy the

requirements of S.3 (3) of the Law of Contract Act (Cap 23) as amended
by Act No. 21 of 1990 and Act No.2 of 2002. Both Acts came into effect
on 1st June 2003 vide Legal Notices No. 188 and 189 of 22 nd November
2002. Act No. 21 of 1990 and Act No. 2 of 2002 both provide as follows:
“(4) No suit shall be brought upon a contract for the disposition of an
interest in land unless -
(a) the contract upon which the suit is founded –
i. is in writing;
ii. is signed by all the parties thereto; and
iii. incorporates all the terms which the parties have expressly agreed
in one document; and
(b) the signature of each party signing has been attested by a witness
who is present when the contract was signed by such party”.
Repeal of the doctrine of part performance as an exception to the

requirement of writing:
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Previously in Kenya, where there was an oral agreement and the plaintiff
had wholly or partly performed his part of the agreement in the
confidence that the defendant would do the same, the court would order
specific performance. The applicable rule was the English doctrine of part
performance.
This doctrine states that where the intending purchaser or tenant has in
part performance taken possession of the property, the oral agreement
coupled with part performance constitutes an effective disposition. This
means that the contract can be specifically enforced. Note, however, that
by virtue of the amendments to the Law of Contract Act in Kenya, if a
party to such a transaction involving land wishes to bring an action in
court, the requirement of writing must be met.
2. Conduct of the Plaintiff/Default
For the plaintiff to be granted an order of specific performance, he must

show:
1) That he has performed all his obligations (he has “clean hands”)
2) That he is ready and willing to perform his obligations ( he must
“do equity”);
3) That he has not acted in contravention of the essential terms of the
contract; and
4) That he has not delayed unreasonably to come to court (laches).
1. Hardship
Specific performance will usually be granted to the plaintiff even if this
causes inconvenience or hardship to the defendant. However, if the
hardship suffered by the defendant if specific performance is granted will
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be greater than the detriment which will be suffered by the plaintiff if

specific performance is not granted, it will be unreasonable and
oppressive to grant specific performance. The court will therefore refuse
to grant it.
See: Patel v. Ali (1984) Ch. 283

The seller and her husband were co-owners of a house which they
contracted to sell in 1979. The husband’s bankruptcy caused a long
delay in completion of the sale transaction for which neither the seller
nor the purchaser was to blame. After the contract had been entered
into, the seller got bone cancer and had her leg amputated. She later
brought forth her second and third children. The purchaser obtained an
order of specific performance against which the seller appealed on the
ground of hardship. She pleaded that she spoke little English and relied
on help from nearby friends and relatives, hence it would be hard to
leave the house and move away. The court allowed the appeal, stating
that although a person of full capacity before the contract took the risk of
hardship, the court in a proper case could refuse to grant specific
performance on the ground of hardship occasioned subsequent to the
contract even if it is not caused by the plaintiff and is not related to the
subject matter of the suit. On the facts of this case, there would be
hardship amounting to injustice and therefore the appropriate remedy
was damages.
Hardship to either the plaintiff or defendant: See:
✓ Warmington v. Miller [1973] Q.B. 877

✓ Mountford v. Scott [1975] Ch. 258
✓ Hardship to a third party: See:
✓ Earl of Sefton v. Tophams Ltd [1966] Ch. 1140
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✓ Sullivan v. Henderson [1973] 1 W.L.R. 333

✓ Watts v. Spence 2 W.L.R. 1039
Financial inability to complete is not hardship: See:
Nicholas v. Ingram [1958] N.Z.L.R. 972
2. Fundamental Mistake
The mistake may be of such a nature that it precludes the “consensus ad
idem,” that is a meeting of the minds, which is required in every
contract. Such a mistake is a good defence to an action for specific
performance. In Webster v. Cecil (1861) 30 Beav. 62, A, by letter offered
to sell some property to B. He intended to offer it at Stg 2,250 but by
mistake wrote Stg 1,250. B agreed to buy at Stg 1,250. A immediately
gave notice of the error and was not compelled to carry out the sale.
Hardship and mistake:

Even if the mistake is that of the defendant himself and is not in any way
induced by the plaintiff, specific performance will be refused if its
imposition would cause the defendant hardship amounting to injustice.
See: Malins v. Freeman (1837) 2 Keen 25
Specific performance was refused where the defendant purchaser bid for
and bought one lot at an auction in the belief that he was buying a
totally different lot. The court stated that it would have been a great
hardship on him to compel him to take the property. The court further
stated that intoxication of the defendant when the contract is made is a
ground for refusing specific performance even though it is not induced by
the plaintiff.
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Contrast: Tamplin v. James (1880) 15 Ch. D 215

A purchaser agreed to buy an inn and a shop at an auction in the
mistaken belief that two pieces of land (garden plots) at the back of the
shop formed part of the purchased property. The particulars of sale and
the reference plans exhibited at the auction described the property
correctly. The garden plots were not included in the sale as they did not
belong to the vendor, even though they had commonly been occupied
with the inn and the shop. The defendant was acquainted with the
property and knew that the garden plots were occupied along with the
inn and shop and he did not therefore look at the plans. Instead, he
agreed to buy in the belief that he was buying the inn and shop together
with the two garden plots. The vendors brought an action for specific
performance. The defendant pleaded mistake as a defence. HELD: The
purchaser could not resist specific performance on the ground of mistake
in this case.
The lower court (Baggallay, L.J.) ordered specific performance and his
decision was affirmed by the Court of Appeal (Chancery Division –
James, LJ.). Baggallay, L.J. said at pp. 217-219:
“Where there has been no misrepresentation, and where there is no

ambiguity in the terms of the contract, the defendant cannot be allowed
to evade the performance of it by the simple statement that he has made
a mistake… The defendant appears to have purchased in reliance upon
his knowledge of the occupation of the premises without looking at the
plans…but is a person justified in relying upon knowledge of that kind
when he has the means of ascertaining what he buys? I think not. I
think that he is not entitled to say… that he was under a mistake, when
he did not think it worthwhile to read the particulars and look at the
plans. If that were to be allowed, a person might always escape from
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completing a contract by swearing that he was mistaken as to what he

bought, and a great temptation to perjury might be offered. Here the
description of the property is accurate and free from ambiguity.”
James, L.J. said at 221:
“If a man will not take reasonable care to ascertain what he is buying, he
must take the consequences. The defence on the ground of mistake
cannot be sustained…it would open the door to fraud if such a defence
was to be allowed… The cases where a defendant has escaped on the
ground of mistake not contributed to by the plaintiff, have been cases
where a hardship amounting to injustice would have been inflicted upon
him by holding him to his bargain, and it was unreasonable to hold him
to it … If a man makes a mistake of this kind without any reasonable
excuse he ought to be held to his bargain.”
Cotton, L.J. said at 222:
“There is no injustice in holding a man to a contract which specifically

describes the property sold in a way not calculated to mislead.”
Where the mistake is in the written record of the contract, the plaintiff
may obtain rectification and specific performance in the same action.
See: Craddock Bros. V. Hunt [1923] 2 Ch. 136 Where the plaintiff has
contributed to the defendant’s mistake, however unintentionally:
OTHER DEFENCES
1) Misrepresentation by plaintiff
2) Misdescription
3) Lapse of time/Laches/Delay
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4) Trickiness/Deceit/Fraud
5) Illegality
6) Defective Title
INJUNCTIONS
An injunction is an order by the court directing a party to the
proceedings to do or refrain from doing a particular act.
Types of Injunctions
1. Prohibitory
2. Mandatory
3. Perpetual
4. Interlocutory/Temporary/Interim/Ex Parte
5. “Quia Timet”
1. Prohibitory
It is restrictive. A person is ordered to refrain from doing or continuing to
do a particular act.
2. Mandatory
There are two broad categories of mandatory injunctions:
(i) Restorative injunction – requires the defendant to undo a wrongful
act. This applies where an unlawful act has been committed and an
order restraining its commission is therefore meaningless.
(ii) Mandatory injunction – compels the defendant to carry out some
positive obligation in order to remedy a wrongful omission. Specific
performance is more usual in this situation, but an injunction may be
granted ( e.g. where there is no contract but there is a wrongful omission
requiring remedial action).
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Until late in the 19th century, all injunctions were couched in prohibitive
form. This was due to doubts as to the jurisdiction to grant mandatory
injunctions. The order, even though mandatory in substance, had to be
drafted in prohibitory form. Thus, previously, a court would not, for
instance, make an order directing wrongfully erected buildings to be
pulled down. Instead, the court would order the defendant not to allow
them to remain on the land. SNELL comments that the doubts as to the
court’s jurisdiction to grant mandatory injunctions seem odd in a
jurisdiction which traditionally looks to the substance rather than the
form. Now, however, a mandatory injunction is issued in a positive form.
See:
Jackson v. Normandy Brick Co. [1899] 1 Ch 438
Note the distinction between specific performance (which is granted
under an instrument or contract) and a mandatory injunction (which
may be granted even there is no instrument).
3. Perpetual
A perpetual injunction is so called because it is granted at the final
determination of the rights of the parties and not because it will
necessarily operate forever. It means that the order will finally settle the
dispute between the parties. It is granted only after the plaintiff has
established his right and the actual or threatened infringement of it by
the defendant.
4. Interlocutory/Temporary
This is granted before the hearing (trial) of an action. Its purpose is to

maintain the status quo until the dispute between the parties is
determined. The damage or injury to be suffered by the plaintiff could be
such that it would be unjust to make him wait until the trial is over in
order to obtain relief. The damage may be irreparable. In such a case, the
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court may grant an interlocutory injunction pending the outcome of the

main suit. For instance, where a person wants to sell a piece of land in
respect of which there is a dispute, an interlocutory injunction may be
granted to restrain him from selling that land until the dispute is heard
and determined.
Usually, the plaintiff, when filing an application for the main suit, will
also serve a notice on the defendant that on the next motion day he will
apply to the court for an interlocutory injunction. The service of this
notice will enable the defendant (through his advocate) to be heard where
he wishes to object to the application for the interlocutory injunction.
However, the decision after the hearing will not be a final decision on the
merits of the case. If the plaintiff’s affidavit has made out a sufficient
case, the judge will grant an interlocutory injunction which will last until
the trial of the action.
4 A. Ex Parte Injunction
Sometimes a plaintiff cannot wait until the next motion day. He therefore
applies for an ex parte injunction, which will last until the next motion
day. By this time, notice will have been served on the defendant who will
then have an opportunity of opposing the plaintiff’s application for an
interlocutory injunction. The phrase “ex parte” signifies that the court
has not had an opportunity of hearing the other party to the suit.
4 B Interim
An interim injunction restrains the Defendant, not until the trial, but
until some specified date. An interim injunction is usually, but not
always ex parte. For example, if a notice has been served on the
Defendant, but he is not given sufficient time to prepare his case, then
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an interim injunction until the next motion day is more likely to be

granted than a full interlocutory injunction until trial.
5. Quia Timet(Anticipatory)
A Quia Timet injunction is issued to prevent a threatened infringement of
the plaintiff’s right. The infringement is threatened but has not yet
occurred. It is anticipatory. Courts take great care before granting this
remedy. The plaintiff must show a very strong probability of a future
infringement (that the danger is imminent) and that it will cause
substantial or irreparable damage (that the damage will be of a most
serious nature).
Summary
✓ Prohibitory or mandatory injunctions may be perpetual or
interlocutory.
✓ Mandatory injunctions are less frequently granted than prohibitory
injunctions.
✓ An ex parte injunction may be interim, mandatory or prohibitory (it
cannot be perpetual).
✓ An interim injunction may be mandatory or prohibitory.
✓ A quia timet injunction may be mandatory or prohibitory.
PERPETUAL INJUNCTIONS
A perpetual injunction is intended to relieve the plaintiff from the
necessity of bringing a series of actions to protect his right each time it is
infringed.
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General Rules
1. The plaintiff must establish a right
There must be a right to be protected. The plaintiff must therefore
establish some legal or equitable right. Mere inconvenience cannot be
protected. See: Day v. Brownrigg (1878) 10 Ch.D. 294 The Plaintiff
lived in a house which he called “Ashford Lodge”. The Defendant lived in
a smaller house called” Ashford Villa. “The Defendant changed the name
of his house to “Ashford Lodge,” whereupon the Plaintiff sued for an
injunction. The Court of Appeal refused to grant an injunction to prevent
the Defendant from calling his house by the same name as the Plaintiff’s
house even though the parties lived next door to each other and the
Plaintiff had used the name “Ashford Lodge” for sixty years. The court
reasoned that there is no legal or equitable right to the exclusive use of
the name of a private residence. (Contrast this with commercial premises
– right to use a trade name.)
2. Discretionary remedy
The granting of an injunction is discretionary, this being an equitable
remedy. However, the discretion must not be exercised according to the
fancy of the court. It must be exercised judicially according to the rules
established by precedent. As a general rule, a party who establishes his
right and its violation will be entitled to an injunction. However, a
number of circumstances may be taken into consideration by the court
in determining whether or not to grant the remedy. These are as follows:
(a) Nominal damage

The general rule is that the fact that the Plaintiff has suffered nominal
damage does not disentitle him to an injunction. However, as an
exception, the court may take that circumstance into account. See:
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✓ Doherty v. Allman (1878) 3 A.C. 709

✓ Armstrong v. Sheppard & Short Ltd. [1959] 2 Q.B. 384; [1959] 3
W.L.R. 84; [1959] 2 ALL E.R. 651
✓ Behrens v. Richards [1905]2 Ch. 614 – Here, the plaintiff merely
suffered trespass by the public which did not injure him.
(b) Compliance difficult

The fact that compliance will be inconvenient and expensive affords no
defence to an action for an injunction. However, the court will not make
an ineffectual order (“Equity does not act in vain”). E.g. Where trees
have already been cut down, an order of injunction not to allow the trees
to remain lying on the ground is ineffectual as this cannot make the trees
stand upright. The only remedy is damages under the common law.
See.
✓ Attorney-General v. Colney Hatch Lunatic Asylum

✓ (1868) 4 Ch. App. 146, per Lord Hatherley L.C. at 154
(c) Annoyance ceased

If the injury complained of has ceased before trial or is merely temporary
and there is no intention of repeating the injurious act, the court may
refuse an injunction. See:
✓ Barber v. Penley [1893] 2 Ch.447

✓ Wilcox v. Steel [1904] 1 Ch. 212
(d) Undertaking by Defendant

If the Defendant gives an undertaking to the court to abstain from the
acts complained of by the plaintiff, an injunction may be refused. Such
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an undertaking is itself equivalent to an injunction and a breach may be

punished in the same way as a breach of an injunction.
3. Inadequacy of damages
A party cannot obtain an injunction to restrain an actionable wrong for
which damages are the proper remedy. The Plaintiff must therefore
satisfy the court as to the inadequacy of damages. He must show that
the right sought to be protected is of such a nature that an award of
damages will not leave him in substantially the same position as if he
obtained enforcement of the right. Examples:
a) Continuing nuisances:
A perpetual injunction is particularly appropriate where the injury is
continuous, as in the example of continuing a nuisance. See:
1) Martin v. Nutkin (1725) 24E.R. 724; 2P. Wms. 266

2) Pride of Derby v. British Celanese Ltd.[1953]Ch. 149
In Martin v. Nutkin, the plaintiffs had been annoyed by the daily ringing
of a nearby church bell at 5 a.m. The parson, churchwardens and others
on behalf of the parish agreed to stop the ringing of the 5 O’clock bell
during the lives of the plaintiffs if the plaintiffs provided the church with
a new clock and bell. When the bell was rung in breach of this
agreement, the court restrained it by injunction, this being a continuing
nuisance for which the remedy of damages was inadequate.
b) Infringements of trade marks, patents or copyrights:

The infringement here is also of a continuous nature and the appropriate
remedy is a perpetual injunction. See:
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1) Licensed Victuallers’ Newspaper Co.v. Bingham (1888) 38 Ch.D

139
2) Borthwick v. The Evening Post(1888) 37 Ch.D 449
4. Conduct of the Plaintiff
The court considers the conduct of the Plaintiff. Thus “He who comes to
equity must come with clean hands”. Also, “He who seeks equity must
do equity”. The Plaintiff may also be guilty of laches (delay) or
acquiescence. Acquiescence means conduct from which it can be
inferred that a party has waived his rights. In Sayers v. Collyer (1884) 28
Ch.D 103, an injunction to restrain the use of a house as a shop was
refused on proof that the plaintiff had himself bought goods there.
5. Locus Standi and Public Rights

The question we are concerned with is who may seek an injunction to
protect a public right. The answer requires a consideration of the extent
to which the courts may restrain a breach of criminal law by injunction.
The general rule is that public rights are protected by the Attorney
General. He may obtain an injunction to restrain a breach of criminal
law even if there is a statutory remedy, where that remedy is inadequate.
See:
Attorney General v. Harris [1961] 1 Q.B. 74
This case concerned two flower sellers who sold flowers illegally from
stalls. They had 237 convictions between them.
Attorney General v. Sharp (1931) 1 Ch. 121

An injunction was granted against an omnibus proprietor who had been
refused a licence but nevertheless found it profitable to run his
omnibuses and pay the prescribed fines almost daily. The profits were
greater than the fines.
Attorney General v. Chaudry (1971) 1 WLR 1623
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An injunction was granted against a hotel operating without a fire

certificate, thereby posing danger to the public.
Can an individual seek an injunction if there is a violation of a

public right created by statute?
It has been held that under certain circumstances an individual can seek
an injunction if infringement of a public right created by statute or
existing at common law would:
i) infringe some private right; or
ii) inflict special damage on the individual; or
iii) where the individual is a member of a class for whose benefit the
statute was passed.
An individual who does not fall within the above exceptions has no
remedy. See:
1) Lonrho v. Shell Petroleum Ltd. (1982) A.C.173
2) Gouriet v. Union of Post Office Workers (1978) A.C.435
INTERLOCUTORY INJUNCTIONS
An interlocutory injunction is an injunction granted pending the hearing
and final determination of the suit. The basis for the grant of this remedy
is the need to protect the applicant by preserving the circumstances
prevailing at the time of his application until the rights of the parties are
finally determined by the court. The need for this kind of protection
usually arises where property over which there is a dispute is threatened
with damage, destruction or removal.
According to Hanbury and Martin, Modern Equity, the jurisdiction is

related not to the most just method of protecting established rights, but
to the most convenient method of preserving the status quo while rights
are established. The object of an interlocutory injunction is “to prevent a
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litigant, who must necessarily suffer the law’s delay, from losing by that
delay the fruit of his litigation,” per Lord Wilberforce in Hoffman-La
Roche (F) & Co. v. Secretary of State for Trade and Industry [1975] A.C.
295 at 355.
Principles
There are three main principles applicable to the granting of an
interlocutory injunction in Kenya. These are:
1. Prima facie case
2. Balance of convenience
3. Irreparable injury
These principles were set out in the case of East Africa Industries Ltd v.
Trufoods Ltd [1972] EA 420. These were reiterated in the case of Giella
v. Cassman Brown [1973] EA 358.
In East Africa Industries Ltd v. Trufoods Ltd, Spry, V-P (CAEA) said:
“A plaintiff has to show a prima facie case with a probability of success
and if the court is in doubt it will decide the application on the balance
of convenience. An interlocutory injunction will not normally be granted
unless the applicant might otherwise suffer irreparable injury which
would not adequately be compensated by an award of damages.”
In Giella v. Cassman Brown, the Court said,

“The conditions for the grant of an interlocutory injunction are now, I
think, well settled in East Africa. First, an applicant must show a prima
facie case with a probability of success. Secondly, an interlocutory
injunction will not normally be granted unless the applicant might
otherwise suffer irreparable injury which would not adequately be
compensated by an award of damages. Thirdly, if the court is in doubt, it
will decide the application on a balance of convenience.”
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1. Prima Facie Case

A plaintiff who seeks an interlocutory injunction has to adduce sufficient
evidence to disclose a prima facie case for relief. “Prima facie” denotes the
fact that if the evidence remains the same at the hearing of the main
suit, it is probable that the judgement of the court will be in favour of the
plaintiff. There are two requirements:
(i) The plaintiff must establish a prima facie case for the existence
of his right
(ii) He must also establish a case for the violation of this right that
is reasonably capable of succeeding.
East Africa Industries Ltd. V. Trufoods Ltd [1972] EA 420
Both parties are manufacturers of fruit drinks. The Appellant applied to
the High Court for an interlocutory injunction to restrain the passing off
of the Respondent’s product as that of the Appellant. The Appellant
claimed that the Respondent had changed the shape of the bottles which
the Respondent used and the shape and design of the labels it affixed to
the bottles in such a way that they so nearly resembled those of the
Appellant company as to be likely to deceive.
In dismissing the application, the High Court judge directed his attention
to the names on the labels and not to the overall impression created by
the bottles and labels. The judge also stated that he took judicial notice
that the vast majority of customers for the products would be
sophisticated and able to read English. The judge then concluded that
the Appellant company was unlikely to succeed in the suit because, in
his opinion, no reasonable ordinary shopper would be misled by the
resemblance of the two products. The application was therefore refused.
The Appellant then appealed to the Court of Appeal. Spry, V-P (CAEA)
said: “A plaintiff has to show a prima facie case with a probability of
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success and if the court is in doubt it will decide the application on the
balance of convenience. An interlocutory injunction will not normally
be granted unless the applicant might otherwise suffer irreparable
injury which would not adequately be compensated by an award of
damages. I think that a prima facie case has been shown but I am not
prepared to say that the outcome is so certain one way or the other that
the application ought not to be decided on the balance of convenience.”
Consequently, the Court of Appeal Held, dismissing the appeal, that on

the balance of convenience, the application was properly refused by the
High Court and that the Appellant would suffer no loss which could not
be sufficiently compensated in damages. On shoppers the Court of
Appeal held that the sophistication or otherwise of Kenyan shoppers is a
matter for evidence and not judicial notice.
The Court of Appeal said, per Spry, V.P. “It will be open to the parties at
the trial…to adduce evidence as to the channels through which they sell
their goods and evidence of retailers as to the character of the customers
who buy them. It would be dangerous to make assumptions which,
however superficially reasonable, might be very wide of the truth.”
2. Balance of Convenience
The court has to balance the harm or injury to the Defendant if at the
trial the Defendant succeeds against the harm or injury to the Plaintiff in
being refused an interlocutory injunction if at the trial the Plaintiff
succeeds. In this regard, the High Court Held that the Appellant
company would not suffer irreparable harm if an injunction were refused
and that if the Appellant succeeded in the suit, it could be adequately
compensated by damages. On the other hand, the High Court stated,
the Respondent company would suffer irreparable harm if its products
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were taken off the market for the time it would take for the suit to come
to judgement. On the same issue, the Court of Appeal agreed with
counsel for the Appellant (Mr. Deverell) in his submissions that:
(a) “The High Court judge misdirected himself when he spoke of the
effect of an injunction being that he Respondent company’s products
would be taken off the market”, and
(b) “That there would be nothing to prevent the Respondent company
from continuing to sell fruit juices under the name it had recently
adopted, provided only that it did so under a different “get-up”.
Nevertheless, the Court of Appeal, in refusing to grant the injunction,
Held that on the whole, the harm which the Respondent company would
suffer as the result of an injunction , if the Respondent succeeded in the
suit, was likely to be greater and graver than that which the Appellant
company would suffer from the refusal of an injunction, should the
Appellant be successful. (The court did not, however, specify the kind of
harm.)
3. Irreperable Injury or Damage

Irreparable injury means injury which, if not prevented by injunction,
cannot be sufficiently compensated afterwards by any decree which the
court may make at the final determination of the suit. The Court of
Appeal Held that the Appellant Company would not suffer any loss that
could not be sufficiently compensated by an award of damages.
On the above three principles, see also:

1) Devani’s Case [1972] EA 22
2) Supra Studio [1971] EA 489
3) Nsubuga’s Case [1974] EA 487
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Other Factors
Claimant’s Case not Frivolous or Vexatious
The court must be satisfied that the plaintiff’s case is not frivolous or
vexatious. This requirement is intended to remove any attempts by the
plaintiff to harass the defendant in cases where the suit is futile or
misconceived or an abuse of the process of court. As part of this
requirement the plaintiff must show that there is a serious question to
be tried.
Conditions and Undertakings

The court may impose terms as a condition for granting or withholding
an interlocutory injunction. Where the remedy is granted, the plaintiff is
normally required to give an undertaking in damages in the event that
the injunction is discharged at the trial as having been granted without
good cause. Although the undertaking is executed for the defendant’s
benefit, it is not a contract with the defendant. The undertaking is given
to the court so that if it is not honoured, it amounts to contempt of court
and not breach of contract.
ENGLISH POSITION ON INTERLOCUTORY INJUNCTIONS

American Cyanamid Co. v. Ethicon Ltd (1975) A.C. 396; (1975) 2
W.L.R. 316. Prior to the decision of the House of Lords in American
Cyanamid Co. v. Ethicon Ltd, it was well established in England that the
claimant had to show a strong prima facie case that his rights had been
infringed. He was then required to show that damages would not be an
adequate remedy if he succeeded at the trial, and that the balance of
convenience favoured the grant of an interlocutory injunctuion.
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The above principles were replaced by the rules laid down by Lord
Diplock in American Cyanamid. These rules were designed to circumvent
the necessity of deciding disputed facts or determining points of law
without hearing sufficient argument. The American Cyanamid case
concerned an application for a quia timet interlocutory injunction to
restrain the infringement of a patent. The House of Lords unanimously
held that there was no rule requiring the claimant to establish a prima
facie case. The rule is that the court must be satisfied that the claimant’s
case is not frivolous or vexatious and that there is a serious question to
be tried. Once that is established, the governing consideration is the
balance of convenience.
Serious question to be tried

This means that the plaintiff must have a good arguable case.
Balance of convenience
The concept of balance of convenience connotes that the court should
not embark on anything representing a trial. At the interlocutory stage, it
is not the court’s function to resolve conflicts of evidence in affidavits or
to resolve difficult questions of law. These are matters for the actual trial.
Facts of American Cyanamid Case: The Plaintiff, an American company,

owned a patent covering certain surgical sutures. The Defendant was
also an American company. It manufactured its products in the USA
and was about to launch a suture on the British market which the
Plaintiff claimed infringed its patent. The Plaintiff applied for an
interlocutory injunction. The Court at first instance granted it. The
Defendant appealed. The Court of Appeal reversed the earlier Court’s
decision on the ground that no prima facie case of infringement had been
established by the Plaintiff. The Plaintiff appealed.
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The House of Lords Held, allowing the appeal, THAT:-

1. In all cases including patent cases, the court must determine the
matter on a balance of convenience;
2. There was no rule requiring the court to first be satisfied that if the
case went to trial on no other evidence than that available at the
hearing of the application, the Plaintiff would be entitled to a
permanent injunction in the terms of the interlocutory injunction
sought;
3. In the present case, there was no ground for interfering with the first
judge’s assessment of the balance of convenience or his exercise of
discretion and the injunction should be granted accordingly.
The H.L therefore reversed the decision of the Court of Appeal and
affirmed that of the Court at first instance.
The American Cyanamid case was discussed and explained in Series 5

Software Ltd V. Clarke (1996) 1 All ER 853.
The American Cyanamid case placed more weight on the principle of

balance of convenience rather than prima facie case with a probability of
success at the interlocutory stage. Disadvantages of the prima facie
requirement are that hearings are often ex parte, evidence is by affidavit
and it is difficult for the plaintiff to establish a prima facie case with a
probability of success in such circumstances.
Note: While the balance of convenience is the governing consideration, a

significant factor in assessing it is the inadequacy of damages to each
party.
Excerpts from Richard Kuloba, Principles of Injunctions
P;.34-35: If the court is in doubt”
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“Logically, the doubt referred to must be a doubt as to the existence of a

prima facie case [with a probability of success]. It cannot be a doubt as to
whether the Plaintiff will suffer irreparable damage. This is because the
balance of convenience is defined as a comparison of the irreparable
losses likely to be suffered by the plaintiff and the defendant. That is to
say, there can be no consideration of the balance of convenience unless
the plaintiff will suffer irreparable damage.”
Pp. 48-49: “Prima facie case with a probability of success” vs.

“serious question to be tried”
Approval of American Cyanamid Rule by the High Court of Kenya:
Minnesota Mining and Manufacturing Co. v. Shah & Shah, HC.C.C. No.
3446 of 1980
According to Cotran J. in the above case, there is little difference between

“a prima facie case with a probability of success” and a “serious question
to be tried”. Cotran J. said: “The question is whether the defendant’s
packet is so similar to that of the plaintiff as is likely to confuse or
deceive the average customer in a village shop or in a city supermarket.
If I were to answer this question now, I will virtually be deciding the case.
But suffice it to say at this stage of the proceedings and upon the
material before me I am satisfied that the applicant in the words of the
first condition in Giella’s case, has shown ‘a prima facie case with a
probability of success’ and I stress a probability and no more, or in the
words of the American Cyanamid Case has shown that there is ‘a serious
question to be tried’.”
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Indirect Approval of American Cyanamid Rule by Court of Appeal

(Kenya) Wairimu Mureithi v. City Council of Nairobi Civil
Appeal No. 5 of 1979 (C.A.)
Madan J.A. quoted Lord Diplock in the Cyanamid case: “The object of the
interlocutory injunction is to protect the plaintiff against injury by
violation of his right for which he could not be adequately compensated
in damages recoverable in the action if the uncertainty were resolved in
his favour at the trial… If damages recoverable at common law would be
adequate remedy and the defendant would be in a financial position to
pay them, no interlocutory injunction should normally be granted,
however strong the plaintiff’s claim appeared to be at that stage.”
The Court of Appeal in Wairimu Mureithi’s case Held that on the facts of
the case, the plaintiff would not suffer irreparable injury and that the
defendant would be in a financial position to pay any damages that may
be awarded to the plaintiff. If the plaintiff’s action succeeded, the Court
of Appeal further held, she could be adequately compensated in
damages, including loss of profits.
Kuloba at p.48:
“Thus, by proceeding to follow the principles set out by Lord Diplock
while consciously maintaining a golden silence on the three conditions
set out in his judgement, Madan J.A., with memorable judicial
diplomacy, rejected the former assertions that the three conditions are
the pre-requisites for granting a temporary injunction. He politely says
that Mustafa J.A. and Spry V.P. are wrong, as Lord Diplock is right.”
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DEFENCES TO AN ACTION FOR AN INTERLOCUTORY INJUNCTION
Conduct of the parties

The court will consider the conduct of the parties (read plaintiff) in
deciding whether or not to grant an interlocutory injunction.
Consequently, a plaintiff who complains of the defendant’s breach of
contract will not obtain an interlocutory injunction if he is also
substantially in breach. See: Litvinoff v. Kent (1918) 34 TLR 298
Delay or acquiescence
Delay or acquiescence is enough to bar a plaintiff from the grant of an
interlocutory injunction. This remedy is usually granted in matter of
urgency so that a plaintiff who delays thereby shows the absence of any
urgency requiring prompt relief.
Hardship
The court has to weigh the hardship to each party.
MAREVA INJUNCTION
Mareva v. International Bulkcarriers [1975] 2 Lloyd’s Rep. 509
This is an injunction restraining the Defendant from removing his assets

out of the jurisdiction of the court until hearing of main suit. See also:
1) Re BCCI (No 9) [1994] 3 All ER 764
2) Derby & Co Ltd V. Weldon (Nos 3 & 4) [1990] Ch 65
3) Babanaft Int’l Co Sa V. Basantine [1990] Ch 13
ANTON PILLAR INJUNCTION
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Anton Pillar K.G. v. Manufacturing Processes [1976] 1 All ER 779

This is an order granted against the Defendant where the court believes
that there is a danger that the Defendant will remove or destroy evidence
in the form of documents or moveable property such as money, papers or
illegal copies of films. The court order allows the Plaintiff to inspect
relevant evidence or property at the Defendant’s premises.
1) It is not a search warrant.
2) Approved in: Rank Film Distributors Ltd v. Video Information

Centre [1982] AC 380
APPLICATION OF EQUITY IN KENYA

The reception of the English common law, doctrines of equity and
statutes of general application in Kenya is based on a specified date
referred to as the date of reception. That date, 27 th August 1897, is
stated in Section 3 (1) (c) of the Judicature Act (Cap 8)
Section 3 (1), referred to as the “reception clause” provides:

“The jurisdiction of the [Supreme Court], the High Court, the Court of
Appeal and of all subordinate courts shall be exercised in conformity
with-
(a) the Constitution
(b) subject thereto, all other written laws, including the Acts of
Parliament of the United Kingdom cited in Part I of the Schedule
to this Act, modified in accordance with Part II of that Schedule;
(c) subject thereto and so far as those written laws do not extend
or apply, the substance of the common law, the doctrines of
equity and the statutes of general application in force in
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England on the 12th August 1897 and the procedure and

practice observed in courts of justice in England at that date;
but the common law, doctrines of equity and statutes of general
application shall apply so far only as the circumstances of Kenya and its
inhabitants permit and subject to such qualifications as those
circumstances may render necessary.”
Section 3 (2), referred to as the “repugnancy clause” provides:
“[The Supreme Court], the High Court, the Court of Appeal and all
subordinate courts shall be guided by African customary law in civil
cases in which one or more of the parties is subject to it or affected by it,
so far as it is applicable and is not repugnant to justice and morality or
inconsistent with any written law, and shall decide all such cases
according to substantial justice without undue regard to technicalities
of procedure and without undue delay.”
Supremacy of the Constitution

The Constitution of Kenya 2010, Article 2 (4) provides:
“Any law, including customary law, that is inconsistent with this
Constitution is void to the extent of the inconsistency...” The date of
reception means that any English decision after 1897 which modifies a
principle of common law or equity as it existed in 1897 has no effect in
Kenya, unless the later principle has been incorporated into the law of
Kenya by Parliament enacting relevant legislation or by the Kenyan
courts following or adopting the changed principle or rule of the English
common law or equity.
Whether the word “equity” is used alone, or is preceded by “doctrines of”,

the reference is to the body of rules developed by the English Court of
Chancery from medieval times as supplementary to the common law.
Although originally elastic and inspired by conscience rather than
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legalism, equity had by the end of the 19 th century become an enormous

apparatus of highly complicated and technical rules. It is this technical
equity that has been incorporated into the Kenyan law under the
reception formula contained in the Judicature Act.
Note, however, that in S.3 (2) “equity” retains its ordinary meaning of
“fairness” – see reference to “justice and morality.” The inclusion of this
clause has been used to justify the qualification of customary rules by
equitable principles in the narrow technical sense. But the English
common law and equity will override customary law only if the
customary law is contrary to the judge’s view of justice and morality. The
judge has discretion here, somewhat similar to the discretion of the Lord
Chancellor in the early development of equity.
LIMITATIONS TO THE APPLICATION OF EQUITY IN KENYA

1. Circumstances of Kenya
Courts are not to apply the English doctrines of equity if these doctrines
were evolved to suit only English conditions or circumstances – see the
proviso to S.3 (1) of the Judicature Act. Some circumstances lack
universality. Examples are matters and laws relating to homosexual
marriages, transvestites, surrogate motherhood, euthanasia, etc. The
above qualification is relevant, for instance, when applying the English
doctrine of advancement on the one hand, and the Benami
Muslim/Hindu custom similar to a resulting trust on the other hand.
Courts have held, for example, that the doctrine of advancement is a
doctrine evolved to suit English situations and should not be allowed to
alter and resettle Benami transactions. See: Raya binti Salim bin Khalfan
el Busaidi v. Hamed bin Suleiman el Busaidi and Another [1962] EA 248.
Facts: The plaintiff and her husband were Muslims living in Zanzibar.
She inherited property in Malindi and Mombasa from her father upon his
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death. Due to her illiteracy, her properties were managed by her

husband and her brother. Her husband collected and received rent and
other income from the properties which he kept in his bank accounts in
Mombasa and Zanzibar. However, no proper accounts were kept by him.
Upon the death of the plaintiff’s husband, the plaintiff’s brother-in-law,
that is, the deceased’s brother (the defendant), was appointed as an
administrator of the deceased’s estate. Since there were no children of
the marriage, both the plaintiff and the defendant were the heirs of the
deceased. Consequently, according to Muslim Sharia law, the defendant
was supposed to get ¾ and the plaintiff ¼ of the deceased’s estate. The
plaintiff claimed that she had her own estate which was distinct from
that of her deceased husband. Accordingly, she lodged an application for
an account of her income deposited in her husband’s accounts. The
defendant, on the other hand, contended that the plaintiff had made a
gift to the deceased and that therefore the doctrine of advancement
applied. The plaintiff stated that she only agreed with the deceased that
he would look after her property and keep her funds for her.
Held: Muslim law was applicable in this case. Further, it was wrong to
apply principles of equity devised to suit the Christian society in England
in order to import the presumption of advancement to gauge the
intention of a Muslim husband and wife living in Zanzibar and whose
social and cultural background was very different from that of England.
The administrator/defendant was therefore liable to account to the
plaintiff as there was a Benami in favour of the plaintiff. Therefore the
English doctrine of advancement did not apply.
2. Comprehensive Local Legislation
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If there is a comprehensive local legislation which expressly or impliedly

excludes English doctrines of equity, then the doctrines will not apply.
Examples:
(a) Succession under Islamic Law
The Wakf Commissioners v. The Public Trustee [1959] EA 368
“Wakf” means the tying up of property in the ownership of God and

the devotion of profits for the benefit of human beings.
FACTS:
The deceased was a Muslim. He died intestate leaving a widow and no

heirs. The Public Trustee filed a petition for a declaration as to the
distribution of the estate. The Supreme Court held that since there were
no heirs, the widow was entitled, in addition to her ¼ share, to the whole
residue of the estate. The Wakf Commissioners appealed, claiming that
under the applicable Muslim Shafi law, the widow was not entitled to the
residue and that equitable principles could not be applied in her favor.
He claimed that the Wakf Commissioners were entitled to the residue by
virtue of S. 18(1) of the Wakf Commissioners Ordinance.
On appeal, the Court of Appeal HELD:
THAT equitable principles were expressly excluded by virtue of S.4 of the

Mohammedan Marriage Divorce and Succession Ordinance and that the
trial judge had erred by deviating from the Mohammedan law of
succession. The Wakf Commissioners were therefore entitled to the
residue.
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S.18 (1) Wakf Commissioners Ordinance

“Notwithstanding anything to the contrary in the Indian Succession Act
1865, any property of a deceased Muslim to which no claim has been
established within one year from the date upon which such property
vested in the administrator of the estate or in the public trustee shall be
handed over to the Wakf Commissioners by the said administrator or
public trustee as the case may be and shall if not handed over in the
form of money be converted into money and paid to the Wakf
Commissioners into a special fund created for the purpose to be known
as the Surplus Fund.”
In short, any property of a deceased Muslim to which no claim has been

established within one year from the date when such property vested in
the administrator of the estate or public trustee shall be handed over to
the Wakf Commissioners.
S.4 Mohammedan Marriage Divorce and Succession Ordinance (Cap

148) “Provided that where in any sect of Mohammedans to which the
deceased belonged the law of succession differs from the ordinary law of
succession, in accordance with the ordinary principles of Mohammedan
law, then the law of succession applicable to such sect shall apply.”
In short, the law of succession of the particular Mohammedan sect shall

override the ordinary law of succession.
(b) Limitations of Actions

Where claims are barred by statute, namely, the Limitation of Actions Act
(Cap 22), the equitable doctrine of laches is ousted.
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EQUITY VERSUS AFRICAN CUSTOMARY LAW

1. Example of a customary civil claim in which the court applied a
doctrine of equity See:
Lolkilite ole Ndinoni v. Netwala ole Nebele (1952) 19 EACA 1
This case concerned a claim for blood-money in accordance with a

Maasai customary law. The Court of Appeal Held: That it was repugnant
to justice and morality to allow a claim to be made thirty to forty years
after the killing complained of. The doctrine of laches applied.
2. Examples of other situations where African customary laws and

practices are most susceptible to challenge as being repugnant to justice
and morality
✓ Infant betrothal, cradle snatchers, schoolgirl and child marriages

✓ Marriage in which the woman has not given her consent (arranged
marriages) – forced marriages
✓ Widow/Wife inheritance – See S.13 (1) of the African Christian
Marriage and Divorce Ordinance which provides,
“Any African woman married in accordance with the provisions of this

Ordinance …shall not be bound to cohabit with the brother or other
relative of her deceased husband…or to be at the disposal of such
brother or other relative…, but she shall have the same right to support
for herself and her children of such marriage from such brother or other
relative as she would have had if she had been married as aforesaid.”
✓ Connexion with a madman as a sign of cleansing

✓ Female Genital Mutilation (FGM)
✓ Woman to woman marriages
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✓ Blood Money – Maasai custom

✓ Polygamy
✓ Burial practices e.g. “tero buru” – SM Otieno Case
✓ Witchcraft/Sorcery/Nightrunning
✓ Bride price
✓ Killing of twins
✓ Snake worship
✓ Human sacrifice
✓ Cannibalism
✓ Wife beating
3. Examples of situations in which equity stepped in to protect a

customary right
1) Injunction – for customary wife to stop a monogamous

(Christian/civil) wedding
2) Trusts – in land cases - communal land
3) Place of burial – SM Otieno Case
Examples of customary practices that equity has been silent on

1) System of matrimonial property law where all rights vest in the
husband and none in the wife – But note provisions of the
Constitution of Kenya 2010
2) Differential law of status – many positions, powers and
transactions barred to women in African customary law - But note
provisions of the Constitution of Kenya 2010
See Constitution of Kenya 2010 – e.g. provisions on equality Article 27,

equal rights in marriage Article 45
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TRUST LAW
HISTORICAL ORIGIN AND DEVELOPMENT OF THE TRUST
DEFINITION OF A TRUST
Professors Keeton and Sheridan in The Law of Trusts 11 th Edition Page 2
define a trust as follows: A trust is the relationship which arises
whenever a person, called the trustee, is compelled in equity to hold
property, whether real or personal, and whether by legal or equitable
title, for the benefit of some persons, of whom he may be one and who
are termed beneficiaries or “cestuis que trust,” or for some object
permitted by law, in such a way that the real benefit of the property
accrues, not to the trustee, but to the beneficiaries or other objects of the
trust.
See also:
1) Underhill and Hayton, Law Relating to Trusts and Trustees
2) Hague Convention on the Law Applicable to Trusts and on their
Recognition
3) Trustees Act (Chapter 167 Laws of Kenya)
The Law of Trusts is the only branch of law which arose purely in the
Court of Chancery. It has been referred to as the outstanding creation of
equity. This branch of law encompasses equity’s imposition of stringent
personal obligations upon a legal owner of property to hold the property
for the benefit of another, with the result that he is not able to treat the
property as his own. It is regarded as the paradigm case of equity’s
interference with common law rights in pursuit of justice.
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The historical roots of the Trust are to be found in a medieval English

property concept or device referred to as the ‘use’. By this device,
property would be given by the owner to another person to the use of a
third person.
THE CONCEPT OF USE

The history of the use is connected to feudalism and to the history of
land law in England. Under feudalism, rights in land were essentially
rights in a complex hierarchical system of social and political authority
and agricultural wealth distribution. This hierarchy subsisted through a
system of ‘tenures’ of land under which different ‘tenants’ had rights in
the same piece of land. At the top of this hierarchy was the King and at
the bottom was the person in actual possession of the land. In between
there were several ‘lords’.
Feudalism was a system of taxation. The tenant in possession would use

his serfs to produce agricultural goods. Beginning with this tenant in
possession, each tenant in the hierarchy would pass the wealth of the
land upward by doing ‘rent-service’ of various kinds to the lord
immediately above him upto the King. Therefore, although a person
might have an ‘estate’, an ownership interest, in a piece of land, the
estate or interest could be the right to a rent from the tenant immediately
below him in the feudal hierarchy and not necessarily an estate giving
possession of the land itself. Different kinds of rights and duties defined
the different kinds of tenure by which land could be held. Such rights
included knight service, the obligation to provide knights or money for
arms and the obligation to provide agricultural products.
Disadvantageous rules of the tenurial feudal system
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The use arose as a means of avoiding some of the disadvantageous rules

of the tenurial feudal system. The following are the disadvantages of this
system:
1) Land could not be bequeathed by will, but could only be inherited
according to the rules of primogeniture. The effect of this was that
the entire estate or interest in land of a deceased passed on to his
eldest son. This preserved large estates in land, but it meant that a
person could not take advantage of his wealth to provide for all of
his children on his death.
2) Another problem arose if a person wanted to benefit certain
religious orders. It was difficult or almost impossible to provide for
them by conveying land to them.
3) Among the nobles, there was also the problem that the English
crown was often contested in bloody wars over long periods of time.
If a landowner were in the position of having supported the wrong
crown ruler, he would lose his life after being condemned for the
felony of treason by the victor. In addition, all his lands would be
forfeited to the crown.
4) Certain legal incidents of feudal land-holding were very oppressive.
For instance, if land held in knight-service passed to a minor heir,
the lord immediately above in the feudal hierarchy acquired the
‘right of wardship’, thereby having the right to manage the estate
and take all the profits of the land until the heir reached maturity.
The above disadvantages inspired medieval lawyers to avoid them. The

avoidance mechanism was the ‘use’.
Inter vivos dispositions

Although land could not be bequeathed by will, it could be conveyed
while the landowner or tenant was alive, that is, by an inter vivos
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disposition. A feudal tenant, A, could therefore convey his property to X,

Y and Z as co-owners on use. The conveyance was written to X, Y and Z
to the use of someone whom A wanted to benefit, called the ‘cestui que
use’. A could also convey the property to the use of an order of
Franciscan monks, or to his own use for his life and then to the use of
his widow for her life, and then to the use of all of his children in equal
shares.
The common law completely ignored the words ‘to the use of’. Under the
common law, X, Y and Z were the owners by conveyance, subject to all
the feudal duties of their estate. They could do whatever they liked with
the land, regardless of the wishes of A. Therefore, A no longer held the
legal estate to the lands; it was vested in X, Y and Z.
Joint tenancy
The conveyance was made to X, Y and Z as co-owners to take advantage

of the common law rule of joint tenancy whose significant feature is the
right of survivorship. Under the joint tenancy therefore, upon the death
of one joint owner, his interest is extinguished; it does not pass to his
heirs. The joint tenants will be less by one. Therefore if X died, his heir
would not inherit a share of the property. (Contrast this with a tenancy
in common where if one co-owner dies, his share will be inherited by his
heir.)
As joint tenants of the legal title to the land, X, Y and Z would be liable to
comply with the feudal duties. Also, because of the right of survivorship
in a joint tenancy, the worry of a minor heir inheriting the land could be
completely avoided. The danger of inheritance would only arise if,
following a series of deaths, only one of the original joint tenants
remained, who would then be the sole owner. If he then died, his heir
would inherit at common law. But this situation could be avoided by
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appointing an additional joint tenant every time one of the other joint
tenants died. Therefore, upon the death of X, for example, Y and Z could
convey the land to themselves and V, on the same uses as A originally
did. In this way, whenever the number of joint tenants reduced, a
conveyance to an additional joint tenant ensured that the property was
never inherited and so a wardship would never arise.
The use, therefore, could be employed to avoid the rules of feudal tenure.
The benefit of the land could be passed to persons other than those who
would inherit under the rules of primogeniture. It could be passed to
those who were legally disentitled from holding property such as religious
orders and minors. A person could convey his lands to a neutral party,
so that if he was executed for treason, he could die with the comfort that,
not being the legal owner of the lands, they would not be forfeited to the
crown. As such, his wife and children would not be destitute because the
legal owners would continue to hold the lands for them upon use.
Finally, the use could be used to ensure that a minor never inherited.
The Chancellor as the Defender of the rights of the cestuis que use
What could the cestuis que use do if X, Y and Z refused to honour the
use?
The common law did not recognize the use. X, Y and Z were the legal
owners. Therefore, A’s cestuis que use would not get any relief in a
common law court. Consequently, the Chancellor intervened and
exercised his power to remedy injustices on the notion of conscience. It
would be unfair and unjust to allow X, Y and Z to take the benefit of the
land themselves. The Chancellor would enforce the use at the suit of the
cestuis to ensure that X, Y and Z held the land according to the use A
dictated.
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When the use originated, it was understood by all that the legal title
holders were bound in honour and conscience, not (common) law, to give
effect to the use. There were non-legal sanctions for failing to honour use
obligations. A person could be made a social outcast or could even be ex-
communicated from the church. As the social bonds of feudalism
declined in importance, failures to perform use increased, prompting the
Chancellor to intervene. His jurisdiction became the exclusive means of
enforcement, leading to the rules that govern uses and trusts which
make up a large part of the law of equity.
How should we characterize the Use?
A use is a kind of ‘structured gift’. A conveys property to X, Y and Z to

the use of someone whom he wants to give the property in circumstances
where under the common law rules of property he cannot do so. As
stated earlier, one obstacle in feudal times was the rule of primogeniture.
The use can also be characterized as a kind of tax-avoidance mechanism.
THE ORIGIN OF THE TRUST: FROM USE TO TRUST

The use developed considerably during the 15 th and early 16th centuries.
The rights of the cestui que use were so extensive that it became
recognised that there was duality of ownership. One person, referred to
as the feoffee to uses, was the legal owner according to the common law,
which the Chancellor did not dispute. But the feoffee to uses had only
the bare legal title; the real beneficial ownership was in the equitable
owner, the cestui que use. (The feoffor was the giver of the property.)
The Statute of Uses 1535

King Henry VIII realized that because of the use, he was losing many
feudal dues and he was determined to restore the revenues of the Crown.
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Therefore, he decided to stop or at least limit the development of the use

through the enactment of the Statute of Uses of 1535. By virtue of this
Statute, a conveyance from A to X to the use of B was treated as a
conveyance from A to B directly. The Statute “executed the uses”. The
title passed from A to X and then to B as the use was automatically
`executed`, cutting out X. The equitable interests of the cestui que use
were converted into corresponding legal estates with possession.
Therefore there was no longer any use by which X could be bound.
The object of the Statute of Uses was to abolish uses and to ensure that
the legal owner of land should always also be the beneficial owner.
However, even though the Statute of Uses executed a vast majority of
uses, there were three main situations in which it did not apply and
therefore the use never became completely obsolete. The three situations
are as follows:
1. Leaseholds and personal chattels
The Statute of Uses applied only where one person was vested with a
freehold interest (referred to as `seisin`) to the use of another. It therefore
did not affect leaseholds or personal chattels in respect of which there
could be no seisin in the technical sense. The Statute was therefore
confined to freehold land.
2. Where there were active duties to be performed
The Statute did not apply where the person to whom the freeholds were
conveyed had active duties to perform. An example is where land was
conveyed to T to the use that he should collect the rents and pay them to
B. Here, the legal estate was vested in T in order that he might carry out
the duty imposed upon him towards B.
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3. Where there was a Use upon a Use
Here, land would be limited to A and his heirs to the use of B and his
heirs to the use of C and his heirs. It was decided before 1935 that C
took nothing in such a case. A had the legal fee simple and B had the
equitable fee simple, but the limitation to C was repugnant to B`s
interest and accordingly void. After the Statute of Uses was enacted, the
second use was still held to be void, although the first use was executed
so as to give B the legal fee simple and leave A, like C, with nothing at all.
Use upon a Use

In Tyrrel`s case (1557) 2 Dy. 155a, the common law judges held that
there could not be a use upon a use, so that if freehold land was
conveyed to A to the use of B to the use of C, the only use recognized by
law was the use in favour of B. B was the legal owner by virtue of the
Statute and C took nothing. This gave the Court of Chancery the
opportunity of interfering once again. Eventually, about the middle of the
17th century, the Chancellor began to enforce this second use in equity in
the same way as the first use had been enforced before the passing of the
statute and it became a well established practice by the end of that
century.
The second use is what came to be called a trust, in order to distinguish
it from the first use. Property would therefore be passed to A “unto and
to the use of B and his heirs in trust for C and his heirs.” B took the legal
fee simple at common law, but the use in his favour prevented the
second use being executed by the Statute of Uses, leaving it to be
enforced in equity as a trust. The result was to restore duality of
ownership, with B as the legal owner and C as the equitable owner. The
use was in effect resuscitated under the name of trust.
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By the beginning of the 18th century, where a legal title holder, now
called the Trustee, held property to the benefit of B, now rendered as `in
trust for B` rather than `to the use of B`, the court of Chancery would
require the Trustee to hold the land for the benefit of B, just as if he had
formerly held it to the use of B. B was consequently renamed the `cestui
que trust` and is now generally called the `beneficiary`.
The Statute of Uses was repealed by the Law of Property Act of England
of 1925 which, together with other statutes passed in England such as
the Settled Land Act, 1925, now govern the creation of settlements of
land in England. These two Acts have been amended over time. In Kenya,
the creation of settlements of land under trusts is governed by various
Acts, among them, the Trustees (Perpetual Succession) Act (Cap 164),
the Trust Lands Act (Cap 288), the Trusts of Land Act (Cap 290) and the
Law of Succession Act (Cap 160). Duties of trustees are contained in the
Trustees Act (Cap 167), the Public Trustees Act (Cap 168) and the Wakf
Commissioners Act (Cap 109).
It is a fundamental principle that equity operates on the conscience of
the owner of the legal interest. So, in the case of a trust, the conscience
of the legal owner requires him to carry out the purposes for which the
property was vested in him (express or implied trust) or which the law
imposes on him by reason of his unconscionable conduct (constructive
trust). Once a trust is established, the beneficiary has, in equity, a
proprietary interest in the property. This interest will be enforceable in
equity against any subsequent holder of the property. The only exception
is a purchaser for value of the legal interest without notice of the trust.
In addition, if the trustee becomes bankrupt, the trust property is not
available to the trustee`s creditors. It remains subject to the trust and is
not affected by the bankruptcy.
Reasons for setting up a Trust
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The trust has become a much more highly developed institution than the
use had ever been. Even though feudalism has been abolished in
England, the trust, which was intended to avoid feudal dues, has gained
even more significance. Today it is set up for a wide variety of reasons.
1. One such reason is avoidance of tax in family settlements. In
certain circumstances, the law of taxation favours giving property
by way of trust when the donor is still alive over bequeathing the
property to beneficiaries in the donor`s will.
2. A trust may also be set up to ensure equal distribution of funds

among members of the family or the passing of wealth to future
generations, born and unborn or to minors.
3. Also, a donor can make provision for a son who is a spendthrift by
giving money to a trustee to dispense to the son.
4. The donor can also set up a trust to provide for a member of the
family who by reason of mental or physical disability is unable to
provide for himself.
5. A donor may want one beneficiary to have the dividends, that is,
income from shares, and another beneficiary to have the capital.
6. Clubs and societies, unincorporated bodies and most charities
have their funds and property vested in trustees.
7. Under time-sharing schemes, the villas or apartments to be time-
shared are usually vested in a trustee.
Two specialised forms of trust are the unit trusts and the pension
scheme trusts but these are outside the ambit of this discussion. The law
of trusts provides the foundation for the interests, rights and duties
arising in relation to pension schemes. However, some of the principles
require modification in their application to pension schemes. (See Pettit
for further reading.)
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Conclusion
The structured gift and tax-avoidance functions of the use and trust
work in opposite ways. To the extent that the use was intended to avoid
feudal taxes, it freed property from restrictions which reduced its value
to an owner. On the other hand, the structured gift burdens property. If
the feudal use worked to free land from the institution of feudalism, its
modern counterpart, the trust, ties up property to different social
institutions such as the family, or the workplace as in the case of a
pension trust fund. Roxburg, J. observed, in Re a Solicitor, (1952) Ch.
328 at 332, “as the principles of equity permeate the complications of
modern life, the nature and variety of trusts ever grow.”
ESSENTIAL ELEMENTS OF A TRUST

1. Donor
2. Property
3. Trustee
4. Beneficiary or Object
In a trust, the legal title to property vests in the trustee whereas the
equitable title vests in the beneficiary.
DISTINCTION BETWEEN A TRUST AND OTHER RELATIONSHIPS

TRUST AND CONTRACT
1. Creation
Trust - Creation of equity

Contract - Formed at common law
2. Suing
Contract - A person not privy to a contract cannot sue for breach of

contract.
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See: Tweddle v. Atkinson

(1861) 30 L.J. Q.B. 265; Nathan No. 30
Dunlop V. Selfridge & Co. Ltd ( 1915) A.C. 847
Exception Eg. – Insurance Contract
Trust - A beneficiary can sue in a trust even though he was not party to
the creation of the trust.
3. Consideration:
Contract – A contract needs to be supported by valuable consideration
unless it is under seal.
Trust – No such requirement.
4) Agreement
Contract – The agreement is the basis of the contract; the parties have
consented to the contract.
Trust –
a) No need for such agreement between the donor and trustee, the
trustee and beneficiary or the beneficiary and donor
b) In a trust created under a Will, a person can be named as a trustee
and executor without his having consented prior to the creation of
the trust. Similarly, the court can appoint a person as trustee
where there is no Will, without his prior consent. Such consent is
signified afterwards by the trustee when he accepts to so act.
TRUSTEE AND PERSONAL REPRESENTATIVE

Personal representatives – Executor – Will
Administrator – No Will
1. Functions:
Personal Representatives- To collect the property or assets of the

deceased wind up the business and distribute the property or assets.
Trustees are administrators only. They manage or run the business for
the benefit of the beneficiary.
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2. Legal Title:
Trustee – has legal title only. He cannot in his personal capacity assign
or transfer an interest in a property.
Beneficiary – has equitable title which he can transfer or assign.
Personal representatives – have more that the legal title. They are bound
to distribute the property among the beneficiaries.
3. Joint /Several action:
Personal Representatives – Where more than one, either one or all of

them can issue personal property.
Trustees – must act jointly for the disposition to be effective.
4. A person can be both a trustee and personal representative.
5. Appointment:
A personal representative who has completed administration of the estate

of a deceased becomes a trustee thereof and can appoint new or
additional trustees. See Re: Cockburn`s Will Trusts (1957) Ch. 431
Nathan No. 37
Contrast:
A personal representative can only act as such after being appointed in
a Will or by the court. He cannot be appointed by another personal
representative.
TRUST AND BAILMENT
1. Creation:
Bailment – Common Law

Trust – Equity
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2. Title
Trustee – has legal title to property and can pass a good title to a bona
fide purchaser who has paid consideration and who has no notice of the
trust.
Bailment – The bailee has no legal title to the property and cannot
therefore confer a good title.
3. Property
Bailment – applies to personal property (Chattels) only.

Trust applies to both real and personal property.
4. Standard of care
Trust – standard is higher than in a bailment.
TRUST AND AGENCY

1. Creation
Trust – Equity
Agency – Common Law
2. Agreement
Agency – arises by contract/agreement between principal and agent

(except for agency of necessity).
Trust – usually no contractual relationship between trustee and
beneficiary
3. Property: Trustee has property vested in him

Agency - property is not vested in him.
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4. Liability: Agency – Agent can make principal liable- vicarious liability.

Trust –general rule – trustee cannot make beneficiaries liable.
Similarity:
Both have fiduciary obligations towards principal (agency) and
beneficiary (trust).
TRUST AND POWER
A power is an authority vested in a person to deal with or dispose of
property not his own. A trustee does not dispose of property; he only
manages or administers it. See: Freme v. Clement (1881) 18 Ch. D. 499
at 504
Under a power , authority is given by one person called the Donor, to
another person called the Donee, entitling the Donee to deal with or
dispose of property either absolutely or partially and either for the
Donee`s own benefit or for the benefit of others whether or not the Donee
is beneficially interested in the subject matter before the exercise of
authority.
Distinctions
1.Trusts – equitable
Power- legal
2 Trust – imperative
Power - discretionary
A trust is imperative because the trustee has to deal with the property
according to the provisions contained in the trust instrument.
Under a power, there is a discretion on the part of the Donee to deal
with property.
3.Power – If a gift is given and the Donee has a power and not a trust in a
Will and the Donee dies before the testator (maker of the will), the gift
lapses under those circumstances. The intended beneficiaries under
that power cannot benefit.
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Trust - Where the trustee dies before the testator, the beneficiaries
named in the Will can still benefit and there is a valid trust unless the
testator varies the will. The Attorney-General can enforce the trust and
the court can appoint someone else to act as trustee (Public Trustee).
4.Trust – A beneficiary has an equitable interest invested in him which
can only be defeated by a bona fide purchaser for valuable consideration
without notice of the equitable interest.
Power - The beneficiaries have no interest in the property until the
Donee exercises the power
Examples
Trust – If A, by Will, leaves property “To W, my wife, for her life and
thereafter to our children” , it is a trust.
Power - If the expression is “To my wife, W and, upon her death, to such
one or more of our children as she may think fit and in default of her
exercise to go to Y ”, this is a power.
However, it is possible to have a trust under which a trustee is given
discretion. This is referred to as a discretionary trust.
So then how do we distinguish between a discretionary trust and a

power?
Discretionary trust – is one in which a trustee is given power to select
beneficiaries or proportions for specified beneficiaries. This is referred to
as a “power in the nature of a trust” or a “trust under the guise of a
power”.
The trustee may be given discretion to select beneficiaries from a
specified class or to determine proportions which the specified
beneficiaries are to take. Until the trustee makes such selection, no
single individual can claim a right or interest in that property.
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However, where the trustee fails to select the beneficiaries, the whole
class can seek the exercise of the discretion in their favour by going to
court.
Therefore the failure by the Donee of a “power in the nature of a trust” to
exercise that power will not prejudice the intended beneficiaries, because
the court will take upon itself the duties of the Donee. See:
Burrough v. Philcox (1840) 5 My. Cr. 72
(Trust – No gift over in default of appointment)
Facts
A testator gave property to his two children for their lives and empowered
the survivor of them to dispose of the property by will “amongst my
nephews and nieces or their children, either all to one of them or to as
many of them as my surviving child shall think proper.”
Held: That a trust was created in favour of the testator`s nephews and
nieces, subject to a power of selection and distribution in the testator`s
surviving child, and that since the surviving child had failed to exercise
the power, the property must be divided equally among the beneficiaries.
Per Lord Cottenhan, L.C. , at 92:
“When there appears a general intention in favour of a class, and a
particular intention in favour of individuals of a class to be selected
by another person, and the particular intention fails from that
selection not being made, the court will carry into effect the general
intention in favour of the class”
When equity executes an unexercised trust power, it usually applies the
maxim that “equality is equity,” and divides the property among all
members of the class equally as tenants in common. See:
Re: Arnold, Wainwright V. Howlett (1947) Ch. 131
Here, grandchildren took gifts in equal proportions with the children of
the testator.
Power
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In the case of a power, whether the beneficiaries are individuals or form

a class, they cannot compel the Donee of the power to exercise his
discretion in their favour.
Distinction between a discretionary trust and a mere power

If there is no provision for a gift over in default of appointment, the
power is a trust power. If there is such provision, the power is a mere
power. This is because the inclusion of a gift over in default of
appointment in the instrument means that the Donor (testator) has made
provisions as to what might happen in the event that the power is not
exercised i.e., there is default of appointment.
Eg. “To W, my wife, and thereafter to any of our children as she chooses
and in default of appointment, to Y, ”. The gift is a mere power and not a
discretionary trust. See:
Re Mills (1930) 1 Ch. 654
(Mere Power – gift over in default or appointment)
This case provides the basis for distinguishing between a discretionary
trust (or a power in the nature of a trust) and a mere power. In many
cases, it is difficult to draw a distinction and the decision turns on the
proper construction of the language of the instrument.
Facts of Re Mills:
A testator, by his will, declared that a trust fund set up from certain
income from his estate was to be held for the benefit of a certain class of
persons who the testator`s brother should by any deed appoint and in
default of such appointment, the fund should be held on trust for such
brother absolutely. (The testator’s brother was one of the two Executors
named in the Will.) He revoked appointments of beneficiaries that he
had made and released the power of appointment. The issue was
whether, having regard to the release of the power of appointment, he
was entitled to the property absolutely.
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Held:
The power was a mere power and not a power in the nature of a trust
and, accordingly, it could validly be released by the Donee (in this case,
the testator’s brother).
Lord Hanworth, M.R., said:
“I find it impossible to treat the power in this case as so connected
with a duty that it is a power in the nature of a trust, which
cannot be released by the Donee. There is a gift over to the Donee
in default of appointment and a gift to him until appointment and,
therefore, it is not …. possible to construe this clause as one in
which there is a gift to the possible objects of the power. It follows
that it is not a power which is coupled with or embedded in a
trust.”
NOTE: gift over in default of appointment
The mere absence of a gift over in default of appointment does not
necessarily always lead to conclusion that the power is a discretionary
trust. See:
Re Weekes` Settlement (1897) 1 Ch. 289
Facts:
A Testatrix bequeathed to her husband a life interest in certain real
property, and gave him “power to dispose of all such property by Will
amongst our children.” The Testatrix`s Will contained no gift over in
default of appointment. The children sued, claiming property in equal
shares.
Held: The power conferred on the husband was a mere power and not a
power in the nature of a trust and that, consequently, there was no gift
to the children by implication.
The court said:
“The authorities do not show that there is a hard and fast rule that a gift
to A for life with power to A to appoint among the class and nothing
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more must, if there is no gift over the Will, be held as a gift by implication
to the class involved in case of default of the exercise of the power… The
question is whether the donor has shown an intention that in any event
the property shall go to the objects of the power. If so, it is a trust
power, if not, a mere power of appointment.”
In other words, there must be an indication in the Will that the testator
intended the class to take the property ultimately.
Conclusion
A power may be General or Special
General - The donor does not specify the possible class of beneficiaries.
Special - The Donor specifies the class of beneficiaries.
CLASSIFICATION OF TRUSTS
There is no general agreement on the proper classification of trusts.
However, the important classifications are the following:
1. Express Trust
This is a trust created by the express declaration of the owner of the
property, e.g. where X conveys property to Y on trust for Z. There is a
deliberate intentional declaration by the Testator to create the trust.
2. Resulting, Implied or Presumptive Trust
A resulting trust exists where property has been conveyed to another,
but the beneficial interest returns, or ‘results’ to the transferor. This
trust arises from the unexpressed but presumed intention of the owner
of the property. It is applied to three categories:
(a) Where a person, A, provides money to purchase property and the
property is, by his direction, registered in the name of another person, B.
This may occur, for example in an auction sale where B is deemed to be
a nominee. A may also have the property registered in the joint names of
himself and B. There is no intention that the property should benefit B.
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B is merely a trustee for A. The beneficial interest results to the person

who provided the purchase money, that is, A.
(b) Where there is a voluntary conveyance or transfer into the name
of another or into the joint names of the grantor and another. Here, there
is a resulting trust to the grantor.
(c) Where a person conveys property to trustees upon certain trusts
which fail wholly or which do not exhaust the beneficial interest. These
are said to fail wholly or partly. The trust leaves some or all of the
equitable interest undisposed of. The beneficial interest or part that is
undisposed of results back to the transferor. For example:
(i) Failure of the whole trust: A settlor may transfer KShs. 1 Million to
trustees on trust for his niece Karindeche. Unbeknown to the settler,
Karindeche has died, so there is no person to take the intended beneficial
interest under the express trust. The trust fails wholly. Consequently,
the beneficial interest ‘results’ or springs back to the settlor, and the
trustees will hold the property upon trust for the settlor.
(ii) Failure in part: If a settlor transfers property to trustees to hold in
one-third shares for Tom, Dick and Harry and Tom has died, then that
one-third share will be held on a resulting trust for the settlor. Also, if
there is a gift on trust for A for life and then on trust for X if X attains the
age of 21 years, but X dies under 21 in A’s lifetime, the property will
result on A’s death to the settlor.
In both categories a) and b) above, there is an implied or presumptive
trust. In Re Vandervell’s Trusts (No 2) [1974] Ch 269, Megarry J.
classifies these two categories as ‘presumed’ resulting trusts because
they depend upon the presumed (or implied) intention of the grantor.
In the case of category (c) above, Megarry J. classifies it as an ‘automatic’
resulting trust, because it does not depend on any intentions or
presumptions, but is the automatic consequence of the failure to dispose
of all or part of the property. It is deemed to arise by operation of law.
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3. Constructive Trust
Here there is no intention to create a trust. By operation of law, the
titled holder of the property is held to be a trustee. It is a trust imposed
by equity in circumstances where it would be an abuse of confidence for
him to hold the property for his own benefit.
4. Private and Public Trusts
Trusts may also be divided according to their purposes and functions.
(a) Public trusts are also called charitable trusts. A trust is public or
charitable if its object is to promote the public welfare even if it
incidentally confers a benefit on an individual or class. Charitable trusts
are purpose trusts.
A private trust, on the other hand, is intended to benefit a specified
individual or a group or class of individuals, irrespective of any benefit
which may be conferred thereby on the public at large. A private trust
cannot therefore be charitable.
(b) In a public trust, the intended objects or beneficiaries or class of
beneficiaries need not be certain. The trust cannot therefore fail for
uncertainty of objects/beneficiaries. In a private trust, the intended
beneficiaries or class of beneficiaries must be certain.
(c) A private trust may be enforced by any of its beneficiaries. A public
trust is enforced by the Attorney-General.
(d) A charitable trust can be varied and can be applied cy-pres to other
charitable purposes. A private trust cannot.
(e) Charitable trusts are exempt from taxation. Private trust are not.
f) Charitable trusts may be perpetual. Private trusts must not conflict
with the rules against perpetuities. These rules are stated in Sections 5
and 6 of the Perpetuities and Accumulations Act.
5. Trusts of Perfect and Imperfect Obligation
Trusts which are not enforceable by or on behalf of any beneficiary or
object are known as trusts of imperfect obligation or honorary trusts. In
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general, trusts for mere abstract and impersonal purposes are not
recognized as valid by the court. E.g.
A trust of funds for purposes of maintenance of good understanding
between nations and the preservation of the independence and integrity
of newspapers. See: Re Astor’s S.T. (1952) Ch. 534.
Trusts to devote funds to pursuing inquiries into a new alphabet: Re
Shaw (1957) 1 W.L.R. 729
On the other hand, courts have upheld trusts for the maintenance of
individual animals. See: Re Dean (1889) 41 Ch. D552 (Kenya – Class
of animals – Elephant, Rhino)
6. Simple and Special Trusts
Simple – This is a trust in which property is vested in one person on
trust for another, the nature of the trust not being prescribed by the
Testator or Donor, but being left to the construction of the law.
Special – This is where the trust itself imposes duties on the trustee as to
how he should deal with the property.
7. Executory and Executed Trusts
The objects in a trust deed must be certain or capable of being
ascertained. However, it is not essential that the instrument creating the
trust should mark our precisely the interests which the objects are to
take in the trust property. This can be done by a subsequent
instrument.
Executory- Where a further instrument is necessary to carry into effect
the general intention expressed in the first instrument, the trust is said
to be executory. E.g. “To Tom on trust for such one or more of my nieces
as he shall think fit.”
Executed- Where no further instrument is necessary and the trust is
finally declared in the first instrument, the trust is said to be executed.
E.g. Where trust funds are vested in Trustees on trust for A for life and
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after his du death for B absolutely, both the objects/beneficiaries and

their interests are spelt out. They are certain.
The expressions “executed” and “executory” refer to the creation of the
trust and not to the carrying out of it. The test for determining whether
it is executed or executory is, according to Lord St. Leonards, to ask
whether the settlor has been his own conveyancer or draftsman, or
whether he has left it to the court to make out from general expressions
what his intention is. See: Egerton v. Earl Brownlow (1853) 4 H.L.C. 1 at
210
Note: the distinction between an executory and executed trust arises only
if there is a valid and enforceable trust in the first place.
8. Completely and Incompletely Constituted Trusts
The distinction between completely and incompletely constituted trusts
relates to whether or not there is an enforceable trust at all.
Completely constituted – valid trust
Incompletely constituted – void
A trust is said to be completely constituted when the trust property is
vested in trustees for the benefit of the beneficiaries.
In an incompletely constituted trust, reference is made to procedures
and technicalities which have not been complied with, hence there being
no valid trust.
A completely constituted trust is not necessarily an executed trust.
By the same token, an incompletely constituted trust is not the same as
an executory trust.
E.g. A testator bequeaths KShs. 100,000/= to X upon trust for X to
purchase land and transfer the land to A and his children. The trust is
executory but it is nevertheless completely constituted.
Note: All trusts arising under a Will are completely constituted although
they may be either executed or executory.
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In the case of an incompletely constituted trust, the question as to

whether it is executory or executed does not arise; it is rendered
nugatory by the fact that the purported trust is void ab initio.
9. Fully Secret and Half-Secret Trusts

Fully secret – if the will does not disclose that any trust exists.
Half secret – if the Will reveals that there is a trust, but does not reveal
its terms or the beneficiaries.
Fully Secret Trust
If a testator makes a Will bequeathing property to T without stating in
the Will that T is to hold the property on trust for B, and either before or
after making the will, he tells T, either directly or through an authorized
agent, that he wishes T to hold the property on trust for B, this is a fully
secret trust. T will be compelled to carry out the trust.
The secret trust, however, is not enforced unless T has expressly or
impliedly accepted to be a trustee before the death of the testator.
If the Will contains no reference to any trust and T hears of the intended
trust after the testator’s death (e.g. by finding an unsigned document
setting forth the trust), T is entitled to keep the property for himself.
Criticism: Chance of fraud; T can deny any knowledge of the trust.
Half Secret Trust
Here, property is given by Will to T with an express direction in the Will
itself that T is to hold the property upon trust, but the particular terms
of the trust are not disclosed in any testamentary document. Thus, a
trust is half-secret if the gift is “to T on the trusts I have already told
him.”
In a half secret trust there is little chance of T committing a fraud by
claiming the property for himself.
It is unsettled whether secret trusts are express trusts or constructive
trusts.
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EXPRESS PRIVATE TRUSTS

FORMALITIES
1. Writing
For it to be called an express trust, it must be in writing. Under the
Land Registration Act 2012 and the Land Act 2012 (which repealed and
replaced the GLA, RLA, RTA and ITPA) as read together with the Law of
Contract Act, all dispositions of an interest in land must be in writing.
It follows that a declaration of a trust in respect of land must be in
writing. This rule regulates the creation of express trusts of land, but
does not affect the creation or operation of resulting, implied or
constructive trusts.
2. Wills
Where a Trust is intended to take effect only on the death of the property
owner, it must be created by a Will duly executed by the owner in
accordance with the Law of Succession Act (Cap 160). Under the said
Act, the Will may also be oral.
Q. How can we reconcile the issue of an oral will with the requirement
that a disposition of an interest in land must be in writing?
3. Capacity
Minors and persons of unsound mind are incapable of creating a trust
except through specified procedures.
Minor – Can own a piece of land but can only transfer it through a
guardian or under a trust, through a trustee.
Persons of unsound mind
Testamentary gift – Under the Law of Succession Act, for a person to be
competent to make a Will, he must be of sound mind. The interpretation
of sound mind includes lucid intervals for persons of unsound mind.
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Construction of “sound mind” does not therefore automatically disqualify

persons of unsound mind. However, the standard applied in construing
whether the person was of sound mind at the time of making the will is
very high:
i) He has to be aware that he is making a will
ii) He must have in mind his property
iii) He must be aware of the beneficiaries – dependants, friends etc.
iv) The manner of distribution of the property is looked at by the court.
In the case of a gift inter vivos, the test as to whether or not a person
is/was of unsound mind at the time of making the gift varies according
to the size of the transfer and its relationship to the total assets owned
by the Donor. If the amount of property that has been given is trivial
compared to what has remained, the gift will be valid. If what has been
given is substantially greater than what is left, it is unlikely that the gift
will be found to be valid.
On the manner of distribution of the property, see:
Re Beaney (1978)1 WLR 595 – Lady of unsound mind.
THE THREE CERTAINTIES OF AN EXPRESS PRIVATE TRUST

“The three certainties” were laid down by Lord Langdale, M.R., in the
case of Knight v. Knight (1840) 3 Beaver 148 at 173.
These are:
1. Certainty of words or intention – the words must be so used that on
the whole they ought to be construed as imperative in creating a trust.
2. Certainty of subject matter – the property which is the subject matter
of the trust must be certain.
3. Certainty of objects or beneficiaries – the objects or persons intended
to have the benefit of the trust must be certain.
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1. CERTAINTY OF WORDS/INTENTION
No particular form of expression is necessary for the creation of a trust, if
on the whole it can be gathered that a trust was intended. The question
in each case is whether, on the proper construction of the words used,
the testator manifested an intention to create a trust. The word “trust”
need not appear on the document.
Precatory words – It is possible to create a trust by precatory words, e.g.
where a person gives property to another and accompanies the gift with
words of wish, hope, desire, confidence or entreaty that the donee will
dispose of the property in some particular way. Such cases arise mainly
under wills. As such, it is often very difficult to determine whether the
testator intended an absolute gift to the donee, leaving it to the discretion
of the donee as to whether to comply with his wishes or not, or whether
the testator intended that the donee should be a trustee of the property,
and, as such, be bound to dispose of or deal with it according to the
wishes or desire expressed by the testator for the benefit of the
beneficiaries. This question can only be answered by examining the
whole instrument.
Before 1871, the attitude of the Chancery court was that whenever
precatory words were used, there was an inference that a trust had been
intended. The landmark case that signified a shift in attitude after 1871
was Lambe v. Eames (1871) 6 Ch. App.597 at 599, where James, L.J.,
observed:
“I could not help feeling that the officious kindness of the Court of
Chancery in interposing trusts where in many cases the father of the
family never meant to create trusts, must have been a very cruel
kindness indeed.”
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Facts of Lambe v. Eames:
The testator gave his estate to his widow “to be at her disposal in any
way she may think best for the benefit of herself and her family.” The
question was whether this statement inferred an intention to create a
trust. The widow gave part of the estate to a person outside the family
and the question was whether this was a valid disposition.
Held: She had been absolutely entitled to the property. No trust was
intended. As such, she did not do anything wrong by giving away part of
the estate as she did. Another leading case is Re Adams and the
Kensington Vestry (1884) 27 Ch. D 394.
Facts: The testator gave all his real and personal estate “to the absolute
use of my dear wife…. in full confidence that she will do what is right as
to the disposal thereof between my children either in her lifetime or by
will after her demise.” The question was whether she took an absolute
gift or whether a trust was intended.
Held: The wife took the property beneficially. In other words, the wife
took an absolute gift and no trust was intended. Since the decision in Re
Adams, there have been many cases in which the courts have held that
there was no trust even though precatory words were used.
Examples:
Re Conolly (1910)1 Ch. 219 Here, a testator gave “to my sisters, Anne
and Louisa, equally the rest of my stocks and shares,” and added: “I
specially desire that the sum herewith bequeathed shall ...be specifically
left by the legatees to such charitable institutions of a distinct and
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undoubted Protestant nature as my sisters may select, and in such

proportions as they may determine.”
Held: That the sisters were entitled beneficially. Re Hamilton, Trench v.

Hamilton (1895) 2 CH. 370 Here, the judge said:
“It seems to me perfectly clear that the current season with regard to
precatory trusts is now changed, in this, that the court will not allow
precatory trusts to be raised unless on the consideration of all the words
employed it comes to be conclusion that it was the intention of the
testator to create a trust.”
NOTE: The whole instrument must be considered. A gift which is stated
at first to be “absolute” may be modified by subsequent words. See:
Comiskey v. Bowring-Hanbury (1905) A.C. 84
Facts:
The testator gave to his wife “the whole of my real and personal estate in
full confidence that she will make such use f it as I should have made
myself and that at her death she will devise it to such one or more of my
nieces as she may think fit.” The testator also directed that “all my
estate and property acquired by her under this my will shall at her death
be equally divided among the surviving said nieces.”
Held: there was a trust. The court looked at the whole document.
It is impossible to reconcile all the cases on the issue of the use of
precatory words in relation to the certainty of intention to create a trust.
Even though the modern view has been to place greater restriction on
construing precatory words as creating trust, there have been departures
from the modern view. SNELL refers to these as inconvenient and
irregular departures from the modern view.
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In Re-Steele’s Trusts (1948) Ch. 603, it was held that if there is a

reported decision that a particular form of wording creates a trust, the
use of identical expressions will also create a trust, even if the earlier
case was decided before the modern view appeared.
In Re Steele the word “request” was used and the court held that a trust
had been created on the ground that a previous reported decision,
Shelley v. Shelley (1868) L.R 6 Eq. 540 had held that the use of the word
“request” created a trust.
What is the solution to this problem of inconsistency of decisions?
SNELL suggests that the draftsman (of the will) should state expressly in
the will that the precatory words are not to create any trust or legally
binding obligation. The problem here is that the testator will be absent
during the interpretation of the will. Another suggestion therefore is that
the court should pass a decision that whenever a testator uses precatory
words this does not create a binding obligation or trust. This may
minimize the confusion.
Effect of absence of certainty of words/intention

The general rule is that the donee takes the property
beneficially/absolutely, free from any trust. As such, the donee can
dispose of it in any way he thinks fit.
2. CERTAINTY OF SUBJECT MATTER (TRUST PROPERTY)
Certainty of subject matter falls under two heads.
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(a) Trust Property

The property to be held on trust must be certain. Any property can form
the basis of a trust. It can be immovable property (land) or movable
(chattel) e.g. a negotiable instrument, an insurance policy etc. The rule
that the property must be certain is especially important in cases of
testamentary gifts ( in wills). This is because the testator will not be
there to explain what the subject matter is.
In Palmer v. Simmonds (1854) 2 Drew 221, it was held that a declaration
of trust where the property was described as “the bulk of my said
residuary estate” failed to create any trust. The trust was void because
the subject matter was not certain – it was vague.
Contrast: Bromley v. Tyron (1952) AC 265

In Re Jones (1898) 1 Ch. 438, the words used to describe the property
were “such parts of my estate as she shall not have sold.”
In Sprange v. Barnard (1789) 2 Bro C.C. 585, the testatrix provided as

follows: “ This is my last will and testament at my death. For my
husband Thomas Sprange, to bewill to him the sum of 300 pounds, …
for his sole use; and at his death, the remaining part of what is left, that
he does not want for his own wants and use, to be divided between my
brother John Crapps, my sister Wickenden, and my Sister Bauden, to be
equally divided between them.” The question was whether the brother
and sisters had any interests.
Held: there was no trust created in favour of the brother and sisters
because the instrument was vague as to the subject matter.
(b) Beneficial interest
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The beneficial interests to be taken by the beneficiaries must be certain.

Thus, if a testator devises all his houses to trustees but leaves it
uncertain which of the houses, or how many, each beneficiary is to have,
the trust fails and there is a resulting trust to the settlor. This is the
general rule. See Boyce v. Boyce (1849) 16 Sim. 476
See also: Re Moore (1901) 1Ch.936

However, as an exception to the general rule, a trust need not fail merely
because the specific interests to be taken by the beneficiaries are
uncertain. Sometimes this uncertainty can be cured. This may be done
under three main heads.
i) The court can apply the maxim “Equality is equity” and divide
the property into equal shares among the beneficiaries. See:
Doyley v AG (1735)2 Eq. Ca. Abr. 194.
ii) The settler may not immediately specify the beneficial interests
but may confer upon the trustees a discretionary power to pay
or apply the trust fund among a class of persons as the trustees
think fit. See: Re Isaacs (1948) 92 S.J. 336
iii) If the whole of the beneficial interest is given to one beneficiary,
subject to the right of other beneficiaries to an uncertain part of
it, the direction as to the uncertain part fails and leaves the
principal beneficiary entitled to the whole. See:
Curtis v. Rippon (1820) 5 Madd 434

Facts: The testator, after appointing his wife as guardian of his children,
gave all his property to her, “trusting that she will, in fear of God and in
love to the children committed to her care, make such use of it as shall
be for her own and their spiritual and temporal good, remembering
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always… the church of God and the poor.” The question was whether the
children, the church of God and the poor had any interest.
Held: The wife was absolutely entitled to the property, there being no
ascertained part of it provided for the children or for the church of God
or for the poor.
For the same reason, if a testator gives property to A and directs that so
much of it as may not be required by A, or may be possessed by A at A’s
death, shall go over to B, B will take nothing since B’s share is not
certain. See: Sprange v Barnard (above) (1789) 2 Bro C.C. 585
3. CERTAINTY OF OBJECTS/BENEFICIARIES
There must be a person or an object in whose favour a trust can be

created. If the objects or beneficiaries are uncertain the trust will fail.
Note: Charitable trusts an exception to this general rule.
How does one determine certainty of objects/beneficiaries?

According to some authors, the test to be applied to determine the
certainty of objects or beneficiaries depends on the nature of the trust –
i.e. whether it is a fixed or discretionary trust.
Fixed Trust – the trust is void unless it is possible to ascertain each and
every beneficiary. A fixed trust is one in which the share or interest of
the beneficiary is specified in the instrument. E.g. “to my wife for life and
upon her death to my children absolutely.”
Discretionary trust – the test is whether it can be said with certainty that
any particular person is or is not a member of the class of beneficiaries.
If he is, the trust is valid. If he is not, the trust is void. A discretionary
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trust is one in which the trustee has power to appoint beneficiaries from
a specified class or to determine the shares of specified or determinable
beneficiaries.
RESULTING, IMPLIED OR PRESUMPTIVE TRUSTS

An implied trust is a trust founded upon the unexpressed but presumed
intention of the settler. Such a trust is also “resulting” because the
beneficial interest in the property comes back (or “results”) to the person
who provided the property, or to his estate.
Resulting trusts arise in the following situations:

1. Where there is a purchase in the name of another
2. Where there is a voluntary conveyance into the name of
another or into the joint names of the grantor and another
3. Where there is a failure to exhaust the beneficial interest
1. Purchase in the name of another

Whenever a person purchases real or personal property and has it
conveyed or registered or otherwise put in the name of another person, or
of himself and another jointly, there is a presumption that the other
holds the property in trust for the person who has paid the purchase
money. There will be a resulting trust in his favour.
According to Eyre CB in Dyer v. Dyer (1788) 2 Cox 92 at 93:

“The trust of a legal estate… whether taken in the name of the purchaser
and others jointly, or in the name of others without that of the
purchaser, whether in one name or several…results to the man who
advances the purchase money.”
This presumption therefore arises where:
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1) purchase is made in the name of the third party alone; or

2) a purchase is made in the joint names of the purchaser and a third
party; or
3) property purchased with the contributions of more than one
person is conveyed into the name of only one of them; or
4) where contributors in unequal shares become joint legal owners.
See: Fowkes v. Pascoe (1875) L.R. 10 Ch. App. 343; Pettit v. Pettit [1970]
A.C. 777; Hoare v. Hoare (1983) 13 Fam. Law 142
There is no need for the conveyance or other instrument of transfer to

contain any reference to the fact that the purchase price has been paid
by someone other than the transferee. Parole evidence is admissible to
establish who in fact advanced the money. The fact of the advance must
be satisfactorily proved by evidence, including circumstantial evidence.
J.E. Penner, The Law of Trusts, refers to this type of trust as a purchase
money Presumed Intention Resulting Trust.
2. Voluntary Conveyance into the name of another or into the joint

names of the grantor and another
J.E. Penner, The Law of Trusts, refers to this type of trust as a gratuitous
transfer Presumed Intention Resulting Trust. If A simply transfers
property he already owns to B gratuitously, that is, without receiving any
payment in return-for no consideration- B will hold the property on trust
for A. When a person transfers legal title gratuitously to another person,
equity presumes that he intends to create a trust in his favour, hence the
term presumed intention resulting trust. Because the law presumes that
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a gratuitous transfer implies an intention to create a trust, this kind of

trust is also called an implied trust.
It has been held that a resulting trust may arise from a voluntary
conveyance where the transferor establishes that there was no intention
to make a gift. See: Hodgson v. Marks [1971] Ch. 892
Here, Mrs. Hodgson was an old lady who was the registered owner of a
house. A lodger, Evans, lived there. Mrs. Hodgson developed an affection
for Evans, and trusted him to look after all her affairs. Her nephew
disapproved of Evans, and tried to persuade Mrs. Hodgson to turn him
out of the house. To protect Evans, she executed a voluntary conveyance
by which she transferred the house to him. However, she entered into an
oral agreement with him that she would continue to be the beneficial
owner. Evans, as registered owner, sold the house to a bona fide
purchaser, Marks. When Mrs. Hodgson discovered this, she sued Marks
for a declaration that he should transfer the property to her. The Court of
Appeal Held: That on the evidence of her intention, the transfer to E was
not intended to be a gift; that Mrs. Hodgson remained beneficial owner in
equity and that there was a resulting trust of the beneficial interest in
her favour. In addition, she was in actual occupation and so she had an
overriding interest.
In Re Vinogradoff [1935] W.N. 68, a testatrix transferred ₤800 War Loan

stock which was in her name into the joint names of herself and her
granddaughter, then aged four years. The testatrix continued to receive
the dividends until her death. Farwell, J. Held: That even though a child
may not be appointed a trustee, the presumption of resulting trust
applied, and the granddaughter held the stock on resulting trust for the
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estate of the testatrix, there being no evidence to establish an intention

to make a gift.
3. Failure to exhaust the beneficial interest-wholly or partly

(a) Where a trust fails
An automatic resulting trust arises where the purpose of a trust fails.
See: Barclays Bank Limited v. Quistclose Investments Limited [1970]
A.C. 567
This case established that a loan of money on a specific condition creates

a trust attaching to the money in the hands of the borrower, a trust
which subsists in favour of the lender if the condition fails.
Facts:
R Ltd decided to declare a dividend on its share but was unable to pay
for it. The defendant (Quistclose) provided R Ltd with a loan for the
purpose of paying for this dividend. The money was deposited in a
separate account with the plaintiff (Barclays). The plaintiff agreed that
the money was to be used for the payment of the dividend. R Ltd went
into liquidation with substantial debts before the dividend was paid. The
defendant claimed to be entitled to the money in the separate account.
Held: (HL) That the arrangement for payment of creditors (the

shareholders) by the defendant constituted a trust for the shareholders,
which if it failed, would lead to a resulting trust for the defendant. As the
money was not used for its intended purpose, there was a resulting trust.
The fact that the transaction was a loan did not prevent it from being a
trust. There was evidence that if the primary use of the money was not
fulfilled, the money should return to the lender. The plaintiff could not
withhold the money from the defendant but held it as constructive
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trustee. Carreras Rothmans Ltd v. Freeman Matthews Treasure Ltd

[1985] Ch. 207
The plaintiff paid a monthly sum to its advertising agent to pay invoices
incurred in placing the plaintiff’s adverts. The money was put into a
separate account specifically for the purpose of paying the previous
month’s invoices. The defendant went into liquidation. Held: The money
in the separate account was transferred for a purpose which had not
been fulfilled. Therefore, the money should revert back to the plaintiff.
In Simpson v. Simpson [1992] 1 F.L.R. 601, the court held that the
transferee of a bank deposit held the funds on a resulting trust for the
transferor where the transferor lacked mental capacity to make a gift.
Westdeutsche Landesbank Girozentrale v. Islington London Borough
Council [1996] A.C. 669
In this case, the bank paid money to the local authority under a
transaction which was ultra vires the local authority. It was held that the
Council must return with compound interest, money received under the
ultra vires transaction. There was a resulting trust of the money for the
bank.
In Collins v. Lee, The Times, October 26, 2000, p. 687, it was held that
the transferor of land retained the beneficial interest where the transfer
was procured by fraudulent misrepresentation, for no consideration and
in breach of fiduciary duty.
(b) Failure to exhaust the beneficial interest (partial failure)
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Where the beneficial interest is not exhausted and some property

remains, there is a resulting trust. E.g. an education fund, support
fund, etc. See: Re Trusts of Abbot Fund (1900) 2 Ch. 326; Nathan No. 91
Here, a trust fund was set up by subscribers for the purpose of
maintenance and support of two deaf and dumb ladies. After their
death, a surplus remained in the hands of the trustees. The question
was whom the surplus belonged to – the original subscribers or the
personal representatives of the ladies.
Held: The ladies had no enforceable interest in the funds and therefore
on their death the remaining sum resulted back to the subscribers.
In Re British Red Cross Balkan Fund (1914) 2 C. 419, it was held that
such a surplus is held rateably for the subscribers according to their
subscriptions.
Re Hobourn Aero Components Ltd’s Air Raid Distress Fund [1946] Ch.
194
A fund was established during the Second World War for employees of a
company who were on war service or who sustained loss in air raids. The
fund was financed by voluntary subscriptions among the employees, but
it was not charitable. After the war, the fund was found to have a
surplus. It was held: That each contributor, past or present, had an
interest in the surplus by way of resulting trust in proportion to the
amount he had contributed, but subject to adjustment in relation to any
benefit he had received from the fund.
Re Gillingham Bus Disaster Fund [1958] Ch. 300
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Twenty-four marine cadets were killed or injured when a bus was driven
into the rear of a marching column. The mayors of three towns appealed
for subscriptions to a fund that would initially care for the disabled and
thereafter be available for “worthy causes” in memory of those killed. The
second object on “worthy causes” failed as it was void for uncertainty and
was not charitable. It was held that the balance of the fund not applied
for the benefit of the victims was held on a resulting trust for the
subscribers. The court further held that the money from unidentified
donors should be paid into court rather than to the Crown. It was clear
that their contributions were meant for the disaster victims and not the
Crown.
Contrast-No Resulting Trust: Davies v. Hardwick [1999] 6 CLY 554

The court in this case held that surplus donations for A, who was born
with biliary artesia, were not held on a resulting trust. The donations
were for a liver transplant. Although the transplant was done, there was
a need for continued medical treatment and the evidence was that the
donors had intended to make ‘out and out’ gifts of the donations.
Bona Vacantia
If contributors to the fund cannot be traced or are anonymous, the funds
will pass to the state as “bona vacantia”. See : Re Ulverston and District
New Hospital Building Trusts (1956) Ch. 622 at 633 & 634; Nathan No.
89 Re West Sussex Constabulary’s Widows, Children and Benevolent
(1930) Fund Trust [1971] Ch. 1
See also: Atiyah P.S (1958) 74 LQR 190 at 193

If trustees hold property absolutely for a person who is living when the
trust is created, and that person then dies intestate leaving nobody
entitled under his intestacy, there will be no resulting trust. This is
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because the settler has parted with his whole beneficial interest.
Accordingly, the property passes to the state as “bona vacantia”. This
rule applies to both movable and immovable property.
Rebuttal of Resulting Trust: Doctrine of Advancement
A presumption of a resulting trust may be rebutted by the presumption

of advancement. The presumption of advancement means that in certain
situations where one party transfers property to another there is a legal
presumption that the transfer was intended as a gift.
It arises where certain relationships exist, where the donor or purchaser

is under an obligation recognised in equity, to support or provide for the
transferee. It arises where there is a purchase or a voluntary conveyance
by a person in the name of his wife or child or other person to whom he
stands in loco parentis, that is, someone for whom he feels an obligation
to provide.
Note:
1. Evidence is admissible to rebut the presumption of advancement
thereby reinstating the presumption of a resulting trust by showing that
the intention of the donor was that he should retain the beneficial or
equitable interest.
2. There is no presumption of advancement where a wife buys property
and registers it in her husband’s name. He holds as trustee for her.
Reason: There is no legal obligation on a wife to support her husband.
See: Mercier v. Mercier (1903) 2 Ch. D. 98
3. The presumption of advancement does not also arise where there is a
transfer from a mother to her children. See: Bennet v. Bennet (1879) 10
Ch. D. 474
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Husband and wife

Where there is a purchase or transfer by a husband into the name of his
wife, or into the joint names of his wife and himself, there is a
presumption of advancement. See:
Eykyn’s Trusts (1877) 6 Ch. D. 115 at 118, per Malins, VC:

“The law of the court is perfectly settled that when a husband transfers
money or other property into the name of his wife only, then the
presumption, is that it is intended as a gift or advancement to the wife
absolutely at once…And if a husband invests money, stock or otherwise,
in the names of himself and his wife, then also it is an advancement for
the benefit of the wife absolutely if she survives her husband, but if he
survives her, then it reverts to him as joint tenant with his wife.”
Note, however, that according to the House of Lords in Pettit v. Pettit

[1970] AC 777, the strength of this presumption has been much
diminished with changing conditions of society.
Rebuttal of presumption of advancement

There will be no advancement if, for example, a joint account was opened
for the purpose of making it easier for the wife to draw money from an
account where the husband is ill. See: Marshal v. Crutwell (1875) L.R. 20
Eq. 328
In this case, a husband whose health was failing transferred his banking
account from his own name into the names of himself and his wife and
directed his bankers to honour cheques drawn either by himself or his
wife. Afterwards he paid considerable sums into the account. All cheques
were thereafter drawn by the wife at the direction of her husband, and
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proceeds were applied in payment of household and other expenses.

After his death, the wife claimed to be entitled to the balance, but it was
held that the transfer of the account was not intended to be a provision
for the plaintiff, but merely a mode of conveniently managing her
husband’s affairs.
Father and child
There is a presumption of advancement between a father and his

legitimate child. See: Re Roberts [1946] Ch. 1
A father took out an insurance policy on the life of his son. The father
paid the premiums. On the father’s death, the estate claimed repayment
of the premiums. Held: The presumption of advancement was applicable.
Each payment of the premium was to be regarded as a separate
advancement during the father’s lifetime. However, premiums paid after
the father’s death would be recoverable as the relationship of father and
son had ended by his death.
The presumption of advancement can be rebutted by evidence

In Re Gooch (1890), a father bought shares in a company in the name of
his son in order to qualify the son to be a director. The son always
handed the dividends received on the shares to his father who kept the
share certificates. It was Held, on the evidence, that the presumption of
advancement was rebutted.
The existence of a well known custom will rebut the presumption of

advancement
This applies in the case of the Benami custom among the Muslim and
Hindu. See:
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Shallo v. Maryam (1967) E.A. 49

Busaidi v. Hemed (Raya’s Case) (1962) E.A. 248
When presumption of advancement not rebuttable-illegal or

improper purpose
The presumption of advancement is not rebuttable if there is evidence of
an illegal or improper purpose. In other words, the court will construe
that there was a gift and the property will not result back to the donor.
The presumption of advancement is therefore not rebuttable in the

following instances:
(a) Evasion of Tax

Re Emery’s Investment Trusts (1954) Ch. 420
A husband bought American bonds, which he placed in his wife’s name
for the purpose of evading tax. When the wife refused to hand over the
bonds to the husband, the husband claimed that there was an intention
to create a trust, not a gift. Held: The doctrine of advancement could not
be rebutted by evidence of an illegal purpose. There was therefore an
advancement in favour of the wife and the husband could not get his
bonds back.
(b) Avoidance of Creditors

Tinker v. Tinker (1970) P.36
Property was transferred to a wife to avoid creditors. Held: The doctrine
of advancement could not be rebutted by evidence of an illegal or
improper purpose.
EXPRESS PUBLIC (CHARITABLE) TRUSTS

Introduction
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The Preamble to the Statute of Elizabeth 1601 lists a catalogue of

purposes regarded as charitable. The Act is also referred to as the
English Charitable Uses Act of 1601. The main heads of charitable uses
or purposes under this Act are:
1. Relief of Poverty
2. Advancement of Education
3. Advancement of Religion
4. Other purposes beneficial to the Community – these include
Social and Recreational purposes.
Although the 1601 statute was repealed in 1888, it has provided a guide
to courts in England in determining the legal meaning of charity, and the
list of charitable purposes has been extended.
In England, the above four heads of charitable purposes have been

summarized in the case of Commissioner for Special Purposes of Income
Tax v. Pemsel (1891) A.C. 583, Per Lord Macnaghten.
Facts:
Certain lands in England (specifically Middlesex) were conveyed by deed

by a Donor, Mrs. Bates, to trustees upon trust. The rents and profits
from these lands were, according to Mrs. Bates’ directions, to be applied
as follows:-
1. As to 2/4, for the general purposes of maintaining, supporting
and advancing the missionary establishments among heathen
nations, of the Protestant Episcopal Church;
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2. As to 1/4, towards the maintenance, support and education of

the children of ministers and missionaries of the said church
educated at a specified school (Fulner) near Leeds, special
regard being had to the children of those ministers who are
least able to support the expense of their children’s education,
or for the benefit and purposes of any similar school, academy
or establishment elsewhere within the UK;
3. As to the remaining 1/4, towards the maintenance and support

of certain establishments of the said church for single persons,
called Choir- houses, within the UK. The residents of the Choir
– houses were divided into 3 classes:
(i) Single women who had been engaged in the educational

department of the church and had become incapacitated;
(ii) Widows of ministers or missionaries and of poor
members; and
(iii) Single men whose chief employments were to look after
the young and to assist in education.
The relevant Income Tax Act of 1842 of UK provided for tax exemption for
the rents and profits of lands vested in trustees for charitable purposes,
so far as the same were applied to charitable purposes. The tax
allowances/exemptions in respect of the rents and profits of the above
lands vested in the trustees were refused and the trustees applied to the
court for an order for such allowance/exemption.
The question was whether purpose No. 1 above – maintaining,
supporting and advancing the missionary establishment among heathen
nations of the Protestant Episcopal Church – was a charitable purpose
meriting a tax allowance within the meaning of the Income Tax Act of
1842.
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The House of Lords HELD, affirming the C.A. decision: THAT the words
“charitable purposes” in the Act were not restricted to the meaning of
relief from poverty, but must be construed according to the legal and
technical meaning given to those words by English Law and by legislation
applicable to Scotland and Ireland as well as England, and that the
allowance ought to be granted.
Lords Macnaghten, Watson, Herschell and Morris affirmed the C.A.

decision. Lords Halsbury L.C. and Bramwell, however, dissented: They
HELD:
THAT since the trust for missions among heathen nations contemplated
purposes having no relation to the relief of poverty, the purposes were
not “charitable” within the meaning of the Income Tax Act, and that the
allowance ought not to be granted in respect of that portion of the trust.
Lord Halsbury and Lord Bramwell did not recognize advancement of

religion as a charitable purpose.
Lord Halsbury said:

“I conceive that the real ordinary use of the word
‘charitable’…always does involve the relief of poverty…You may
desire to convert the richest people, and very often do. If you
desire to convert them to your religious opinions, whatever they
may be, not on account of their poverty, but because you think it
is desirable that their religious views should be like yours, that
does not come within the canon. A religious object is not
necessarily a charitable object…The difficulty I have is in applying
such a rule to justify the exemption here claimed. I do not
understand how it can be said that this trust is only for a mission
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to convert simply poor heathens. It seems to me a mission to

convert heathens without regard to their poverty at all…To my
mind it is obvious that the object of the mission is the propagation
of the Moravian tenets among persons whom the Moravian
Brethren conceive to be in darkness, and whom they wish to
enlighten by the views which they themselves profess, and that the
element of poverty, as applicable necessarily to the objects of theirs
efforts, is as much the Moravian view as the colour of the converts
or the situation of the territory.”
Lord Macnaghten said:
“No doubt the popular meaning of the words ‘charity’ and

‘charitable’ does not coincide with their legal meaning….But…it is
difficult to fix the point of divergence, and no one as yet has
succeeded in defining the popular meaning of the word ‘charity’.
‘Charity’ in its legal sense comprises four principal divisions:
trusts for the relief of poverty; trusts for the advancement of
education; trusts for the advancement of religion; and trusts for
other purposes beneficial to the community not falling under any
of the preceding heads…If a gentleman of education, without legal
training, were asked what is the meaning of a trust for charitable
purposes, I think he would most probably reply, ‘That sounds like
a legal phrase. You had better ask a lawyer’.”
Lord Herschell said:
“I certainly cannot think that (the terms ‘charities’ and ‘charitable

purposes’ ) are limited to the relief of wants occasioned by lack of
pecuniary means. Many examples may…be given of endowments
compiled
for the relief of human necessities, which would be…termed

charities,…where, nevertheless, the necessities to be received do
not result from poverty in its limited sense of the lack of money.
Take, for example, an institution for saving the lives of
shipwrecked marines. Its object is to render assistance to those in
dire want of it, to meet a form of human need which appeals to the
benevolent feelings of mankind, but not one which has its origin in
the lack of money.
Nevertheless, I do not believe that anyone would hesitate to call it

a charity, or to say that money expended in rescuing drowning
men was applied to a charitable purpose. Or again, what of a
society founded for the protection of children of tender years from
cruelty? Would not this be commonly described as a charitable
purpose? And yet it is not pecuniary destitution that creates the
necessity which such a society is designed to relieve. It is the
helplessness of those who are objects of its care which evokes the
assistance of the benevolent. I think, then, that the popular
conception of a charitable purpose covers the relief of any form of
necessity, destitution or helplessness which excites the
compassion or sympathy of men, and so appeals to their
benevolence for relief. Nor am I prepared to say that the relief of
what is often termed spiritual destitution or need is excluded from
this conception of charity.”
Kenyan Position
The four heads of charitable purposes have been incorporated in Kenya

through case law and some statutory provisions.
compiled
Case law: See: Re Tanganyika National Newspapers (1959) EA 1057.

This case is applicable in Kenya.
Statute: E.g.:
The Income Tax Act (Cap 470) Schedule 1, Paragraph 10 exempts “…the
income of an institution, body of persons, or irrevocable trust, of a public
character established solely for the purposes of the relief of the poverty or
distress of the public or for the advancement of religion or education”
from income tax.
HEADS OF CHARITABLE PURPOSES

1. ADVANCEMENT OF EDUCATION
Previously, this was limited to the maintenance of e.g. free schools (i.e.
those not operating for profit), scholars in universities and the education
of orphans.
The meaning has widened today to include many forms of worthwhile

institutional and cultural – advancement. It is not confined to education
given by a teacher in class in a formal institution. However, some
element of instruction an improvement must be present. Mere increase
of public knowledge or acquisition of experience is not enough. See Re
Shaw [1957] 1 WLR 729
Re Shaw [1957] 1 WLR 729 Facts: There was a will by George Bernard
Shaw (playwright and poet) in which he purported to create a trust to
devote funds to inquiries into a new alphabet. Held: The trust was void
as it was a trust of imperfect obligation.
compiled
Purposes that have been added to the list of purposes under

advancement of education include:
1) Publication of law reports – Incorporated Council of Law Reporting

for England and Wales v.
2) A.G. (1972) Ch. 73
3) Support of learned, literary scientific cultural societies – Royal

College of Surgeons (1965)
4) Ch. D. 669The support of the zoo in London – Re Lopes (1931) 2
Ch. 130, where Farwell J. said at p. 136: “A ride on an elephant
may be educational.”
5) Encouragement and advancement of choral singing in London –
Royal Choral Society v. I.R.C. (1943) 112 L.J. K.B. 648
6) Reviving English classical drama and stimulating the art of acting
(with reference to Shakespeare’s plays) – Re Shakespeare Memorial
Trust (1923) 2 Ch. 398
Purposes NOT charitable for advancement of education:
1. Education of pickpockets in a thieves’ kitchen to make them fit for the

profession – Re Macduff (1896)2 Ch. 451 at 474 per Rigby L.J.
2. A public library devoted entirely to works of pornography – Re Pinion
(1965) Ch. 85
2. ADVANCEMENT OF RELIGION
The Preamble to the Statute of Elizabeth of 1601 referred only to the
repair of churches . Other purposes today include:
1) Saying of masses for the dead – Re Caus (1934) Ch. 162
compiled
2) Improvement of musical services in a church – Re Royce (1940) Ch.

514
In Kenya, advancement of religion applies to all religions – Hindu,
Christian, Muslims etc.
NOTE: The religion, sect or denomination must, however, not be
subversive of all religion and morality.
See:
✓ Thornton v. Howe (1862) 31 Beav. 14 at 20
✓ Re Watson Hobbs v. Smith (1931) 1 W.L.R. 1472
Kenya – The Government deregistered certain religious sects in the past,
e.g. “Dini ya Msambwa”, “Tent of the Living God”. Another church was
found to be of questionable character – “Finger of God.”
The case of Commissioners for the special Purposes of Income Tax v.

Pemsel (above) is an authority on the recognition of advancement of
religion as a charitable purpose.
3. RELIEF OF POVERTY
Definition
Poverty does not mean destitution. It is a matter of degree. It may be
interpreted to refer to “persons who have to ‘go short’, due regard being
had to their status in life.” See: Re Coulthurst (1951) Ch. 662 at 666 per
Evershed M.R.
See also I.R.C. v. Baddeley (1955) Ch. 572 at 585

Examples of purposes for the relief of poverty:
1) Gift of flats at economic rents where the intention or purpose is to
benefit aged persons of small means – Re Lucas (1922) 2 Ch. 52
compiled
2) Assistance of widows and orphans of deceased officers of a bank –

Re Coulthurst (above)
3) Encouragement of poor emigrants – Re Tree (1945) Ch. 325
NOTE: A person is not necessarily poor merely because he cannot afford

to provide for himself the advantages that are provided by the gift.
Accordingly, the following purposes were held NOT charitable:
1) The encouragement of emigration generally – Re Sidney (1908) Ch.
488 (Contrast: Re Tree)
2) Gift to provide dwellings for the “working classes” – Re Sanders
W.T. (1954) Ch. 265 (Contrast: Re Lucas)
The qualification of poverty is imposed so that if there is no test of
poverty, the purpose is not charitable. See: Re Hobourn Aero
Components Ltd’s Air Raid Distress Fund (1946) Ch. 194, where is was
held that a mutual benefit fund with no test of poverty was not
charitable.
Relief of poverty is an exception to the rule that a charitable trust must

promote the public benefit.
1. OTHER PURPOSES BENEFICIAL TO THE COMMUNITY
It must be shown that the selected purposes are beneficial to the

community in a way that the law regards as charitable. The expression
“beneficial to the community” does not therefore include every object of
public utility. The purpose must be shown to be beneficial within the
spirit and intendment of the Preamble to the Statute of Elizabeth.
Examples:
compiled
1) Provision of prizes for the best kept cottages and gardens (which
promotes horticulture and good housewifery) – Re Pleasants (1923)
39 T.L.R. 675
2) Encouragement of good domestic servants – Loscombe v.
Wintringham (1850) 13 Beav. 87
3) Recreational charities – e.g. maintenance of village halls, recreation
parks etc.
4) Welfare of animals
Kenya- Examples
1. Heart Fund
2. Kidney Fund
3. Nairobi Hospice – Cancer
4. Cerebral Palsy
5. HIV/AIDS
THE CYPRES DOCTRINE

Where property is given for charitable purposes and these purposes
cannot be carried out in the precise manner intended by the donor, then
the question is whether the trust should fail as is the case with respect
to private trusts. The position in many instances is that the property will
be applied to other charitable purposes.
The Cy-pres doctrine is an equitable doctrine used for the application of
property to other charitable purposes that are as near as possible to
those intended by the donor.
Note, however, that not every charitable trust which cannot be given
effect is applied to other purposes under the Cy –pres doctrine. The
doctrine is applicable only when certain conditions are satisfied.
1. Firstly, it must be shown that the trust is or has become
impracticable or unenforceable.
compiled
2. Secondly, in some cases, not all, it must be shown that the donor
has manifested a paramount intention of charity.
1. Impracticable or Unenforceable
The trust may be impracticable or unenforceable initially (before the

operation of the trust) or subsequently (after the operation of the trust).
(a) Initial Failure (ab initio)
Where a gift fails as being ineffective at the date of the gift, it will either
lapse or be applied Cy-pres depending on the intent manifested by the
donor. If the intention was that the property should be applied for a
specific purpose which cannot be carried out, the gift will lapse. But if
the court finds a wider intent, that is, a paramount or general charitable
intention, the gift may be applied Cy-pres. See:
Re Rymer (1895) 1 Ch. 19
There was a gift to a specific seminary – the St. Thomas seminary, for the
education of priests for the diocese of the City of Westminster. The gift
failed because at the time of the testator’s death, the seminary had
ceased to exist and students had been transferred to another city. The
court said it was a gift to a particular seminary for a particular purpose.
As such, there was no wider intent.
Re George Percy Smithson (1943) 20 KLR 13
By his will, the testator, G.P. Smithson, made the following bequests,
inter alia:
1) “Three thousand pounds to the Governors of Sedbergh School
Yorkshire, the interest of which is to be paid towards a holiday trip
for a few Sedbergh School selected boys to go to the continent of
Europe yearly”.
2) “Sixty Shillings to each squatter family or regular worker on my

farm at Elburgon at my death”.
compiled
3) “The residue of my estate I leave to African leper Missionaries and

leper hospitals at present and to be established in Africa only.”
An executor of the estate sought the court’s decision on whether the

bequests in 1 and 3 above were valid charitable trusts. Regarding 2,
he sought the court’s decision on the true construction of the bequest
in view of the fact that the farm at Elburgon referred to in the Will
passed out of the possession of the testator before his death.
Held:
1. The bequest in 1 was a good charitable bequest being a trust for
the advancement of education. Lucie-Smith J. Quoted from the
judgement of Eve J. in Re Mellody (1918) 1 Ch. 228 where he said,
“the bequest was a good charitable gift ... as tending to the
advancement of education by ... affording an incentive to regular
attendance and industry in order to be selected as participants.”
2. The bequest in 2 failed on the ground of impossibility of

performance and failure of object.
3. The bequest in 3 was a good charitable bequest but was void for
uncertainty and impossibility of performance. Further, the
doctrine of Cy-pres could not be applied to this bequest, there
being no charitable intention beyond the particular purpose
specified. The judge said: “It appears to me that the intention
expressed by the testator was to benefit the lepers of Africa
through the medium of missionaries in Africa and leper hospitals
in Africa. In other words, it is a charitable trust under the first
and fourth divisions laid down by Lord Macnaghten in the Pemsel
case viz: i) trusts for the relief of poverty and ii) trusts for other
purposes beneficial to the community, not falling under any of the
preceding heads. It is one trust for the benefit of lepers in Africa.”
compiled
(b) Subsequent Failure

The rule is that once application of the charity or trust is commenced
but subsequently becomes impossible to enforce or has been applied,
there is no resulting trust for the donor. If the donor wants the
property to pass to a third party or return to him or to his estate, he
must expressly provide by a gift over to take effect within the
perpetuity period.
See:
Re King (1923) 1 Ch. 343
A gift for ₤1,500 as given for a glass window in a church. The cost of
the window could not exceed ₤800. What was to be done with the
surplus? Was it to be returned to the donor or to be applied Cy-pres?
Held: The whole ₤1,500 had been dedicated to charity with the
necessary consequence that any surplus should be applied Cy-pres.
A second window was therefore bought.
2. Paramount Intention
This is seen in the context as to whether there is initial failure or
subsequent failure as discussed above.
Initial – The gift will lapse unless there is a paramount intent by the
donor to benefit charity.
Subsequent – Where there is no general intention, the donor must
expressly state whether the property is to pass to him, to a third party
or to his estate. In most cases, however, even where there is no
general intention and no express direction, yet the trust has already
commenced, there will be no resulting trust and the property will be
applied Cy-pres.
compiled

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Fork Chronicles – Equity and Trust Law: Madam Asiema Notes

NATURE, HISTORICAL ORIGIN AND DEVELOPMENT OF EQUITY IN

Definition of Equity: Equity has been defined as:

Equity in the technical sense refers to the body of rules or principles

Historical Origin and Development of Equity in England

Rigidity of Common Law

Fetters to the Common law

The common law courts were fettered by precedent. In addition, a statute

Petitions to the King

Establishment of the Court of Chancery

afterwards as an independent judge, to correct and supplement the

“The doctrines of this court ought to be as well settled, and made

“it must be shown to have an ancestry founded in history and in

Equity versus Natural Justice

Disadvantages of Separate Courts of Common Law and Equity

Mitigation of the Disadvantages

Other disadvantages were mitigated piecemeal by statute. For example,

Merger of Common Law and Equity Courts: The merger was

Consequently, the Queen’s Bench, Common Pleas, Exchequer, Court of

1) the Court of Appeal; and

The High Court had five divisions:

By the Administration of Justice Act 1970, Probate, Divorce and

For the sake of administrative convenience, cases were allocated to the

Contribution of Equity to English Law

Classification of the Jurisdiction of Equity

2) Concurrent jurisdiction – new remedies. Equity developed a

3) Axillary jurisdiction –new procedure. The Court of Chancery

Excerpt from A.K.R. Kiralfy, Potter’s Outlines of English Legal History

“English law is like a river. The channel widens and deepens as it

The most notable maxims are as follows:

8) Equity will not suffer a wrong to be without a remedy; where there

1. Contracts of employment and strikes

Chappell v The Times Newspapers Limited [1975] 2 All E.R. 233

Lodge v. National Union Investment Company Limited (1907) 1 Ch.

Contrast: Kasumu v. Baba-Egbe [1956] A.C. 539 at 549.

mortgagor to exercise the equitable right to redeem one mortgage unless

A mortgagor who wishes to exercise his right to redeem his mortgage

Notice to resile from the promise

Promissory estoppel at equity may be temporary and merely provides a

(b) Mistaken Belief

(c) Conscious Silence

(d) No bar to Equity

Contrast: Ward v. Kirkland (1966) 1 WLR 601 at 631.

2. He who comes to equity must come with clean hands

Limit to this rule:

The unclean conduct of the plaintiff should be closely connected with

3. Equality is Equity/Equity is Equality

A. Presumption of a tenancy in common

Three of these instances are as follows:

A (ii) Purchase in equal shares: Severance of joint tenancy

A (iii) Partnership property

B (i) Husband and Wife

4. Equity looks to the intent/substance rather than the form

Another illustration is the equitable remedy of rectification where the

5. Equity looks upon as done that which ought to be done

Walsh v. Lonsdale (1882) 21 Ch.D 9

Distinction between English law and Kenyan law regarding the

Souza Figuerido v. Moorings Hotel (1960) EA 926

FACTS: By a lease, the respondent landlord let certain premises to the

Other English Cases

6. Equity acts in personam

However, in some cases, imprisonment was ineffectual to compel a

This power of enforcing orders by committal of the defendant or

Although at present equity is not confined to acting in personam, its