Equity and Trust Notes.2022 1

J.K. ASIEMA/R.
KARIUKI
GPR 217 EQUITY AND TRUST LAW
FEBRUARY 2022
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UNIVERSITY OF NAIROBI
SCHOOL OF LAW

ACADEMIC YEAR 2014/2015
COURSE INSTRUCTORS: J.K. ASIEMA/R. KARIUKI
NATURE, HISTORICAL ORIGIN AND DEVELOPMENT OF

EQUITY IN ENGLAND
INTRODUCTION
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.
“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.” See:
Hanbury and Maudsley, Modern Equity (16th Edition, Sweet & Maxwell), page 3.
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. For
example, before a person is pronounced guilty of an offence by a court of law, he must be
given a chance to defend himself. Equity in this sense means to do good/what is just.
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Technical Meaning
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 common law.
It is necessary to understand the distinction between common law and equity which gives
rise to the meaning that equity is that which is not the common law. Such a distinction
can only be obtained by examining the historical origin and development of equity in
England.
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, King’s
Bench, Common Pleas and Exchequer.
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.
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
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.
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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
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.” – See page 8.
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 resulted in 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 gaps in 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
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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 also became more 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. 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: 36 E.R 670
“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 or wrong 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.
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,
“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.’
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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.
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.
Illustration:
The Rules of Natural Justice: Luganda Proverbs:
“Enkima tesala gwa kibira”: “The monkey does not decide an affair of the forest.”
No man shall be a judge in his own cause. This is the rule against bias, “Nemo judex in
causa sua.”
“Tosala gwa kawala nga tonnawulira gwa kalenzi”: “Do not decide the girls’ case until
you have heard the boys’.” No man shall be condemned unheard. This is the right to a
fair hearing, “Audi alterem partem.”
From the above, it can be said that equity in the technical sense is entwined with the
traditional rules of natural justice.
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.
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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 favour 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 favour 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 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 now ripe for a merger of the three common law courts with
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:
a) Queen’s Bench
b) Common Pleas
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c) Exchequer
d) Chancery
e) Probate Divorce and Admiralty
These were reduced to three by the 1880 Order in Council. The three were:
a) Queen’s or King’s Bench, merging the Queen/King’s Bench, Common Pleas and
Exchequer;
b) Chancery; and
c) Probate, Divorce and Admiralty.
By the Administration of Justice Act 1970, Probate and Divorce 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:
(a) Queen’s Bench;

(b) Chancery; and
(c) 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.
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:
(a) Trusts and settlements in respect of property

(b) Division of ownership between Legal and equitable ownership
(c) The doctrine of “undue influence” in respect of contracts
(d) Property for the separate use of married women which the common law did not
recognize
(e) 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:
(a) 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.
(b) 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.
(c) Auxillary 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. See:
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 rigour, 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 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. See:
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.”
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MAXIMS OF EQUITY
(SNELL 27TH ED. CHAPTER 3 &4)
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.
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.
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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:
(i) 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, 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.
(ii) 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.
See also: 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 principle that governs the action of courts in granting relief
in moneylending cases.” See also Barclay v. Prospect Mortgages Ltd [1974] 2 All ER
672 and Chapman V. Michaelson (1909) I Ch.238
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Although courts do not enforce illegal contracts, the case of Lodge v. National Union
Investment Company Limited is still important as an illustration of the early application
of the above maxim.
(iii) Consolidation:
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
mortgagor to exercise the equitable right to redeem one mortgage unless the other
mortgage is redeemed as well. See: Pledge v. White [1896] A.C. 187
For a detailed discussion on consolidation, particularly as to the conditions to be satisfied

before a mortgagee can consolidate, see: SNELL, Chapter on Securities (26th Edition, pp.
425-426).
A makes 2 loans of 4m each to B, first loan secured under a morgage of land X, the other under Y both
worth 6m at the time.unfortunately one falls to 2m and the other rises to 7 m, b would be required to recpver
bot of his
(iv)land, thereto
Notice is redeem
liberty toconsolidate
mortgage: at Equity.
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.
(v) 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. ( SNELL 26th
Ed. P. 532 et seq)
(vi) 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.
Example 1: 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
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re-decorate the premises at the expiry of the term. See: Marquess of Salisbury v. Gilmore
(1942) 2 KB 38.
Example 2: If a landlord agrees to accept a reduced rent and the tenant acts on this
agreement to his detriment (eg 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 promisee 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.
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. Eg. 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.
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(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) That there is 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; 1963 3 ALL E.R. 552.
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. See:
Gill v. Lewis [1956] 2 Q.B. 1 at 13, 14 & 17 using the premises for immoral practices earlier or previously
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
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who has committed Iniquity…shall not have Equity.” See: Jones v. Lenthal (1669) 1 Ch.
Cas. 154 (SNELL p. 35) P.32
Limit to this rule:
See Loughran V. Loughran 292 US. 216 at 229 (1934) per Brandeis J. – no requirement
to have led a blameless life.
Where the plaintiff’s breach was only trifling or where he has breached a much less
important covenant than the one he seeks to enforce, the maxim will not apply. See:
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
The unclean conduct of the plaintiff should be closely connected with the relief being
sought . See:
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.
But see Donovan V. Donavan (1933) 263 N.Y.S 336 where premarital fornication was
used to deny the husband a decree of nullity of the marriage
the doctrine is flexible and other than in recovery cases of assets can be utilised even in divorve cases as in
Craig v Craig, Kerrington v Kerrington among others.
the action needs not to be strictly illegal but morally reprehensible and unconscionable and to the other
party in the suit
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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 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 favour 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.
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. ‘Jus accrescendi inter mercatores locum no habet’ (The right of survivorship
has no place among merchants).
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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 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, (1994) 2 All E.R 264.
Money deposited in court divided equally between Bankrupt and Trustee in absence of
evidence of other formular.
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. Form will not be allowed to defeat the substance
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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.
“in the faith that 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 also,
Webster v. Cecil (1861) 30 Beav. 62 54 E.R. 812
5. Equity looks upon that as done 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 favour of
persons entitled to enforce the contract specifically and not in favour 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
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
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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.
See: The Land Registration Act No 3 of 2012 and the Land Act No 6 of 2012
Other English Cases
Zimbler v. Abrahams [1903] 1 KB 577

Gray v. Spyer [1922] 2 Ch. 22 (CA)
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 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
what 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
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of Decrees and Orders. (The rules refer to attachment and not sequestration but both have
the same effect.)
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; 27 E.R. 1132, 28 E.R. 498
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 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 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.
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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.)
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.
Where common law failed to offer a remedy or recognise or enforce a right then equity stepped in as
It mustmitigator
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.
the maxim is only applicable to what is realistic, practicable and convenient for the court
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 favour of the beneficiary. it is notable that in some scenarios equity may not be able to offer remedy even
where common law remedies do not satisfy for instance in unfair trade
in the scenarios, specific performance competition, contracts involving constant personal supervision or services
9. Equity does not act in vain
may not be unable to be offered
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”. The rationale for this is that the
courts should not issue orders that cannot be enforced as this would bring the court
system into disrepute.
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.”:
Per Lord Camden in Smith v. Clay (1767) 3 Bro. C. 639n at 640n, 27 E.R. 419.
Delay which is sufficient to prevent a party from obtaining an equitable remedy is called
“laches”.
This maxim does not apply to equitable claims to which the Limitation of Actions Act
(Cap 22) applies, either expressly or by analogy.
defences such as plaintiffs ignorance of the facts,

20 infancy or other disability of the plaintiff and finally fraud on
the part of the plaintiff. in such circumstances delay is not permitted to defeat a claim or to bar it that is.
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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.
In 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 for the reasons that:-
(i) time for completion of the contract was not of the essence under the contract.
(ii) he was not barred by laches since he had an equitable title to the plots in question
by virtue of the contract and had entered into possession of them.
(iii) there had been no abandonment of the contract by him.
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Lolkilite ole Ndinoni v. Netwala ole Nebele (1952) 19 EACA 1
In 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.
like the idea of bringing into court the perpetrators of Jesus Christ
See the judgments of:
Edwards C.J. and Sir Barclay Nihill.
. equity is also not apt to follow law where it is too rigid, archaic or ancient for instance where there is
economic hardships, the law needs a tenant to be evicted, the court through the doctrine f equity may
fail to uphold to the law
11. Equity follows the law (“Equitas sequitur legem”)
See Graf V. Hope Building Corporation (1930) 254 N.Y.1 at 9 per Cardozo C.J.
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.
Both the common law and equity have the same end, which is to do justice.
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. follows common law rules on mistake, supplements them by only providing remedies that
is rectification, laws on joint tenancies, recognised the doctrine of estates among other
E.g. 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:
Mortgages and charges

Purchasers of property (land) each of whom is claiming a prior right to purchase the
property.
where claims of the parties are equally fair and deserve merit, preference is given to the legal interest
an example from land law illustrates as 22this,x obtains an equitable charge over a piece of land L valued
at 20m, as security for a loan of 8m. then y takes a legal morgage after which the land drops to 10m, y
will receive his fee if didnt have knowledge
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Qui prior est tempore potior est jure –

- Order of creation – he who is earlier in time is stronger in Law. See Re Samuel
Allen & Sons Ltd. (1907) I Ch – 575.
Modifications:-
- Purchaser without Notice – Value – see Cave V. Cave (1880) 15 Ch.D.639
o Legal Estate
o No Notice – actual
constructive
o Not engaged in fraud
o Not negligent
- Registration as notice and as bar to prior claim which was registrable but has not
been registered
EQUITABLE REMEDIES
INTRODUCTION
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:
(a) who had unclean hands; or
(b) who was not willing to do equity; or
(c) who slept on his rights; or
(d) whose claim would produce unfair results.
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 (1750) 1 Ves. Sen. 444 ; [1558-1774] All E.R 99
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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/supplements the common law.
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
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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 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

privity of contract
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 characterised 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 it can be
enforced and 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; (1973) All E.R. 129 where there is equal equity, the law shall prevail
this falls squarely under this sub heading as the courts will not
tender any of its help
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 prohibitory injunction which restrains a defendant from committing an
act in breach of a negative contractual agreement.
lease agreement; rent payment, conduct of only the business allowed under the lease of the premises
no noise policy, covenant to repair or leave the premises in condition they were before
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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.
See Jones V. Lipman (1962) I W.L.R 832, per Russel J at 836.
2. Contracts relating to Personal/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 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:
Falcke v. Gray (1859) 4 Drew 651 (Two china flower vases)
Thorn v. Commissioners of Public Works (1863) 32 Beav. 490 (Stone from the old
Westminster Bridge)
Phillips v. Lamdin [1949] 2 KB 33 (An Adams door in a house), (1949) 1 ALL E.R 770 –
injunction order akin to specific performance
Behnke v. Bede Shipping Co. [1927] 1 KB 649 at 661
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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 this order 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
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.
Cohen v. Roche (1827) Ch. 169
The plaintiff agreed to purchase from the defendant a set of 8 Hepplewhite 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
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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 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) – 5.71 at the
court’s discretion may be enforced.
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 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 neighbourhood 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.
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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:
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:
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(i) 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 firmly bottomed on human nature”. See: C.H. Giles & CO. Ltd
v. Morris [1972] 1 All E.R. 960 at 969.
(ii) 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 (ii) 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 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.;
38 E.R. 817
On mutuality, See: Price v. Strange (1978) Ch. 337; (1977) 3 all ER 37

Abdulzak Mbarak v. Faraj bin Ahmed el-Aweni (1956) EA 120
Mawogola Farmers Ltd v. Kayanja & Others (1971)EA 272
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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:
Ryan v. Mutual Tontine Westminster Chambers Assoc. [1893] 1 Ch. 116 – Landlord’s
undertaking to have a porter ‘constantly in attendance’.
Barnes v. City of London Real Property Co. [1918] 2 Ch. 18
Ogden v. Fossick (1862) 4 De G.F. & J. 426 – Agreement for Lease of coal wharf
coupled with appointment of Defendant as manager thereof.
Frith v. Frith [1906] A.C 254
Where some 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.
See: Odessa Tramways Co. v. Mendel (1878) 8 Ch.D 235 Defendants having acted in
collusion with the directors to defraud the company could not be allowed to use the fraud
to invalidate an agreement to take up and pay for shares in the company.
On severance, see: Mohamed Hussein v. Abdulla bin Salim (1955) EA 84

D’Silva v. Rahimtulla (1968) EA 287
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 offer has been accepted without
qualification and the letters of offer and acceptance contain all the terms agreed on
between the parties.
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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 22nd 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:
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.
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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.
This is in keeping with the maxlaw: “Equity follows the Law”.
3. Conduct of the Plaintiff/Default
For the plaintiff to be granted an order of specific performance, he must show:
That he has performed all his obligations (he has “clean hands”)
That he is ready and willing to perform his obligations ( he must “do equity”);
That he has not acted in contravention of the essential terms of the contract; and
That he has not delayed unreasonably to come to court (laches).
4. 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 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:
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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

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
5. 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.
Contrast:
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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 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:
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“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:
See:
Denny v. Hancock (1870) 6 Ch. App. 1
Wilding v. Sanderson [1897] 2 Ch. 534
Mistake that of the defendant: See:
Stewart v. Kennedy (1890) 15 A.C. 75 at 105 per Lord Macnaghten

Van Praagh v. Everidge [1902] 2 Ch 266; Reversed: [1903] 1 Ch 434
Unilateral mistake: See:
Mountford v. Scott [1973] 3 WLR 884 at 885, per Brightman, J.

Riverlate Properties Ltd v. Paul [1975] Ch 133 at 140, per Russel, L.J.
Other Cases:
Solle v. Butcher [1950] 1 KB 671

Grist v. Bailey [1967] Ch. 532
Hartog v. Collin & Shields [1939] 3 All ER 566
OTHER DEFENCES
6. Misrepresentation by plaintiff
7. Misdescription
8. Lapse of time/Laches/Delay
9. Trickiness/Deceit/Fraud
10. Illegality
11. Defective Title
12. Public Policy e.g. Wroth V. Tyler 1974 Ch.30
13. Duress/undue influence
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INJUNCTIONS
INTRODUCTION
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).
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
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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
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 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.
4A. 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.
4B. 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,
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then 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). That
the damage cannot be compensated through a monetary award.
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.
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Prohibitory/Mandatory
Interlocutory Interim
Perpetual
Ex - parte
Interim Mandatory Prohibitory
Quia Timet
Mandatory Prohibitory
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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.
courts do not have all the time in the world to deal with a
particular person's issue
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.) patent like right not
established
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:
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
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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 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:
Martin v. Nutkin (1725) 24E.R. 724; 2P. Wms. 266

Pride of Derby v. British Celanese Ltd.[1953]Ch. 149
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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:
Licensed Victuallers’ Newspaper Co.v. Bingham (1888) 38 Ch.D 139

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.
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Attorney General v. Chaudry (1971) 1 WLR 1623

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. what of now that there has been introduced public interest litigation;
can contractors be forbidden to construct the road if its dusty by an NGO acting on behalf of
the general public.
An individual who does not fall within the above exceptions has no remedy. See:
Lonrho v. Shell Petroleum Ltd. (1982) A.C.173

Gouriet v. Union of Post Office Workers (1978) A.C.435
Since an obligation includes every duty enforceable by law this

form of specific relief, it would appear, is applicable to all cases where one person can
enforce a duty against another, or to use the correlative term, where one person is vested with
a right which empowers him to constrain the other to adopt a particular line of conduct, or to
do or abstain from doing a particular act. This right mayor may not arise out of a contract,
and the remedy of injunction, by which preventive relief is granted by a Court, may be held
to be available throughout the whole range of the law, But the jurisdiction is carefully defined
in part Ill, Specific Relief Act, and to some extent circumscribed.
Jurist Barnajee of India in 1908
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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. need to maintain the status quo pending the suit determination.
There is need to maintain justice and at the same time make the courts
judgement plausible
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
injuction is “to prevent a 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:
prima facie case must be established in order to give
1. Prima facie case considerations to other hurdles set in order to give an
2. Irreparable injury interlocutory injunctions. it's also noteworthy not to think one
can leap frog after establishing a prima facie case without
3. Balance of convenience putting on scale the other hurdles
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.
unilever case
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
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compensated by an award of damages. Thirdly, if the court is in doubt, it will decide the
application on a balance of convenience.”
1. Prima Facie Case on what a prima facie case the courts in Mrao v First american bank of Kenya ltd
and 2 (2003) others set the precedent
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:
The evidence adduced must show that there is a right infringement that may need to be rebutted
(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.
the case having a probability of case is a threshold that shows it is more than an arguable case
East Africa Industries Ltd. V. Trufoods Ltd [1972] EA 420
Both parties were 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 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.
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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 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 the 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.)
A fundamental principle is … that the court should take whichever course

appears to carry the lower risk of injustice if it should turn out to have been
‘wrong’ ...this was in the case of films rover international v canon films sales ltd
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apprehension
3. Irreperable Injury or Damage the damage needs not to be speculative, it needs to be demonstrable,
substantial
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: commercial finance ltd v Afraha education (2001)
Devani’s Case [1972] EA 22 An injury is irreparable where there is no standard by which their amount
Supra Studio [1971] EA 489 can be measured with
Nsubuga’s Case [1974] EA 487 reasonable accuracy or the injury or harm is such a nature that monetary
compensation, of whatever amount,
Other Factors will never be adequate remedy.
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.
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.
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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”
“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,
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or in the words of the American Cyanamid Case has shown that there is ‘a serious
question to be tried’.”
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.”
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.
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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:
• Re BCCI (No 9) [1994] 3 All ER 764
• Derby & Co Ltd V. Weldon (Nos 3 & 4) [1990] Ch 65
• Babanaft Int’l Co Sa V. Basantine [1990] Ch 13
ANTON PILLER INJUNCTION
Anton Piller 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.
 It is not a search warrant.
 Approved in: Rank Film Distributors Ltd v. Video Information Centre [1982] AC
380
OTHER EQUITABLE REMEDIES
1. Rescission
2. Delivery up and cancellation of Documents
3. Rectification
4. Account
5. Receivers
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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, 27th August 1897, is stated in Section 3 (1) (c) of the Judicature Act (Cap 8).
12th
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
if the written laws did notsubstance of the common law, the doctrines of equity th
and the statutes of
have cure, then these general application in force in England on the 12 August 1897 and the
others might follow procedure and practice observed in courts of justice in England at that date;
eg robes and wigs
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.”
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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 legalism, equity had by the end of the 19th 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
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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 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
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.
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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
favour. 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.
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) (Now
under Marriage Act 2014)
“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 vis – e - viz 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
 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
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 Wife beating
3. Examples of situations in which equity stepped in to protect a customary right
 Injunction – for customary wife to stop a monogamous (Christian/civil) wedding

 Trusts – in land cases - communal land
 Place of burial – SM Otieno Case
Examples of customary practices that equity has been silent on
 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 and marriage
Act 2014 Matrimonial Property Act 2013- 5.4.
 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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J.K. ASIEMA/R.

GPR 217 EQUITY AND TRUST LAW

COURSE INSTRUCTORS: J.K. ASIEMA/R. KARIUKI

NATURE, HISTORICAL ORIGIN AND DEVELOPMENT OF

Equity has been defined as:

Equity therefore has two meanings:

1. Ordinary or popular meaning

Fetters to the Common law

Petitions to the King

Establishment of the Court of Chancery

According to the Court of Appeal in Re Diplock [1948] Ch. 465 at 481:

If the claim being made did exist,

Equity versus Natural Justice

The Rules of Natural Justice: Luganda Proverbs:

Disadvantages of Separate Courts of Common Law and Equity

Mitigation of the Disadvantages

Merger of Common Law and Equity Courts

1. the Court of Appeal; and

The High Court had five divisions:

(a) Queen’s Bench;

The Kenyan court system derived from this English system.

Contribution of Equity to English Law

Equity has made the following contributions to English law:

(a) Trusts and settlements in respect of property

Classification of the Jurisdiction of Equity

The jurisdiction of equity can be divided into three classes:

(b) Concurrent jurisdiction – new remedies. Equity developed a wide range of

Equity is as long as the Chancellor’s foot. See:

“Equity is a roguish thing. For law, we have a measure…equity is according to

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.

9. Equity does not act in vain.

11. Equity follows the law (“Acquitus sequitur legem”).

13. Where there is equal equity, the law shall prevail.

1. He who seeks equity must do equity

Illustrations of this maxim are as follows:

(i) 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

(ii) 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

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

For a detailed discussion on consolidation, particularly as to the conditions to be satisfied

(vi) Equitable estoppel:

Notice to resile from the promise

Four conditions must, however, be satisfied for proprietary estoppel to apply:

(b) Mistaken Belief

(c) Conscious Silence

(d) That there is 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:

Besant v. Wood (1789) 12 Ch.D 605

3. Equality is Equity/Equity is Equality

A. Presumption of a tenancy in common

Equity leans in favour of a tenancy in common as opposed to a joint tenancy. In a joint