TO: MR.

RODNEY OLUOCH
FROM: ANNELISE CHIRCHIR
L11/03456/18
DATE: 30TH OF OCTOBER 2020

Equity ordinarily means fairness or justice. It is that branch of the law of England which was
developed by the various Lord Chancellors Courts to supplement the Common Law. It was
developed to mitigate the harshness of the Common Law. It application is qualified by Section3
(1) (c) of the Judicature Act Cap 8 Laws of Kenya. Equity has an ordinary, legal and technical
meaning. In the ordinary sense, equity means fairness, justice, morality, fair play and equality.
By that definition, it all means doing well, doing what is morally right. In a legal sense, equity is
the branch of the law which, before the Judicature Act of1873 came into force, was applied and
administered by the Court of Chancery. A litigant asserting some equitable right or remedy must
show that his claim has “an ancestry founded in history and in the practice and precedents of the
court administering equity jurisdiction”. In the technical sense equity refers to a body of rules
and some authors have defined equity as that which is not the common law. They distinguish
equity from the common law. It is regarded as a body of rules that is an appendage to the general
rules of law. The current constitutional makes use of the general principles of international law
as part of the Kenyan law. This means that the doctrines of equity automatically become part of
the Kenyan laws without being subject to other statutes, a position it held in the old constitution.
There is however a provision to Section 3(1) (c )“but the common law doctrines of equity and
statutes of general application shall apply so far only as the circumstances of Kenya permit and
subject touch qualifications as those circumstances may render necessary”.
Both common law and equity are recognized as source of law in Kenya by Section 3(1)(c) of the
Judicature Act. However, only the substance of common law and the doctrine of equity are
recognized. Their application by Kenyan Courts is therefore qualified.
It is equity that is limiting the application of customary law under the repugnancy clause. By
virtue of reference to justice and morality which refers to the ordinary meaning of equity.
Example of a customary civil claim in which the court applied a doctrine of equity is in the case
of, Lolkilite Ole Ndinoni v Netwala Ole Nebele (1952). 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.
Other situations where African Customary laws and practices are susceptible to challenge as
being repugnant to justice and morality are:
 Infant betrothal, cradle snatchers, schoolgirl and marriages.
 Marriages in which the woman has not given her consent (forced marriages).
 Wife inheritance. Under Section 13(1) of the African Christian Marriage and Divorce
Ordinance provides that, Any woman married in accordance with this ordinance… shall
not be bound to cohabit with the brother … of her deceased husband....or to be at the
disposal of such brother or other relatives.... but 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.
 Female Genital Mutilation (FGM) – Parliament has found it difficult to make this
practice illegal and the only way they can eradicate this practice is by criminalizing it. It
is difficult to just legislate against this practice. The only extent to which parliament has
gone is to pass a legislation to outlaw FGM in the Children’s Act there is a specific
provision outlawing FGM in children.
 Prohibition girls from inheriting;
 Widow cannot inherit husband’s property;
 Girls born out of wedlock-custody of step father, where no dowry had been paid for the
deceased’s wife the children are taken away from their father;
Equity has come to the aid of an African Customary Law Rights by providing remedy stated
below:
 Injunction being granted on the application of a wife under customary law to stop a
monogamous Christian/civil wedding; Cap 160 has a dilemma in this case. A woman
who is supposed to be in a union of marriage that is not recognized will not be recognized
during the lifetime of her husband but when the husband dies she gets recognition for
purposes of inheritance.
 Trusts. Land cases where a trust is recognized in African customary law. Is there a case
such as a customary trust? English Trust recognizing communal land as being held in
trust for the community.
 Place of Burial. The SM Otieno case upheld the customary right of clan elders to decide
on place of burial and who to bury the deceased –.