GROUP ONE (EVENING CLASS).

UNIT: LAW OF EVIDENCE 1.

UNIT CODE: BLW 1204

CAT 2.

GROUP MEMBERS.

MAUREEN WANJIKU KIRAGU BLAW/2023/62298

OWANA JOB OKETCH BLAW/2023/64028
ESTHER NDUTA KIMEU BLAW/2023/63348
MUMTAZ IQBAL HUSSEIN BLAW/2023/56706
TERESIA WAIRIMU MINJA BLAW/2023/64024
SHADRACK MAKOKHA OMWEBA BLAW/2023/63735
AMBROSE MILAYI BLAW/2023/62648

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TABLE OF CONTENT.

1.0 Introduction……………………………………………page 3 to 4
2.0 Estoppel by record…………………………………….page 4 to 5
3.0 Estoppel by deed……………………………………...page 5 to 6
4.0 Estoppel by conduct…………………………………..page 7 to 8
5.0 Proprietary estoppel…………………………………..page 8 to 10
6.0 Promissory estoppel…………………………………...page 10 to 11
7.0 Conclusion……………………………………………..page 11
8.0 References……………………………………………...page 12

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QUESTION: Define, analyse and discuss:

1. Estoppel by record
2. Estoppel by deed
3. Estoppel by conduct
4. Proprietary estoppel and
5. Promissory estoppel (15 marks).

Estoppel refers to the disability whereby a party is precluded from alleging or proving in legal
proceedings that the fact is otherwise than it has been made to appear by the matter giving rise to
the disability. There is said to be estoppel where a person is forbidden in law to speak against his
own act or deed even though that person is trying to tell the truth.

According to the law of evidence act cap 80, when one person has, by his declarations, act or
omission, intentionally caused or permitted another person to believe a thing to be true and to act
upon such belief, neither he nor his representative shall be allowed, in any suit or proceedings
between himself and such person or his representative, to deny the truth of that thing.

Principles in regard to the doctrine of estoppel.

The following principles are to be satisfied in order to apply the doctrine of estoppel:

1. Representation on which is the basis for estoppel must be a statement or representation of

fact which existed on the past or is existing at the time of making the statement or
representation.
2. The statement which forms the basis of estoppel should be precise, clear and
unambiguous.
3. Estoppel must be mutual in order to bind both parties.
4. Estoppel cannot be invoked to render an invalid act valid or vice versa.
5. It is immaterial whether the makeup of the statement or the representor believes it is true
or false.
6. The representation must be made by one person to another.
7. Representation must be made in a manner which makes the other person to believe that it
is true.

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 8. The person to whom the representation is made upon must act upon the belief.
9. The representation made must be as to facts and not as to law.
10. The person to whom the representation is made should suffer a loss by such
representation.

There are 4 general classifications of estoppel which include:

1. Estoppel by record
2. Estoppel by deed
3. Estoppel by conduct
4. Proprietary estoppel and
5. Promissory estoppel

1. Estoppel by record.
Estoppel by Record applies to the doctrine of „Res Judicata’ which, translated from Latin, means
„a thing adjudged‟ or „a matter already decided‟. It prevents a person from reopening questions
that have been adjudicated upon by a court of competent jurisdiction. Such questions become
settled and are removed from the field of inquiry or evidence. The term „record‟ refers to the
fact that it stops a party from litigating any claim already adjudicated and which has been made a
matter of record; normally the court record. It serves the public interest by ensuring finality of
judgement. It has long been held that one judicial contest is enough for the litigants on a
particular claim or defense.
Application
There are specific circumstances in which estoppel by record applies as follows:
(i) Where an issue of fact between the parties has been finally decided by a tribunal having
jurisdiction and the same issue arises between the same parties in subsequent
proceedings.
(ii) Where an issue has been decided upon by a court with exclusive jurisdiction in earlier
proceedings and the issue arises between the same parties in subsequent proceedings.
(iii)Where an issue of fact affecting the status of a person has been decided in a final manner
as a substantive part of a judgement or tribunal having jurisdiction and the same issue
arises directly in subsequent proceedings between the parties.

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Conditions for estoppel by record.
A number of conditions must be met for Estoppel by Record to apply:
(i) The court must have jurisdiction to pronounce the original judgement otherwise it
deprives the order of any effect.
(ii) The earlier proceedings must have resulted in a final judgement or decree; the judgement
must have been delivered.
(iii)A judgement by consent or in default can be relied upon as a basis for estoppel as if it had
been made by judicial decision after being contested if the party against who it was set
was under no disability. The efficacy of this type of judgement will be strictly limited
however.
(iv) A judgement obtained as a result of formal admissions can be relied upon as a basis for
estoppel as if it had been made by judicial decision after being contested if the party
against who it was set was under no disability. The efficacy of this type of judgement will
be strictly limited however.
Case Law: Zurich Insurance Company PLC vs. Collin Richard Hayward [2011] EWCA
CIV 641.
The Court of Appeal of England held that estoppel by res judicata or estoppel by record, is a
manifestation of the principle that judicial decisions once made must be accepted as final and are
not open to challenge. That as a rule of policy, it is in the public interest for there to be finality in
litigation, but it also that decisions of competent tribunals must be accepted as providing stable
basis for future conduct.
Case law: Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & another
[2016] eKLR.
The Supreme Court of Kenya held that Res judicata is a doctrine of substantive law whose
essence is that once the legal rights of parties have been judicially determined, such decision or
decree stands as a conclusive statement as to those rights. It entails more than procedural
technicality, and lies on the plane of a substantive legal concept.
2. Estoppel by deed.

Estoppel by deed is a principle that prevents a party from denying the truth of what was once
declared or agreed to in a deed, particularly regarding claims of property ownership or tenancy.
This doctrine is applied to enforce consistency and uphold the integrity of written agreements.

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The idea is that once a deed has been executed, all parties to the deed are bound by it, as are their
successors. This prevents a party from taking a position in legal proceedings that contradicts
what they have previously committed to in a deed. For instance, if a person conveys a piece of
land to another in a deed, they are estopped from later denying the validity of that conveyance.IT
is important in real estate transactions, in disputes about property boundaries, ownership, leasing,
mortgages, and other interests in land.

Fundamental points about estoppel by deed:

1. Consistency: The primary function of estoppel by deed is to uphold the doctrine of

consistency whereby a party to a deed is forbidden from contradicting anything that he or she has
affirmed as true in that deed.

2. Binding Terms: estoppel by deed binds the original parties to the deed, but it may also bind
their successors, including heirs or other entities that have derived their rights from the original
parties.

3. Types of Statements Affected: Estoppel by deed can apply to express statements contained
within the deed (such as a description of the property) as well as any covenants or warranties
made regarding the deed (such as the right to sell the property, suggesting that the seller has a
valid and marketable title).

4. Reliance by the Other Party-Typically, for estoppel by deed to be invoked, the other
party must have reasonably relied on the statements or representations made in the deed. If
a grantee purchased land based on the grantor's deed which incorrectly described the land's
boundaries, the grantor is estopped from asserting the correct boundaries if the grantee relied on
the deed's description.

5. Situations of Application: In real estate, estoppel by deed can be crucial when disputes over
property ownership arise, when there are conflicting claims of title, or when previous
conveyances contain errors but have been relied upon by subsequent parties.

6. Rectification and Limitations: In some cases, where there is mutual mistake or fraud, a deed
may be rectified or set aside. In such instances, the principle of estoppel by deed may not apply.

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 3. Estoppel by conduct.

An estoppel by conduct arises where one person (the representor) induces another (the
representee) to adopt and act upon an assumption of fact (common law estoppel) or an
assumption as to the future conduct of the representor (equitable estoppel). The conduct should
be such as to cause or permit a person to believe a thing to be true and the person must have
acted in a way on this belief either in doing or omitting to do something thereby altering his
position to his detriment.

Case law: Greenwood v Martin’s Bank (1933).

A husband and wife had a joint account in Martin‟s bank and the bank undertook to honour
cheques signed by both signatories. Afterwards the account was closed and an account opened in
the sole name of the husband with the wife having no authority to draw cheques on that account
of the husband. During all this time the wife repeatedly forged her husband‟s signature to the
cheques and drew out money which she applied to her own uses. The husband became aware of
these forgeries but was persuaded by the wife not to say anything about them. He kept quiet for 8
months when he finally decided to report the forgeries. The wife committed suicide. The
husband then brought a suit against the bankers to recover the sums paid out of the sole account
on cheques to which his signature had been forged. The court held firstly the plaintiff owed a
duty to the defendant bank to disclose the forgeries when he became aware of them as this would
have enabled the bank to take steps to recover the money wrongfully paid to the wife. Secondly,
through his failure to fulfill his duty, the bank was prevented from bringing an action against the
plaintiff and his wife for the tort committed by the wife and thirdly, he had only brought the
matter forward after the death of the wife. The plaintiff was estopped from asserting that the
signatures from the cheques were forgeries and consequently he was not entitled to recover the
money that he was seeking from the bank.

Requirements for estoppel by conduct.

1. The conduct or representation must be willful and intended to be acted upon.

2. The representee must be clear and unambiguous.
3. The representation must be one of facts and not law.
4. The conduct must not be intended to sanction something prohibited by law.

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 5. Where one is under a duty to speak, act or take care, but makes a negligent statement, that
person will be estopped from denying the truth of their statement or if they are under a
duty to act, but do not take any action, they are estopped equally.

Case law: Hopgood v Brown (1955).

The judge said that where the representor has made a representation to another person the
(representee) in words or by acts or conduct or being under a duty to speak or act by silence
or in action with the intention actual or presumptive and with the result of inducing the
representee to alter his position to his detriment the representor in any litigation which may
afterwards take place between him and the representee, the representor is estopped as against
the representee from making evidence.

Proprietary estoppel.

Proprietary ordinarily means ownership rights over property.

Estoppel is a principal which precludes or prevents someone from making a contrary assertion
from what was implied by a previous action.

Proprietary estoppel is a legal doctrine that plays a crucial role in situations involving disputes
over property rights. At its core, it serves as an equitable remedy that courts use to prevent
injustice due to the reliance on a promise or expectation related to the use or ownership of land
or property. It seeks to enforce equity in property disputes.

Evolution of proprietary estoppel.

The doctrine of proprietary estoppel has evolved from the common law principles of estoppel,
which generally prevent someone from arguing something contrary to a position they previously
took, where other parties have relied upon that position to their detriment.

Elements.

For proprietary estoppel claims to have a footing below elements must be in existence:

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 a) Representation or Assurance: There must have been a representation, assurance, or
promise made to the claimant that they would acquire some right over property. This
could be an explicit promise or could be implied from conduct.
b) Reliance on the Representation: The claimant must have relied upon the representation
or assurance. This means that there must be a causal link between the promise made and
the claimant‟s subsequent action.
c) Detriment: The claimant must have suffered some form of detriment as a result of their
reliance on the promise. This doesn‟t necessarily have to be a financial loss but could be
any substantial disadvantage or change in position resulting from the reliance.

Functions.

Proprietary estoppel functions to uphold justice and prevent a party from reneging on a promise
or representation which others have relied upon to their detriment. It balances the interests of the
parties and acknowledges that strict legal rights might sometimes have to yield to considerations
of equity and fairness.

Application.

This remedy is often applied in cases where formalities for the transfer of land or other interests
in property have not been complied with. Proprietary estoppel can compel the party who made
the promise to execute their promise, often by granting the claimant an interest in the land. This
doesn‟t mean the claimant will necessarily get exactly what they were promised ,the court will
consider what is proportionate in all circumstances.

Notable considerations:

a) Uncertainty: The promise or assurance doesn‟t have to be precise. Courts have been
known to uphold estoppel claims against generalized assurances.
b) Intervening Rights: Proprietary estoppel cannot override the rights of third parties who
have acquired interests in the property without notice of the claimant‟s expectation.
c) Remedies: A successful proprietary estoppel claim can lead to a range of remedies.
These can include the court awarding a proportionate interest in the property, a lump sum
payment, or other adjustments to meet the equity of the case.

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 d) Jurisdiction: The specifics of proprietary estoppel can vary by jurisdiction. For example,
in England, it‟s a recognized principle whereas, in other jurisdictions, related concepts
such as “promissory estoppel” may apply.

Promissory estoppel.

This is commonly found in contract law. Promissory estoppel protects a person who has acted
based on another person's reasonable promise, whether in a formal contract or not, and then
suffers significant economic loss because the other party did not fulfill that promise.

Elements of promissory estoppel

a) The defendant made a clear and unambiguous promise

b) The plaintiff acted in reliance on the defendant‟s promise
c) The plaintiff‟s reliance was reasonable and foreseeable
d) The plaintiff suffered an injury due to reliance on the defendant‟s promise

Case law: Graham-Suit v. Clainos.

A successful promissory estoppel claim prevents the defendant from denying the existence of a
contract for lack of consideration and punishes the defendant for misleading the plaintiff to its
detriment (Blocksel v. DG3 North America, Inc).

Scenario 1.

Promissory estoppel might be applied in a case where an employer makes an oral promise to an
employee to pay the employee a specified monthly or annual amount of money throughout the
full duration of the employee's retirement. If the employee then subsequently retires based on a
reliance on the employer's promise, the employer could be legally estopped from not delivering
on his promise to make the specified retirement payments.

Scenario 2.

As a hypothetical example, imagine a person working in New York who seeks a new job. After a
certain number of interviews, they receive a job offer from an employer in California offering a
high salary and relocation expenses. The prospective employee immediately quits their job, ends
their tenancy, and begins to relocate to California. Upon arrival in California, they learn that the

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job is no longer available, or has a greatly reduced salary. Because the employee relied on the
employer's promise, they may be able to seek judicial relief for the expenses they incurred due to
the employer's promise. As with other aspects of contract law, promissory estoppel is state
specific, so the employee would do best to consult a California attorney before pursuing legal
action. The rules for promissory estoppel vary by jurisdiction. Generally speaking, a successful
case of promissory estoppel may result in the award of either reliance damages or expectation
damages. Reliance damages are based on what it would cost to the economic position before they
relied on the broken promise, while expectation damages are based on the cost of putting the
injured party in the same position as if the promise has been fulfilled.

Conclusion.

In conclusion, the doctrine of estoppel is that provision that prohibits a person from giving false
evidence by preventing them from making contradicting statements in court of law. The
objective of this doctrine is to avert the commission of fraud by one person against another
person. The doctrine holds a person accountable for false representation made by him, either
through his words or conduct.

There are situations where doctrine of estoppel cannot be applied and they include:

a) Estoppel cannot be applied in criminal cases. It is only applicable in civil cases where a
person has previously stated a fact to be true and later denies it.
b) Estoppel is not applicable if it is not specifically pleaded at the earlier stage.
c) The doctrine of estoppel is not applicable when pleading is done by a person as a
representative of a person.

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References:

1. The Law of Evidence Act Cap 80, laws of Kenya.

2. Zurich Insurance Company PLC v Collin Richard Hayward [2011] EWCA CIV
641.
3. Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & another [2016]
eKLR.
4. Greenwood v Martin’s Bank (1933).
5. Hopgood v Brown (1955).
6. Graham-Suit v. Clainos.
7. Blocksel v. DG3 North America, Inc

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