MOUNT LENYA UNIVERSITY

SCHOOL OF LAW
BLW 1202 EQUITY AND TRUST LAW

COURSE INSTRUCTORS: CYNTHIA NJOROGE

NATURE, HISTORICAL ORIGIN AND DEVELOPMENT OF
EQUITY IN ENGLAND
INTRODUCTION & OVER VIEW OF EQUITY

Definition of Equity
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According to Hanbury and Maudsley, Modern Equity (16 Edition, Sweet & Maxwell), page 3:
“Equity is a word with many meanings. In a wide sense it means that which is fair, just, moral and ethical; but its legal meaning is much narrower. Equity
is the branch of law which, before the Judicature Act of 1783 came into force, was applied and administered by the Court of Chancery.”
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 also 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.”
From the above, 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.
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 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 13 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

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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.”
The Chancellor pronounced a remedy where the common law did not provide for one. For example, the common law courts had no power to order specific
performance or grant an injunction. The Chancellor would also provide a remedy where a common law rule produced substantial injustice in a particular
case due to some unforeseen set of facts. Justice required that the rule be amended or modified. If the rule could not be amended or modified, justice
required that there be a new rule to mitigate the harshness and severity of the common law rule.
This new body of rules is what came to be known as equity. The rigidity and deficiency of the common law led to the evolution of equity. In this sense,
equity can be seen as supplementing or filling in the gaps left by the common law.
Equity is distinguishable from the general body of law and from the common law, in particular, not because it seeks to achieve a different end, since both
equity and the common law seek to achieve justice. Rather, equity is distinguishable because it appears at a later stage of legal development.
Systematization of Equity
With time, Chancellors began to apply the same principles in all cases instead of following the inclination of the moment necessitated by circumstances
under the notion of conscience. The Court of Chancery also became more highly organized. More judicial officers were appointed and a Court of Appeal
in Chancery was established. What had begun as an irregular process of petitioning the Crown in extraordinary circumstances had become a regular
system of courts with a recognized jurisdiction.
Rigidity of Equity
The systematization of the rules of equity in turn produced rigidity (“rigor aecquitatis”). They became as fixed as those of the common law. One of the
most famous Chancellors, Lord Eldon (1801-1827) said the following in Gee v. Pritchard (1818) 2 Swans 402 at 414:
“The doctrines of this court ought to be as well settled, and made as uniform almost as those of the common law, laying down fixed principles, but taking
care that they are to be applied according to the circumstances of each case. I cannot agree that the doctrines of this court are to be changed with every
succeeding judge. Nothing would inflict on me greater pain, in quitting this place, than the recollection that I had done anything to justify the reproach
that the equity of this court varies like the Chancellor’s foot.”
It must not therefore be assumed that every injustice was the subject of equitable intervention. Initially, it was never certain when equity would apply since
the Chancellor’s powers were wide but vague. Eventually, the Chancellor had to rely on well-settled principles of equity.
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.’
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.”

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The law of equity is therefore more concerned with the technical rather than the ordinary meaning of equity. Any definition of equity must have regard to
two things, namely, firstly, form and history, and, secondly, substance or principle of equity. However, it is to be noted that today some aspects of equity
are strict and technical, while others leave considerable discretion to the court.
Equity versus Natural Justice
It is not entirely accurate to define equity solely in terms of natural justice. The principles of equity administered in the courts are distinct from the rules of
natural justice. When the rules of natural justice enforced by the courts are examined, it will be seen that many of them are rules of the common law,
many others are statutory, and some are derived from ecclesiastical and other sources. Only a small fraction of the whole can be said to be rules of equity
in the technical sense.
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 encompasses more than 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.

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 ripe for a merger of the three common law courts and the Court of Chancery.

Merger of Common Law and Equity Courts

The merger was accomplished through the enactment of the Judicature Acts of 1873 and 1875. The main purpose of these Acts was to amalgamate the
numerous courts into one Supreme Court of Judicature.

Consequently, the Queen’s Bench, Common Pleas, Exchequer, Court of Chancery and Court of Appeal in Chancery were all replaced by one Supreme
Court consisting of:

1. the Court of Appeal; and

2. the High Court.

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The High Court had five divisions:
a) Queen’s Bench
b) Common Pleas
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 Bench, replacing the King’s Bench, Common Pleas and Exchequer;
b) Chancery; and
c) Probate Divorce and Admiralty.
By the Administration of Justice Act 1970, Probate, Divorce and Admiralty became the Family Division. Admiralty matters were taken to an Admiralty
Court within the Queen’s Bench Division.
The Supreme Court Act 1981 affirmed the three divisions, namely:
(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.
Per Lord Cairns, “The court is now not a court of law or a court of equity; it is a court of complete jurisdiction.” Pugh v. Heath (1882) 7 App. Cas. 235 at
237.
In the words of Pollock in Leading Cases Done into English (1892), p. 57:
“The courts that were manifold dwindled to diverse divisions of one (court).”
For the sake of administrative convenience, cases were allocated to the Divisions according to their general subject matter.
The Kenyan court system derived from this English system.
Contribution of Equity to English Law
Equity has made the following contributions to English law:
(a) Trusts and settlements in respect of property
(b) The doctrine of “undue influence” in respect of contracts
(c) Property for the separate use of married women which the common law did not recognize
(d) Superior remedies, e.g. specific performance and injunction
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.”

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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.”
Distinction Between Equity and Common Law
Per John A. Finch, Baron Finch of Fordwich (17 September 1584 – 27 November 1660), an English Judge and Speaker of the House of Commons:
The difference between the common law and equity is that:
“At common law you are done for at once. In equity you are not so easily disposed of. The former is a bullet which is instantaneous and charmingly
effective. The latter, is the angler’s hook, which plays its victim before it kills him. Common law is prussic acid (cyanide), equity is laudanum.”
Per Sir William Blackstone (1723-1780), on the limitations of equity and its discretionary nature (Public Courts of Common Law and Equity, Volume
Three, Chapter Four):
“Law without equity, though hard and disagreeable, is much more desirable for the public good than equity without law, which would make every judge a
legislator and introduce most infinite confusion, as there would be almost as many different rules of action laid down in our courts as there are
differences of capacity and sentiment in the human mind.”
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Excerpt from A.K.R. Kiralfy, Potter’s Outlines of English Legal History (5 Ed.) p.1
“English law is like a river. The channel widens and deepens as it flows through the course of years and tributaries join it from time to time. It was first
fed by the springs of the common law, but the fountain of equity and the wells of the law merchant and ecclesiastical law have increased the waters of the
growing current…The English law is practical, not theoretical, pragmatic, not dogmatic; it is built up day by day by the courts in deciding disputes
between living people and with full knowledge of the effect the decision of the court will have on their destinies. The legislature…must deal with wholly
new situations not covered by the older judge-made rules, but Parliament can only enact abstract propositions of law; it is for the courts to translate them
into reality.
MAXIMS OF EQUITY
There are certain general principles upon which the court of equity exercises its jurisdiction. Many of these principles have been embodied in the so-called
“maxims of equity.”
Some of the maxims overlap. A particular maxim may contain by implication what another maxim contains. These maxims do not cover all the situations
in equity.
The most notable maxims are as follows:
1. He who seeks equity must do equity.
2. He who comes to equity must come with clean hands.
3. Equality is equity/Equity is equality.
4. Equity looks to the intent/substance rather than the form.
5. Equity regards as done that which ought to be done.
6. Equity acts in “personam”.
7. Equity will not assist a volunteer.
8. Equity will not suffer a wrong to be without a remedy; where there is a wrong there is a remedy (“Ibi jus ibi remedium”).
9. Equity does not act in vain.
10. Delay defeats equity; equity aids the vigilant and not the indolent (“Vigilantibus non dormientibus jura subveniunt”).
11. Equity follows the law (“Acquitus sequitur legem”).
12. Where the equities are equal, the first in time shall prevail.
13. Where there is equal equity, the law shall prevail.

1. He who seeks equity must do equity

This maxim means that a person who comes to seek the aid of a court of equity to enforce a claim must be prepared to submit in such proceedings to any
directions which the court may deem fit to give. He must do justice as to the matters in respect of which the assistance of equity is sought. The plaintiff
must be prepared to do equity in its popular sense of what is right and fair to the defendant. For instance, a person seeking an injunction will not succeed if
he is unable or unwilling to carry out his own future obligations. This maxim is the foundation of the equitable doctrine of election.

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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.
Contrast: Kasumu v. Baba-Egbe [1956] A.C. 539 at 549.
The Privy Council in this case stated that the case of Lodge “cannot be treated as having established any wide general principal that governs the action of
courts in granting relief in moneylending cases.” See also Barclay v. Prospect Mortgages Ltd [1974] 2 All ER 672
Although courts do not enforce illegal contracts today, the case of Lodge v. National Union Investment Company Limited is still important as an
illustration of the early application of the above maxim.
(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
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Securities (26 Edition, pp. 425-426).
(iv) Notice to redeem mortgage:
A mortgagor who wishes to exercise his right to redeem his mortgage before the due date of redemption must give his mortgagee reasonable notice of his
intention. Reason: This gives the mortgagee reasonable time to find some other investment before payment is made by the mortgagor. The mortgagor
would otherwise be required to pay interest in lieu of notice.
(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
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him unless he allows the gift to X to take effect. This is referred to as the doctrine of election. ( SNELL 26 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 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 promise notice so that the promisee has a reasonable opportunity to resume his former position. It
is only if resumption of the former position is impossible that the promise becomes final and irrevocable. See: Ajayi v. R.T. Briscoe (Nigeria) Ltd (1964) 1
WLR 1326 at 1330.

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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.
(b) Mistaken Belief
B must have acted in the belief, and A must have actively or passively encouraged B to believe either that he (B0 owns a sufficient interest in the property
to justify the expenditure, or that B will obtain such an interest. See: Michaud v. City of Montreal (1923) 129 LT 417; Inwards v. Baker
Thus if B improves A’s land believing that A will grant B a sufficient interest in it, A cannot then evict B on the ground that no rent or price has been
agreed upon and therefore that there cannot be a contract between them. See: Duke of Devonshire v. Eglin (1851) 14 Beaver 530.
(c) Conscious Silence
A must have known that B was incurring expenditure in the mistaken belief, and that A was entitled to object but nevertheless stood by or participated in
the expenditure without enlightening B. See: Hopgood v. Brown (1955) 1 WLR 213.
(d) No bar to Equity
No proprietary estoppel will arise in equity if enforcing the right claimed would contravene a statute. See: Chalmers v. Pardoe (1963) 1 WLR 677.
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
Mountford v. Scott [1975] Ch. 258
Litvinoff v. Kent (1918) TLR 298
Hubbard v. Vosper [1972] 2 QB 84
The plaintiff must not only be prepared to do what is right and fair (as in the previous maxim), but he must also show that his past record in the transaction
is clean, for "He who has committed Iniquity…shall not have Equity.” See: Jones v. Lenthal (1669) 1 Ch. Ca. 154 (SNELL p. 35)
Limit to this rule:
Where the plaintiff’s breach was only trifling or where he has broken a much less important covenant than the one he seeks to enforce, the maxim will not
apply. 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

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The Duchess and Duke of Argyll had been married and were divorced. During their marriage, they had exchanged certain confidential information. After
the divorce, the Duke sought to publish the information. The Duchess applied for an injunction to restrain the Duke from publishing the information, i.e. to
restrain a breach of confidence by her husband. The Duke argued that his wife had committed adultery and was the cause of the divorce and in view of this
the court should not grant her the relief she sought. The court Held: That the wife’s alleged conduct had no connection with her application for an
injunction and allowed her application. The court remarked that her conduct did not license the husband “to broadcast unchecked the most intimate
confidences of earlier and happier days.”
NOTE: What bars the success of the plaintiff’s claim by using the maxim is not a general depravity but rather, a depravity which has an immediate and
necessary relation to the equity sued for. The depravity must be a depravity in a legal as well as moral sense. The maxim must therefore not be interpreted
too widely as allowing any unclean conduct to defeat a plaintiff’s claim. “Equity does not demand that its suitors shall have led blameless lives.” Per
Brandeis J. in Loughran v. Loughran (1934) 292 US 216 at 229.
3. Equality is Equity/Equity is Equality
This maxim applies to a situation where two or more persons are entitled to the same property. An important principle of equity which is illustrated by this
maxim is that in the absence of sufficient reasons 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.
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.

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B. (iii) Copyright
Where an author bequeaths the manuscript of a work to A and the copyright to B, and publication of the work is made possible only by using the
manuscript, the proceeds of sale of the copyright will be divided equally between A and B. See: Re Dickens [1935] Ch. 267.
For another example of the operation of the maxim, see: Re Kavanagh (1949) 66 T.L.R. 65.
4. Equity looks to the intent/substance rather than the form
The court makes a distinction between matters of substance and form. Whenever there is a contradiction between the two, equity presumes that matters of
substance prevail over matters of form.
This maxim can be applied to trusts. For a person to create a trust, it is not necessary to use technical words. The intention to create a trust can be inferred
from conduct. A court of equity will hold the existence of a trust even if the word “trust” is not mentioned. E.g. “I hope he will hold the property safely for
my son’s benefit.” The court looks at the substance rather than the form.
Another illustration is the equitable remedy of rectification where the court, in ordering rectification of an instrument, looks at the intention of the parties
as per their agreement so that the instrument correctly reflects and records their intention or agreement. See: Webster v. Cecil (1861) 30 Beav. 62
5. Equity looks upon as done that which ought to be done
This maxim is applied mostly to contracts, particularly agreements for lease. Equity treats a contract to do a thing as if the thing were already done. It does
so only in 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 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.

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Originally, the court of Chancery did not itself interfere with the defendant’s property. Instead, it made an order against the defendant personally. If the
defendant failed to comply with the order, the court punished him for his disobedience by committal for contempt. In this way, equity acted in personam.
The same case applies today both in England and Kenya.

However, in some cases, imprisonment was ineffectual to compel a defendant to comply with an order of the court of equity. Accordingly, the court of
Chancery got the power to issue a writ of sequestration, under which sequestrators were appointed to take possession of the property in dispute, and
eventually of all the defendant’s property, until he did the act which he had been ordered to do.
This power of enforcing orders by committal of the defendant or sequestration of property has been supplemented by statute. See: The Civil Procedure
Rules on Execution of Decrees and Orders. (The rules refer to attachment rather that sequestration.)
Although at present equity is not confined to acting in personam, its jurisdiction is still primarily over the defendant personally. It is therefore immaterial
that the property in question is not within the reach of the court, provided that that the defendant himself is within the court’s jurisdiction. Accordingly, in
the leading case of Penn v. Lord Baltimore, specific performance was ordered in respect of an agreement relating to boundaries of land in America, with
the defendant being in England.
Penn v. Lord Baltimore (1750) 1 Ves. Sen. 444
FACTS: The plaintiff and defendant had entered into an agreement as to how the boundaries of certain lands were to be drawn. The land was in the USA
(Baltimore, Maryland), while both the plaintiff and defendant resided in England. The suit was filed in England. The defendant argued that the court in
England had no jurisdiction since the subject matter of the dispute was in the USA.
HELD: That the defendant was nevertheless liable to perform his part of the agreement. The court reasoned that the person on whom the order was made,
the defendant, was in England. In this way, the court acted in personam.
7. Equity will not assist a volunteer/Equity favours a purchaser for
value without notice
A volunteer in this sense is a person who has not paid consideration for a gift or property.
As a general rule, a court of equity will not give any assistance to a person who has not paid valuable consideration. It will only grant an equitable
remedy to a purchaser for value without notice.
The remedy of specific performance, for instance, can only be granted to a person who has paid valuable consideration.
Exceptions to the application of this maxim
Trusts
Claimants of rights under a trust constitute an exception to the application of this maxim. Trusts are a creation of equity. In a trust, property is conveyed by
the donor to the trustee to hold on trust for the beneficiary even though the beneficiary has not paid any consideration. A beneficiary can seek the
assistance of the court of equity to order a trustee to convey property to that beneficiary.
8. Equity will not suffer a wrong to be without a remedy

“Ibi jus, ibi remedium.” (If there is a wrong, there is a remedy for it.)
The meaning extracted from this maxim is that no wrong should be allowed to go unredressed if it is capable of being remedied by courts of justice.
It must not, however, be assumed that every moral wrong should be redressed by equity. The maxim refers only to rights which are suitable for judicial
enforcement, but were not enforced at common law owing to some technical defect.
E.g. Enforcement of a trust: Where A ( a donor) conveyed land to B (a trustee) to hold on trust for C (a beneficiary), and B kept the benefit of the land for
himself, C had no remedy at law. Yet such an abuse of confidence was clearly a wrong capable of redress in a court of justice. The court of Chancery
therefore applied this maxim to enforce the trust in favour of the beneficiary.
9. Equity does not act in vain
The court of equity will not grant a remedy which cannot be enforced. This also applies where there has been a change of circumstances such that the
remedy is rendered nurgatory or is overtaken by events e.g. “force majeure”.
10. Delay defeats equity; Equity aids the vigilant and not the indolent
“Vigilantibus, non dormientibus, jura subveniunt”
A court of equity “has always refused its aid to stale demands where a party has slept upon his right and acquiesced for a great length of time. Nothing can
call forth this court into activity, but conscience, good faith and reasonable diligence; where these are wanting, the court is passive and does nothing.”:
Per Lord Camden in Smith v. Clay (1767) 3 Bro. C. 639n at 640n

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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.
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.
Delay-Action not barred:
Williams v. Greatrex [1957] 1 WLR 31; [1956] 3 All ER 705
The plaintiff (purchaser) brought an action for specific performance of a contract made 10 years previously. HELD: The purchaser was entitled to specific
performance of the contract notwithstanding the 10-year delay.
Delay-Action barred:
Lolkilite ole Ndinoni v. Netwala ole Nebele (1952) 19 EACA 1
The appellant was the son of a deceased who was alleged to have committed homicide- he had killed another person. Some 35 years later, a claim was
made in the Native Tribunal for compensation for the killing. The Native Tribunal rejected the claim but the Supreme Court supported it. The Court of
Appeal, however, HELD, inter alia: That it is repugnant to natural justice to entertain a claim of this nature after so long.
See the judgments of:
Edwards C.J. and Sir Barclay Nihill.
Note: This maxim does not apply to cases to which the Limitation of Actions Act (Cap 22) applies, either expressly or by analogy.
11. Equity follows the law (“Acquitus sequitur legem”)
This maxim means that equity treats the common law as laying the foundation of all jurisprudence and it does not necessarily depart from legal principles.
Where a statutory or common law rule is direct and governs the case, equity applies the rule of law as the appropriate system. In such cases, the rules of
law are in fact binding in equity as they are in common law.
Where equity has to regulate the equitable interests which it has created, it acts, so far as possible, on the analogy of the legal rules applicable to the
corresponding legal interests. It is only when there is some important circumstance disregarded by the common law that equity interferes.
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
th
These two maxims govern questions of the priority of rival claimants to the same property in equity. See: SNELL (26 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

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 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 (1950) 1 Ves. Sen. 444 ; [1558-1774] All E.R 99
Richard West & Partners (Inverness) Ltd. v. Dick [1969] 1 All E.R. 289; affirmed [1969] 1 All E.R. 943; [1969] 2 Ch. 424 C.A.
3. Equity cures the inadequacies of the common law
Equitable remedies are granted where the common law remedy of damages is inadequate to compensate a plaintiff for his loss or injury. The rigidity of
the common law also contributed to its inadequacy.
Equity therefore evolved to provide a diversity of remedies to supplement the common law and cure its inadequacies. In the words of Barton, J. in:
Gilligan v. National Bank Limited [1901] 2 I.R. 513 at 542:
A remarkable feature of equity is “the ability and willingness of equity to grant elastic remedies…. which were not obtainable at law.”
Two characteristics are discerned from the above quote:
(a) elastic, ability and willingness – discretionary nature
(b) not obtainable at law – inadequacy/rigidity of the common law which equity cures.
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
consider certain matters such as the conduct of the plaintiff or the hardship which an order of specific performance would inflict on the defendant. This is
because specific performance is a discretionary remedy. The discretion is a judicial discretion which must be exercised on well settled principles.
Specific Performance a Remedy in Personam
In Penn v. Lord Baltimore, Lord Hardwick, L.C. granted specific performance of an English agreement relating to boundaries between Pennsylvania and
Maryland, USA, despite the fact that the property was 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.

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Parties to an Action for Specific Performance
It is only parties to the contract or their representatives who can sue or be sued for specific performance. In a contract for the sale of land, for instance,
only the seller or buyer can be sued. However, if the seller has agreed to sell land to a purchaser and subsequently sells to a third party, then unless the
third party shows that he was a bona fide purchaser for vale without notice, he should be joined as a co-defendant.
Ensuring Observance
Equity as distinguished from the common law can be 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 they will be observed or enforced – that the
defendant is in a position to comply with the court order. This is based on the principle that “equity does not act in vain.” See: Tito v. Waddell (No. 2)
(1977) Ch. 106
Positive Contractual Obligations
Specific performance is ordered for the enforcement of positive contractual obligations. This is similar to a mandatory injunction which orders the
defendant to take positive steps to undo an act done or to do an act omitted to be done in breach of a contract. It is different from a prohibitory injunction
which restrains a defendant from committing an act in breach of a negative contractual agreement.
Where a plaintiff wishes to enforce a positive contractual obligation, he may sue for an injunction instead of specific performance. The advantage of such
a course is that an injunction can be obtained on an interlocutory basis while specific performance cannot.
Note, however, that specific performance cannot issue against the Government. See: the Government Proceedings Act (Cap 40 S.16). The proper remedy here would be a declaration.

SPECIFICALLY ENFORCEABLE CONTRACTS

1. Contracts relating to Land
This is the most common situation where the court grants specific performance. The contract may be for the sale of land or the grant of a lease, charge or
mortgage of land. Land is property which has a fixed location. It is of special or unique value as no two pieces of land are alike. It is therefore accepted
as a general rule that an award of damages is not adequate compensation for the purchaser or lessee. The court, treating each person equally, will also
give specific performance to the vendor or lessor, even though in most cases damages would be adequate. See: Cogent v. Gibson (1864) Beav. 557.
If, for instance, a vendor fails to comply with an order of specific performance, the purchaser may apply to the court for an order nominating another
person to execute the conveyance/transfer in the vendor’s name.
2. Contracts relating to Personality/Chattels
In the case of chattels, the rule is that the court will not grant specific performance unless it is shown that damages recoverable at law will not in the
particular case afford a complete remedy. This exception applies 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 (Adam door in a house)
Behnke v. Bede Shipping Co. [1927] 1 KB 649 at 661
The judge made an order for specific performance of a contract for the sale of a ship, being satisfied that the ship was of “peculiar and practically unique
value to the plaintiff”.
Sky Petroleum Ltd v. V.I.P. Petroleum Ltd [1974] 1 All ER 594; [1974] 1 WLR 576
A contract had been entered into where the plaintiff company would buy all the petrol needed for its garages from the defendant company and the
defendant would supply the plaintiff with all its requirements. The defendant, alleging breach, purported to terminate the contract in November 1973, at a
time when petrol supplies were limited so that the plaintiff would have little prospect of finding an alternative source. An interlocutory injunction was
granted to restrain the withholding of supplies.
The judge acknowledged that it amounted to specific performance but HELD: That the court had jurisdiction to order specific performance of a contract
to sell chattels, although they were not specific or ascertained, where the remedy of damages was inadequate. Further, the usual rule that specific
performance was not available to enforce contracts for the sale of chattels was well established; but it was based on the adequacy of damages, and was
therefore not applicable to the present case, where the plaintiff might be forced out of business if the remedy was not granted.
No unique value: damages adequate – specific performance refused: See:
Cohen v. Roche (1827) Ch. 169

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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 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).
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.
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.

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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:
(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.
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
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
Barnes v. City of London Real Property Co. [1918] 2 Ch. 18
Ogden v. Fossick (1862) 4 De G.F. & J. 426
Frith v. Frith [1906] A.C 254
Where the terms of an agreement are legal and the others are illegal, the court will sometimes specifically enforce the legal terms if the illegal terms are
clearly severable.
See: Odessa Tramways Co. v. Mendel (1878) 8 Ch.D 235
On severance, see: Mohamed Hussein v. Abdulla bin Salim (1955) EA 84
D’Silva v. Rahimtulla (1968) EA 287
5. Agreements without consideration

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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.
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
nd
1990 and Act No.2 of 2002. Both Acts came into effect on 1st June 2003 vide Legal Notices No. 188 and 189 of 22 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.
Note, however, that by virtue of the amendments to the Law of Contract Act in Kenya, if a party to such a transaction involving land wishes to bring an
action in court, the requirement of writing must be met.
2. Conduct of the Plaintiff/Default
For the plaintiff to be granted an order of specific performance, he must show:
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).
3. 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

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seller appealed on the ground of hardship. She pleaded that she spoke little English and relied on help from nearby friends and relatives, hence it would be
hard to leave the house and move away. The court allowed the appeal, stating that although a person of full capacity before the contract took the risk of
hardship, the court in a proper case could refuse to grant specific performance on the ground of hardship occasioned subsequent to the contract even if it is
not caused by the plaintiff and is not related to the subject matter of the suit. On the facts of this case, there would be hardship amounting to injustice and
therefore the appropriate remedy was damages.
Hardship to either the plaintiff or defendant: See:
Warmington v. Miller [1973] Q.B. 877
Mountford v. Scott [1975] Ch. 258
Hardship to a third party: See:
Earl of Sefton v. Tophams Ltd [1966] Ch. 1140
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
4. 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:

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:

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“If a man will not take reasonable care to ascertain what he is buying, he must take the consequences. The defence on the ground of mistake cannot be
sustained…it would open the door to fraud if such a defence was to be allowed… The cases where a defendant has escaped on the ground of mistake not
contributed to by the plaintiff, have been cases where a hardship amounting to injustice would have been inflicted upon him by holding him to his bargain,
and it was unreasonable to hold him to it … If a man makes a mistake of this kind without any reasonable excuse he ought to be held to his bargain.”
Cotton, L.J. said at 222:
“There is no injustice in holding a man to a contract which specifically describes the property sold in a way not calculated to mislead.”
Where the mistake is in the written record of the contract, the plaintiff may obtain rectification and specific performance in the same action. See:
Craddock Bros. V. Hunt [1923] 2 Ch. 136
Where the plaintiff has contributed to the defendant’s mistake, however unintentionally:
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
5. Misrepresentation by plaintiff
6. Misdescription
7. Lapse of time/Laches/Delay
8. Trickiness/Deceit/Fraud
9. Illegality
10. Defective Title

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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).
th
Until late in the 19 century, all injunctions were couched in prohibitive form. This was due to doubts as to the jurisdiction to grant mandatory
injunctions. The order, even though mandatory in substance, had to be drafted in prohibitory form. Thus, previously, a court would not, for instance, make
an order directing wrongfully erected buildings to be pulled down. Instead, the court would order the defendant not to allow them to remain on the land.
SNELL comments that the doubts as to the court’s jurisdiction to grant mandatory injunctions seem odd in a jurisdiction which traditionally looks to the
substance rather than the form. Now, however, a mandatory injunction is issued in a positive form. See:
Jackson v. Normandy Brick Co. [1899] 1 Ch 438
Note the distinction between specific performance (which is granted under an instrument or contract) and a mandatory injunction (which may be granted
even there is no instrument).
3. Perpetual
A perpetual injunction is so called because it is granted at the final determination of the rights of the parties and not because it will necessarily operate
forever. It means that the order will finally settle the dispute between the parties. It is granted only after the plaintiff has established his right and the actual
or threatened infringement of it by the defendant.
4. Interlocutory/Temporary
This is granted before the hearing (trial) of an action. Its purpose is to maintain the status quo until the dispute between the parties is determined. The
damage or injury to be suffered by the plaintiff could be such that it would be unjust to make him wait until the trial is over in order to obtain relief. The
damage may be irreparable. In such a case, the court may grant an interlocutory injunction pending the outcome of the main suit. For instance, where a
person wants to sell a piece of land in respect of which there is a dispute, an interlocutory injunction may be granted to restrain him from selling that land
until the dispute is heard and determined.
Usually, the plaintiff, when filing an application for the main suit, will also serve a notice on the defendant that on the next motion day he will apply to the
court for an interlocutory injunction. The service of this notice will enable the defendant (through his advocate) to be heard where he wishes to object to
the application for the interlocutory injunction. However, the decision after the hearing will not be a final decision on the merits of the case. If the
plaintiff’s affidavit has made out a sufficient case, the judge will grant an interlocutory injunction which will last until the trial of the action.
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

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An interim injunction restrains the Defendant, not until the trial, but until some specified date. An interim injunction is usually, but not always ex parte.
For example, if a notice has been served on the Defendant, but he is not given sufficient time to prepare his case, then an interim injunction until the next
motion day is more likely to be granted than a full interlocutory injunction until trial.
5.Quia Timet(Anticipatory)
A Quia Timet injunction is issued to prevent a threatened infringement of the plaintiff’s right. The infringement is threatened but has not yet occurred. It
is anticipatory. Courts take great care before granting this remedy. The plaintiff must show a very strong probability of a future infringement (that the
danger is imminent) and that it will cause substantial or irreparable damage (that the damage will be of a most serious nature).
Summary
Prohibitory or mandatory injunctions may be perpetual or interlocutory.
●
Mandatory injunctions are less frequently granted than prohibitory injunctions.
●
An exparte injunction may be interim, mandatory or prohibitory (it cannot be perpetual).
●
An interim injunction may be mandatory or prohibitory.
●
A quia timet injunction may be mandatory or prohibitory.
●
PERPETUAL INJUNCTIONS
A perpetual injunction is intended to relieve the plaintiff from the necessity of bringing a series of actions to protect his right each time it is infringed.
General Rules Prohibitory/Mandatory
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
Interlocutory Defendant changed
Interim
Perpetual
the name of his house to “Ashford Lodge,” whereupon the Plaintiff sued for an injunction. The Court of Appeal refused to grant an injunction to prevent
the Defendant from calling his house by the same name as the Plaintiff’s house even though the parties lived next door to each other and the Plaintiff had
used the name “Ashford Lodge” for sixty years. The court reasoned that there is no legal or equitable right to the exclusive use of the name of a private
residence. (Contrast this with commercial premises – right to use a trade name.)
2. Discretionary remedy
The granting of an injunction is discretionary, this being an equitable remedy. However, the discretion must not be exercised according to the fancy of the
court. It must be exercised judicially according to the rules established by precedent.
Ex - parte
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
Interim Mandatory Prohibitory
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
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
Quia Timet
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

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Mandatory Prohibitory
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
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.
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.

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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

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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.
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:
1. Prima facie case
2. Balance of convenience
3. Irreparable injury
These principles were set out in the case of East Africa Industries Ltd v. Trufoods Ltd [1972] EA 420. These were reiterated in the case of Giella v.
Cassman Brown [1973] EA 358.
In East Africa Industries Ltd v. Trufoods Ltd, Spry, V-P (CAEA) said:
“A plaintiff has to show a prima facie case with a probability of success and if the court is in doubt it will decide the application on the balance of
convenience. An interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not
adequately be compensated by an award of damages.”
In Giella v. Cassman Brown, the Court said,
“The conditions for the grant of an interlocutory injunction are now, I think, well settled in East Africa. First, an applicant must show a prima facie case
with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable
injury which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide the application on a balance
of convenience.”
1. Prima Facie Case
A plaintiff who seeks an interlocutory injunction has to adduce sufficient evidence to disclose a prima facie case for relief. “Prima facie” denotes the fact
that if the evidence remains the same at the hearing of the main suit, it is probable that the judgement of the court will be in favour of the plaintiff. There
are two requirements:
(i) The plaintiff must establish a prima facie case for the existence of his right
(ii) He must also establish a case for the violation of this right that is reasonably capable of succeeding.
East Africa Industries Ltd. V. Trufoods Ltd [1972] EA 420
Both parties are manufacturers of fruit drinks. The Appellant applied to the High Court for an interlocutory injunction to restrain the passing off of the
Respondent’s product as that of the Appellant. The Appellant claimed that the Respondent had changed the shape of the bottles which the Respondent
used and the shape and design of the labels it affixed to the bottles in such a way that they so nearly resembled those of the Appellant company as to be
likely to deceive.
In dismissing the application, the High Court judge directed his attention to the names on the labels and not to the overall impression created by the bottles
and labels. The judge also stated that he took judicial notice that the vast majority of customers for the products would be sophisticated and able to read
English. The judge then concluded that the Appellant company was unlikely to succeed in the suit because, in his opinion, no reasonable ordinary shopper
would be misled by the resemblance of the two products. The application was therefore refused.
The Appellant then appealed to the Court of Appeal. Spry, V-P (CAEA) said:
“A plaintiff has to show a prima facie case with a probability of 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.”

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Consequently, the Court of Appeal Held, dismissing the appeal, that on the balance of convenience, the application was properly refused by the High
Court and that the Appellant would suffer no loss which could not be sufficiently compensated in damages.
On shoppers the Court of Appeal held that the sophistication or otherwise of Kenyan shoppers is a matter for evidence and not judicial notice.
The Court of Appeal said, per Spry, V.P.
“It will be open to the parties at the trial…to adduce evidence as to the channels through which they sell their goods and evidence of retailers as to the
character of the customers who buy them. It would be dangerous to make assumptions which, however superficially reasonable, might be very wide of the
truth.”
2. Balance of Convenience
The court has to balance the harm or injury to the Defendant if at the trial the Defendant succeeds against the harm or injury to the Plaintiff in being
refused an interlocutory injunction if at the trial the Plaintiff succeeds.
In this regard, the High Court Held that the Appellant company would not suffer irreparable harm if an injunction were refused and that if the Appellant
succeeded in the suit, it could be adequately compensated by damages. On the other hand, the High Court stated, the Respondent company would suffer
irreparable harm if its products were taken off the market for the time it would take for the suit to come to judgement.
On the same issue, the Court of Appeal agreed with counsel for the Appellant (Mr. Deverell) in his submissions that:
(a) “The High Court judge misdirected himself when he spoke of the effect of an injunction being that he Respondent company’s products would
be taken off the market”, and
(b) “That there would be nothing to prevent the Respondent company from continuing to sell fruit juices under the name it had recently adopted,
provided only that it did so under a different “get-up”.
Nevertheless, the Court of Appeal, in refusing to grant the injunction, Held that on the whole, the harm which the Respondent company would suffer as
the result of an injunction , if the Respondent succeeded in the suit, was likely to be greater and graver than that which the Appellant company would
suffer from the refusal of an injunction, should the Appellant be successful. (The court did not, however, specify the kind of harm.)
3. Irreperable Injury or Damage
Irreparable injury means injury which, if not prevented by injunction, cannot be sufficiently compensated afterwards by any decree which the court may
make at the final determination of the suit. The Court of Appeal Held that the Appellant company would not suffer any loss that could not be sufficiently
compensated by an award of damages.
On the above three principles, see also:
Devani’s Case [1972] EA 22
Supra Studio [1971] EA 489
Nsubuga’s Case [1974] EA 487
Other Factors
Claimant’s Case not Frivolous or Vexatious
The court must be satisfied that the plaintiff’s case is not frivolous or vexatious. This requirement is intended to remove any attempts by the plaintiff to
harass the defendant in cases where the suit is futile or misconceived or an abuse of the process of court. As part of this requirement the plaintiff must
show that there is a serious question to be tried.
Conditions and Undertakings
The court may impose terms as a condition for granting or withholding an interlocutory injunction. Where the remedy is granted, the plaintiff is normally
required to give an undertaking in damages in the event that the injunction is discharged at the trial as having been granted without good cause. Although
the undertaking is executed for the defendant’s benefit, it is not a contract with the defendant. The undertaking is given to the court so that if it is not
honoured, it amounts to contempt of court and not breach of contract.
ENGLISH POSITION ON INTERLOCUTORY INJUNCTIONS
American Cyanamid Co. v. Ethicon Ltd
(1975) A.C. 396; (1975) 2 W.L.R. 316.
Prior to the decision of the House of Lords in American Cyanamid Co. v. Ethicon Ltd, it was well established in England that the claimant had to show a
strong prima facie case that his rights had been infringed. He was then required to show that damages would not be an adequate remedy if he succeeded at
the trial, and that the balance of convenience favoured the grant of an interlocutory injunctuion.

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The above principles were replaced by the rules laid down by Lord Diplock in American Cyanamid. These rules were designed to circumvent the necessity
of deciding disputed facts or determining points of law without hearing sufficient argument.
The American Cyanamid case concerned an application for a quia timet interlocutory injunction to restrain the infringement of a patent. The House of
Lords unanimously held that there was no rule requiring the claimant to establish a prima facie case. The rule is that the court must be satisfied that the
claimant’s case is not frivolous or vexatious and that there is a serious question to be tried. Once that is established, the governing consideration is the
balance of convenience.
Serious question to be tried
This means that the plaintiff must have a good arguable case.
Balance of convenience
The concept of balance of convenience connotes that the court should not embark on anything representing a trial. At the interlocutory stage, it is not the
court’s function to resolve conflicts of evidence in affidavits or to resolve difficult questions of law. These are matters for the actual trial.
Facts of American Cyanamid Case: The Plaintiff, an American company, owned a patent covering certain surgical sutures. The Defendant was also an
American company. It manufactured its products in the USA and was about to launch a suture on the British market which the Plaintiff claimed infringed
its patent. The Plaintiff applied for an interlocutory injunction. The Court at first instance granted it. The Defendant appealed. The Court of Appeal
reversed the earlier Court’s decision on the ground that no prima facie case of infringement had been established by the Plaintiff. The Plaintiff appealed.
The House of Lords Held, allowing the appeal, THAT:-
1. In all cases including patent cases, the court must determine the matter on a balance of convenience;
2. There was no rule requiring the court to first be satisfied that if the case went to trial on no other evidence than that available at the hearing of
the application, the Plaintiff would be entitled to a permanent injunction in the terms of the interlocutory injunction sought;
3. In the present case, there was no ground for interfering with the first judge’s assessment of the balance of convenience or his exercise of
discretion and the injunction should be granted accordingly.

The H.L. therefore reversed the decision of the Court of Appeal and affirmed that of the Court at first instance.
The American Cyanamid case was discussed and explained in Series 5 Software Ltd V. Clarke (1996) 1 All ER 853.
The American Cyanamid case placed more weight on the principle of balance of convenience rather than prima facie case with a probability of success at
the interlocutory stage.
Disadvantages of the prima facie requirement are that hearings are often ex parte, evidence is by affidavit and it is difficult for the plaintiff to establish a
prima facie case with a probability of success in such circumstances.
Note: While the balance of convenience is the governing consideration, a significant factor in assessing it is the inadequacy of damages to each party.
Excerpts from Richard Kuloba, Principles of Injunctions
P;.34-35: If the court is in doubt”
“Logically, the doubt referred to must be a doubt as to the existence of a prima facie case [with a probability of success]. It cannot be a doubt as to whether
the Plaintiff will suffer irreparable damage. This is because the balance of convenience is defined as a comparison of the irreparable losses likely to be
suffered by the plaintiff and the defendant. That is to say, there can be no consideration of the balance of convenience unless the plaintiff will suffer
irreparable damage.”
Pp. 48-49: “Prima facie case with a probability of success” vs. “serious question to be tried”
Approval of American Cyanamid Rule by the High Court of Kenya:
Minnesota Mining and Manufacturing Co. v. Shah & Shah, HC.C.C. No. 3446 of 1980
According to Cotran J. in the above case, there is little difference between “a prima facie case with a probability of success” and a “serious question to be
tried”. Cotran J. said:
“The question is whether the defendant’s packet is so similar to that of the plaintiff as is likely to confuse or deceive the average customer in a village shop
or in a city supermarket. If I were to answer this question now, I will virtually be deciding the case. But suffice it to say at this stage of the proceedings
and upon the material before me I am satisfied that the applicant in the words of the first condition in Giella’s case, has shown ‘a prima facie case with a
probability of success’ and I stress a probability and no more, or in the words of the American Cyanamid Case has shown that there is ‘a serious question
to be tried’.”

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Indirect Approval of American Cyanamid Rule by Court of Appeal (Kenya)

Wairimu Mureithi v. City Council of Nairobi Civil Appeal No. 5 of 1979 (C.A.)
Madan J.A. quoted Lord Diplock in the Cyanamid case:
“The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately
compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial… If damages recoverable at common law
would be adequate remedy and the defendant would be in a financial position to pay them, no interlocutory injunction should normally be granted,
however strong the plaintiff’s claim appeared to be at that stage.”
The Court of Appeal in Wairimu Mureithi’s case Held that on the facts of the case, the plaintiff would not suffer irreparable injury and that the defendant
would be in a financial position to pay any damages that may be awarded to the plaintiff. If the plaintiff’s action succeeded, the Court of Appeal further
held, she could be adequately compensated in damages, including loss of profits.
Kuloba at p.48:
“Thus, by proceeding to follow the principles set out by Lord Diplock while consciously maintaining a golden silence on the three conditions set out in his
judgement, Madan J.A., with memorable judicial diplomacy, rejected the former assertions that the three conditions are the pre-requisites for granting a
temporary injunction. He politely says that Mustafa J.A. and Spry V.P. are wrong, as Lord Diplock is right.”
DEFENCES TO AN ACTION FOR AN INTERLOCUTORY INJUNCTION
Conduct of the parties
The court will consider the conduct of the parties (read plaintiff) in deciding whether or not to grant an interlocutory injunction. Consequently, a plaintiff
who complains of the defendant’s breach of contract will not obtain an interlocutory injunction if he is also substantially in breach. See: Litvinoff v. Kent
(1918) 34 TLR 298
Delay or acquiescence
Delay or acquiescence is enough to bar a plaintiff from the grant of an interlocutory injunction. This remedy is usually granted in matter of urgency so that
a plaintiff who delays thereby shows the absence of any urgency requiring prompt relief.
Hardship
The court has to weigh the hardship to each party.
MAREVA INJUNCTION
Mareva v. International Bulkcarriers [1975] 2 Lloyd’s Rep. 509
This is an injunction restraining the Defendant from removing his assets out of the jurisdiction of the court until hearing of main suit. See also:
• 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 PILLAR INJUNCTION

Anton Pillar K.G. v. Manufacturing Processes [1976] 1 All ER 779
This is an order granted against the Defendant where the court believes that there is a danger that the Defendant will remove or destroy evidence in the
form of documents or moveable property such as money, papers or illegal copies of films.
• The court order allows the Plaintiff to inspect relevant evidence or property at the Defendant’s premises.

⮚ It is not a search warrant.

⮚ Approved in: Rank Film Distributors Ltd v. Video Information Centre [1982] AC 38

APPLICATION OF EQUITY IN KENYA

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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
th
date of reception. That date, 27 August 1897, is stated in Section 3 (1) (c) of the Judicature Act (Cap 8).
Section 3 (1), referred to as the “reception clause” provides:
“The jurisdiction of the [Supreme Court], the High Court, the Court of Appeal and of all subordinate courts shall be exercised in conformity with-
(a) the Constitution
(b) subject thereto, all other written laws, including the Acts of Parliament of the United Kingdom cited in Part I of the Schedule to this Act,
modified in accordance with Part II of that Schedule;
(c) subject thereto and so far as those written laws do not extend or apply, the substance of the common law, the doctrines of equity and the
th
statutes of general application in force in England on the 12 August 1897 and the procedure and practice observed in courts of justice in England at that
date;
but the common law, doctrines of equity and statutes of general application shall apply so far only as the circumstances of Kenya and its inhabitants permit
and subject to such qualifications as those circumstances may render necessary.”
Section 3 (2), referred to as the “repugnancy clause” provides:
“[The Supreme Court], the High Court, the Court of Appeal and all subordinate courts shall be guided by African customary law in civil cases in which
one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any
written law, and shall decide all such cases according to substantial justice without undue regard to technicalities of procedure and without undue
delay.”
Supremacy of the Constitution
The Constitution of Kenya 2010, Article 2 (4) provides:
“Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency...”
The date of reception means that any English decision after 1897 which modifies a principle of common law or equity as it existed in 1897 has no effect in
Kenya, unless the later principle has been incorporated into the law of Kenya by Parliament enacting relevant legislation or by the Kenyan courts
following or adopting the changed principle or rule of the English common law or equity.
Whether the word “equity” is used alone, or is preceded by “doctrines of”, the reference is to the body of rules developed by the English Court of
Chancery from medieval times as supplementary to the common law. Although originally elastic and inspired by conscience rather than legalism, equity
th
had by the end of the 19 century become an enormous apparatus of highly complicated and technical rules. It is this technical equity that has been
incorporated into the Kenyan law under the reception formula contained in the Judicature Act.
Note, however, that in S.3 (2) “equity” retains its ordinary meaning of “fairness” – see reference to “justice and morality.” The inclusion of this clause has
been used to justify the qualification of customary rules by equitable principles in the narrow technical sense. But the English common law and equity will
override customary law only if the customary law is contrary to the judge’s view of justice and morality. The judge has discretion here, somewhat similar
to the discretion of the Lord Chancellor in the early development of equity.
LIMITATIONS TO THE APPLICATION OF EQUITY IN KENYA
1. Circumstances of Kenya
Courts are not to apply the English doctrines of equity if these doctrines were evolved to suit only English conditions or circumstances – see the proviso to
S.3 (1) of the Judicature Act. Some circumstances lack universality. Examples are matters and laws relating to homosexual marriages, transvestites,
surrogate motherhood, euthanasia, etc.
The above qualification is relevant, for instance, when applying the English doctrine of advancement on the one hand, and the Benami Muslim/Hindu
custom similar to a resulting trust on the other hand. Courts have held, for example, that the doctrine of advancement is a doctrine evolved to suit English
situations and should not be allowed to alter and resettle Benami transactions. See: Raya binti Salim bin Khalfan el Busaidi v. Hamed bin Suleiman el
Busaidi and Another [1962] EA 248.
Facts: The plaintiff and her husband were Muslims living in Zanzibar. She inherited property in Malindi and Mombasa from her father upon his 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

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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. 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)
“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.
EQUITY VERSUS AFRICAN CUSTOMARY LAW
1. Example of a customary civil claim in which the court applied a doctrine of equity See:
Lolkilite ole Ndinoni v. Netwala ole Nebele (1952) 19 EACA 1
This case concerned a claim for blood-money in accordance with a Maasai customary law. The Court of Appeal Held: That it was repugnant to justice and
morality to allow a claim to be made thirty to forty years after the killing complained of. The doctrine of laches applied.
2. Examples of other situations where African customary laws and practices are most susceptible to challenge as being repugnant to justice and morality
Infant betrothal, cradle snatchers, schoolgirl and child marriages
●
Marriage in which the woman has not given her consent (arranged marriages) – forced marriages
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Widow/Wife inheritance – See S.13 (1) of the African Christian Marriage and Divorce Ordinance which provides,
●

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“Any African woman married in accordance with the provisions of this Ordinance …shall not be bound to cohabit with the brother or other relative of her
deceased husband…or to be at the disposal of such brother or other relative…, but she shall have the same right to support for herself and her children of
such marriage from such brother or other relative as she would have had if she had been married as aforesaid.”
Connexion with a madman as a sign of cleansing
●
Female Genital Mutilation (FGM)
●
Woman to woman marriages
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Blood Money – Maasai custom
●
Polygamy
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Burial practices e.g. “tero buru” – SM Otieno Case
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Witchcraft/Sorcery/Nightrunning
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Bride price
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Killing of twins
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Snake worship
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Human sacrifice
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Cannibalism
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Wife beating
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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
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Trusts – in land cases - communal land
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Place of burial – SM Otieno Case
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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
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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