Kenya
THE LAW OF EQUITY
EQUITY LECTURE 1
TOPICAL OUTLINES
1. Historical Origin and Development of Law of Equity in England
2. Maxims of Equity
3. Equitable Remedies include Injunctions, Specific Performance Etc.
4. Application of Equity in Kenya -
The Nature, Historical Origin & Development Of Law Of Equity In England
DEFINITION OF EQUITY
Equity has an ordinary meaning and a technical meaning.
In the ordinary sense, equity means fairness, justice, morality, fair play, equality etc. We are
talking about doing good, doing what is morally right.
In legal sense equity it is the branch of the law which, before the Judicature Act of 1873 came
into force, was applied and administered by the Court of Chancery. A litigant asserting some
equitable right or remedy must show that his claim has “an ancestry founded in history and in the
practice and precedents of the court administering equity jurisdiction.
In the technical sense equity refers to a body of rules and some authors have defined equity as
that which is not the common law. They distinguish equity from the common law. It is regarded
as a body of rules that is an appendage to the general rules of law.
To understand why equity is not common law, we must delve into the history of how equity
evolved. There was only the common law in England originally there was only one body of
law. Common law is to be found in case law that developed over the years and was administered
by the king’s justices. There were 3 courts then, the Kings Bench, the Court of Common Pleas
and the Exchequer.
The Kings Bench got its name from a practice where the king would sit with his judges in
“banco” or on the bench and they would hear civil and criminal cases in which the King had an v
interest.
The Court of Common Pleas dealt with civil cases brought by one individual against another
individual.
,The Exchequer dealt with cases affecting the royal revenue, matters to do with taxes for example
would be dealt with here.
Under the Common law system there was the writ system. Under the writ system a person
could only get redress for their grievance if there was a writ disclosing the cause of action.
Apart from the writ system there was also the doctrine of precedence. At this point in time, i.e.
12th century it was felt that the common law system was very rigid.
There was a statute that restrained the Chancellor from issuing new types of writs on his own
initiative but because of the Provisions of Oxford of 1258 the Chancellor could not issue any
new writs and all this added to the rigidity of common law. At this time there were some
defendants who were very strong and at times they would defy the courts’ orders and the
Plaintiffs would be intimidated. Those were medieval dark ages. Due to all these factors,
plaintiffs were not able to have all their grievances addressed and therefore those aggrieved
would go and implore the King. The King would then exercise the extra judicial powers if there
was no remedy available or if the writ was not recognized as a cause of action. Where there was
a failure to administer the available remedy, the King could also exercise extra judicial powers.
This practice continued with people continuing to petition the King and this gave rise to
establishment of the Court of Chancery which developed as a separate court from the 3 common
law courts. At that time the jurisdiction of that court was not well defined, the court was headed
by the Chancellor as the King had requested the Chancellor to handle those cases and the
Chancellor would exercise his powers based on the notion of conscience. If he felt a case
required intervention he would then provide remedy. There was a theory about conscience, or a
notion of conscience that was supposed to be based on rules of natural justice. It was difficult
because what would shock the conscience of one Chancellor would not necessarily shock
another chancellor.
As time went on and Chancellors began to issue remedies in similar cases, some body of rules
developed, at that point a phrase referring to the Chancellor’s foot was coined which was ‘equity
is as long as the chancellor’s foot’ which meant that equity was what the chancellor decided was
equity. Over time a body of rules called Equity developed.
The Chancellors also provided a remedy where there was a common law rule but it was too harsh
and if applied to the letter the harshness would be unjust. The Chancellors would provide a
remedy to mitigate the harshness of common law. What would happen was that if it was possible
to amend the common law rule to mitigate the harshness, that common law would be modified.
But if the common law rule was too rigid, equity would leave it alone and would instead develop
a new rule. It has been said by scholars that in this instance, equity came to fill in the gaps left
by common law. In this second instance equity was seen as aiding and supplementing the
common law. Authors talk about equity coming in to supplement the common law and not to
supplant the common law.
,The reason why Equity is distinct from common law is because Equity appears at a later stage of
legal development and that is why we define it as that which is not the common law since it
developed separately and came after the common law.
There came a time when equity became systematized because over the years you would have
chancellors looking at previous decisions to find similarity and something akin to following
precedent developed. More judicial officers were appointed to help the chancellors and a court
of Appeal was developed to help the Chancellors. Systematisation led to rigidity. Those rules of
equity became as fixed as those of the common law and became stereotyped.
Lord Eldon who in the case of Gee V. Pritchard stated that
“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.”
He was asking that a balance be struck to avoid inconsistency.
When the new body of rules came into existence, it meant that whatever claim one had in equity
had to be accommodated by equity and not every wrong could be accommodated by equity and
because of this, the Court of Appeal said 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 requires it, we should invent such
jurisdiction for the first time.” as at 1948 the court was saying that they were not going to invent
jurisdiction.
Jessel in Re National Funds Assurance Co. in this case a great equity Judge justifiably made the
paradoxical remark: ‘this court is not as I have often said a court of conscience but a court of
law’ this was as at 1878 and so looking at the picture from the 13 th Century, this shows that this
had ceased to be a court of conscience and had become a court of law.
By this time there were four court systems and people found themselves being tossed from one
court to another and this was disadvantageous and inconvenient to the litigants. The common
law courts had power to award damages while the court of chancery had power to award
injunction and specific performance. The court of equity had no power to award damages so
there was a lot of rivalry between common law courts and courts of chancery. The Earl of
Oxford where the dispute was resolved with equity rules by the king.
, “Equity is not a computer. Equity operates on conscience but is not influenced by
sentimentality.”
The courts began to mitigate their disadvantages by themselves to save the parties the expenses
of shuttling between the two courts. The Common Law Procedure Act of 1854 gave the
Common Law Court a limited power of granting injunctions something that was previously the
preserve of the courts of Chancery. By the Chancery Amendment Act of 1858 the Court of
Chancery was given power to award damages, this is the two courts mitigating each other’s
disadvantages by applying each others rules and complementing each other.
A merger of the two courts eventually happened made possible by the Judicature Act of England
of 1873 and 1875. By virtue of these two Acts all the courts were amalgamated into one
Supreme Court of the Judicature which had two divisions, the Court of Appeal and the High
Court. The High Court had 5 divisions
a. The Queens Bench
b. Common Pleas
c. Exchequer
d. Chancery
e. Probate Divorce and Admiralty which dealt with disputes involving the high seas.
In 1880 there was an Order in Council which reduced the divisions to 3
a. The Queens Bench encapsulating the original kings or queens bench, the court of common pleas
and the exchequer;
b. The Court of Chancery
c. Probate Divorce and Admiralty.
There was an Act called the Administration of Justice Act of 1970 which occasioned further
changes and Probate, Divorce and Admiralty became the Family Division.
Matters dealing with Admiralty were now taken to a division within the Queens Bench.
In 1981 the Supreme Court Act of 1981 affirmed those divisions. This arrangement was such
that the Supreme Court was directed to apply both common law and equity but they were now
administered in the same court.
Pollock said in a book called leading cases done into English that the courts that were manifold
dwindled to diverse divisions of one court the Supreme Court.
The dominant view was that this was not a merger of the rules but a merger of the courts and the
rules remained distinct.
Our court system both the Courts of Appeal and the High Court administer both common law
rules and equity but yet we have different divisions i.e. family division, children’s court, anti
corruption etc. the Kenyan court system derived from that system.
Audi alteram partem in Buganda do not decide the girls case until you’ve heard the boys case.
Nemo judex in causa sua proverb a monkey does not decide an affair of the forest.
THE LAW OF EQUITY
EQUITY LECTURE 1
TOPICAL OUTLINES
1. Historical Origin and Development of Law of Equity in England
2. Maxims of Equity
3. Equitable Remedies include Injunctions, Specific Performance Etc.
4. Application of Equity in Kenya -
The Nature, Historical Origin & Development Of Law Of Equity In England
DEFINITION OF EQUITY
Equity has an ordinary meaning and a technical meaning.
In the ordinary sense, equity means fairness, justice, morality, fair play, equality etc. We are
talking about doing good, doing what is morally right.
In legal sense equity it is the branch of the law which, before the Judicature Act of 1873 came
into force, was applied and administered by the Court of Chancery. A litigant asserting some
equitable right or remedy must show that his claim has “an ancestry founded in history and in the
practice and precedents of the court administering equity jurisdiction.
In the technical sense equity refers to a body of rules and some authors have defined equity as
that which is not the common law. They distinguish equity from the common law. It is regarded
as a body of rules that is an appendage to the general rules of law.
To understand why equity is not common law, we must delve into the history of how equity
evolved. There was only the common law in England originally there was only one body of
law. Common law is to be found in case law that developed over the years and was administered
by the king’s justices. There were 3 courts then, the Kings Bench, the Court of Common Pleas
and the Exchequer.
The Kings Bench got its name from a practice where the king would sit with his judges in
“banco” or on the bench and they would hear civil and criminal cases in which the King had an v
interest.
The Court of Common Pleas dealt with civil cases brought by one individual against another
individual.
,The Exchequer dealt with cases affecting the royal revenue, matters to do with taxes for example
would be dealt with here.
Under the Common law system there was the writ system. Under the writ system a person
could only get redress for their grievance if there was a writ disclosing the cause of action.
Apart from the writ system there was also the doctrine of precedence. At this point in time, i.e.
12th century it was felt that the common law system was very rigid.
There was a statute that restrained the Chancellor from issuing new types of writs on his own
initiative but because of the Provisions of Oxford of 1258 the Chancellor could not issue any
new writs and all this added to the rigidity of common law. At this time there were some
defendants who were very strong and at times they would defy the courts’ orders and the
Plaintiffs would be intimidated. Those were medieval dark ages. Due to all these factors,
plaintiffs were not able to have all their grievances addressed and therefore those aggrieved
would go and implore the King. The King would then exercise the extra judicial powers if there
was no remedy available or if the writ was not recognized as a cause of action. Where there was
a failure to administer the available remedy, the King could also exercise extra judicial powers.
This practice continued with people continuing to petition the King and this gave rise to
establishment of the Court of Chancery which developed as a separate court from the 3 common
law courts. At that time the jurisdiction of that court was not well defined, the court was headed
by the Chancellor as the King had requested the Chancellor to handle those cases and the
Chancellor would exercise his powers based on the notion of conscience. If he felt a case
required intervention he would then provide remedy. There was a theory about conscience, or a
notion of conscience that was supposed to be based on rules of natural justice. It was difficult
because what would shock the conscience of one Chancellor would not necessarily shock
another chancellor.
As time went on and Chancellors began to issue remedies in similar cases, some body of rules
developed, at that point a phrase referring to the Chancellor’s foot was coined which was ‘equity
is as long as the chancellor’s foot’ which meant that equity was what the chancellor decided was
equity. Over time a body of rules called Equity developed.
The Chancellors also provided a remedy where there was a common law rule but it was too harsh
and if applied to the letter the harshness would be unjust. The Chancellors would provide a
remedy to mitigate the harshness of common law. What would happen was that if it was possible
to amend the common law rule to mitigate the harshness, that common law would be modified.
But if the common law rule was too rigid, equity would leave it alone and would instead develop
a new rule. It has been said by scholars that in this instance, equity came to fill in the gaps left
by common law. In this second instance equity was seen as aiding and supplementing the
common law. Authors talk about equity coming in to supplement the common law and not to
supplant the common law.
,The reason why Equity is distinct from common law is because Equity appears at a later stage of
legal development and that is why we define it as that which is not the common law since it
developed separately and came after the common law.
There came a time when equity became systematized because over the years you would have
chancellors looking at previous decisions to find similarity and something akin to following
precedent developed. More judicial officers were appointed to help the chancellors and a court
of Appeal was developed to help the Chancellors. Systematisation led to rigidity. Those rules of
equity became as fixed as those of the common law and became stereotyped.
Lord Eldon who in the case of Gee V. Pritchard stated that
“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.”
He was asking that a balance be struck to avoid inconsistency.
When the new body of rules came into existence, it meant that whatever claim one had in equity
had to be accommodated by equity and not every wrong could be accommodated by equity and
because of this, the Court of Appeal said 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 requires it, we should invent such
jurisdiction for the first time.” as at 1948 the court was saying that they were not going to invent
jurisdiction.
Jessel in Re National Funds Assurance Co. in this case a great equity Judge justifiably made the
paradoxical remark: ‘this court is not as I have often said a court of conscience but a court of
law’ this was as at 1878 and so looking at the picture from the 13 th Century, this shows that this
had ceased to be a court of conscience and had become a court of law.
By this time there were four court systems and people found themselves being tossed from one
court to another and this was disadvantageous and inconvenient to the litigants. The common
law courts had power to award damages while the court of chancery had power to award
injunction and specific performance. The court of equity had no power to award damages so
there was a lot of rivalry between common law courts and courts of chancery. The Earl of
Oxford where the dispute was resolved with equity rules by the king.
, “Equity is not a computer. Equity operates on conscience but is not influenced by
sentimentality.”
The courts began to mitigate their disadvantages by themselves to save the parties the expenses
of shuttling between the two courts. The Common Law Procedure Act of 1854 gave the
Common Law Court a limited power of granting injunctions something that was previously the
preserve of the courts of Chancery. By the Chancery Amendment Act of 1858 the Court of
Chancery was given power to award damages, this is the two courts mitigating each other’s
disadvantages by applying each others rules and complementing each other.
A merger of the two courts eventually happened made possible by the Judicature Act of England
of 1873 and 1875. By virtue of these two Acts all the courts were amalgamated into one
Supreme Court of the Judicature which had two divisions, the Court of Appeal and the High
Court. The High Court had 5 divisions
a. The Queens Bench
b. Common Pleas
c. Exchequer
d. Chancery
e. Probate Divorce and Admiralty which dealt with disputes involving the high seas.
In 1880 there was an Order in Council which reduced the divisions to 3
a. The Queens Bench encapsulating the original kings or queens bench, the court of common pleas
and the exchequer;
b. The Court of Chancery
c. Probate Divorce and Admiralty.
There was an Act called the Administration of Justice Act of 1970 which occasioned further
changes and Probate, Divorce and Admiralty became the Family Division.
Matters dealing with Admiralty were now taken to a division within the Queens Bench.
In 1981 the Supreme Court Act of 1981 affirmed those divisions. This arrangement was such
that the Supreme Court was directed to apply both common law and equity but they were now
administered in the same court.
Pollock said in a book called leading cases done into English that the courts that were manifold
dwindled to diverse divisions of one court the Supreme Court.
The dominant view was that this was not a merger of the rules but a merger of the courts and the
rules remained distinct.
Our court system both the Courts of Appeal and the High Court administer both common law
rules and equity but yet we have different divisions i.e. family division, children’s court, anti
corruption etc. the Kenyan court system derived from that system.
Audi alteram partem in Buganda do not decide the girls case until you’ve heard the boys case.
Nemo judex in causa sua proverb a monkey does not decide an affair of the forest.
