Will courts be bold enough to enrich laws?

Pravin Bowry

The law of England is still applicable in Kenya in its various dimensions. In centuries past, the law in England was dominated by the difference between law and equity.

Law, it was said, had its binding force and rules. Rules of Equity developed to meet the social necessities and to circumvent the rigidness of the law and a supreme system came to be developed.

And in true Kenyan adoptive fashion well after Independence in 1967, by virtue of the enactment of the Judicature Act, we adopted all English laws and doctrines of Equity in force in England as existing as at August 12, 1897, often referred to as the Date of Reception.

In contrast to law, what does equity denote in the context of Kenyan civil laws?

The basic meaning of equity is evenness, fairness, justice and the word synonymous with natural justice. In its technical connotations the term is used as contrasted with strict rules of law, and in this sense, equity is the application to particular circumstances of the standard of what seems naturally just and right.

Equity is the body of principles and rules developed since mediaeval times as contrasted with the body of principles and rules of common law.

A court is always a court of equity as well as of law in so far as it may do what is right in accordance with reason and justice.

Equity comes to mitigate the rigours of strict law and comprises an intricate body of rules formulated and administered by courts to supplement the rules and procedures.

But the English doctrines and indeed the law and statutes of general application apply so far as only as the circumstances of Kenya and its inhabitants permit and subject to such qualifications as those circumstances may render necessary.

Hand maidens of justice

The new Constitution does not refer to common law or equity but provides that the ‘courts while observing the rules of natural justice shall not be unreasonably restricted by procedural technicalities’.

There is a general tendency to adjudicate matters in courts on merits. Even the new rules relating to civil proceedings stipulate the concept of the "overriding objective" of facilitation of just, expeditious proportionate and affordable justice.

The Court of Appeal has ruled that courts should lean towards deciding the cases on their merits rather based on technicalities and that the procedural rules are intended to serve as the hand maidens of justice, not to defeat it.

All these recent trends are indicative of moving towards Kenyan and homegrown equitable jurisprudence, the full impact of which will be seen when our courts invoke these laws in their daily rulings and judgements.

So what is this ‘equity’ in reality? Sample the following maxims which every law student is supposed to cram and which epitomise the general principles on which courts have founded their decisions:

1. Equity will not suffer a wrong to be without a remedy;

2. Equity follows the law;

3. Where there is Equity, the law shall prevail;

4. Where the Equities are equal the first in time shall prevail;

5. He who seeks Equity must do Equity;

6. He who comes into Equity must come with clean hands;

7. Delay defeats Equity;

8. Equity is Equity;

9. Equity looks to the intent, rather than to the form;

10. Equity looks on that as done which ought to be done;

11. Equity imputes an intention to fulfill an obligation;

12. Equity acts in personam;

Historically, common law gave only one remedy, that of damages, for breaches of civil law. Equity moved in and devised ways of other more effective remedies such as injunctions, specific performance, satisfaction, ademption, mergers, subrogation, set-off, release and waiver and laches. The laws dealing with trusts was transformed with equitable principles.

In development of rules of equity at one time the courts looked at the general intent and spirit rather than the strict letter and this led to controlling of statues by extending them to in some cases and restricting them in others.

This theory shrank and has long since disappeared. With a new Constitution in place and with many more statutes and amendments in the pipeline — some creating confusion and contradictions — will Kenyan courts be bold enough to develop their own equity law in the search of justice in the question which needs to be answered?

The writer is an Assistant Director with KACC.

pbowry@integrity.go.ke