The formula for the general reception of Equity and the English common law, doctrines of equity and statutes for general application in Kenya contains a date of reception. That date is stated in section 3 (1) (c ) of the Judicature Act Cap 8.
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.
The significance of date of reception – any modification of English law must be incorporated in Kenya. But note exceptions in Law of Contract Act Cap 23. the reception date itself acts as the limit of application of English law in Kenya. Some interpretation has been given that there may be some statutes in Kenya which when they were enacted di not build in the limitation e.g. the Law of Contract. Law of contract is the exception rather than the rule that we can apply post 1897 English decisions in our courts.
Note therefore that if we are saying that the 1897 Laws have not changed as at 2004, then English decisions relating to those rules will be in a sense binding on us in terms of principles under the doctrine of precedent. Even where the English decisions have changed the 1897 decisions, lawyers will still cite the new position to persuade the court and we do not entirely disregard post 1897 decisions.
The reception clause where the words equity or doctrines of equity is used is to be interpreted in a technical sense. Technical equity is different from ordinary meaning of equity which is fairness.
Judicature Act Cap 8, Laws of Kenya Section 3
How equity became law of the received law of Kenya from England. The earliest provision that received law into Kenya was the East Africa Order in Council of 12th August 1897. the Reception clause was contained in this clause.
The reception clause therefore refers to the provision by which English law became part of Kenyan law. Section 3 (1) provides that the jurisdiction of the High ?Court, Court of Appeal and of all subordinate courts shall be exercised in conformity with The constitution,
The procedure and practice observed in courts of justice in England at that date – this phrase explains why our courts carry out their business the way they do, horsehair, wigs, address etc.
There is however a proviso to Section 3(1) (c ) but the common law doctrines of equity and statutes of genral application shall apply so far only as the circumstances of Kenya permit and subject to such qualifications as those circumstances may render necessary
3(2) is regarded as the repugnancy clause and says that the High Court and all subordinate courts shall be guided by …. It is not the repugnant clause.
Ordinary meaning of equity creeps in where we talk of equity “justice and morality” ‘substantial justice’ technicalities of procedure’. All these words go towards ordinary meaning of equity. Lolkilite Ole Ndinoni Case – limitation of customary practice.
Who decides what is just and moral, who decide that an African custom is repugnant? Judge, based on what? His own personal views of what is just and moral? One can only lay down guidance. Ordinary equity creeps in where judges are influence by their own values of equity in their own sense.
What is the significance of the repugnancy clause and how does it relate to equity?
Application of African Customary Law. this sub section provides some limitations when applying African customary law.
Limitations to the Application of Equity in Kenya
To what extent is equity applicable in Kenya. The reception date acts as a limit.
The proviso to para C the circumstances of Kenya and its inhabitants will also limit the application of doctrines of equity in Kenya.
Busaidi v. Busaid – case concerning a widow who father left her some property when he died. She asked her husband and her brother to manage the property on her behalf. The profits from the investments in these properties were banked in some account one of which was held by her husband in his own name.
According to Muslim Sharia Law the wife was supposed to get a quarter and her brother in law 3 quarters.
Brother in law tried to use the doctrine of advancement which is to the effect that when you have a spouse giving the property to another property is an advancement which is a gift. The brother in law wanted the court to declare that what the husband has was his as a result of the advancement by the wife.
Ria lodged a claim for an account. Dissect the accounts and remove what is mine. The court upheld the Islamic Custom. Muslim law was applicable in this case and it was wrong to use principles of equity in order to import the presumption of advancement in Zanzibar. The court held that the cultural background of ria and her husband was different from that in England and therefore the Muslim Benami Custom would apply. Here the court ordered an account that all the funds that were in various accounts and all the properties given to Ria by her father should be accounted for and given back to Ria and the remainder of the husband’s estate to be divided as the Muslim Law with Ria receiving her quarter.
If there is a Kenyan statutes (local legislation) that will outs the application of equity which takes us back to Section 3(1) (a) and (b) (a) gives preference to the Constitution and (b) all other written laws. If there is a written law that is applicable to the matter in question then equity does not apply. (Equity follows the law).
The Kenyan statutes which constitute local legislation outs the application of equity.
Wakf Commissioners Ordinance
The understanding under Wakf is we have a situation where a Muslim has died without heirs, not even a widow. The Wakf commissioners specially appointed to serve as trustee who are supposed to hold the property on behalf of the Muslim community. They are to hold the property to the service of God. The public trustee is using the legal doctrine and is saying that the residue of the estate should go to the wife.
The section 18(1) of Wakf Commissioners Ordinance which was to the effect that the remaining portion after the widow’s quarter should go to Wakf.
Court held that equitable principles were excluded by yet another section of the Mohammedan Act. Section 4 to be precise.
Local legislation can oust the application of equity.
Our Limitation of Actions Act Cap 22 – constitutes a limitation by local legislation. The import of this Act is to let you know that there can be no remedy after a certain time. Equity with doctrine of Laches has not place where the statutes define the limitations of actions. (equity follows the law).
AFRICAN CUSTOMARY LAW
It is equity that is limiting the application of customary law under the repugnancy clause. By virtue of reference to justice and morality which refers to the ordinary meaning of equity.
How has equity qualified application of African customary law in a civil case? Refer to Lolkilite Ole Ndinoni. Equity limits the application of African Customary Law.
Other situations that stand to be challenged by equity as being repugnant to justice and morality
1. Infant betrothal;
2. Child marriages, cradle snatchers; school girl marriages;
3. Arranged marriages- no consent.
4. Widow inheritance; note the provision in Section 13(1) of African Christian Marriage and Divorce Ordinance: “Any African woman married in accordance with this ordinance… shall not be bound to cohabit with the brother … of her deceased husband. Task force on law relating to women went out to the villages with medicine telling women in the villages that wife inheritance is bad. But the village women said they were not complaining. This in old days had a decent meaning the idea was about society taking care of the widow and the orphans. This means that if the widow has no problem with being inherited, then there is no problem.
5. Female Genital Mutilation (FGM) – Parliament has found it difficult to make this practice illegal and the only way they can eradicate this practice is by criminalising it. It is difficult to just legislate against this practice. The only extent to which parliament has gone is to pass a legislation to outlaw FGM in the Children’s Act there is a specific provision outlawing FGM in children.
6. prohibition of marriage of the last born girl;
7. Cattle Rustling;
8. woman to woman marriages;
9. prohibiting girls from inheriting;
10. widow cannot inherit husband’s property;
11. return of girl to parents for lack of payment of dowry;
12. exorbitant dowry;
13. Girls born out of wedlock-custody of step father, where no dowry had been paid for the deceased’s wife the children are taken away from their father;
14. Blood money;
15. Night-running, sorcery, witchcraft;
16. Killing twins.
17. Human sacrifice;
19. Keeping/worshiping of snakes
20. wife beating – things fall apart – okonkwo-ekwefi
21. The Concubine Ihuoma
EQUITY COMES TO THE AID OF AN AFRICAN CUSTOMARY LAW RIGHT BY PROVIDING A REMEDY:
1. Injunction being granted on the application of a wife under customary law to stop a monogamous Christian/civil wedding; Cap 160 has a dilemma in this case. A woman who is supposed to be in a union of marriage that is not recognised will not be recognised during the lifetime of her husband but when the husband dies she gets recognition for purposes of inheritance.
2. Trusts – Land cases where a trust is recognised in African customary law. Is there a case such as a customary trust. English Trust recognising communal land as being held in trust for the community.
3. Place of Burial – the SM Otieno case upheld the customary right of clan elders to decide on place of burial and who to bury the deceased – Umira Kager Clan.
EQUITY HAS BEEN SILENT ON SOME PRACTICES
1. Customary practice on matrimonial property- vests in the husband and male relatives;
2. Customary practice on status of women – decision making power, ability to transact, leadership positions within clan, village.