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 a 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 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 recognised 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 systematised 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 13th 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.

Categories of Tort:

Nominate torts  - damnum sine injuria – damages not recognised by the law of court
Injuria sine damnum – recognised by the law of tort  -

Equity came in to mitigate injustice by providing remedy that was not available in common law.

Principles of justice and conscience are the basis of equity jurisdiction, but it must not be thought that the contract between law and equity is one between a system of strict rules and one of broad discretion.  Equity has no monopoly of the pursuit of justice.  As Harman L.J. has said, equitable principles ‘are rather too often bandied about in common law courts as though the Chancellor still had only the length of his own foot to measure when coming to a conclusion.

Until the Judicature Act of 1873, the Court of Chancery had almost exclusive equity jurisdiction; rules of equity were not enforced in the common law courts.  If a defendant to a common law action had an equitable defence to it, he had to go to Chancery to obtain an injunction to stay the proceedings in the common law court and then start a new action in chancery to establish his equitable rights. 

In the medieval period the Chancellor was the most important person in the country next to the King himself: One very important function of Chancery was to issue the royal writs which began an action at law.  By varying existing writs or invention new ones, the Chancellor could have some influence on the development of the law;  a limited influence however, for the decision to issue a writ (now called a claim form in Civil Procedure Rules 1998) did not create a new form of action.  The litigant could not proceed without it; but the common law court could still decide that the writ disclosed no claim recognised by the law.

A claimant could only sue at common law if his complaint came within the scope of an existing writ.  In the 13th century the available writs covered very narrow ground.  Even if the claim came within the scope of an existing writ, it may have been that for some reason, such as the power and influence of the defendant, his opponent could not get justice before a common law court.

The chancellor would give or withhold relief, not according to any precedent, but  according to the effect produced upon his own individual sense of right and wrong by the merits of the particular case before him.  No wonder Seldon could say that ‘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.’

The Chancellor’s jurisdiction was  against the person; in personam, and directed to the conscience of the individual in question.


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