Sunday Sermon No 21: Kenyan Voters Deserve Equity



By Blamuel Njururi, Kenya Confidential Editor-in-Chief, Nairobi – November 5, 2017

A rule does not apply when it would produce an unfair result. A party cannot insist that a strict technicality be enforced in his or her favour when it would create an injustice because equity will instead balance the interests of the different parties and the convenience of the public. Judgement based on technical circumstances as election transmission begs clearer interpretation than redefining a General Election as a “process” not an event

Today I would like us to discuss a Sermon related to the repeat Presidential  election because it has attracted petitions that may seriously jeopardize the legal dogma of Equity.

It’s said he who comes into equity must come with clean hands.

Clean hands, sometimes called the clean hands doctrine or the dirty hands doctrine, is an equitable defense in which the defendant argues that the plaintiff is not entitled to obtain an equitable remedy because the plaintiff is acting unethically or has acted in bad faith with respect to the subject of the complaint – that is, with “unclean hands”.

The defendant has the burden of proof to show the plaintiff is not acting in good faith. The doctrine is often stated as “those seeking equity must do equity” or “equity must come with clean hands”.

  • No one is entitled to the aid of a court of equity when that aid has become necessary through his or her own fault.
  • Equity does not relieve a person of the consequences of his or her own carelessness.
  • court of equity will not assist a person in extricating himself or herself from the circumstances that he or she has created.
  • Equity will not grant relief from a self-created hardship.

Those are the situations that best describe hostilities driving Kenya’s politics today.

The Biblical examples include 2 Corinthians 8:13 Our desire is not that others might be relieved while you are hard pressed, but that there might be equality. Another example, among many, is found in Acts 10:34-35 Then Peter began to speak: “I now realize how true it is that God does not show favouritism but accepts from every nation the one who fears him and does what is right.

Legally the principles of equity and justice are universal in the common law courts of the world. They are flexible principles aimed at achieving justice for both sides in each case. No maxim is ever absolute, but all of the principles must be weighed and fitted to the facts of an individual controversy, without undue influence of corruption, politics, ethnicity and other moral improprieties.

A rule does not apply when it would produce an unfair result. A party cannot insist that a strict technicality be enforced in his or her favour when it would create an injustice because equity will instead balance the interests of the different parties and the convenience of the public. Judgement based on technical circumstances as election transmission begs clearer interpretation than redefining a General Election as a “process” not an event.


The Foundations of Equity

Two maxims form the primary foundations of equity:

Equity will not suffer an injustice and equity acts in personam. The first of these explains the whole purpose of equity, and the second highlights the personal nature of equity. Equity looks at the circumstances of the individuals in each case and fashions a remedy that is directed at the person of the defendant who must act accordingly to provide the plaintiff with the specified relief.

Unless a statute expands the powers of an equity court, it can make decrees that concern property only indirectly, phrasing them as decrees against persons. It is said that these are the oldest two maxims of equity. All others are consistent with them.

This maxim is not a moral persuasion but an enforceable Rule of Law. It does not require every plaintiff to have an unblemished background in order to prevail, but the court will refuse to assist anyone whose Cause of Action is founded on his or her own misconduct toward the other party.

If, for example, a wealthy woman tricks her intended spouse into signing a prenuptial agreement giving him a token Ksh 5 million should they Divorce and after marriage she engages in a consistent pattern of conduct leading to a divorce, a court could refuse to enforce the agreement. This maxim reflects one aspect of the principle known as the clean hands doctrine.

“He who comes into equity must come with clean hands.”

This maxim bars relief for anyone guilty of improper conduct in the matter at hand. It operates to prevent any affirmative recovery for the person with “unclean hands,” no matter how unfairly the person’s adversary has treated him or her.

The maxim is the basis of the clean hands doctrine. Its purpose is to protect the integrity of the court. It does not disapprove only of illegal acts but will deny relief for bad conduct that, as a matter of public policy, ought to be discouraged.

A court will ask whether the bad conduct was intentional. This rule is not meant to punish carelessness or a mistake. It is possible that the wrongful conduct is not an act but a failure to act. For example, someone who hires an agent to represent him or her and then sits silently while the agent misleads another party in negotiations is as much responsible for the false statements as if he himself or she herself had made them.

That is the basis on which the Supreme Court nullified the August 8th Presidential Election following forgeries and falsehoods that were presented as evidence by Raila Amolo Odinga.

The Supreme Court Registry is fighting off submission of documents to the Ethics and Integrity Commission probing into the false evidence evidence submitted by the NASA candidate.

The bad conduct that is condemned by the clean hands doctrine must be a part of the transaction that is the subject of the lawsuit. It is not necessary that it actually have hurt the other party. It is for this reason that NASA presidential candidate has declined to petition the October 26th Presidential election having pulled out and subsequently directed his supporters to make it impossible for EIBC to conduct elections in 25 Luo Nyanza constituencies by welding offices in which polling materials were stored, disrupting election officials training, erecting road blocks and bonfires on roads to blockade access to poling stations.

“Equity aids the vigilant, not those who slumber on their rights.”

This principle recognizes that an adversary can lose evidence, witnesses, and a fair chance to defend himself or herself after the passage of time from the date that the wrong was committed. If the defendant can show disadvantages because for a long time he or she relied on the fact that no lawsuit would be started, then the case should be dismissed in the interests of justice.

The law encourages a speedy resolution for every dispute. It does not favour the cause of someone who suddenly wakes up to enforce his or her rights long after discovering that they exist. A long unreasonable delay like this is called Laches, and it is a defense to various forms of equitable relief.

“Equity follows the law.”

Equity does not replace or violate the law, but it backs it up and supplements it. Equity follows appropriate RULES OF LAW, such as the RULES OF EVIDENCE and pretrial discovery.

“Equity acts specifically.”

This maxim means that a party who sues in equity can recover the precise thing that he or she seeks rather than monetary damages as a substitute for it. This maxim is the remedy of Specific Performance.

“Equity delights to do justice and not by halves.”

It is the purpose of equity to find a complete answer to the issues that are raised in a lawsuit. It will bring in all the necessary parties, balance their rights, and give a decree that should protect all of them against further litigation on the subject. Whenever necessary, the court will retain jurisdiction in order to supervise enforcement of relief.

For example, a lawsuit remains alive as long as an Injunction is in force. Either party may come back into court and apply for reconsideration of the order if circumstances change. Courts also retain jurisdiction when Child Support payments are ordered. The amount can be changed if the child’s needs requirean increase or if the supporting parent becomes ill, unemployed, or retired.

“Equity will not suffer a wrong to be without a remedy.”

It is the traditional purpose of equity to find solutions in lawsuits. Where money will not pay for the injury, equity has the authority to find another remedy.

This maxim is a restatement of the broad legal principle: Ubi jus, ibi remedium, “Where there is a right, there is a remedy.”

The maxim is applied in equity in an orderly way. It does not mean that anything goes. It calls forth recognized remedies for well-established wrongs, wrongs that are invasions of property rights or personal or Civil Rights and that the law considers actionable. A court will not listen to complaints about every petty annoyance or immoral act.

“Equity regards substance rather than form.”

Equity will not permit justice to be withheld just because of a technicality. Formalities that frustrate justice will be disregarded and a better approach found for each case. Equity enforces the spirit rather than the letter of the law alone.

“Equity is equality.”

This maxim means that equity will not play favourites. For example, a receiver who has been appointed to collect the assets of a business in financial trouble must use the income to pay every creditor an equal share of what is owed to him or her.

If a Pension fund loses a large amount of money through poor investment, then everyone who is entitled to benefits must suffer a fair share of the loss. Three adult children of a woman who is killed in an vehicle accident should share equally in any money that is recovered in a Wrongful Death action if the children are the woman’s only surviving close relatives.

A judge will depart from this principle only under compelling circumstances, but the rule applies only to parties who are on an equal footing. If, for example, the woman in an motor accident died leaving three young children, then the money that is recovered might be distributed in proportion to each child’s age. A younger child will have lost his or her mother for more years than an older brother or sister.

Also, a receiver would have to prefer a secured creditor over those creditors who had no enforceable interest in a particular asset of the company. Unless there is proof that one person in a group is in a special position, the law will assume that each should share equally in proportion to his or her contribution or loss.

“Between equal equities the law will prevail.”

When two parties want the same thing and the court cannot in good conscience say that one has a better right to the item than the other, the court will leave it where it is. For example, a company that had been collecting sales tax and turning it over to the state government found that it had overtaxed and overpaid by 2 percent. It applied for a refund, but the state refused. The court upheld the state on the ground that the money really belonged to the customers of the company. Since the company had no better right to the money than the state, the court left the money with the state.

“Between equal equities the first in order of time shall prevail.”

When two parties each have a right to possess something, then the one who acquired an interest first should prevail in equity. For example, a man advertises a small boat for sale in the classified section of the newspaper. The first person to see the ad offers him Ksh 2,000 less than the asking price, but the man accepts it. That person says he or she will pick up the boat and pay for it on Saturday.

Meanwhile another person comes by, offers the man more money, and the man takes it. Who owns the boat? Contract law and equity agree that the first buyer gets the boat, and the second buyer gets his or her money back.

“Equity abhors a forfeiture.”

A Forfeiture is a total loss of a right or a thing because of the failure to do something as required. A total loss is usually a rather stiff penalty. Unless a penalty is reasonable in relation to the seriousness of the fault, it is too harsh. In fairness and good conscience, a court of equity will refuse to permit an unreasonable forfeiture.

This maxim has particularly strong application to the ownership of land, an interest for which the law shows great respect. Title to land should never be lost for a trivial reason – for example, a delay of only a few days inclosing a deal to purchase a house.

Generally equity will not interfere with a forfeiture that is required by statute, such as the loss of an aircraft or ship illegally used to smuggle drugs into the country. Unless the statute violates the DUE PROCESS requirements of the Constitution, the penalty should be enforced. “Equity abhors a forfeiture” does not overcome the maxim that “equity follows the law.”

Neither will equity disregard a contract provision that was fairly bargained. Generally it is assumed that a party who does most of what is required in a business contract and does it in a reasonable way, should not be penalized for the violation of a minor technicality.

A contractor who completes work on a bridge one day late, for example, should not be treated as though he or she had breached the entire contract. If the parties, however, include in their agreement an express provision, such as time is of the essence, this means that both parties understand that performance on time is essential.

The party who fails to perform on time would forfeit all rights under the contract. This is a matter Central and County Governments must pursue vigilantly to check of waste of public funds on projects that are delayed by contractors – many of who are paid substantial amounts in advance but choose to engage in corrupt deals with civil servants.