The document outlines a course on equity and the law of trusts, focusing on the principles of equity, the nature and definition of trusts, and their applications in the Kenyan legal context. It includes course content such as historical developments, maxims of equity, equitable remedies, and different types of trusts, alongside relevant case law. Learning outcomes involve understanding equity's relationship with law, trust concepts, and practical applications in case assessments.

1. EQUITY AND THE LAW OF
TRUSTS
CLS 223

2. Course Description
• Equity and trusts is a distinct branch of English law founded on a set
of principles established by the Courts of Chancery with the goal of
restoring balance to the legal system, particularly the Common Law.
• The law of trusts was created as an adjunct to the law of property to
address situations in which one person has legal title to a property
but the courts determine that it is fair, just, or "equitable" for another
person to benefit from the property.

3. Course content
•In terms of equity, this unit will concentrate on the
meaning, nature, and origin of equity, as well as its
application in the East African context; equity maxims;
and equitable remedies (injunctions, specific
performance, accounts, declarations, receivership,
repudiation, and restitution).

4. Course content
• The Law of Trusts section will cover the following topics: the definition
of a trust, the origin of trusts, terms associated with trusts, relevant
trusts law principles, and common uses of trusts.
• Trust nature; comparison of trusts and other relationships; trust
classifications; trust creation (trust created by the act of other parties,
trust created by the operation of the law, express private trusts,
secret trusts); the three uncertainties; constructive trusts; charitable
trusts; trustees (capacity, number, appointment of trustees, powers
and duties of trustees, vesting of trust property, trustee retirement,
and trustee removal); trust accounts

5. Learning Outcomes
• We should be able to:
• i. trace the historical development of common law to the application
of equity in Kenya and East Africa at the end of the course.
• ii. Demonstrate a trust, the concept of trusteeship, and the nature of
a trust;
• iii. Explain the powers and duties of a trustee, as well as the rights of
beneficiaries.

6. Learning outcomes
•iv. Explain how equitable remedies are used to solve
legal problems;
•v. Explain the relationship between equity and law, as
well as the position and application of equity law in
the Kenyan legal system;
•vi. Establish trust accounts.

7. Course assessment
•The grading policy of CUEA will be followed.
•A student will be evaluated using the following
methods:
•i. Continuous Assessments Tests (30%)
•ii. Comprehensive Sit-in Examination (70%)

8. Recommended Readings
•Penner, J. (2016) The Law of Trusts, 10th ed., Oxford
University Press
•Pettit, P. (2012), Equity and the Law of Trusts, 12th
ed., Oxford University Press
•Bakibanga, D.J., (2011), Equity and Law of Trusts,
Professional Book Publishers

9. Statutes
•Judicature Act Cap 8 Laws of Kenya
•Trustee Act, Cap 167 Laws of Kenya
•Trustees (Perpetual succession) Act, Cap 164 Laws of
Kenya
•Public Trustee Act, Cap 168 Laws of Kenya
•The Constitution of Kenya 2010

10. Week One: Overview
•OVERVIEW OF LAW OF EQUITY
•i. Meaning, nature and origins of equity
•ii. Definition of key terms
•iii. Historical development of equity

11. Case law
• Re Diplock [1948] Ch. 465
• Re National Assurance Co. [1878] 10 Ch. D
• Gilles v. Department of Human Resources
• Development, 11 California Rept. 3rd, 313
• Re National Assurance Co. [1878] 10 Ch. D
• The Earl of Oxford case [1615] 21 ER 485
• Tulk v. Moxhaney [1848] 18 LJ 88
• Formbay v. Barker [1903] 2 Ch. 539
• Marquis of Waterford v. Night [1844] 11 cl. & f 633
• Heath v. Ridley [1614] Cro. Jac. D. 9
• Walsh v. Lonsdale [1882] vol 2 Ch. D. 9

12. Week Two: APPLICATION OF EQUITY IN KENYA AND EAST AFRICA
•Sources of Kenyan Law
•Objectives / aims of equity

13. Week Two: Case Law
• Ambalal and Co. v. Bowry [1953] 23 EACA 68 (U)
• Abdul Karim Khan v. Mohammed Roshan [1965] EA
• 289, 294-269
• Malek Sultan v. Jeraj [1955] EACA 142
• Rajab Binti Salim v. Hamad bin Sulaiman [1962] EA
• 248
• Bishan Singh Chadha v. Mohiner Singh [1956] All ER
• Shallo v. Maryam [1967] EA 409
• Wakf Commissioners v. Public Trustee [1956] EA 368

14. Week Two: Case Law
• Patel v. Thakore [1965] EA 629
• National House Ltd. V. The Kenya Farmers Association Ltd [1956] EA 96
• Walsh v. Lonsdale [1882] vol 2 Ch. D. 9
• Bilous v. Bilous [1957] EA 69
• Century Automobiles Ltd. V. Hutchings Biemer Ltd [1965] EA 304
• Nurdin Bandali v. Lombak Tanganyika Ltd. [1963] EA 304
• Re Commissioner of Income Tax [1891] AC 531
• Re Diplock [1948] Ch. 465

15. Weeks Three and Four: MAXIMS OF EQUITY
• Equity will not suffer a wrong to be without a remedy (where there is
a wrong there is a remedy for it) Ibi just ibi remedium
• Equity follows the law.
• Where there is equal equity, the law shall prevail.
• Where the equities are equal, the first in time shall prevail.
• He who seeks equity must do equity
• He who comes to equity must come with clean hands
• Delay defeats equity/Equity aids the vigilant and not the indolent
(Vigilantibus non dorminentibus jura subveniunt)
• Equity is equality (Equality is equity)

16. Weeks Three and Four Continue
•Equity looks to the intent or substance rather than the
form
•Equity looks upon as done that which ought to be
done
•Equity imputes an intent to fulfill an obligation
•Equity acts in personam

17. Weeks Three and Four Case Law
• Bendall v. Mc Whitter [1952] 2 QB 466
• Nagel v. Fielden [1966] QB 689
• Lord Dudley and Ward v. Lady Dudley [1705] Prec Cha. 241, 244
• Re Bostocks Settlements [1912} 2 Ch. 469
• Sextorn v. Horton [1926] 38 ELR 240
• Holmes v. Millage [1893] QB 551
• Edward v. Deckard [1909] 2 KB 903
• Graf v. Hope Building Co-operation [1920] New York Supreme Court
• Gibb v. Guild [1882] 9 QB 59

18. Weeks Three and Four Case Law
• Willoughby v. Willoughby [1756] 1 Term. Rep 763
• Chillingworth v. Chambers [1896] 1 Ch. 685
• Inglis v. Commonwealth Trading Firm of Australia [1972] ALR 591
• Campbell Discount Co Ltd. V. Bridge [1962] AC 600
• Meyers v. Casey [1913] 17 CLR 9
• Re Diplock [1948] Ch. 465

19. Weeks Three and Four Case Law
•Cadman v Horner [1810] 34 ER 221
•Cory v. Gertken [1816] 36 ER 250
•Overton v. Bannister [1884] 3 Hare 503; [1884] 67 ER
479
•Kettles and Gas Appliances Ltd. V. Anthony Horden
and sons [1834] 35 SR (NSW)
•Harigan v. Brown [1967] 1 NSWR 342

20. Week Five: EQUITABLE REMEDIES
• Injunctions
• Meaning, jurisdiction and locus standi
• Classification of injunctions
• ii. Specific performance:
• The nature of the order
• When it may / may not be granted
• Specific performance and third parties
• iii. Rectification

21. Week Five Case Law
• Doulton Potteries Ltd. V. Bronotte [1974] 1 NSW 591
• Shah v. AG [1970] EA 216
• Sachoo v. Jopkins [1958] EA 463
• AG v. Block [1959] EA 180
• Glyn v. Keele University [1971] 1 WLR 487
• Giella v. Cassman Brown [1973] EA 358
• E.A. Industries v. Trufoods Ltd [1972] EA 420
• America Cynamide v. Ethicon Ltd [1975] 2WLR 316

22. Week Six: EQUITABLE REMEDIES CONTINUE
•Rescission
•Declaration
•Accounts
•Receivers

23. Week Six Case Law
•Gist v. Bailey [1967] Ch 532
•Phillips v. Brooks Ltd. [1919] 2 KB 243
•Erlanger v. New Sombrero Phosphate Co [1873]

24. Week 8: Introduction to the Law of Trusts
• i. Definitions
• ii. The Origin of Trusts
• iii. Terms Associated with Trusts
• iv. Nature of trusts
• v. The Relevant Principles of Trust Law
• vi. Modern Uses of Trusts
• vii. Nature of beneficiaries interests and rights

25. Week Nine: Trusts Distinguished From Other Relationships
•i. Trust and Contract
•ii. Trust and Bailment
•iii. Trust and Agency
•iv. Trust and Power of Appointment
•v. Trusts and estates of Deceased Persons

26. Cases for Week Eight and Nine
• The Earl of Oxford’s Case (1615) 1 Rep. Ch. 1
• Cowan v Scargill [1985] Ch. 270
• Pilcher v Rawlins (1872)
• Peter Gitonga v. Francis Maingi M’Ikiara; Meru HC.CC No. 146 of 2000
• Kanyi v. Muthiora 1984 K.L.R 712 (C.A),
• Macharia Kihari v. Ngigi Kihari Civil Appeal No. 170 of 1993
• Westdeutsche Landesbank v. Islington [1996] 2 All E.R. 961

27. Week Ten: CLASSIFICATION OF TRUSTS
•A. INTER VIVOS AND WILL TRUSTS
•i. Inter Vivos Trusts
•ii. Capacity to Create Trust
•iii. Constitution of Trusts
•iv. Covenants to settle
•v. Exceptions to Equity’s Non-Perfection of Imperfect
Gifts

28. A. INTER VIVOS AND WILL TRUSTS
•The rule in Strong v. Bird
•Donatio Mortis Causa
•Dispositions under Will
•Doctrine of Proprietary Estoppel
•Statutory Exceptions

29. Week Ten: Case law
• Re Estate of The Late Gedion Manthi Nzioka (Deceased) [2015] eKLR
• Lady Naas v Westminster Bank Ltd [1940] AC 366
• Milroy v. Lord (1862) 4 De G.& J. 264
• Strong v. Bird (1874) LR 18 Eq 315
• Cain v. Moon (1896) 2 Q.B. 283
• Benson Mutuma Muriungi v C.E.O. Kenya Police Sacco & another
[2016] eKLR
• Michael Murage Njunge v Joseph Gathanwa Njunge [2014] eKLR

30. Week Eleven: Private and Secret Trust
• i. Requirements for Creation of Express Private Trusts: the three
certainties:
• Certainty of words or intention and the doctrine of precatory trusts
• Certainty of the subject matter
• Certainty of objects
• ii. Secret Trusts
• Fully Secret Trusts
• Half Secret Trusts
• Rationale for Recognising Secret Trusts
• Fraud Theory
• The Dehors the Will-Outside the Will Theory.
• Special Problems in Connection with Secret Trusts

31. Fraud Theory or Triangle of Fraud

32. Week Eleven Case Law
• Knight v. Knight (1840) 3 Beav 148
• Re Diggles (Gregory v. Edmonson (1888) 39 Ch.D 253
• Lambe V. Eames (1871) E.R. Ch. App 57
• Mussoorie Bank Ltd v. Raynor (1882) 7 App. Cas 321
• Re Adams & Kensington Vestry [1884] LR 27 ChD 394
• Comiskey V. Bowring –Hanbury (1905) A.C. 84
• Palmer v Simmonds (1854) 2 Drew 221
• Re London Wine Co (Shippers) Limited (1975) 126 NLJ 977

33. Week Twelve: Implied and resulting trusts
• Nature of Resulting Trusts
• Presumption of Advancement
• i. Features of Charitable Trusts
• ii. Four heads of charity:
• Trusts for the Relief of Poverty
• Trusts for the Advancement of Education
• Trusts for the Advancement of Religion
• Trusts for other Purposes Beneficial to the Community

34. Week Twelve: Case Law
• Re Compton [1945] Ch. 123
• Oppenheim v. Tobacco Securities Trust Co. Ltd (1951) A.C. 297
• Commissioners for Special Purposes of Income Tax v.Pemsel (1891) A.C.
531.
• Re Glyn’s Will Trusts (1950) 2 All E.R. 1150
• Re Coulthurst (1951) Ch. 661
• Re Shaw [1957]1 LR 729
• Karen Kayemeth Le Jisroel v. IRC [1931] 2 K.B. 465
• Thornton v. Howe (1862) 54 E.R. 1042

35. Week Thirteen: Constructive Trusts
• i. Features of Constructive Trusts
• ii. Practical Situations of Imposition of Constructive Trusts
• iii. Features of Discretionary Trusts
• iv. Uses of Discretionary Trusts
• v. Features of Protective Trusts
• Vi. Quistclose Trust

36. Week Thirteen Case law
• Macharia Mwangi Maina & 87 Others v. Davidson Mwangi Kagiri, CA
NO. 26 & 27 OF 2011 (Nyeri)
• Mombasa Bricks & Tiles Ltd & 5 others v Arvind Shah & 7 others
[2019] eKLR
• Mara v. Browne (1896) 1 Ch. 199
• Soar v. Ashwell (1893) 2 Q.B. 390
• Boursot v. Savage (1866) L.R. 2 Eq. 134

37. Week Fourteen: Cy-Près Doctrine
• CY-PRÈS DOCTRINE
• i. Cy-Près can be applied where there is a general charitable intention.
• ii. Cy-Près can also be applied where the property passes and the charity ceases to
exist.
• Cy pres is French for "as close" and is short for cy pres comme possible, or "as close as
possible."
• iii. The underlying purpose must be exclusively charitable
• WAQF
• i. The constituents of waqf
• ii. The objective and purpose of waqf
• iii. The Interpretation of the document of waq

38. Week Fourteen Case Law
• Re Rymer [1895] 1 Ch 19
• Re Spence [1978] 3 All ER 92
• Biscoe V. Jackson [1887] 35 Ch.D 460
• Re Satterwaite [1966]1 WLR 277
• Re Finger’s Wales Trust [1972] Ch. 286
• Chichester Diocesan Fund v Simpson (1944) 2 All ER 60

39. Week Fifteen: Appointment of Trustees
• i. Appointment of Trustees
• ii. Duties of Trustees
• iii. Powers of Trustees
• iv. Breach of Trust
• v. Retirement of Trustees
• vi. Investments by Trustees Generally
• Operations of Investments
• Nature of Trust Accounts
• Duties of the trustees with regard to accounts
• Rights of Beneficiaries
• vii. Documents

40. Week Fifteen Continues
• Recap
• Any Matters Arising