Mwangi has stolen some goods from Simiyu. The police prosecute Mwangi for theft and Simiyu sues him for the return of the goods.
(i) Explain under what law the action by the police will be based.
(ii) In this action by the police, state what Mwangi will be called.
(iii) Under what law would the action brought by Simiyu be and what would Simiyu be called?
ANSWER
(i) The action by police is based on Criminal Law.
(ii) In this action, Mwangi will be accused.
(iii) Simiyu‟s action is based on Civil Lawand Simiyu is referred to as the Plaintiff
Key Distinction between common law and equity
| Common Law | Equity |
| This is a branch of the Law of England which was developed by the ancient common law courts from customs, usages and practices of the English people. | This is a branch of the law of England which was developed by the various Lord Chancellor‟s courts to supplement the common law. |
| Developed as a complete system of law. | Was not a complete system. |
| Common law act is rem | Equity acts in personam |
| Developed from customs, usages and practices of the people. | Developed on the basis of the principal of fairness or justice. |
| Developed before equity | Developed to mitigate the harshness of the common law |
| Common law rights are enforced as of right | Develop additional remedies e.g. injunction, specific performance, tracing etc. |
| Developed on the basis of the writ system and stare decisis | Equitable rights are discretional |
| If common law and equity conflict, equity prevails. | Developed after the common law. |
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