DELAY DEFEATS EQUITY OR EQUITY AIDS THE VIGILANT AND NOT THE

INDOLENT: (Vigilantabus, non dormientibus, jura subveniunt)

The maxim means that equity requires that those who wish to seek its assistance
must move with speed to do so. Equity requires that a party whose rights have
been infringed upon should not delay for too long without seeking to move
remedy for infringement. If the party delays without seeking remedy, he will be
said to have slept upon his rights and therefore not worth the favors of equity. In
the words of Lord Camden in the case of Smith V Clay(1976)

“Equity has always refused its aids to stale demands where a party has slept his
rights for a great length of time. Nothing can call forth this court into activity
but conscience, good faith and reasonable diligence where these are wanting
the court passive and does nothing”

This maxim operates in two dimensions;

First it operates by upholding the statutory provisions on time frames within

which causes of action have to be instituted. These time frames have been
derived from the common law and have been enacted with statutes of limitation
which in Kenya is contained inLimitation of Actions Act Cap 22. The time frames
are as follows;

1. If the cause of action is in respect to contract and the proposed defendant is

not the government then that cause of action must be brought to court within 6
years if it’s the government it must be brought within 3 years

2. Cause of action based on tort is 3 years .If it is the government is the

defendant it must be within 1 year

3. If the cause of action is land it must be brought to the court within 12 years

4. Tort of defamation must be brought to the court within 12 months

5. Equitable interests or right within 6 years

In instances where the cause of action does not fall within any of the foregoing
categories then the court may be prepared to apply the statutory time limitations
way of analogy

Secondly it applies the doctrine of laches. This doctrine means the delay which is
unreasonable in the circumstances of a particular case if a party delays for an
unreasonable time before he brings his actions in court, he may be said to be
guilty of laches and therefore be denied the opportunity to argue his case before
the court. A party will be guilty of laches in the following :

(i) If the delay is substantial

(ii) If in the course of the delay he has given an indication to the other party that
he intends to abandon the cause of action

(iii) If as a result of t hat delay or conduct the respondent has lost evidence

(iv) If the defendant has relied on that delay or conduct and substantially altered
his position to his detriment

Two matters must be noted here. First, the time in which an action for equitable
relief may be sought may be governed by the Limitation Act 1980 and, second,
even where there is no statutory limitation, it will be governed by the equitable
principle of laches.

The Limitation Act 1980 lays down limitation periods in connection with the
enforcement of trust matters. For example, s 21(3) provides, as a general rule,
that an action by a beneficiary to recover trust property or in respect of any
breach of trust shall not be brought after the expiration of six years from the date
the right of action accrued.

However, the section also provides, for example, that no time limit shall apply to
an action by a beneficiary in respect of fraud by a trustee or an action by a
beneficiary to recover trust property or its proceeds from a trustee. The other
main types of equitable claims regulated by the Act are claims to the personal
estate of deceased persons, claims to redeem mortgaged land and claims to
foreclose mortgages of real or personal property.

Equity may in very limited cases apply the same limitation to situations analogous
to the express statutory ones. No statutory limitations apply to actions for breach
of a fiduciary duty, or to setting aside for undue influence or to actions for
rescission. In addition, the Limitation Act 1980 s 36 provides that nothing in the
Act shall affect any equitable jurisdiction to refuse relief on the grounds of
acquiescence or otherwise.

Delay may be evidence of acquiescence, so the two issues cannot be separated. A

failure to bring an action may tend to confirm other slight evidence that the
innocent party has accepted or agreed to the breach of contract or other ground
for seeking relief, thus preventing him from enforcing his right to remedies for
that breach.

Whether the court will regard the claim as barred will be a matter to be
determined on the facts. As with all equitable principles, flexibility is important.
As the Privy Council stated in Lindsay Petroleum v Hurd (1874) LR 5 PC 221:

The doctrine of laches in the Courts of Equity is not an arbitrary or a technical

doctrine.

Where it would be practically unjust to give a remedy, either because the party
has, by his conduct, done that which might fairly be regarded as waiver of it, or
where by his conduct and neglect he has, though perhaps not waived that
remedy, yet put the other party in a situation in which it would not be reasonable
to place him if the remedy were afterwards to be asserted, in either of these
cases, lapse of time and delay are most material. But in every case, if an argument
against relief, which otherwise would be just, is founded upon mere delay, . . . the
validity of the defence must be tried upon principles substantially equitable.

Two circumstances, always important in such cases, are the length of the delay
and the nature of the acts done during the interval, which might affect either
party and cause the balance of justice or injustice in taking the one course or the
other, so far as it relates to the remedy.

A court of equity has always refused its aid to stale demands, where a party has
slept on his right and acquiesced for a great length of time. Nothing can call forth
this court into activity, but conscience, good faith, and reasonable diligence;
where these are wanting, the Court is passive, and does nothing. Delay which is
sufficient to prevent a party from obtaining an equitable remedy is technically
called “laches”.

A person who seeks an equitable relief must do so within reasonable time. The
very maxim was applied in the Leaf V International Galleries case where the
claimant bought a painting of Salisbury cathedral described (innocently) by the
seller as genuine constable. Five years later, the buyer discovered that it was
nothing of the sort and claimed the equitable remedy of rescission. The court held
that the delay had been so long and thus the plaintiff was described to have slept
on his equitable remedy

This maxim, however, has no application to cases to which the Statutes of

Limitation apply either expressly or, perhaps, by analogy. There are thus three
cases to consider-

(a) equitable claims to which the statute applies expressly;

(b) equitable claims to which the statute is applied by analogy; and

(c) equitable claims to which no statute applies and which are therefore
covered by the ordinary rules of laches.

(a) Express Application of the statute. Originally the statute applied only to
courts of common law. but then several statutory provisions were enacted which
were in terms applicable to equitable claims. Thus the Real Property equity must
be brought within the same time as if it were a legal claim, and the Trustee Act
1888 limited the time within which an action must be replaced by the Limitation
Act. The principal equitable claims so regulated are as follows:

(i) Claim by cestuis que trust to recover trust property or in respect of

any breach of trust;

(ii) Claims to the personal estate of a deceased person;

(iii) Claims to redeem mortgaged land.

(iv) Claim to foreclose mortgages of real or personal property.

(b) Application of the statute by analogy: where a claim is not expressly covered
by any statutory period but is closely analogous to a claim which is expressly
covered, equity will act by analogy and apply the same period. This is so not only
where equity, exercising a concurrent jurisdiction, gives the same relief as was
available in a court of law and to which there is a limitation period prescribed; it
applies also where equity affords wider relief than available to a claim for
damages for fraud or fraudulent breach of contract is applicable by analogy to a
claim to account as constructive trustee.

(c) Claims outside statute. The principles which equity applies to cases not
covered by a statutory period have been stated thus:

“Now the doctrine of laches in courts of equity is not an arbitrary or a technical

doctrine. Where it would be practically unjust to give a remedy, either because
the party has by his conduct, done that which might fairly be regarded as
equivalent to a waiver of it, or where by his conduct and neglect he has, though
perhaps not waiving that remedy, yet put the other party in a situation in which it
would not be reasonable to place him if the remedy were afterwards to be
asserted, in either of these cases lapse of time and delay are most material.”