Boma v Kabugua & another (Civil Appeal E019 of 2022) [2026] KECA 50 (KLR)
The bottom line
#The Court of Appeal confirmed that a buyer who paid in full can force transfer of Kenyan land, even if it hurts the seller.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the order for specific performance was properly granted
- 2.Whether the Environment and Land Court acted without jurisdiction in granting vacant possession
- 3.Whether the award of rental income was justified
- 4.Whether the 1st appellate court's judgment violated the Appellant's constitutional rights under Articles 40 and 50(1) of the Constitution
Key legal issues
#Availability of specific performance
Specific performance was properly granted where the contract was valid, the entire purchase price was paid, and damages would not adequately serve the buyer's purpose of collecting rental income.
The Court relied on settled authority that specific performance is discretionary and granted where the contract is valid and enforceable and damages are inadequate. The 1st Respondent's contract was found valid and fully paid, a finding uncontroverted by the Appellant. His unshaken evidence was that the purpose of purchase was to acquire ownership and collect rent, so monetary refund could not do complete justice; the equitable remedy best served the interests of justice.
Jurisdiction to grant vacant possession on appeal
The ELC on first appeal had jurisdiction to grant vacant possession as a consequential order giving effect to its judgment on specific performance.
The first appellate court was seized of an appeal against a decree involving land ownership and possession. Once it ordered specific performance, vacant possession flowed necessarily from that order; it was not sought-and-refused relief nor an order in excess of jurisdiction.
Rental income as special damages
The award of rental income of Kshs. 15,000 per month was justified because it was specifically pleaded, quantified, and its collection was admitted by the Appellant.
Although special damages must be specifically pleaded and strictly proved, the claim was pleaded at Kshs. 15,000 per month, and the Appellant admitted collecting rent from the premises. The income was therefore not speculative and the strict proof requirement was satisfied.
Alleged constitutional violations (Articles 40 and 50(1))
No violation of the Appellant's property or fair-hearing rights arose; she acquired title under an agreement found null and void and was heard in both courts below.
Both courts below found the Appellant's agreement unlawful and unenforceable, so she could not invoke Article 40 protection. The record showed she was represented and given an opportunity to present her case at trial and on first appeal, defeating the Article 50(1) complaint. Restoring possession to the rightful purchaser was not unjust enrichment.
Legal principles established
#- A second appellate court confines itself to matters of law only, unless the two courts below considered matters they should not have considered, failed to consider matters they should have considered, or the decision was perverse.
- Vacant possession is a consequential relief flowing from an order of specific performance and a first appellate court seized of an appeal over land possession is empowered to grant it.
- Special damages must be specifically pleaded and strictly proved, but where quantum is pleaded and receipt/collection is admitted, the award may stand.
Court orders
#- 1.The appeal was dismissed with costs to the 1st Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- Not stated in the judgment
- Jurisdiction invoked
- Second appeal to the Court of Appeal under its appellate jurisdiction over matters of law (the judgment invokes no specific provision; appeal lies against the Environment and Land Court decision)
Relief refused
#Appellant's appeal against the order of specific performance and vacant possession
The 1st Respondent had a valid contract and had paid the entire purchase price; specific performance best served the interests of justice
Claim that the ELC lacked jurisdiction to grant vacant possession
Vacant possession is a consequential relief flowing from specific performance
Claim of unjust enrichment and violation of Article 40
Restoring possession to the rightful purchaser was not unjust enrichment; the Appellant acquired no lawful title
Claim of violation of Article 50(1) right to be heard
The Appellant was represented and heard in both courts below
Costs
The appeal was dismissed with costs to the 1st Respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
This being a second appeal, the mandate of this Court as a second appellate court is to resist the temptation of delving into matters of facts, and confine ourselves to matters of law only
In sum, the appeal has no merit and is hereby dismissed with costs to the 1st Respondent. It is so ordered.
Vacant possession is a consequential relief flowing from an order of specific performance, and was not an order in excess of the courts' jurisdiction.
While special damages must be specifically pleaded and strictly proved, in this case the rental income was not speculative, and the collection of rent was admitted by the Appellant.
Specific performance, like any other equitable remedy, is discretionary and will only be granted where the contract is valid and enforceable and its performance will not cause undue hardship.
Issues in the judgment
#Paragraph numbering repeats: two consecutive paragraphs are both numbered 18, one recording the 1st Respondent's submissions and one recording the 2nd Respondent's non-appearance.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Boma v Kabugua & another (Civil Appeal E019 of 2022) [2026] KECA 50 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/50/eng@2026-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.