Butt (Suing as the Administrator and Legal Representative of Khalid Mahmoud Butt ) & 3 others v Kanjabi & 2 others (Environment and Land Case 6062 of 1992) [2026] KEELC 681 (KLR)
The bottom line
#The Environment and Land Court in Nairobi ordered a landowner to remove a barrier blocking a neighbour's access road, pending the full hearing of the case.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant met the test for a mandatory injunction at the interlocutory stage
The applicant satisfied the test: the case was clear and uncontroverted, the barrier's erection was unilateral and contrary to subsisting court orders, and the defendant did not deny the key factual depositions.
The court applied the Halsbury's and Locabail test that a mandatory injunction should not normally issue interlocutorily absent special circumstances, in clear cases, for simple and summary acts, or where the defendant steals a march. Applying Sections 107 and 108 of the Evidence Act, the court held that an unopposed motion still requires proof, but the applicant's sworn testimony on historical use of the road since 1946, prior protective orders from the 1990s, and the defendant's non-denial established a clear case warranting the relief.
Effect of non-response on an application
Failure to respond or file submissions does not automatically entitle an applicant to the orders sought; the applicant must still justify the application on evidence and law.
Relying on the Court of Appeal decision in Central Bank of Kenya v Uhuru Highway Development Ltd, the court noted it was erroneous to treat a failure to file grounds of opposition as automatically entitling the applicant to relief. The burden of proof under Sections 107 and 108 of the Evidence Act remains on the applicant regardless of the motion being unopposed, and the court must still be satisfied on the merits before granting mandatory injunctive relief.
Legal principles established
#- An unopposed application does not relieve the applicant of the burden of justifying the relief sought.
- A mandatory injunction may be granted at the interlocutory stage where the case is clear, the act is simple and summary, or the defendant has attempted to steal a march on the plaintiff, and the court feels a high degree of assurance that the injunction would be rightly granted at trial.
Court orders
#- 1.An order of mandatory injunction compelling the 1st Defendant/Respondent by itself, servant, agents, employees, proxies or any other person acting on its behalf to forthwith remove the barrier erected across the access road serving L.R. Nos. 158/68, 158/52–67 and L.R. No. 5832, restoring full access to the 1st Plaintiff, pending the hearing and determination of the suit
- 2.An order of mandatory injunction restraining the 1st Defendant from blocking, erecting barriers, restricting, or in any other way interfering with the Plaintiff's access and use of the access road serving L.R. Nos. 158/68, 158/52–67 and L.R. No. 5832, pending the hearing and determination of the main suit
- 3.The Officer Commanding Station (OCS) directed to ensure compliance with and enforcement of the orders of the Court and ordered to keep the peace
- 4.Costs of the Application to be paid by the 1st Defendant
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 40 Rules 1, 2 & 4 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Butt (Suing as the Administrator and Legal Representative of Khalid Mahmoud Butt ) & 3 others v Kanjabi & 2 others (Environment and Land Case 6062 of 1992) [2026] KEELC 681 (KLR)", Case Analysis (2026). Not stated in extract (relates to a suit concerning L.R. Nos. 158/68, 158/52–67 and L.R. No. 5832). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/681/eng@2026-02-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.