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ELCAllowedNot stated in extract (relates to a suit concerning L.R. Nos. 158/68, 158/52–67 and L.R. No. 5832)· [2026] KEELC 681 (KLR)

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)

Environment and Land Court
12 February 2026
2,052 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The 1st Plaintiff/Applicant, Hawan Bibi Cassam Butt, moved the Environment and Land Court in Nairobi by Notice of Motion dated 29th October, 2025 under Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 40 Rules 1, 2 and 4 of the Civil Procedure Rules. She sought a mandatory injunction compelling the 1st Defendant to remove a barrier erected across the access road serving L.R. Nos. 158/68, 158/52–67 and L.R. No. 5832, a further injunction restraining any interference with her access pending determination of the main suit, OCS enforcement, and costs. She deponed that the road has existed since the July 1946 subdivision of L.R. No. 158/6, that the barrier was erected unilaterally and in breach of subsisting court orders dating back to the 1990s, and that the blockage denied her ingress and egress and caused business losses. The motion was unopposed; no response or submissions were filed. The court framed a single issue: whether mandatory injunctive orders should issue. Applying the Halsbury's and Locabail test, as reaffirmed locally in Joseph Kaloki and Sharifi Abdi Hassan, the court held that a mandatory injunction may issue interlocutorily in clear cases or where the defendant has stolen a march, and that an unopposed motion does not relieve the applicant of her evidential burden under Sections 107 and 108 of the Evidence Act. Finding the case clear, the defendant non-responsive to the key depositions, and the erection of the barrier contrary to subsisting orders, the court allowed the motion on 12th February, 2026, granting both mandatory injunctions, directing the OCS to enforce the orders and keep the peace, and awarding costs of the application against the 1st Defendant.

Key legal issues

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01

Whether the applicant met the test for a mandatory injunction at the interlocutory stage

Holding

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.

Reasoning

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.

p. 4
02

Effect of non-response on an application

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 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. 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. 4.Costs of the Application to be paid by the 1st Defendant

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A and 63(e)
  • Civil Procedure RulesOrder 40 Rules 1, 2 & 4
  • Evidence ActSections 107 and 108

Cases cited (5)

  • Locabail International Finance Ltd. vs Agroexport & Others
    [1986] 1 All ER 901
  • Joseph Kaloki t/a Royal Family Assembly vs Nancy Atieno Ouma
    [2020] KECA 831 (KLR)
  • Kenya Breweries Limited & another Vs Washington O. Okeyo
    [2002] eKLR
  • Sharifi Abdi Hassan vs Nadhif Jama Adan
    [2006] eKLR
  • Central Bank of Kenya vs. Uhuru Highway Development Ltd. & 3 Others
    Civil Appeal No. 75 of 1998
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.