On 20 April 2020, Hon. James Macharia, the Cabinet Secretary of Housing and Urban Development, published in the National Gazette the National Construction Authority (Defect Liability) Regulations (“The Regulation”). The Regulations bring forth novel measures to protect commercial property owners from poor workmanship by contractors.

The Regulations introduce at least six (6) years warranty period in which an owner can recall the contractor to rectify latent defects (concealed structural flaws that exist but are not apparent) at their own cost. They Regulations also increase the patent defects (defects detectable upon reasonable inspection) liability period to at least twelve (12) months from the previous six (6) months after practical completion. Consequently, the Regulations prescribe obtaining insurance covers by the contractors and sub-contractors; and professional indemnity cover by any professional during the latent defects liability period for such defects that become apparent in such period.

The Regulations are not a welcome legislation amongst key construction industry players who cite its shortfalls including its applications to only commercial property. The Regulations do not also offer clarity on what the sub/contractor and the professional will be liable for. Additionally, extending the patents liability period will occasion delayed payments. Lastly, it will be difficult to seek insurance cover given an inability by insurance companies to quantify the risk and determine payable premiums.

We will keep you updated should there be any further developments in this regard.

The Regulations can be found here.

Please contact us at info@cfllegal.com should you require further information.