The National Construction Authority (Defects Liability) Regulations

Legal Notice 64 of 2020

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Legal Notice 64 of 2020
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National Construction Authority Act
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Legal Notice
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LAWS OF KENYA

NATIONAL CONSTRUCTION AUTHORITY ACT

THE NATIONAL CONSTRUCTION AUTHORITY (DEFECTS LIABILITY) REGULATIONS

LEGAL NOTICE 64 OF 2020

  • Published in Kenya Gazette Vol. CXXII—No. 75 on 24 April 2020
  • Commenced on 24 April 2020
  1. [Revised by 24th Annual Supplement (Legal Notice 221 of 2023) on 31 December 2022]

Part I – PRELIMINARY

1. Citation

These Regulations may be cited as the National Construction Authority (Defects Liability) Regulations.

2. Interpretation

In these Regulations, unless the context otherwise requires—"commercial building" means premises occupied wholly or partially for the purposes of trade or business or for the purposes of rendering services for money or money's worth;"contractor" means a person registered under section 15 of the Act;"defects liability period" means a period after the construction of a commercial building has been completed, from practical completion to hand-over of the commercial building during which a contractor may return to the commercial building to remedy any patent defects;"latent defect" means a concealed structural flaw in a commercial building or fixed installation that exists but is not apparent or readily detectable during the latent defects liability period;"owner" means a person who enters into a contract with a contractor for the construction of a commercial building;"patent defect" means a defect which is detectable upon reasonable inspection during the construction period and can be notified to the contractor either before practical completion or during the defects liability period;"practical completion" means the completion of a commercial building upon which the relevant county government issues a certificate of occupation;"relevant professional" means a person who is registered—
(a)as an engineer under the Engineers Act (Cap. 530); or
(b)as an architect or quantity surveyor under the Architects and Quantity Surveyors Act (Cap. 525); and
"sub-contractor" means a person who is not named in the main contract as a sub-contractor, but is appointed by an owner as a sub-contractor for the construction of the commercial building that is the subject of the main contract.

Part II – DEFECTS LIABILITY

3. Patent defects liability period

(1)Every contract for the construction of a commercial building shall prescribe a patent defects liability period.
(2)The patent defects liability period under paragraph (1) shall be a minimum period of twelve months after practical completion.
(3)A contractor shall be liable for the rectification of patent defects that become apparent during the patent defects liability period.
(4)A relevant professional shall be liable for the rectification of patent defects that become apparent during the patent defects liability period.
(5)A sub-contractor shall be liable for the rectification of patent defects that become apparent during the patent defects liability period.

4. Obligations of parties during the patent defects liability period

(1)During the patent defects liability period, the owner and the contractor, relevant professional or sub-contractor, shall jointly prepare a schedule specifying the patent defects identified.
(2)The contractor, relevant professional or sub-contractor, shall rectify the respective defects specified in the schedule made under paragraph (1) after which the owner shall certify that the contractor, relevant professional or sub-contractor, has made good the defects identified.

5. Latent defects liability period

(1)Every contract for the construction of a commercial building shall prescribe a latent defects liability period.
(2)The latent defects liability period under paragraph (1) shall be a minimum period of six years from completion of the patent defects liability period.
(3)A contractor shall be liable for the rectification of patent defects that become apparent during the latent defects liability period.
(4)A relevant professional shall be liable for the rectification of patent defects that become apparent during the latent defects liability period.
(5)A sub-contractor shall be liable for the rectification of patent defects that become apparent during the latent defects liability period.

6. Insurance cover for latent defects

(1)A contractor shall obtain insurance cover for latent defects that may become apparent during the latent defects liability period.
(2)A relevant professional shall obtain a professional indemnity cover for latent defects that may become apparent during the latent defects liability period.
(3)A sub-contractor shall obtain insurance cover for latent defects that may become apparent during the latent defects liability period.

7. Insurance by owner

Every owner of a commercial building shall at all times insure the commercial building against structural damage attributable to the owner.
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History of this document

31 December 2022 this version
24 April 2020
Commenced
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