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Builders read mischief in new regulations gazetted by State

By Peter Theuri | June 11th 2020

Players in the construction sector have protested new regulations mooted by the government to control their operations.

Under the aegis of The Joint Building and Construction Council (JBCC), the players want the recently gazetted National Construction Authority (Defects Liability) Regulations 2020 suspended.

They have complained that the government overlooked them while formulating the rules.

JBCC comprises the Architectural Association of Kenya (AAK), Association of Consulting Engineers of Kenya (ACEK), Association of Construction Managers of Kenya (ACMK), Chartered Institute of Arbitrators (CIArb), Institution of Construction Project Managers of Kenya (ICPMK), Institution of Engineers of Kenya (IEK) and Institute of Quantity Surveyors of Kenya (IQSK).

It also includes Kenya Association of Building and Civil Engineering Contractors (KABCEC), Kenya Federation of Master Builders (KFMB) and Kenya Property Developers Association (KPDA).

The regulations generally govern how these professionals can enter into contracts with their clients.

In a memorandum presented to the National Construction Authority (NCA) by the JBCC, the agency has insisted that the formulators of the regulations were ignorant of the workings of the sector.

“It is our considered view that there is no need to have local regulations on the matter of defects and liability arising thereof, as these are technical and contractual issues that have been adequately addressed in the various standard forms of contract,” reads the memorandum.

“The regulations have attempted to deal with the symptoms of the challenges arising from the issues related to defects instead of addressing the root cause of the problems, which are poor workmanship by the contractor or subcontractor, and sometimes lack of effective supervision by the relevant professionals.

“However, if the regulations must be there, they should be subjected to a further review through consultative engagement with the stakeholders in the construction industry because, as they are, they violate and they offend the construction industry’s contracts custom and trade usage, and hence they will not serve the intended purpose. A long-term solution could be the provision of a legal framework to enhance the management of the construction process.”

JBCC said that the government has contravened the law in publishing the regulations, failing to, as required in Statutory Instruments Act, 2013, consult with stakeholders.

Tom Oketch, the ICPMK chair, said in an interview that deferring the regulations would allow for wider negotiations and participation by stakeholders in the construction sector, which will ensure the regulations are aligned to other laws and practices in the industry. The ambiguity in definition of key terminologies has also been cited as a source of dissatisfaction. The definitions in the regulations vary from those contained in JBCC contracts which are used in local private construction projects.

Gilbert Josiah Mungu, a lawyer in the construction sector, took issue with the definition of ‘practical completion’, which the regulations say will only be decided by the issue of a certificate of occupation by the county government.

Definition of other words such as ‘contractor’, ‘defects liability period’, ‘sub-contractor’,’ owner’, ‘patent defect’, and ‘latent defects liability period’ have been disputed.

As such, the experts are demanding for a rewording, reworking or removal of some sections of the regulations that are misleading.

“Although the spirit of the regulations could be positive, depending on the intended objective, as the regulations stand, the letter of the message conveys a negative notion to the construction industry both locally and internationally, and will bring a lot of confusion which will become a recipe for disputes between contractors and developers, contractors and consultants, contractors and sub-contractors, and consultants and developers,” the memorandum notes.

“We recommend that the operation of the National Construction Authority (Defects Liability) Regulations, 2020 is suspended forthwith, as they make Kenya to appear like a pariah state with regard to construction laws.”

Oketch said the process of correcting the offensive parts of the regulations should have commenced immediately, and all the requirements of the Statutory Instruments Act, 2013 be strictly adhered to.

He said the consultative engagement with industry players is crucial.

Oketch also called for the establishment of a legal framework to govern construction project management. This, he said, will help root out rogue construction project managers in the industry.

“Our construction industry cannot continue in its old ways and still expect better performance. The failure in the construction industry is attributed to lack of effective construction management at various levels,” Oketch said.

“This memorandum therefore calls for an urgent establishment of a legal framework for the profession and practice of construction project management similar to the Architects and Quantity Surveyors Act.”  

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