Q & A
What are the problems in the sector?
The construction industry everywhere faces problems and challenges. However, in developing countries like Kenya, these difficulties and challenges are present alongside a general situation of socio-economic stress, chronic resource shortages, institutional weaknesses and a general inability to deal with the key issues. There is also evidence that the problems have become greater in extent and severity in recent years. One of the charges leveled at the construction industry, as at the beginning of the 21st century, is that it has a poor record on innovation, when compared with manufacturing industries such as aerospace or electronics.
Institutional weaknesses exist where a regulating authority is unable to effectively implement the set regulations. This is a fairly common challenge in the sector where incidence, incapacity and negligence of the parties concerned results in poor building construction and associated challenges. In order to come up with a way forward, it is critical to examine the existing codes already in place.
2. Present Regulations
The regulations governing the construction sector are distributed among the following:
(a) Government policies- Building codes.( DOWNLOAD HERE)
(b) Statutory regulations
(c) Contractual regulations
(d) Law of torts
(e) Rules of equitable law.
2.1 Government Policies
Property and land policies so formulated by the government were and still are gradually being adapted in the construction sector. These policies include;
i) The National Housing Policy- aims at ensuring sustainable construction and proper administration of land
ii) The national land policy- ensure sustainable use of land
iii) The Economic Recovery Strategy for wealth and employment creation strategy- Enabled urban renewal and rehabilitation of infrastructure and previous mining areas.
iv) Vision 2030- The present government policy that aims at ensuring effective, efficient and fast socio-economic development in Kenya.
v) Building Code (downloadable here)
2.2 Statutory Regulations
These are formulated by either government bodies or the associated agencies. These include, but are not limited to, The National Housing Corporation, The Central Organization of Trade Unions (COTU), The City Councils, The Professional associations, Bureau of standards, the courts among others. Such include the following;
2.2.1 The factories acts
It defines a factory as any premises in which, or within the close or curtilage or precincts of which, persons are employed in manual labour. In the context of manufacturers in the construction sector, subsection (VI) states as follows:
‘any premises in which articles are made incidentally to the carrying on of building operation or works of engineering construction, not being premises in which such operations or works are being carried on’
This act also makes provision for the health, safety and welfare of persons employed in factories and other places of work. The Act is predominantly socioeconomic in nature and focuses on the shop floor conditions of the factory, safety devices, machine maintenance, safety precautions in case of fire, gas explosions, electrical faults, provisions of protective equipment among others.
2.2.2 Kenya Public Procurement and Disposal Act 2005
In the construction context, this act governs the procurement and disposal of public property. It defines who a contractor is, the form of tendering (open), the procedures to be applied in both the procurement and disposal of property.
Other statutory regulations include;
- Environmental management and coordination act – Which established the National Environment and management authority (NEMA) to cater for all issue affecting the environment
- The Physical planning act- established to control land use
- The Land planning act
- The water act
- The energy act
- Building codes of 1968- Established to be enacted by the local authorities. They defined the building specifications and the quality of building material to be used. Connection to common facilities such as sewers, electricity and water pipelines was also defined.
- The land acquisitions acts- dealt primarily with the procedure of land acquisitions, ownership and disposal
- The Government Lands Act (Cap 280 Laws of Kenya)-This enactment is no doubt a replacement of the 1915 Crown Lands Ordinance. It was enacted to make further and better provisions for regulating the leasing and other dispositions of Government Land and related issues. Under this Act, only the President can sign documents granting title. The President can and has delegated his powers to the Commissioner of Lands. The GLA lays down the procedures the Commissioner of Lands must follow in allocating land.