?0r( -Lit

K 5t(q,o? eEP

Report of theCommission of Inquiry

toExamine the

Building Laws, By-Lawsand

Regulations

Existing

TRANSMITTAL LETTER,

H.E. The PresidentSTATE HOUSENAIROBI

Your Excellency

You appointed us on 19th Deccmber, 1996 in exerpise of thepowcrs confenpd on you by Scction 3 of the Commissions of Inquiry Act,Chapter 102, laws of Kenya. Our Terms of Reference were to -

'Examine the existing Building Laws, By-laws and Regulations

urd make recommendations with a view to prevent incidencessimiiar o ttre collapse of ttre nsunbeam Building" and malce

appropriate rccommendations.'

After onc yeer of deailed analysis of existing laws, dircussions and

interviews with members of the public, profesionals in the buildingindustry, and civil servants and after deailed comparative analysis of lawsof several commonwpalth countries and visits to the newly industridisedcountries of the Far East, it is my singular privilege and pleasant duty topresent !o you, on behalf of the Commissioners and Joint Secretaries, ourReport to which is annexed a draft Planning and Building Bill and theattendant draft Regulations.

On behalf of my colleagues, I thank you most sinircrely for thehonour you bestowed on us by the Appointment

Yours faithfully,

Dr. R. G. M. Mutiso(cHATRMAN)

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ACKNOWLEDGEMENTS

The Commissioners are sincerely grateful for the valuablecontributions of all those professionals, senior civil servants, and membersof the public during the investigations and research into the informationand data contained in this Report. The Commissioners particularly wistrto acknowledge the assistance of Messrs Atul Desai and Rusi Khambntta,the Presidents of 'Indian Institute of Architects, and the CommonwealthAssociation of Architects respectively. The immense contribution andissistance of Messrs Chia Kok I-eong and Yap Guan Hwa of Singapore,Dato lkmal Hisham Albakri of Malaysia and Messrs Ronald Poon, ChoiYu-I-euk and Cheng Wei-dart of Hong Kong is acknowledged. Finally weAcknowledge the assistance of Mr. George Wilson, the Executive Directorof the Commonwealth Association of Architects, and Rod Hackney, thepast President of the International Union of Archirccts, and Kenya's HighCommissioners in India, Malaysia and United Kingdom for their greatassistance.

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1.1

EXECUTTVE SUMMARY

Introduction

On 13th May, 1996, a building housing'the Sunbeam Supermarketalong Moi Avenue Nairobi, suddenly collapsed after a heavydownpour. The collapse claimed sixteen innocent lives. TheGovernment reacted swiftly to the catastrophe by appointing a

Special Committee of building professionals to investigate and

determine the cause of the collapse. In its report, the Special

Committee observed ttrat the collapse was due to several technicalrealvons occasioned primarily by failure by the control authorities todischarge their functions effectively. The Commiuee furtherobserved that the legal framework governing the building industrywas iaadequate for effective enforcement.

Based on the recommendations of the Committee, H.E. the

President on 19th December, 1996 appointed this Commission ofInquiry to examine the existing building laws, byJaws andregulations and make recommendations with a view to preventincidences similar to the collapse of the Sunbeam building. TheCommission of Inquily immediately embarked on a thorough andintensive investigations into the existing laws and regulations, andinvited members of the public, professionals in the buildingindustry, and public servants for views, discussions, ffidcontributions on how to resolve the existing problems in theindustry. For a comparative analysis, the Commission examinedlaws of major common law countries such as England, Canada,

Australia and New 7*alarrd. On ttre Continent, the Commissionexamined the laws of South Africa, Botswana and Seychelles. Forvarious reasons irrcluding climatic, and state of development mostof these laws were considered inappropriate for our needs exceptcertain apects of the South African laws.

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1.3 The Commission visited some of the new.ly industrialised countriesof the Far East, namely, Singapore, Malaysia and Hong Kong, andheld detailed discussions with both senior civil servants and

professionals on how these countries have managed to effectivelypolice and enforce their building laws and regulations. Theexperience gained from these countries was immensely valuable.We found most aspects of their laws relevant to our needs. It isfor this reason that we have modelled our proposed legalframework on the modern laws of Singapore and Hong Kong.Because of shared problems, the laws of India were also consideredbut the bulk of them were found inappropriate. Therecommendations and conclusions arrived at in the Report, are,therefore, a result of an in-depth study of our local situation andenvironment, and the successful experiences of other countiies. Webelieve that our proposed law will be modern and relevant as wemove into the next century.

Our Problem

Our problem in the building industry may be summarised asfollows:

uncontrolled physical planning;inadequate and out-dated laws lacking effectivecontrols and enforcement mechanisms;corruption on the part of enforcernent authorities;andineptitude and inefficiency on the part of someprofessionals and other players in the industry.

In defining the problem the input of the experts, the public, and thepublic servants was sought and obained. The Commission isconvinced that our laws in their present form are irrcapable of

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(a)

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(c)

(d)

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effectively resolving these problems. The laws themselves arescattered in several statutes and define, problems and confer controlresponsibilities to variousentities wittrout any form of ceordinationfor effective policing and enforcement.

The absence of a comprehensive and integrated legal framework has

created ambiguities in the law, loopholes which have been exploitedby property developers, and opportunities for both conflict of

interests and passing the bulk among the enforcement authorities.The law is hopelessly inadequate in key areas of the buildingindustry such as physical planning, land allocations, submission andapproval of building plans and designs, supervision duringconstruction, and in maintenance of buildings. The Government onits part, has aided and abated the existing situation because its ownbuildings are in some cases worse than the most risky of buildingsin urban areas.

We are convinced that no amount of piecemeal ammendments willremedy the myriad of problems caused by the existing legislation.

Our Recommendetions

The Commission's vision in making the recommendations containedin this Report, is to make the built environment safe and healthy forour community. The Commission's mission in the implementationof these recommendations is to set and enforce safety, health andenvironmenal sandards for a built environment. It is because ofthis vision and mission that our rccommendations are designed toachieve clear policy and operational objectives. These objectivesaim at:

(a) controlling all aryects of physical planning,

O) reviewing and sening sandards for building designand construction;

(c) inryection of building works and monitoring ofconstruction sites to enforce safety requirements;

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(d) identifying dangers, combating and storpping

unauthorized building works;(e) promotion of preventive maintenanoe and timely

repairing of buildings through responsible buildingmanagement; and

(D prosecuting and disciplining those who contraveneand breach the law.

To achieve these objectives, the Commission recommends that:-

(i) a completely new legislation, to be known as thePlanning and Building Act, be enacted immediately;

(ii) an independent Planning and Building Authority beesablished to ake over the control, management,and enforcement of the required sundards; and

(iii) that a current and up-tedate set of Planning andBuilding Regulations be adopted simulaneously withthe enactment of the proposed law.

The Commission is convinced that a legislative framework wheiethe substantive law provides the legal principles, definesreryonsibilities and prescribes, in clear terms, the sanctionsaffendant to any breach of the law, coupled with deailedRegulations which are dynamic and subject to periodic reviewdepending on changing needs and technology, is ideal for ourcountry. It is for this reason that ttre proposed legal regime hasboth the draft Bill containing the substantive law, and theRegulations setting out the technical and administrative detailsrequired in the industry.

The Commission wishes to emphasise the importance ofestablishing an independent Authority to take over theadministration and enforcement of the technical functions set out inboth the Bill and the Regulations. The glaring ineffectiveness oflocal and other control authorities necessiate this major shift of thecontrol function.

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both the Bill and the Regulations. The glaring ineffectiveness oflocal and other control authorities necessitate this major shift of thecontrol function.

3.5 We are convinced that the enactment of the proposed law and itseffective implementation will make Kenya a LEADER on theAfrican Continent and beyond in the field of safety in buildingsand contrcil of the built environment.

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TABLE OF CONTENTSPage

Transmittal tctter . (iii)

Acknowledgements. (v)

Executive .Summary (vir)

Background .... .......... I

Collapse of Sunbeam Building 1

Appointment of the Commission ..... 3

THE REPORT

Chapter One - Introduction ... .......4

Chaprcr Two- Investigationsand Research ........ 7

2.1 National ...... .........7.

Information Sourcing 7

I*gislation .........8

Z.2lntsnatsonal . ..........8

Chapter Threc - Our Problem 10

3.1 The Control Authorities 10

3.2 Planning .... ............10

3.3 Land Allocations ......... 12

3.4 Building Plans and Designs ...... 13'{

3.5 Building Construction....... 14

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Page

3.6 Maintenanc€. .......14.

3.7 Starc of Government Buildings..... ........ 15

3.8 Existing Legislation and Judicial process. 16

Chaptcr Four - Rccommendationc. .,,,,,,20

4.1 Objectives .....20...

The Draft Planning and Building Bill 2l

4.3 The Planning and Building Authority 22

4.4 Planning Control...... 25

4.5 Satutory Professionals. ,...,.,,,,26

4.6 Contractors.... ,.,,,..28

4.7 Control of Building Works... ...,.....28

4.8 Appointment of registered contractor...... 31

4.9 Custody of drawings... ......31

4. l0 Occupation of buildings......... 3l

4.ll Change of User. ......32

4. 12 Registration of Buildings...... .......33

4.13 Inspection of Buildings.. ....34

4.14 Dangerous Buildings.... ....... Y

Chapter Five - The Regulations ...36

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5.5

5.6

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Inroduction............. .....;..............36,5.2 Pafi A - Intcrprutrtion and Admini$ration......... ,,,,,37

5.,3 Prr,t B - Planning, Dinrcnsions, Siting and Spapo

wi6in rod Around Buildings........ .................... 4l

Part C - Advenircnlent!......................,..,.,,.,,,,,.,, A2

Partr D & E - Demolition worli, Sia PrcporatimAnd OpCrations............................ . r .. ......,,,,, A!

Part F - Strucnrre; Foundetions 8nd Ercrvrtiou....... 43

PlrB G, H,, & K - Mrcrials and Workmrnrhip,Floorg, lVdlr and Roof9............,............. o,.,,,,43

5.t Prrt L - Ghzing, Cladding Mrtcridg and Protoction...45

5.'9 Pafi M - Sairmyt; Ramps, Guirdr eld lJftt.,..........46

5.10'Prrt N - Udrting, Ventilation, Condenration rndSpaoe Hcatiry...... . .. ... ... . .. . r. . .. . . . .. r..... .......,,,,d6

5.11 Plrt O - $/arcr Scrviccs, Drainage,Itram Diryorlltnd Sormwatcr...................................... 47

5.12 Peft P - Wrrr-borp water means ofSanitary Diposal... ............48

5.13 Part Q - Electricd Installatiorur......... 48

5.14 Part R - Rbtuse Diqpoml... ..... 49

5.15 Part S - Fire Safety and Insallations.. 50

5.16 Part T - Inspection of Buildings and lvlaintenence... 5l

Conclusion ..1.......... ,....52.,

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APPENDICES

Pnee

Appendix I Report of the Special Committeelnvestigating the collapse of the BuildingHousing Sunbeam Supermarket inNairobi 55

Appendix ll Gazette Notice No. 7023 Dated 20thDecember, 1996 on the appointment ofthe Commission of lnquiry 9g

Appendix l!! The Planning and Building (Draft) Bill ....... 97

Appendix lV The Draft Regulations .............. 199

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BACKGROUND

Collapse of Sunbeam Building

On the fateful afternoon of May 13th 1996, at 4.15 p.m.a singlestorey building housing the Sunbeam Supermarket along MoiAvenue, Nairobi suddenly collapsed after a heavy downpour. Thecollapse was partial but swift lasting no more than a few minutes.In the ensuing rescue operation, it was confirmed that sixteeninnocent Kenyans perished in the catastrophe.

The reaction of the Government to this collapse was swift. On 15thMay, 1996 a Committee was appointed by the Government with thefollowing terms of reference:-

to investigate and determine the cause of the collapse of the"Sunbeam Building" ; and

to examine the existing building laws, by-laws andregulations and make recommendaticins with a view topreventing similar accidents in future.

The Committee observed that the collapse was due to the followingtechnical reasons

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(iv)

Failure of'nryo roof trusses in the left block next to gablewall along Moi Avenue due to overload, decay or both overa period of time leading to instability of the gable walls;

In addition the Committee noted that the gable wall wasbuilt without adequate stiffeners and lacked proper bondingat the stone/mortar interfaces;

Lack of proper embodiment of the anchorage of the canopystruts and ties;

Rot and decay of timber in the canopy due to leakages as aresult of lack of proper maintenance;

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(v) Overload on canopy due to accumulated silt, leaves, debrisand waste matter which was compounded by rainwater onthe material day as a result of lack of proper maintenance;

In view of the gravity of the problem as unearthed by the collapseof this building, the Committee recommended inter alia that -

To safeguard the safety of the public, some of therecently constructed or ongoing buildings whichappear unsafe should be checked and certified forsafety standards and structural soundness. Anystructures failing to meet the minimum safetystandards should be rehabilitated under thesupervision of the relevant authority or demolished.The Comminee considered several buildings inUmoja, Mathare North, Zimmerman Estates,Highridge, and the City Centre, to name but a few,unsafe;

An in-depth review of the process of condemningbuildings for demolition is required.

Unauthorized change of use for premises wouldappear to be of great significance particularly withrespect to safety standards. In the short terms, nopremises should be licensed if there has been anunauthorized change of usage which results instructures being subjected to excessive loading butfurther investigation is required to arrive at a moreperrnanert solution to the problem;

There should be a deliberate campaign to creategeneral public awareness as to the state of buildingswith particular reference to safety. This could bedone by the Government, Non-GovernmentalOrganizations and professional bodies; and that

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(e) The existing laws and regulations governing thebuilding industry should be enforced and anyloopholes or deficiencies should be rectifiedimmediately, pending a thorough study into theselaws.

The Committee's recommendations clearly demonstrated theinherent weaknesses in the existing laws and the impotence of thecontrol authorities in adequately dealing with problems in thebuilding industry.

The Sunbeam Repoft is appended hereto as Annex l.

Appointment of the Commission

Following the recommendations in the Sunbeam Report H.E. thePresident, in exercise of the powers conferred on him by Section 3

of the Commissions of Inquiry Act (Chapter 102, laws of Kenya),appointed this Commission on l9th Decenrber, 1996 with thefollowing terms of reference, namely:-

"to examine the existing building laws, by-laws andregulations; and

make recommendations with a view to prevent incidencessimilar to the collapse of the Sunbeam Building and makeappropriate recommendations" .

The appointment was gazetted on 20th December, 1996 in theKenya Gazette.

The Appointment and the Terms of Reference are appended heretoas Annex ll.

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THE REPORT

Chapter One

INTRODUCTION

The multi-disciplinary composition of the Commissioners ryanningall the facets of the building industry enabled the Commissioners tosummarise the following as the major problems today:

(i) uncontrolled physical planning; '

(ii) inadequate and ouidated legislation;

(iii) inadequate controls and enforcement;

(iv) coruption;

professional ineffi ciency ;

inadequate definition of professional roles; and

(vii) easy entry by unqualified people into the constructionbusiness.

In the definition of the problems as we view them, the publicappreciation that these are the problems and their input in not onlydefining but also seeking solutions thereto for their benefit, wasconsidered crucial.

Apart from the general public, opinion of public servants indefining and seeking solution$ to the problems was vital becausethe effectiveness of any remedial action depends on whether thepublic servants understand the problems and agree with ttreproposed solutions.

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4. The major administrators in the industry are professionals. Theirroles, awareness of the inadequacies in the discharge of theirresponsibilities, and their input in seeking solutions wasindispensable. Indeed, by appreciating that their complacency inabiding by the law has substantially contributed to the problem,greatly assisted the Commission in identifying the key areas ofweakness.

Having 'studied and clearly understood the local environment,defined the problem as we see it at national level, and examinedthe existing legislation and its inherent weaknesses, the Commissionfound it necessary to seek comparative studies on an internationalscale since safety and security of a built environment is not amonopoly of any given country.

Arising from our appreciation of the problems and the comparativestudies, the Commission is convinced that our laws and the controlmechanisms in the building industry have such serious flaws that noamount of piecemeal amendments to the laws and or re-organizationof existing institutions will adequately resolve the fundamentalproblems. It is for these reasons that a major departure from the

existing legal and institutional framework is recommended in thisReport.

Our recommendations are that:

a completely new legislation, the Planning and Building(Draft) Bill, appended hereto as Appendix III, be enacted;

an independent Planning and Building Authority beestablished; and

that current and up-tG-date Building Regulations appended

hereto as Appendix lV, be adopted at the same time as the

enactment of the draft Bill.

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8. These should be done immediately. In arriving at these

recommendations, the Commission's vision is to make the builtenvironment safe and healthy for our community, and the missionin the implementation of these recommendations should be to set

and enforce safety, health and environmental standards for the builtenvironment.

Chapter Two

INVESTIGATIONS AND RESEARCH

2.0 Several methods were used to access the'information necessary forthe preparation of this Report. These are grouped into national andinternational investigations and research.

2.1 National

Information Sourcing

2.1.2 To obtain information at national level several approaches were'designed. The Commission invited and received representatives

from:-

(a) members of the public;

(b) professionals, contractors and specialists in the buildingindustry; and

(c) public servants.

2.1.2 The information was obtained through:-

(i) written memoranda, and documents;

(ii) public hearings and discussions;

(iii) interviews and dialogue; and

(iv) carefully drafted but simple questionnaires designed toobtain basic and raw information.

2.1.3 'Several meetings and public barazas were scheduled in an effort toaccess the information. The Secretariat received and writtenmemoranda, collected and obtained relevant documents and kept a

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record of the discussions and intervlews. The Commissionersvisited all provincial and some district capitals in an effort to reach

as many members of the public as possible in areas as far afield as

Wajir and [amu.

Irgislation

The Commissionexamined the existing laws and regulations in verygreat detail. The inherent weaknesses therein were noted. Thevarious loop-holes and how these have been exploited were equallynoted. The various hurdles the existing laws placed in the path ofenforcement and the ineffective penalties for violations of the lawswere found to be a matter of great concern. The Commission isconvinced that the myriad of statutes having a bearing on thebuilding industry and the manner in which these apportion controland enforcement responsibilities among the various playersnecessitate the enactment of a comprehensive legislation whichclearly defines roles and responsibilities and provide for effectivepolicing and enforcement.

Internationel

2.2.1 Our jurisprudence is based on common law. As a result it becamenecessary to examine the existing laws of major common lawcountries such as England, Australia, New Zealand and Canada.We compared these with the laws of other neighbouring commonlaw jurisdictions of South Africa, Botswana and Seychelles.

For various reasons including climate, density and state ofdevelopment, we found the bulk of the provisions of thelaws of England, Australia, New Zealand and Canada notentirely relevant to our critical needs. We found certainaspects of the South African laws relevant. The Botswanaand Seychelles laws were considered simplistic for ourrequirements.

2.2.2 The Commission opted for a detailed examination of the laws ofSingapore, Malaysia and Hong Kong because, apart from having a

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common law background,.their climatic conditions are relativelysimilar to ours. Indeed, the level and rate of development of thesecountries within a fairly short period is a source of greatadmiration. We believe that, given the fast growth rate our countryis experiencing, *re laws of these countries will be more relevantto our expestations. India was considered because of the sharedproblems, particularly, of poor planning, com.rption and a historicalcommon law background. These shared problems norwithstanding,the Commission was aware of the admirable progress new Mumbaihas made in addressing, not only these problems, but also in layinga firm foundation for the future in the recent years.

2.2.3. The Commission visited India, Singapore, Malaysia and Hong Kongand held extensive discussions at very senior levels withGovernraent officials and professionals in the building industry,obtained copies of their modern building laws and regulations,discussed the enforcement mechanisms and controlling authoritiesin terms of composition and effectiveness. Indeed theCommissioners saw modern laws in actual practice itr Singapore,Malaysia and Hong Kong. Our proposed Bill and Regulations havebeen developed extensively from these modern pieces of legislation.

Chapter Three

OUR PR.OBLEM

3.1 The Control Authorities

3.1.1 At present the authority vested with the power of controlling theplanning of development of land and the construction of buildingsin major centres are local authorities. These local authorities areexpected to administer and enforce the Building By-Laws issuedpursuant to the provisions of the L"ocal Government Act (Chapter265, laws of Kenya), and the Public Health Act (Chapter 242,laws of Kenya) among others.

3.1.2 The local authorities administer the By-Laws primarily throughdepartments which are related to specific aqpects of a builtenvironment. The basic objective of the By-L-aws has been toensure that adequate standards of safety, health and environment areattained in the planning and construction of buildings. The controlis meant to be exercised over both the erection of new and themaintenance of existing buildings. The effectiveness of the controlmechanisms have been hampered by a number of reasons. It is thefailure to effectively control the unplanned developments that has

led to the present problems in the industry. We address theseproblems from planning to maintenance in the paragraphsfollowing.

3.2 Planning

3.2.1 Physical Planning is a process by which a state controls the use ofland for specific purposes aimed at achieving a given developmentstrategy. This process entails 'inter alia,' clear requirements onservices and infrastructure required for the planned objectives. Inthis context, the Ministry of lands and Settlement has a significantrole to play in securing well-thought-out planning and theenforcement of the required planning regulations.

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3.2.2 The departments responsible for Physical Planning are expected toprovide adequate rules governing among other things the buildingspace, plot coverage, plot ratios, densities, and access to buildings.In our view, physical planning must precede development of anyurban area. [n creating zones for building developments, thephysical planner within a given local authority, should provide forfuture developments. He should ensure that zones for a particularuse are clearly defined in accordance with the appropriate potentialof the area, taking into consideration geotechnical investigations,compatibility of zone use and the topography of the area.

3.2.3 We have observed that one of the problems currently facing thebuilding industry in most local authorities is lack of developmentplans. -ln our view, this lack of strategic forward planning whichwould have provided for both zoning and future growth has resultedin alot of waste of both private and public sector resources due tomisinvestment. Where development plans have been prepared,there is glaring evidence of failure to adhere to and/orup-date thoseplans. For example the 1970 Nairobi Metropolitan Strategic Planhas never been up-dated for twenty seven years, nor has it beenadhered to. The effect of this failure to the planning objectives ofNairobi are obvious.

3.2.4 The lack of up-to-date development plans has been compounded byfrequent unauthorized change of user and sub-divisions. Today,most of the urban centres have witnessed the mushrooming ofillegal and unplanned structures all over. These structures have

arisen mainly as a result of several reasons, but principally because

of the inefficiency of the enforcing authorities and the rapidpopulation growth. The planners should anticipate this growthpattern while the enforcing agencies should be more stringent. Inour view, planned land use zones as described in a developmentplan of any town should be strictly adhered to. Where changes ofuser have to be effected, this should be carefully done inconsultation with all relevant technical and professional interestgroups. Equally necessary are prior consultations before any sub-divisions are effected. Places planned for public facilities should

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be restricted to the planned use. All urban centres should not onlyprepare Master Development Plans upto the social boundaries oftheir towns, but must equally review and up-date the sameperiodically.

3.3 Land Allocations

3.3.1 We have observed that the manner in which land has been allocatedby both the central and local governments, has had a major negativeimpact on the proper planning and land use in many urban centres.The result has been not only growth of unplanned developments butalso lack of infrastructure and infrastructural planning leading to themustrrooming of inadequately serviced developments. Bothconsequences have an environmental impact. It is commonknowledge that land reserved for public facilities has been allocatedto individuals without any regard to the use for which such landwas reserved. In a majority of cases land is allocated forspeculative purposes.

3.3.2 To curb speculation and its distorting effects in the buildingindustry, any available land should be advertised and diryosed ofat market rates. Suffrcient safeguards could and should indeed beput in place to ensure that the ordinary Kenyan remains competitivein the acquisition of any such land. The ovenvhelming powers ofthe Commissioner of Lands relating to land allocations as set out inthe Government Lands Act (Chapter280,[awsof Kenya) should bereviewed. In our view no land should be dlocated unless properphysical plans for such land have been prepared and appropriatelyapproved. As a professional, the Director of Physical Planningshoulp diligently and firmly advise the Commissioner on theimplications of any planned alienation and/or allocation of land.The Director of Physical Planning must pay due diligence tocontinuous and regular updating and reviewing of comprehensiveplanning.

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3.4 Building Plans and Designs

3.4.1 The design of a building starts with a survey plan strowing inter aliabeacons and dimensions of the plot.

For purposes of developing the plot, the developer isexpected to consult professionals in the industry. Ideally,.the professional building team should comprise of anarchitect, an engineer (mechanical/electrical/structural) and

a Quantity Surveyor among others.

3.4.2 We have observed that today, the above minimum expectations areflouted with impunity. The approval system in most localauthorities is chaotic and riddled with outright comrption. Thereare buildings in urban centres constructed without approved plans.There are also plans which have been approved which do not meeteven the minimum approval requirements. Indeed there are plansapproved without any regard as to the environmental impact of theintended developments. Furthermore, there are inordinate delays inprocessing approvals on the part of local authorities.

3.4.3 We have observed that this state of affairs has continued with theknowledge of both councillors and chief officers in local authorities.Approvals are done by persons either not qualified to so approve ornegligently, without any regard as to the consequences of intendeddevelopments to the surroundings and the environment.

In some cases approvals are done for corrupt personal gain.It is for these reasons among others that we feel thesecritical technical functions should be removed from localauthorities since they are not being discharged effectively,or, at all. We do not foresee the possibility of localauthorities improving in the short and medium tenn toeffectively discharge these functions.

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3.5 Building Construction

3.5.1 Building construction in Kenya is one trade where any individualcan join without a modicum of either academic and/or professionalqualifications. The result has been the emergence of quackcontractors. The recent collapse of new buildings either duringconstruction or soon after completion can be largely attributed tothe entry into the trade of such contractors. In our view before acontractor takes up any building assignment, he should not only betechnically qualified but should also demonstrate ability byshowing past projects successfully completed. The proposed lawseeks, not only to prescribe the technical requirements of acontractor but also make registration of contractors a mandatoryrequirement.

3.5.2. Today the safety of buildings is compromised by the entry into themarket of building materials which do not meet set standards.

3.5.3 It has become evident that because some developers avoid engagingcompetent professionals during the construction stage, hardly anyof the required inspections and/or supervision is undertaken. Thishas been the case in many recent residential developments in majortowns, particularly in Nairobi. Buildings have been constructedwithout any technical supervision to ensure structural safety. Thishas been a major contributory factor to recent collapses. The localauthority personnel charged with the supervisory or inspectionresponsibility, have miserably failed to ensure that the variousstages of construction comply with approved standards of designand safety.

3.6 Maintenance

3.6.1 Buildings require regular and consistent maintenance throughouttheir lifespan. Lack of periodic maintenance reduces the life of abuilding and in some cases renders the building unsafe. Periodicinspections are required for early detection of defects. There arebuildings whose life span has expired but are still in use. Such

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buildings require rehabilitation and subsequent re-certification forcontinued use.

3.6.2 Today, there is no elaborate legal mechanism in place to ensure thatbuildings are periodically maintained. The nebulous provisions tobe found in the Public Health and Licensing Acts requiring amodicum of maintenance prior to issuance of trading licences, areconsidered both inadequate and ineffective to secure the desiredstandards of maintenance for safety purposes. Since maintenancecosts money, both landlords and developers avoid that cost. Theresult is dilapidated and dangerous buildings.

3.7 State of Government Buildings

3.7.1 The effective enforcement of any law"requires observance andcompliance by all those to whom the law is applicable. Given theimportant constitutional role of the Government in the formulationof the law, the Government must be the first party to observe thelaw if the general public has to have confidence and abide by thelaw. Today, the Government lacks any moral authority to enforceany of the laws governing the building industry because theGovernment is one of the major culprits in breaching building laws.We have observed that most Government buildings country-wideare in such state of disrepair that they pose as much danger to thesafety of Kenyans as the mushrooming illegal structuresin Mathare.The death of three children on 28th April, 1997 in governmentquarters in Kileleshwa is ample evidence of our observation.

3.7.2 We have observed that the Government attitude towardsmaintenance of its buildings is deplorable. First, it has renderedtechnical officers in the field to mere repoft writers. It hasdecentralized funding for maintenance so that each ministrymaintains its own buildings notwithsanding the fact that mostministries do not have competent technical people to do the job.The role of professionals from the Ministry of Public Works andHousing have been rendered mere advisors since they have no

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money to maintain not only the ministry buildings but indeed thoseof the entire Government.

3.8 Existingkgislationand Judicid prooess

3.8.1 The objectives of any law in a building industry should be to securesafe and healthy buildings, and related infrastructure. Becausebuildings and physical infrastructure are prone to several hazards

both during and after construction, the law must ensure safety andmeticulous compliance with set technical standards so as to control,prevent and even eliminate these hazards. The hazards pose a greatrisk to both construction workers, tenants and also members of thepublic.

3.8.2 Damage to a building may be through failure of the structure, orthe outbreak of fire, etc. An unsafe structure may have immediarcconsequences of structural damage or collapse, but equally, so

deterioration may be a gradual process ryanning many years, oftenunnoticed but ultimately leading to total or partial failure andultimate cnllapse of the structure.

Alternatively errors in electrical and mechanical installatronmay expose.the structure to fire hazards or water damage.Sometimes fire outbreaks may be a result of some othermisdeeds but a building should provide protection for lifeand property in case of fire. Disasters such as earthquakes,cyclones, flood,lightening fire erc. can cause damage to thestructure and can be very severe. Even though suchdisasters can hardly be prevented, it is possible to minimizethe damage to construction, property and lives through theapplication of appropriate regulations and codes.

3.8.3 There are several risks to health which result from faultyconstruction although the criteria for measuring these is oftensubjective and controversial. The prominent health risks in theconstruction industry arise from water sqpply and saniAtion, poorlighting and ventilation, and construction materials.

l6

3.8.4 The building industry in Kenya lacks a comprehensive andintegrated legal framework within which to operate. There aremany pieces of legislation impacting on the industry scattered allover the statute books. There is need to consolidate the law toensure ttrat ttre respective roles of all parties involved in theindustry are clearly defined and responsibilities clearly spelt out,and offences made manifestly clear with attendant penalties tosecure compliance with the law. The law strould also ensureprofessional involvement all the way from preparation.and approvalof physical and building plans, construction, supervision andmaintenance of buildings and related infrastructure to ensure thatthe standards set out in the law are complied with.

3.8.5 The scattered nature of the legislation makes it difficult for theusers to understand the law, creates ambiguities and renderseffective enforcement difficult. Lack of co-ordination in theenforcement of the law by the various regulatory authorities,'hascreated a situation of conflicts and opportunities for passing thebuck. The result has been ineffective enforcement of the law.

3.8.6 Apart from the fact that substantive law is scanty and scattered, theBuilding Code is both complex and confusing even to professionalsthemselves. The Building Code has several outdated and'inappropriate provisions and it is equally inadequate in certain keyaspects of the building requirements. A number of the provisionsin the Code are susceptible to multiple interpretation therebyproviding apt oppoftunities for lob-sided interpretation. In ourview, the Building Code is outdated.

3.8.7 The greatest legislative impediment in the building industry to-dayis the law enforcement procedures. The administration of thevarious statutes is carried out by several agencies. Forexample, thesanitation aqpects of the industry is handled by the public healthofficers; fire control regulations by fire officers; and theconstruction of buildings by local authorities. This amangementdoes not lend itself to effective enforcement of standards. Thelacuna created by the absence of co-ordination has been exploited

11

by buitding owners who have turned out to be inspectors of theirown buildings. Standards have therefore been compromised.

This has been further compounded by the fact that there areno laws teday specifying who can be a contractor. Thishas created an opportunity for property developers to decideon their own men as contractors often lacking both trainingand knowledge, and who are ignorant of the existence ofstandards required in the building industry.

3.8.8 We have, in particular, observed .that there are numerousshortcomings in the law itself as it stands tday apart from itsmultiplicity. In particular, we note the -

Abrence of reference to a system for periodic review

and inclusion of new building materials, designprocedures, and construction methods

Archaic and obsolete rules which tend to ignore

specialised features such as lightning protection,flooding etc.

tr.8.e

Material oriented regulations which cause

unnecessary restrictions with the consequence thatthe construction industry has been limited to only afew building materials and techniques. New options,unless imported have little chance of beingincorporated in the regulatory instruments. This has

made construction expensive and hence created afertile ground for cutting corners by unscrupulousproperty developers.

It has been observed'that prosecuting breaches of existing buildinglaws is both protracted and ineffective. There are too many hurdlesin the pathway to juqtify the feeble and ineffective sanctionspresently in statute books and the Building Code. Given the glaring

18

loopholes, developers have obtained indefrnite court injunctionsagainst local authorities to frustrate any serious action being takenagainst their risky buildings. The misuse of the judicial process

coupled with mild sanctions have compounded the problem.

2o("f -$1

( 3q g" oe fr''d

19

Chapter Four

RECOMMENDATIONS

4.1 Objectives

4.1.1 In the light of the problems as identified above, ourrecommendations are designed to achieve specific objectives whichmay be summarised as follows:

(i) to control all aspects of physiial planning,

(ii) to initiate rrcrgrnry services on existing dangerousbuildings,

(iii) to review and set standards for building design andconstruction,

(iv)

(v)

(vi)

(vii)

(viii)

to vet building plans, structural details and building servicesfor building developments,

to inspect building works for compliance with approvedplans and standards,

to monitor construction sites for safety,

to identify danger from buildings and take remedial action,

to render safe dangerous advertising signs and removedangerous appendages,

(ix) to combat and stop unauthorized building works,

(x) to abate sanitary nuisance from defective drains,

(xi) to issue licences and advise on suitability of premises forsuch use as restaurants, schools etc.,

20

(xii) to prosecute and discipline offenders for breach of buildinglaws, and

(xiii) to promote preventive maintenance and timely repair ofbuildings through responsible building management.

4.1.2 To achieve these objectives, the Commission sets out in thefollowi ng paragraph s its comprehensive recommendations.

We will address the proposed Planning and Building.Bill(the Bill) highlighting the critical provisions therein andwhy we consider these essential. We will thereafter dealwith the detailed Regulations.

4.1.3 We.have opted for an approach where minimum substantiveprovisions are set out in the Bill, and the technical andadministrative details reserved for the Regulations. The Bill sets

out the legal principles that must be observed. The Regulations-areintended to be dynamic and will be updated periodically dependingon changing needs and technology. They provide ttre details on howsubstantive principles set out in the Bill will be applied. Thesanctions for non-compliance are deliberately stringent to ensurethat there is no temptation to breach the law.

THE DRAFT PLANNING AND BUILDING BILL

The cardinal focus of the proposed law and the Regulationsmade thereunder, is the controlling authorities. Theineffectiveness of local and other control authoritiesnecessitate a major shift of the control function. Thefunction of both planning and building details is now vestedin a management body with functional independence.. Indeedthis is similar to the modern approach employed inSingapore, Malaysia and Hong Kong.

4.2

2t

4.3 The Planning and Building Authority

4.3.1 Section 3 of the Draft Bill proposes the establishment of a Planningand Building Authority (the Authority). The Authority will be abody corporate with all attributes of legal personality. Themanagement of the Authority will vest in a Board composed ofprofessionals, business executives, policy makers and a chiefexecutive. The effectiveness of the Authority will depend on thecomposition of the Board. It is for this reason that we propose thefollowing composition: -

(a) The Permanent Secretary of the ministry in-charge ofbuildings in person;

(b) Three distinguished retired professionals two of whom shallbe from the building industry;

(c) Three distinguished and successful business executives;(d) Two active professionals from the building industry;(e) A Managing Director as the Chief Executive.

4.3.2 The Bill also provides in Section 4 how the appointments, to andwithdrawal from the Board will be carried out . It is important tonote that a member of the Board shall cease to be a member if he

conducts himself in a manner inconsistent with the expectations ofmembership of the Board. This provision is intended to ensure thatmembers pursue an objective and professional approach to thedischarge of their functions. Among other things, this provision isintended to eliminate situations of conflict of interest in theperformance of the Board's duties.

4.3.3 The functions of the Authority have been exrcnsively consideredand are set out in Section 5. The Authority will have responsibilityspanning from planning to maintenance of the built environment.In particular, the Authority will:-

ensure harmonization and integration of individual physicalplans with the national physical master plan;approve all buildings designs and plans;

(a)

(b)

22

(c)(d)(e)(0(e)(h)(i)(')(k)

conduct inryections of all building projects;issue occupation certificates;issue maintenance certifi cate;enforce the Planning and Building Regulations;keep a register of professional consultants;license and keep a register of building contractors;keep a register of buildings;preserve and conserve historical buildings;disseminate information to the public on buildingrequirements;advise the Government on all aspects of the developmentand building operations of the building sector;regulate and oversee the construction of all buildings works.

(l)

(m)

4.3.4 Apart from the professional responsibilities, it should be noted thatthe Authority will have reqponsibility to disseminate information tothe public on building requirements. It should advise theGovernment on all aspects of the development and buildingoperations. We feel that the Authority should educate Kenyans onbuilding requirements through all possible means to ensure thatpeople in rural areas undersand and appreciate the need to observerequired building standards. The Authority strould not be seen tobe an elitist urban organisation but as a public-friendly professionalbody which listens and addresses the needs of both urban and ruralbased citizens.

4.3.5 To ensure that the Authority effectively discharges the proposedfunctions, it is recommended that it be clothed with power:-

to approve development plans and the national physicaldevelopment plans;to order physical plans;to stop construction where such construction does notconform to the building regulations;to order sealing off or demolition in the case of dangerousbuildings;

(e) to order evacuation of any building; and

(a)

(b)(c)

(d)

23

to inspect any building and to order the maintenance of any

building which the Authority cansiders to be not wellmaintained; andto take such other action as may be necessary in thefurtherance of the objectives of the Bill.

4.3.6 One of the major concerns we have is the lack of masterplans forpractically all our urban centres. Planning is so unco-ordinated thattoday, there is no single physical masterplan for any of the urbanareas. It is for this reason that we recommend that the Authorityshould have power to approve physical masterplans to which allother individual master plans will relate.

To ensure that the Authority has adequate teeth to bite, it isrecommended that the Authority should have power to orderstoppage of any construction which does not conform to the

building regulations. Periodic maintenance of buildings has hithertobeen ignored. This has caused several disasters countrywide. Tocurb this trend, we r@ommend that the Authority should havepower to carry out random inspections and order mandatorymaintenance of any building which the Authority considersinadequately maintained. Where the Authority orders that abuilding should be demolished, provision has been made for theAuthority to order evacuation of people from such building.

4.3.7 Decisions of the Authority in ttre discharge of its functions andexercise of its powers shall be made at duly convened meetings ofthe Authority. The Bill makes elaborate provisions in Sections 7and 8 on the meetings of the Board and execution of theAuthority's documents.

Sections 9 and 10 on the appointment, functions and removal of theChief Executive are designed to ensure that the Chief Executive iszubject to the authority and directions of the Board. The Board,may inter alia, remove the Chief Executive. This is to ensure thatthe Chief Executive is not directed by and subject to any organand/or authority external to the Board.

(0

G)

24

4.3.8 To ensure that the Authority obtains information necessary for thedischarge of its functions, Section 13 empowers the Authority toobtain any information by requiring any person to whom it haswritten to furnish such information. To ensure effectiveness, theBoard may function through professional and/or technicalcommittees.

4.3.9 We consider it necessary for the Authority to enjoy financialindependence for the effective discharge of its functions. It is forthis reason that Section 14 establishes a General Fund for theAuthority in which shall be paid all sums of money paid as feesunder the law and any other sums received by the Authority fromany other source. It is proposed that the Headquarters of theAuthority be in Nairobi but with countrywide branches at suchlocations as the Board may determine.

4.4 Planning Clntrol

4.4.1 We have examined the provisions of the Physical PlannersRegistration and Physical Planning laws of 1996. We harre notedthat under these laws, local authorities have a mandate to controland prohibit the development and use of land in the interest ofproper and orderly development in their areas of jurisdiction. Thedraft Bill intends to bring the entire approval mechahism within thearmpit of the Authority. The Bill aims to rationalize all approvalsof physical plans intended for building development whether theseplans are done for public or private sector clients. To ensure thatthere is order, building plans will only be approved if they relate toland that is planned and if such plan has been submitted to andapproved by the Authority. It is for this reason that Section 18 ofthe Bill provides that:

"Any person who intendi to prepare physical development plans ofany area, for the purpose of construction, shall apply to theAuthority for a permit".

25

4.4.2 We have observed that urban centres cannot be left to planincidentally, spontaneously and accidentally for themselves. TheAuthority will cause, through a new practice order, regional

development physical plans, physical development plans, and partdevelopment plans, to be prepared and approved. These will herald

the preparation and approval of a National PIan. The Bill seeks tomake these requirements mandatory. The Bill makes elaborateprovisions on conditions to be satisfied before submission of plans

and what must accompany submission proposals. Section 22 *tsout situations where approval of plans may be rejected. Amongother things, approval will be rejected if the plans will contraveneany approved or draft masterplan or where the land planning worksare within a comprehensive development area of an approvedregional or local physical development, or where the carrying outof the land planning works shown thereon, would result ininconsistencies with densities and use. These provisions are

deemed necessary to ensure orderly and planned developments. Weare awiue that land use and planning are sensitive'subjects andrejection of any proposals submined by a developer may generate

passionate reactions. For this reason a party aggrieved by anyrejection has a right of appeal provided for in the Bill.

4.4.3 These elaborate planning control provisions have become necessary

because as we said earlier, planning is a process by which a state

controls land use aimed at achieving a given development strategy.Such strategy cannot be achieved unless clear zoning, specific plotcoverage and plot ratios consistent with available infrastnrcture arespecified and complied with. It is for these reasons that these

critical planning aspects have now been made mandatory in the Billand det+iled elaboration thereof set out in the Regulations.

4.5 Statutory Professionals

4.5.1 To eliminate the situations where unqualified persons take keydecisions in the planning and building industry, the Bill provides a

hierarchy of professionals and demands for their registration. Wehave borrowed substantially from the Singapore and Hong Kong

26

experience in the creation of.and designation of these professionals.

Each plays a crucial role and has well defined professional

responsibilities for which they will be held liable. We consider itvery important to set out the clear duties of these professionals so

that their responsibilities and attendant consequences for negligencecan be easily discerned from the law.

4.5.2 Section 23 requires the Authority to maintain a register of qualifiedpersons within the meaning of the proposed law. These will rangefrom architects, engineers, surveyors, planners etc. A secondregister of professionals will be referred to as Authorised Persons.A third register will refer to Accredited Checkers.

4.5.3 An Accredited Checker shall be a Structural Engineer and shallperform thp following responsibilities: -

evaluate, analyse and review the structural design in theplans of any building works of the prescribed category andperform such original calculations with a' view todetermining the adequacy of the key structural elements

of the building to be erected or affected by building workscarried out in accordance with those plani; and

verify that key structural elements as designed are consistentwith the layout shown in the architectural plans and anyamendment thereto.

In the performance of his duties, it shall be the responsibility of anAccredited Checker to notify the Authority of any contravention ornon-compliance with the statutory requirements in connection withthe structural design of any plans of building works. The Billmakes elaborate provisions to govern the entry into the register,duties, publication of names, and the establishment of independentprofessional disciplinary bodies to ensure that approved persons

perform their functions diligently and in a professional manner.

(a)

(b)

27

4.6 Contractors

4.6.1 Construction to-day is one trade where anybody can join withouteither experience and/or a modicum of minimum qualifications.This is one of the major shortcomings in the law as it stand today.The Bill desires to address this lacuna by requiring contractors tobe registered with the Authority. The Bill provides in Section 43that the Authority shall keep a register of all persons who arequalified to perform the duties of a registered contractor inaccordance with the provisions of the Bill.

It is important to note that the emphasis in this section is onwhether a person is qualified to perform the duties of a registeredcontractor. The Authority will prescribe both the requirements forregistration and the qualifications essential to fre registration. Thecontractors are categorized into general building, civil, electric,plumbing and drainage, heating and ventilation, firefighting andlabour contractors. Each category will have its own schedule. Inconsidering any application, the Authority shall have regard to anyqualifications, capacity and experience of each applicant. InSection 46, provision for appeal is made for those applicants whoseapplications have been rejected. Provision is also made in Sections44, urd 45

for a contractors Disciplinary Board and the sanctions that can beimposed by the Board.

4.7 Control of Building Works

4.7.t This part of the Bill is designed to cover the construction of bothtemporary and permanent buildings. Section 48 makes it mandatoryfor any person who wants to commence, carry out or authorize thecommencement of any building, to obtain approval of the buildingplans from the Authority. The Authority must grant a permit priorto any commencement of building works. Failure to comply withthe requirements of this section is a crimind offence. In essence,

the imponance of this section is to ensure that no building works

28

are commenced or authorized prior to the approval of the relevantbuilding plans.

4.7.2 The preparation of building plans including engineering plans mustnow be done by qualified and approved perrcns. The practicqwhere unprofessional persons prepared and submitted building plansfor approval is no morc. Severe penalties have been prercribed toensure compliance with this requirement. It is important toremember that this requirement and its attendant custodial pegaltieshas become necessary to ensure safety and security of buildingusers. Emphasis has been put on structural safety in buildings anda strict control has been introduced through the creation of statutoryprofessionals such as Accredited Checkers. Every structuralengineer, for certain class of Buildings, will subordinatehimself/herself to another structural engineer (in this case known asan Accredited Checker). The role of the latter is to scrutinise theformer's calculations and design criteria to ensure that all therequired details are observed. It is an extra technical audit whichhas been found desirable if not essential in certain countries. TheAuthority will only approve such design after scrutiny andcertifrcation by an Accredited Checker.

4.7.3 The Bill makes elaborate provisions in Sections 49 and 51 for theprocedure in the applications for and approval of building plans.It makes it possible for both the professionals and the Authority toenter into dialogue in determining the appropriateness of adevelopment proposal early on a given time-scale. Needless to statethat time is of essence not only to the developers but also for thenation. Hitherto professionals have spent considerable time onunapproved projects. It is in the interest of both developers andinvestors to have clear approval procedures. The several levels ofprofessionals introduced in the approvd procedures is designed toensure completeness in the scrutiny of all design plans for the sakeof safety and security of buildings.

Section 52 sets out situations where the Authority may refuse toapprove any building plans. Among other things, the Authority will

29

refuse to approve a building plan where it appears to the Authoritythat the proposed user of the building to which the plans relatewould contravene the planning provisions of the Bill, or that thebuilding works will be carried out on a site which ought to beprovided with streets having adequate connection to a public streetand the Authority is not satisfied that such streets are or will beprovided.

4.7.4 Among the statutory professionals provided for in the Bill is anAuthorized Person. Section 54 sets out in detail the requirementsfor the appointment and duties of such Authorized Person. Adeveloper of any building works is required to appoint anAuthorized Person for the works. The Authorized Person shall be

in control of the works and has power to take such steps as he

deems fit in the interest of the works. The elaborate functions andduties of the Authorized Person are set out in Section 54(4).Among other things, the Authorized Person shall take all reasonablesteps and exercise due diligence in arranging for the supervisingand inspecting of building works to ensure that the works are beingcarried out in accordance with the provisions of the Bill and theRegulations. In addition it shall be the duty of the AuthorizedPerson to submit to the Authority reports and certificates in respectof the works as are required under the Regulations. The AuthorizedPerson will face criminal sanctions in addition to professiondiscipline for failure to carry out diligently any of his duties underthis section.

4.7.5 Where the structural elements of any building works are requiredto be carried out under the full-time supervision of a sitesupervisor, it shall be the duty of the Authorized Person to appointa site supervisor to supervise the structural elements of the buildingworks. The precise duties of a site supervisor are set out in Section56 of the Bill.

30

4.8 Appointment of registered contractor

4.8. 1 To reverse the trend where unqualified contractors have invaded thebuilding industry, Section 57 makes it mandatory for a developerto appoint a qualified contractor. It shall be the duty of thecontractor to ensure that the building works are carried out inaccordance with the plans of the building supplied to him by aqualified person, and to observe any terms and conditions imposedby thb Authority. The contractor must, in addition, keep at thepremises on which the building works are carried out all plans ofthose works supplied to him by a qualified person. To ensurestructural soundness of the building during construction, theAuthorized Person appointed in respect of the structural elementsshall carry out such tests in connectiol with the building as maybe prescribed by the Authority. The Authority has power underSection 59 to order the demolition or removal of any buildingwhere in its opinion the building has or is being erected incontravention of the provisions of the Bill or the Regulations.Where the building is under construction, the Authority may ordercessation of building works until remedial modifications have beencarried out.

Custody of drawings

To secure the historical construction data of buildings, Section 61

requires every qualified person to retain in safe custody for at least7 years all documents relevant to the building to which he has beenappointed. Wilful destruction of such documents is a criminaloffence.

4.10 Occupation of buildings

In order to curb the existing tendency of buildings being occupiedbefore they are safely completed, Section 62 of the Bill providesthat no building or part thereof shall be occupied in any way unlessthe Authorised Person, the contractor, and the site supervisor, whereapplicable, have each signed a prescribed certifrcate that the

4.9

3l

building works are complete and that ttre works were completed inaccordance with the approved plans. In addition to this certificate,ttre Authority will need to be satisfied with the works before issuinga certificate of statutory completion. The section has npo proviso -namely occupation for purposes of preventing damage to thebuilding, or where a temporary occupation permit has been granted.In the event of a temporary occupation a specific time-frame isprescribed and the precise purpose for the temporary occupationqpecifred. It is a criminal offence to permit the occupation of anybuilding until the Section 62 requirementshave been complied with.

4.ll Change of User

One of the critical problems in the industry to.day is situationswhere the use of a building has been changed without authority and

with no regard to the structural suitability of the changed use. Flatshave been converted into disco rooms and offices into video shops

without any professional input as to the ability of the building toabsorb the increased loads. The Bill now requires a notice to begiven to $e Authority for any intended material change in the use

of a building by the person intending to carry out or authorise.thecarrying out of such change. In order to obtain-public opinion onthe intended change of user, the Bill requires the Authority topublish the proposed change of user. Where, in its opinion, theAuthority feels that the building is not suitable by reason of itsconstruction for the intended use, it will decline to authorize thechange of user. Where authority to change of user is granted bythe Authority, the law imposes on the owner of the building anobligation to display in a conspicuous place on the building a noticestating the current use of the building and the date when the changewas effected. This diqplay is necessary for the public to know thatthe building whose use they knew has sirrce changed. It will be acriminal offence to change use without approvd from theAuthority.

32

4.12 RegistrationofBuildings

4.12.1In order to keep track of the history of a building, the Authoritywill keep a register of all buildings which have complied with therequirements of the Bill and for which occupation certificates havebeen issued. Each building must be registered

within 21 days of the issuance of an occupation certificate. Theregister shall contain the following information:-

(a) Registration number allocated by the Planning and BuildingAuthority;

O) The land Registration Number;(c) The physical location of the building;(d) The area of the land on which the building is situated;(e) The limitation of use;(0 Inspection date;(g) The plan number;(h) The name of the owner;(i) The area of the buildingO Height of the building;(k) Date of registration;(l) Any other particulars that the Planning and Building

Authority may by notice require to be contained in theregister.

Application for registration must be submitted by qualified persons.These requirements are set out in Sections 65 and 66 of the Bill.

4.12.2 Having been registered, the Authority will henceforth monitor andensure that all registered buildings are periodically maintained, andthat the owner files prescribe? insfu;tion ceniRcates. TheAuthority shall ensure that buildings which have outlived theirintended use are either inspected and restored, or are demolistredaltogether. It shdl be a criminal offence to fail to register abuilding which is required by the Bill to be registered.

33

4.L3 Inspection of Buildings

Section 72 makes it mandatory for the owner of a building to haveit inspected every five years. Where the owner fails to have thebuilding inspected, apart from facing criminal sanctions, theAuthority will be required by law to serve him with notice that thebuilding will be inspected and costs arising therefrom will be metby the owner. The inspection, whether at the instance of the owneror the Authority, strall be carried out by an approved structuralengineer. The engineer shall file with the Authority a signed reportof the inspection. To ensure the highest degree of complianceduring the inqpection, Section 73 (8) imposes a personal liability onthe engineer in the event of any injury, loss or damage occasionedto any person resulting from any defects in a building inspected bythe said engineer which defects ou'gtrt to have tieen detected uponany reasonable examination of the building. An engineer who has

either a professional or financial interest in a building shall not beappointed to inspect such a building.' This is intended to eliminateconflict of interests. Section 74 elaborates situations which strall beconstrued as creating either a professional or financial interest in abuilding. These include situations where the engineer wasresponsible for the design, or he is a partner or in the employmentof the owner of the building, or where he occupies the building orany part thereof.

4.14 DangerousBuildings

4.14.1Section 75 pqovides several instances which may render a buildingdangerous. Where a building lacks means of escape in case of fire.given the purpose for which the building is used, the Authority maydeclare the building dangerous and require the <iwner to executesuch work and make such provision as may be necessary to remedythe danger. If the owner fails to remedy the situation, the Authoritywill cause the same to be remedied at the owner's cost and expense.If the Authority considers the hrrilding unsafe during the period

34

when the necessary remedies are being put in place, it may bynotice to the owner order the closure of the building or restrict itsuse.

Under Section 76 if it appears to the Authority that a building is insuch state or is used to carry such loads as to be dangerous, andthat immediate action is necessary to remove the danger, theAuthority may, among other steps, order the closure of the building.

4.14.2 Where, on inspection, the Authority finds any dilapidation or defectin a building, it may order an approved person to carry out aninvestigation. If the inspection reveals that remedial works arenecessary, the Authority may order the closure of the building orrestrict its use pending the carrying out of the remedial works.

4.15 Section 79 provides that a permit from the Authority will have tobe obtained before any building can be used for trades which areidentified as dangerous. These trades are specified in Section79(l). In addition, these section requires the Authority to benotified of the existence or production of dangerous or toxic wasteon any premises. Failure to either to obtain the permit or notifywill be a criminal offence.

4.16 The remaining provisions of the Bill cater for appeals by aggrievedpersons, transitional arrangements, and miscellaneous provisions.

35

Chapter. Five

THE REGULATIONS

5.1 Introduction

5.1.1 In addition to the Draft Bill which is intended to define the

substantive law governing the building industry, we have developeddetailed planning and building regulations covering practically allaspects of the industry. The Regulations are meant to be pragmaticand responsive to the changing realities. We appreciate thatdevelopment in the building industry is a continuous process and

that with the passage of time, new materials become available,design methods are refined and innovative building systems are

introduced. It is for these reasons that we have adoptedRegulations meant to cope with and reflect the realities of moderntimes. The Authority is by law required to up-date these

Regulations every 5 years.

5.1.2 The draft Regulations represent a major deparnrre from what has

been in existence. They focus on the need to encourage the use ofinnovative designs and construction methods where these aresuitable. They are not designed to outlaw or condemn buildingsdesigned and constructed under the existing laws unless some ofthese buildings are dangerous. Indeed any building designed inaccordance with the accepted methods and constructed ofconventional materials in accordance with the principals of goodbuilding practices, should in general, comply with these

Regulations.

5.1.3 The Regulations set out in the simplest and shortest way possiblerequirements to ensure that buildings will be designed and built insuch a way that persons may live and work in a healthy and safe

environment. Our aim is to reduce the number of regulations andregulators to an acceptable minimum in an effort to clearly defineresponsibility, accountability and sanctions for violations. In orderto clearly understand our thinking we have decided that as far as

36

possible, the Regulations should be concerned only with the healthand safety of persons in a building, and that all technical aryects becovered by functional regulAtions written in such a way that theywould assist rather than impede the use of innovative buildingsystems and designs. The scope of the Regulations is wide enoughcovering planning, building site operations, building design,construction, and maintenance. The deAils are set out but in PartsA to T of the Regulations. These may be summarised as hergunder.

5.2 Part A - Interpretation and Administration

5.2.1 This Paft is the link betrreen the draft Bill and the draftRegulations. It also sets out the regulations regime. It begins witha catalogue of definitions of all technical and often used words inthe construction industry. The aim of all this is ensure clarity inthe Regulations and compliance by all.

In this Part buildings which will be subject to the legalrequirements set out in both the draft Bill and the Regulations, aredefined.

A building for purposes of the proposed law means:-

(a) 'any building or erection constructed of durable materials(excluding buildings of local traditional or vernacularconstruction) whether temporary or permanent and includesa prospective building; and

in relation to an extension, alteration or change of use of abuilding, only so much of the building as is comprised inthe extension or is the subject of the alteration or change ofuse':

(b)

I

I

Care has been taken in appreciation of the fact that most Kenyansreside in rural areas and have for cenuries built and lived intnrditional houses suitable for their needs and constnrcted withintheir t'inancid abilities. It is not the intention of the new law to

17

reverse this trend by either condemning such constructions or byimposing additional financial burden.on the rural folk in futureconstructions. Care has also been taken to provide for buildingswhose use is temporary. A temporary building is defined toinclude:-

"Any building constructed wholly or in part of materials which are,in the absence of special care, liable to rapid deterioration, or are

otherwise unsuitable for use in the construction of permanent

buildings, and may include any house or building the erection ofwhich is permitted under licence issued by the Authority for a

limited period to be specified upon the expiration of which thebuilding shall be demolished;"

5.2.2 In this Part, the Regulations takes one through all the stages ofdevelopment from land planning through the design of the building,approvals of the same to construction, and inspection to completionof the building, issuance of an occupation certificate andmaintenance. Through this route one is introduced to the actors,the land planner, architect, engineer, quantity surveyor, contractor,site supervisor and the Authority officials.

5.2.3 As a starting point in its regulatory role, any person who intends toerect any building will now be required to submit to The Authorityat least the following plans and particulars:-

(a)(b)(c)(d)(e)

(0

a location plan;a site plan;a drainage installation drawing;a fire installation drawins: /lparticulars of any e*iiting faing which is to bedemolished and details of the l}lnoa of demolition to beused;such plans and particulars as may be required by theAuthority in respect of:-

38

general structural arrangements, subject to any requirementcontained in these regulations with regard to design of the

Ftructural system;(ii) general arrangement of artificial ventilation;(iii) a fire protection plan;(iv) any ceftificate contemplated in these regulations;and(v) any other particulars;

To ensure that what was approved is what is eventuallyconstructed, it will be required that a certifred copy of anyapproved plans be made available at the site at all timesuntil a ceftificate of occupancy has been issued by theAuthority. This is intended to control changes to approvedplans and enhance inspections by the Authority.

5.2.4 To ensure that buildings are used for the purpose for which theywere intended, the Regulations provide for classification and

designation of occupancies. The occupancy of any building will beclassified and designated according to the appropriate occupancyclass as set out in the Regulations from time to time reflecting theprimary function of each building. In particular, the Regulationsprovide that:-

"No person strall use a building or cause or permit anybuilding to be used foi a purpose. other than the purposes

shown'on the approved plans of such building, or for apuryose which causes a change in the class of occupancy as

contemplated in these regulations, whether such plans wereapproved in terms of ttre Act or in terms of any law in forceat any time before the date of commencement of the Bill,unless such building is suitable, having regard to therequirements of these regulations, for such first-mentionedpurpose or for such changed class of occupancy.'

Failure to comply with this requirement will attract criminalsanctions.

(e)

39

5.2.s

5.2.6

5.2.7

One of the problems identified by the Commission is the currentpractice of many buildings being occupied without appropriatecertificates of occupation. The Regulations now clearly qpecify thata person for whom the building works were carried out shall applyto the Authority either for an Occupation, Sectional CompletionCertificate or a Temporary Occupation Permit as the case may be.

Circumstances under which the Authority may approve or rejectissuance of any of the above certificate(s), are now clearly ryelt outin the Regulations. It is important to note that the Regulationsrequire that both the contractor and the Authorized Person mustexecute applications for issuance of any of thq certificates.

The Regulations furtherprovide that on completion of any buildingworks, a Qualified Person must undenurite to the Authority whenapplying for an occupatioh certificate, that the works have beencarried out in accordance with the design, and complies with theRegulations. This is designed to hold liable any professional whonegligently and unprofessionally approves any design orconstruction without giving such approval a professional touch.Indeed, the Regulations specifically require a structural engineerengaged in any building works to provide a certificate of suitabilityof the structure in addition to the underwriting by a QualifiedPerson. The Authority has been empowered, through its officers,to visit and inspect any plot or building in order to ascertain thaithe requirements of these Regulations are being observed.

In an att€mpt to stop the development of structures which are notapproved such as extensions to existing buildings, the Regulationsprovide that:-

"Any person, ryho having obtained approval in terms of theBill for the erection of any building, deviates to anymaterial degree from any plan, drawing or particularsapproved by the Authority shall, except where such

deviation has been approved, be guilty of an offencr. "

40

5.3

In addition, the Authority has been clothed with power toserve notice and order stoppage of the construction of anyunapproved structures and/or extensions. Where theunapproved construction has been completed or is inprogress, the Authority may further order demolition.

Part B - Planning, Dimensions,Siting and Space withinand Around Buildings

5.3.1 The Regulations in ttris Part cover all provisions relating to the plotand the manner in which buildings are to be placed in the plot, theaccess to the plot including the treatment of street frontages.

5.3.2 All manner and types of boundary walls haveteen constructed inour urban areas some of which are hazardous to motorists as theyblock traffic views.

Standards of what types of boundary walls are permissiblehave been clearly set out and the unpermitted onesproscribed.

5.3.3 Regional and urban development controls are effected, among otherthings, through land use, plot coverage and plot ratios. In thiscountry land use broadly falls under the categories of Agricultural,Industrial, Commercial, Residential, Open Spaces etc. In finerterrns these land uses are further categorised into high, medium andlow densities. The actual control in a given plot or parcel of landis effected through plot coverage and plot ratio.

Plot coverage is the percentage of gross area of the plot of.land which may be covered by a building or buildings.A method of determining plot coverages has beendeveloped.Plot ratio is the ratio of gross permiuable constructed areaof the plot of land.A method of determining plot ratios has been developed.Control of development through plot coverage and plot ratiois intended to match development to available services suchas water, electricity, sewerage etc.

4t

5.3.4 Car parking provision has been addressed and a matrix of how tttisis to be accomplished has been given. In addition methodsinformation has been provided and width of streets cul-de-sac androads have been provided together with how these are to beconstructed.

5.3.5 Guidelines on sizes of buildings and spaces such as kitchens andhabitable room have been given. Such other information like sizingof windows has been made available.

It will be noted that illustrations have to be provided to make easyreading.

5.3.6 The Regulations have addressed the plight of the disabled insociety. For certain categories of buildings, it has been mademandatory to design for the needs or provide for disabled persons.

Strong s:rnctions have been imposed against non compliance withthis aspect of the Regulation. It is to be noted that it is not inbuildings alone where this requirements have to be met but also inaccess to the buildings, roads and entrances.

5.4 Part C - Advertisements

The Regulations have addressed this subject because advertisementsof late have been erected in a manner which sometimes obsecureand hinder the interpretation of road traffic signs, railway signs,safety of navigation by air sometimes rendering hazardous the useof roads, railway line or airways.

Lncation of advertisements, particularly the large illuminated andnon-iliuminated signs, will bi determined bv thi Authority.

42

5.5 Parts D & E - Demolition work, Site Preparation andOperations

5.5.1 This Part makes provision for site preparations prior tocommencement of construction works. Where the site has abuilding situated thereon, specific provisions on how to demolishsuch building are provided. It provides for the de-constructionaspects of a construction.

5.5.2 Elaborate provisions are made in this Part on what one needs to doin order to prepare a piece of land for construction of a building.Provisions are made to ensure public safety and limited nuisance tothe immediate environment during the site preparations. TheRegulations in this Part address a common problem in this country,namely, damage to public facilities and utilities such as roads,pathways etc.

5.6 Part F - Structure, Foundations and Excavations

Details on structures, foundations and excavations of abuilding areprovided in this Part. Technical details on the structural elementsof a building necessary for the stability, serviceability, anddurability of a building are elaborately set out in this Part. Inaddition, details on materials and workmariship required forconstruction are clearly set out. Provision is also made for controlof quality, materials and workmanship. These are now mademandatory in the Regulations.

Parts G, H, J & K - Materials and Workmanship, Floors,Walls and Roofs

5.7.1 Details on.quality of both materials and workmanship required forconstruction are clearly set out and provision made for qualitycontrol.

5.7

43

Stiff penalties are imposed against those who breach this Part of theRegulations.

5.7.2 Specific provisions are made on design of floors and as a generalprinciple it has been provided that:-

"Any floor of any building shall:-

(a) be strong enough to safely support its own weightand loads to which it is likely to be subjected; and

O) have a fire resistance appropriate to its use andwhere required be non-combustible. "

5.7.3 The Regulations further set out requirements for walls and theirconstruction.

Walls are an important component in a building and it has beenprovided that:-

"Any wall, shall be capable of safely sustaining any loads towhich it is likely to be subjected and in the case of anystructural wall, such wall shall be capable of transferringsuch loads to the foundations supporting such wall."

Walls are also supposed to protect a building occupant from theseverities of weather and as far as possible be fire resistant. To thisextent guidelines have been set out in the Regulations.

5.7.4 To many, the roof is the most important in a building. TheRegulations provide among other things that:

" The roof of any building shall be so constructed thatwill:-

resist any forces to which it is likely ro be

subjected;(a)

44

O) be durable and weatherproof;and(c) will not allow accumulation of any rainwater upon

its surface"

5.8 Part L - Glazing, Cladding Materials and Protection

5.8.1 Dangers posed by glass and glazing in buildings have beenaddressed by the Regulations in this Pan.

Apart from details on how glazing is to be installed, emphasis hasbeen put on specifications and guidelines for use of safety glazing.

Safe breakage of glass is defined as ttrat breakage that would resultin separate pieces that are not sharp or pointed.

Euildings intended for public gathering would have this type ofglass installed.

5.8.2 This Part is well illustrated in the Regulations through sketches.Various methods of fixing gilass are given.

Limitations have been given on use of reflective glass in buildingsas this practice has an impact on the environment and safe driving.

5.8.3 Stone curtain walling is common practice now and guidelines havebeen provided. Specification and requirements are that, precastconcrete panelling, granite, marbles, stone, aluminium, profiledsheets steel panelling shall have mechanical stainless steel fixing.and nothing less over 20 metres high from ground floor.

45

5.9 Part M - Stairways, Ramps, Guards and Lifts

5.9.1 In a building movement of persons is achieved through stairways.

The Regulations provide comprehensive information on sizing ofstainvays for the different class of buildings to ensure safety ofpersons.

Stainvays also provide means of escape in the event of emergencyin a building. Adequate provisions have been made to cater forthis.

5.9.2 Movement of persons and goods in buildings is also achievedthrough ramps. The Regulations provide comprehensiveinformation on sizing of ramps and safety precautions for the same.Ramps that are user friendly for disabled persons have beenrecommended, and emphasis has been put on guidelines for theirprovision.

5.9.3 The other means providing movement of persons and goods isachieved is through lifts and escalators. Comprehensive data andinformation on the provision and installation of these have beenprovided.

5.9.4 The Regulations have provided strict penalties for obstructingstairways and ramps, and for the failure to keep lifts and escalatorsin a state of good maintenance.

5. 10 Part N - Lighting,Ventilation,Condensationand Space Heating

5.10.1 In this Part the Regulations provide that:-

"Any habitable room, bathroom, shower room and roomcontaining a W.C. pan or urinal or urinal or any room thatis a parking garage shall be provided with means of lighting

46

and ventilation which will enable such room to be used, withoutdetriment to health or safety or causing any nuisance, for thepurpose for which it is dpsigned."

5.10.2 This Part is comprehensive and is well illugrated to give the userbasic guidelines on lighting.

Sufficient sanctions have been recommended against those whooffend through obstruction.

5.10.3 The Regulations provide for the design of mechanical ventilationand airconditioning plants. In their design, the Regulation detailthat:-

a) in every design of mechanical or airconditioning plant,provision shall be made to protect the fresh air suppliesfrom contaminants injurious to health. Air inlet forventilation systems shall not be sited where they may drawin excessively contaminated air; and

b) in every design of mechanical and air control plant, everyeffort shall be made to avoid eugenol contamination.

5.11 Part O - Water Services, Drainage, Waste Disposal andstormwater

5.ll.l The Regulations in this Part deal with al} aspects of water-bornemeans of sanitary disposal. The Regulations make it mandatory thedisposal of waste from buildings.

5.11.2 The Regulations detail among other things the manner in whichwaste and stormwater is to be disposed of.

The Regulations put effective controls on objectionable discharge.In the Regulations it is provided that,

47

"No person shall cause or permit sewage discharged fromany sanitary fixture to enter:-

(a) any stormwater drain, stormwater sewer or excavatedor constructed watercourse;

(b) any river, stream or natural water courso whetherordinarily dry or otherwise;or

(c) any street or other site. "

5. 1 1 . 3 The Regulations have outlawed the discharge of industrial effluentin any manner except as directed by the Authority.

5.12 Part P - Non-water-borne Means of Sanitary Diryosal

In this Part the Regulations make provision on how sanitarydisposal is to be handled in building located in areas where water-borne sanitation cannot be provided.

5.13 Part Q - Electrical Installations

5.13.1 Electrical supply into buildings, its reticulation and the maintenanceof the insallations has been a weak point in this country.

These Regulations have addressed the entire qpectrum of the subjectof electrical installations. The Regulations have been tied up withthe comprehensive Kenyan Wiring Regulations issued by the KenyaBureau of Sandards, Parts 1 and 2 - KS04-662 of 1988.

5.13.2In most societies people need the assurance that they are fully safein buildings. This assurance is necessary even where lightningstrikes are concerned. This is not so in Kenya.

48

5.14.1 People in plages of work, recreation or residence generate refuse.The quality [nd quantity of this refuse depends on the,t1pe of

The Regulations have been tied up to the Code of Practice for theProtection of Structures against Lightning, KS04-503, issued by theKenya Bureau of Sandards.

5.14 Part R - Refuse Disposal

fuse disposal vary from country to country. Inuntries refuse is recycled and in others it is used as argy.

In most developing countries refuse is dumped in tips at the fringesof the city. In primitive societies refuse is dumped anywhere andmountains of refuse are created and re-created. We are in the lastcategory. This is an unwarranted state of affairs because refusedisposal can be managed.

5.14.2 The Regulations have placed a mandatory responsibility on localauthorities by providing that:-

"Every local authority shall, to the satisfaction of theAuthohty, make sufficient provision for the collection andthe safe diryosal of refuse within its area of jurisdiction. "

It is a further requirement that,

"where the Authority is satisfied that the local authority:-

(a) has failed to siltisfactorily perform the functions ofcollection and disposal of refuse, or

has made no provision for the collection and safe

disposal of refuse, the Authority may on application

49

)I

iI

Means ofdeveloped c,

source of e

o)

by a private contractor permit to carry out the said

function of collection and disposal of refuse,provided that every suLh private contractor shallcertify that he has made sufficient provision for the

collection and safe diryosal of refuse."

5.15 Part S - Fire Safetyand Installations

5.15.1 The Commission confirms that Kenyans have cause to worry abouttheir state of preparedness to combat fire disasters in buildings.The Regulations have comprehensively addressed the subject of firesafety and installations.

The Regulations have brought in affordable requirements in:-

(a) use of appropriate building materials to ensure the rightcombustion or fire rating.

O) provision and maintenance of emergency escape routes, freefrom all obstructions.

(c) provision and maintenance of affordable fire fightinginstallations.

5.15.2 The Regulations provide for the inspection of insallations andbuildings in general to ensure compliance with fire safety.Severe penalties have been provided for offenders.

5.15.3 The Commission noted the absence of trained manpower in thefield of Fire and Industrial Safety and recommends that:-

(a) an establishment of a Fire Institute to train personnel attertiary level; and

O) that an establishment of a course in Fire and IndustrialSafety at post graduate level in one of the publicuniversities.

{I(

II

I

II

50

5.16 Part T - Inspectionof Buildingsand Maintenance

5.16.1 The Regulations impose a mandatory responsibility on owners forthe maintenance of buildings and the adjoining grounds and providefor periodic inspections. An owner who fails to periodicallymaintain the building and the adjoining giounds will face severepenalties under the Regulations.

5.16.2 Lifts, Escalators and Hoists have to be maintained periodically andCertificates of Inqpection issued by competent persons.

5l

l.

CONCLUSION

The planning and control of land and the built environment impactson everybody's life. The safety of buildings is vital to societybecause people spend so much of their time, either working,sleeping or relaxing in and around buildings.

The observations made in this Report, identify clearly the inherentweaknesses in the existing laws and regulations governing theplanning of land and the building industry, and it is evident thatthere is a need for an immediate overhaul of the present legislativeframework. Kenya can, if these changes are implemented andregulated, become a LEADER on the African continent and beyondin the field of safety in buildings and the control of the builtenvironment.

The Government is encouraged to set up an independent Authorityin line with this Report, and hasten the enactment of the Draft Billand Planning and Building Regulations. The Authority proposed tobe established should be self-financing and excess funds generated

by or accrued to the Authority should be invested in improving thequality and safety of life in the neighbourhoods of this nation.

In Kenya, disasters from fires are a potential problem and a seriousissue. The nation's preparedness to combat fire is highlyquestionable. To deal with this area of weakness it isrecommended that a "Fire Institute" be set up to train personnel attertiary level. It is further recommended that a postgraduate coursebe set up and students at postgraduate level be encouraged to takeup studies on "Fire and Industrial Safety. "

The vision of this Commission is for the Government to set up andenforce new safety, health, and environmental standards for thebuilt environment.

(I

2.

3.

4.

5.

II

I

52

i

We append our signatures hereunder to signify our agreement with thecontents of this Report.

Chairman

Dr. Reuben Mutiso

Commissioners

Justice Sarah Ondeyo

J.J. Gathara

Dennis M. Rimber

Dr. Kemeth Kiplagat

John Cavanagh

Otieno Odongo

Abdi Farah Osman

Joint Secretaries

Dan Ameyo

Adila A. Bashir, (Mrs)

53

I

APPENDIX I

REPORT OF THE SPECIAL COMMITTEE INVESTIGATING THE

COLLAPSE OF THE BUILDING HOUSING SUNBEAM

SUPERMARKET

Fowarding

On behalf of the Members of the Special Committee investigating

the collapse of the building housing the Sunbeam Supermarket, I

fonltrard herewith our Report on Phase One of our Terms of

Reference. I thank you most sincerely for the honour you bestowed

on us by the appointment to undertake this task.

--F{--(Dr. Reuben Mutiso)

CHAIRMAN.

57

EXECUTIVE SUMMARY

On the 13th, May 1996, innocent Kenyans were shelteringthemselves from the late afternoon downpour under a canopy ofthe building housing Sunbeam Supermarket among others. Thebuilding is fronted by Moi Avenue, Gill Lane and Tom MboyaStreet; which are very busy Matatu Termini.

At about 4.15 p.m., (peak travel time) on that day the canopy underwhich commuters and hawkers were sheltering themselves cavedin and huge stones from the wall above fell thereby causing havocand death. When all settled some sixteen (16) persons lay deadunder the weight of the canopy and construction stones.

Members of the public, the police and non governmentalorganizations moved swiftly to rescue trapped survivors, move theinjured to hospital and the dead to the mortuary.

This accident caused a lot of anxiety and concern to theGovernment and the public. The Government offered spmefinancial assistance to defray costs of hospitalization of the injuredand the burial of the dead.

Following this accident the Government set up a SpecialCommittee to investigate and report on the cause of the collapse.The Special Committee was further detailed to look at existinglegislation and make recommendations of how future similarincidents can be prevented from occurring.

The Special Committee has met continuously since itsappointment. Public notices placed in the dailies have generateda nationwide response with professionals and the laity giving acatalogue of buildings that could fall anytime.

The committee has held interviews with survivors, officials of theNairobi City Council, interested parties, members of the public andrepresentatives of professional bodies. The Committee alsoreceived memoranda from various persons in the constructionindustry.

The Committee made several visits to the scene of the accident,collected building samples for testing and made professionalevaluation of the state of the building. '

58

After careful study of results after the site inspection of the buildingall records of series of drawings showing changes to the buildingfrom inception in 1991 to dqte possible causes of the collapsewere originally identified as follows:-

lncreased load from external forces of some sort on a relativelyweak structure from poor maintenance and bad constructionstandards. The forces likely to cause the overload were identifiedto arise from:-

. Wind forces to the roof and wall and underside of thecanopy.

. High electrical charges created by Iightning.

o Vibration and shaking from thunder

o Accumulated silt, leaves and waste matter in additionto pounding of water on the external walls as a resultof clogged drainage to the gutter and pipes.

All these possible causes were analyzed.

Wind force on a weak and deteriorated structure was eliminatedas this is a very low building within much taller buildings and trees.These would act as wind breakers.

Lightning was eliminated since it would have manifested itself in adifferent and precise way.

Thunder causing shaking and eventual .collapse was alsoeliminated because on 13th May 1996 there was no extraordinarythunder- And in any case such thunder would give a differentpattern of fall.

Overload on a weak and deteriorated structure emerged as theonly possible cause of collapse. The failure of the canopy and wallwas triggered by some force exerted by rainwater on the canopy.The canopy had clogged drainage, Over the years the roofstructure had also been giving way. On the canopy there wereleaves, silt and debris. These waste matter soaked water on arainy day and caused the collapse of the canopy and the wall.

The Committee's conclusion is that this failure was not an act ofGod. The failure was as a result of negligence, first by the owners

59

of the property as they paid no attention to periodic maintenance.Secondly, Nairobi City Council should have stopped licensingbusiness in this building long time ago or insist on substantialrepairs to be carried out. They had and stil! have powers to do so.The Nairobi City Council officers carried out an inspection on thisbuilding on 7th December 1995. They found the building defectivebut never did anything else.

On the broader term of reference relating to the nature and efficacyof the building legislation in relation to building, the committee hasconcluded that there are serious deficiencies and shortcomings.

lncidents similar to the one under investigation will recur. TheCommittee's preliminary findings show that many buildings in ourmajor urban centers are a danger to the users. We have receiveda catalogue of buildings that are under occupation but are aserious threat to the users.

The building industry, we have found out, is controlled by verymany scattered pieces of legislation. The enforcing agencies, thelocal authorities primarily, are not fulfilling their duties andresponsibilities. We doubt their ability.

An in depth investigation of the existing legislation is being carriedout by the committee and comprehensive findings andrecommendations will be furnished. This second phase of ourtdrms of reference is considered vital if innocent lives are to bepreserved.

60

Section 1.1

CHAPTER 1

INTRODUCTION

Collapse Of The Building

On 13th May, 1996 at about 4.15 p.m. the canopy and part ofthe wall of the building housing Sunbeam Supermarketcollapsed killing sixteen people and injuring several others.The incident occurred during a heavy rain down pour and at aperiod when there is very high pedestrian traffic. The accidentreawakened public awareness regarding the safety ofbuildings and other structures in our Urban Centres. Thisfeeling caused a lot of anxiety to the members of the publicwith several individuals and groups expressing their outrageon the senseless death of the 16 Kenyans. The generalpublic apprehension was heightened by the fact that there areseveral other buildings which have collapsed in the recentpast mainly during construction stage and during which,fortunately there have been very few fatalities.

Section 1.2 Appointment Of The Committee

The Government moved in immediately so as to contain thesituation by assisting those who were injured during theaccident and transporting the dead to the mortuaries. Thearea was also sealed off partly to protect members of thepublic from a recurrence of the accident and also to preservethe evidence for further investigations.

On 1Sth May, 1996 the Government appointed a ten memberSpecial Committee to investigate the cause of the accident.The members of the Committee were drawn both from thePrivate Sector and the Public Sector. The names of theCommittee Members are set out in Appendix 1.

Section 1.3 Terms Of Reference

The Terms of Reference as set out in the letters ofappointment for the Committee are as follows:-

6l

To investigate and determine the cause of collapsbof the "Sunbeam Building"

Examine the existing building !aws, bye-laws andregulations and make recommendations with a viewto preventing similar accidents in the future.

The Committee considered these broad Terms ofReference and in view of the gigantic nature of theassignment, agreed with the Government toelaborate these Terms of Reference to enable theCommittee

l. lnvestigate and determine the cause(s) ofcollapse of the "Sunbeam Building";

ll. Look at the existing building and planning by-laws and any other relevant laws and assesswhat requires to be done to prevent futurerecurrence;

lll. Look at the existing methods of dnforcing thebuilding by-laws and make appropriaterecommendations;

lV. Examine existing by-laws to assess whetherthey have a routine or periodic maintenancepolicy;

V. Examine whether the eisting policy onlicensing of business premises has aprovision for assessing the status of thepremises;

Vl. Look at the existing policies on insurance ofbuildings as pertains to public liability;

Vll. Examine such other matters that may berelevant to the foregoing;

Due to the magnitude of the exercise and taking cognizanceof the fact that it will be necessary to visit other urban centresin the country, the Committee considered it prudent to carryout the exercise in two phases. The objective is to allow foraction on the immediate critical problems so as to ensure the

(i)

(ii)

safety of and service to, the public and allow more time forinvestigating the long term problems. Consequently, phaseone of the exercise focuses on the.causes of collapse of the"Sunbeam Building". This Report contains the Committee'sconsidered observations on the reasons leading to thecollapse of the building and those we consider liable for thetragedy.

Phase two will look into all the other Terms of Reference andmake appropriate recommendations. This phase is estimatedto take two and half months.

Section 1.4 MethodologyThe Committee adopted a number of strategies to obtaininformation for purposes of this Report.

1.4.1 Public Notice

Due to the need to receive information from members of the public,the Committee put out a Public Notice through the Radio and thethree English Daily Newspapers requesting any member'of thepublic who either witnessed the collapse of Sunbeam Building orhas any information as to the possible cause(s) of the collapse orhas any suggestions as to how to prevent similar occurrences orhas knowledge of any building that may pose a risk to members ofthe public to contact the Special Committee.

As a result of the above Notice, the Committee organized and heldinterviews with and received memoranda from several members ofthe public, professional organisations, and officers from theNairobi City Council. The professional bodies included theArchitectural Association of Kenya, the lnstitution of Engineers ofKenya, the Construction Review Magazine, University Lecturers,among others.

1.4.2 lnspection Of Building Sites

The Committee visited the Sunbeam Building several times, andexamined the entire building including the collapsed materials

63

and debris, all the shops, the remaining canopy along Tom MboyaStreet and the roof. Samples of the materials in the building weretaken and tested. The test results were received and analysed.Still photographs and a video documentary were also taken. TheCommittee also visited and did preliminary inspection on variousbuildings in Umoja Estate, Mathare North, Zimmerman Estate,Highridge and City Centre. The Committee was astonished at thestate of several buildings and lack of services in these areas.However, detailed inspection of these and other buildings will becarried out during Phase Two of the exercise.

1.4.3 Official Search

The Committee carried out an official search on the propertyhousing the Sunbeam Building at the Commissioner of LandsOffice to establish ownership. The Committee had no access tothe files. The search was fruitless. The Committee examined acopy of the Nairobi Town Planning drawings and file of the sameproperty. Relevant pieces of Legislation were also procured eitherfrom the Government Printer or other Government Offices.

1.4.4 DiscussionsThe Committee held continuous discussions among the membersto deliberate on all the relevant issues. At least two meetings or asite visit were being held every day. For specialist aspects of thereport, special Sub-Committees were formed to deliberate andreport back to the main Committee. Such tasks included thepreparation of the Engineering report, the preparation of thechronology of the construction of the Sunbeam Building, andoverview of the existing Legislation.

G

CHAPTER 2

TECHNICAL REVIEW

Section 2.1 History of the Building

2.1.'l The building which is located between Moi Avenue andTom Mboya Street to the South and North and Gi['Houseand Deveiopment House to the West and East resfiectivelyis erected on two separate plots namely:-

L.R.2Ogl2260 and LR.20912261 hereinafter referred to asthe left and right blocks respectively. The left block housedthe Sunbeam Supermarket. The right block was leased toU.N. Patel and Sons Studio.

2.1'.2 The first set of Architectural Drawings were submitted to thethen Municipal Council of Nairobi for approval on 30thNovember, 1937 and approved on 31st January, 1938.Drawings for the erection of a canopy and store weresubmitted on 27th October, 1940. A Canopy Agreementwas entered into between the Proprietor and the NairobiMunicipal Council on 9th November, 1940. A Certificate ofOccupation for a garage, show rooms, canopy store andwater closets was issued on 29th March, 1941.

On 21st August, 1951 the Council approved drawingsconverting the premises to a District Police Headquarters.On 29th February, 1955, fresh drawings were submitted tothe Council converting the building into shops and stores.These drawings were rejected on grounds of notconforming to the Bye-Laws. On 21st September, 1957 theCity Engineer instructed the owner to carry out repair workto the canopy due to loose timbers and roof leakages.

2.1.3 On 5th January, 1959 an application was made to extenduser to include a Petrol Station. This application wasreiected. On Znd March, 1959, the Town PlanningCommittee detected the presence ol unauthorizedalterations on this building and served a statutory notice tothe owner. On 12th March, 1959, pursuant to bye-law 356

the Town Planning Conrmittee drew the owners attention tothe dllapidated condition of the building. On 2ndApril, 1959, the Council approved drawings inreepect of alterations to the covered yard. During aroutine inspection on 9th June, 1959, the Council noteddeparture from all approved drawings and sent a warningletter to the owner. On 13th November, 1968, the Councilapproved Architectural drawings to convert premises into ashowroom. A certificate of occupation as motor showroomwas granted by the Council on 27th February, 1969. Sincethe above date, there has been no.further applications orapprovals on change of user.

Section 2.2 Non-Conformity with ApprovedDrawings

2.2.1 The Architectural as well as structural drawings obtainedfrom City Council indicated that the roofs facing Moi Avenueand Tom Mboya Street were originally designed as hippedand that the tension cables supporting the canopies were tobe connected to the timber trusses. What was constructeddid not conform'to this technical specification.

2.2.2 The original drawings approved on 4th November, 1938showed a single storey structure of hipped roof on masonrywalls providing accommodation for showroom and garage.These drawings were prepared by M/S L.N.Vadgama whowas a draftsman.

2.2.3 On 6th November, 1940 alterations were carried out toprovide for a canopy on the Government Road and VictoriaStreet (now Moi Avenue and Tom Mboya Streetrespectively) facades. These drawings were also preparedby M/S L.N. Vadgama.

2.2.4 On 8th May 1957 a conversion was prepared to convert thebuilding into a District Police Headquarters. Thesedrawings showed that by this time the roof was now a gablewall. The change constituted a maior departure from theoriginal drawings.

66

2.2.5 There was further modification on 2nd September 1g5g toprovide for an open yard at Victoria Street (now Tom MboyaStreet) end of the building. By now the building hadreverted to shops. This change of user must have involvedsome structural changes.

2.2.6 The last modifications according to the available drawingswere done on 5th November 1968 to create larger windowsand provision of Reinforced Concrete Beam over openingsof the left block. The other right block was not affected.These modifications also included the conversion of theshop to a vehicle display area. This change must have hadan effect on the structure as well.

Section 2.3 Maintenance of the Building over theyears

2.3.1 The building has remained in poor state of disrepair for along time. The owners have also been changing the usageof the premises without the necessary approvals. TheCommittee observed that:-

The City Engineer wrote to the proprietors on 6thFebruary, 1957 noting that "there wereunauthorised changes in usage. The 'celotex'partition separating two shops was not of anacceptable material" and the owner was instructed toconstruct a propsr partition wall to separate the twotenancies;

On 21st September, 1957 the City Engineer wrote tothe owner of the building pointing out that thecanopy projecting over Government Roadwas in a dilapidated condition particularly inrespect of the underboarding which requiredstraightening up and generally renovating.Furthermore, water was noted to be dripping from thecanopy onto pedestrians which could not be allowed;

On sth January, 1959, The Town PlanningCommittee rejected an application to extend the userfor the plot to include a petrol filling station;

(i)

( ii)

( iii)

67

(iv) On 2nd March, 1959, the Town PlanningCommittee cautioned. the owners about theunauthorized alterationg and changes in usewhich had been done to the building;

(v) On 12th March, 1959, a warning was issued tothe owners regarding the dilapidatedcondition of the building;

(vi) On 7th December, 1995, the City Council issued anotice requiring abatement of nuisance underthe provisions of the Public Health Act. As stated laterin the report, this notice was not acted upon.

2.3.2 From the above scenario, it is self evident that the buildinghas been very poorly maintained over the years. Thesuccessive proprietors of the building have either ignoredlawful orders or simply remained negligent. The CatyCounci! has remained silent.

Sectlon 2.4 State ol the Bulldlng ar at 13th May,I 996

2.4.1 The only known recent inspection by the Nairobi CityCouncil was conducted on 7th December, 1995. TheCommittee was informed that such inspection ought to beperiodic. There was no record to show that thie wasadhered to.

Notes taken by the Public Health lnspector necessitatingthe issuance of the Notice requiring abatement of Nuisanceissued to the Directors of Sunbeam Supermarkets give anidea of the state of the building on and before 13th May,1996 when the building collapsed.

The state of the building was as follows:-

(i) Broken sagging Ceiling boards.

These observaliona by the Public HealthOfficer were just symptomatic. The realproblem was that the lrusses had failed

causing the ceiling joists and purlins to breakand sag.

Dirty wall surfaces

This observation is indicative of the state of thecleanliness of building, The building was verydirty and had not been painted for a long timedue to poor maintenance.

Damaged Canopies and broken fascia board.

This state and condition is glaring in thecanopy facing Tom Mboya Street that has notcollapsed. The canopy is leaking and hasbroken timber, the drainage is clogged andtherefore it remains unsafe.

Partitioned walls in semi permanent materials.

This was a major fire risk.

2.4.2 This state and condition prevailed in contravention of theBye-Laws. The City Council has taken no action to-date.

Section 2.5 lnitial observations on ceuses of failureby Professional Bodies and llembersof the Public

Opinion from various professional bodies, groups and individualswere given as noted below:-

The Architectural Association of Kenya (AAK) was ofthe opinion that the failure was due to weakness ofthe mortar and lack of restraints in the gable wa!!.

The lnstitute of Engineers of Kenya (lEK) was of theopinion that the failure was due to overload on thecanopy and weakness of the gable wall.

The Corrosion Engineer was of the opinion that theweakness of the gable wall was caused by thebreakdown of the bond between the stones and themortar due to carbonation.

The public in the Daily Newspapers suggested that

69

(ii)

(iii)

(iv)

(i)

(i i)

(iii)

(iv)

failure was due to lightning, weakness of the walland heavy downpour. Another observer put it as anold building that could fall anytime.

Section 2.6 Gommittee's Observations onCause(s) of Failure and Collapse

the

2.6.1 The building has left and right blocks (Appendix 2) and ithad two canopies one along Moi Avenue and the other TomMboya Street. The canopies were supported on steel (l-and l) beams as well as bars of l6mm diameter tensioncables anchored onto the gable walls which was 2.29mhigh, 230mm thick and 13 m long with inadequate stiffeners(Appendix 3).

2.6.2 The left side block had truncations at the corners facing GillHouse. Each of the blocks had timber trusses spanning13m at a pitch of 150. These trusses were supported bymasonry piers along the longitudinal walls at a spacing of3.5m except the first truss from the gable wall which was ata spacrng of 4.72m, for unknown reasons. The Committeeobserved that the trusses had two members at the bottom of225mm by 75mm to make the tie and two members of150mm by 50mm to make the struts. AII the internal chordswere 100mm by 75mm. The jointing was done with bolts.

2.6.3 Upon inspection of the site on 17th May, 1996, it wasobserved that the canopy facing Moi Avenue had,collapsedalong with the gable wall onto which it was anchored. Uponclose inspection of the roof structure it was noted that therewere no trusses along the gable walls. lt was found that thebottom members of the first two trusses in the left block hadfailed completely and the purlins had sagged. lt was furthernoted that the same purlins had at some time beenextended with addition pieces possibly into the pockets inthe gable wall. To reinstate the alignment of the purlins,some remedial work had been carried out. This involvederection of timber beams of approximately 200 x 200mmsupported by the first truss and the gable wall. The propshad been fixed onto the timber beams to support thepurlins.

70

2.6.4 On the right side the trusses had not failed except somechords. There were no timber beams and the purlins weresupported on the ceiling joists. At the other end facing TomMboya Street the Committee observed that the roofstructure had not failed and had not been disturbed.

2.6.5 lt was observed that the collapsed canopy had beensupported on inverted T and I steel sections which wereembedded across the whole thickness of the 340mm wall. ltwas supported with !6mm round mild steel bars as tensioncables at 450 and anchored into the gable walls with boltsand metal plates at the back of the wall. There were tensuch supporting steel assemblies equally spaced for thewhole canopy. The canopy roof was of iron sheets ontlmber purlins with T & G ceiling. Most of the canopy timberhad decayed as a result of leakage due to the worn outgutter. There was accumulated silt, debris, leaves andwaste matter.

2.6.6 An inspection of the fallen stones indicated that the stonesdid not have any mortar bonded onto them. Otherwise themortar beds were completely separated from stonesorlginally from the gable wal!. Some stones showedpockets for supporting the timber purlins.

Section 2.7 Tert Results

2.7.1 Test results from the Chief Materials Engineer showed thatthe mortar had a composition of a ratio of cement toaggregates of 1:3.2 with the remark that it was good mortar.

2,7.2 The l6mm diameter mild steel tension cable h.ad a yieldstress of 243.7Ntmm2. The timber compression was25.5N/mm2 and 27.94 N/mm2 for old and new specimensrespectively, Corresponding static bending stresses were

55.5N/mm2 and 61.6 N/mm2 at moisture contents of 12.10and 15.84 respectively.

The test results show that the materials used were of goodquality.

7l

Section 2.8 Possible causes of Failure

2.8.1 Arising from inspections, interviews, press reports, writtenmemoranda, discussions, the Committee formed theopinion that the following could have been the causes offailure either individually or severally:-

(i) Lightning

(ii) Thunder

(aii) Wind

(iv) Weakness of gable wall

(v) Weakness of canopy

2.8.2 The evaluation and analysis of the above causes of failureby the Committee aie as follows:-

(i) LightningLightning' usually create high voltage chargescapable of inducing large forces to the part of thestructure at the point of entry.

As submitted by the Electrical Engineer, there wereno burning marks noticed at the site upon inspection.Therefore 'this cause of failure was discounted.Moreover, it was observed that the building wasprotected against lightning by the lightning arresterson the adjacent high rise Development House.

(ii) ThunderThunder manifests itself by way of vibrations whichwould have caused stones from the gable wall to fallboth to the inside and outside. No stones wereobserved on the inside. Again for thunder to causesuch failure it would have been loud enough to benoticed. Since this was not noticed, this mode offailure was also discounted.

t

(iii) Wind

The building is single storeyagainst wind forces by thestructures. Failure due to wind

d is well protectedrounding high riseces is accompanied

I

2.6.4 On the right side the trusses had not failed except somechords. There were no timber beams and the purlins weresupported on the ceiling joists. At the other end facing TomMboya Street the Committee observed that the roofstructure had not failed and had not been disturbed.

2.6.5 lt was observed that the collapsed canopy had beensupported on inverted T and I steel sections which wereembedded across the whole thickness of the 340mm wall. ltwas supported with l6mm round mild steel bars as tensioncables at 450 and anchored into the gable walls with boltsand metal plates at the back of the wall. There were tensuch supporting steel assemblies equally spaced for thewhole canopy. The canopy roof was of iron sheets ontimber purlins with T & G ceiling. Most of the canopy timberhad decayed as a result of leakage due to the worn outgutter. There was accumulated silt, debris, leaves andwaste matter.

2.6.6 An inspection of the fallen stones indicated that the stonesdid not have any mortar bonded onto them. Otherwise themortar beds were completely separated from stonesoriginally from the gable wall. Some stones showedpockets for supporting the timber purlins.

Section 2.7 test Results

21.1 Test results from the Chief Materials Engineer showed thatthe mortar had a composition of a ratio of cement toaggregates of 1:3.2 with the remark that it was good mortar.

2,7.2 The l6mm diameter mild steel tension cable h.ad a yieldstress of 243.7N/mm2. The timber compresslon was

25.5N/mm2 and 27.94 N/mm2 for old and new specimensrespectively. Corresponding static bending stresses were

55.5N/mm2 and 61.6 N/mm2 at moisture contents of 12.10and 15.84 respectively.

The test results show that the materials used were of goodquality.

7l

Section 2.8 Possible causes of Failure

2.8.1 Arising from inspections, interviews, press reports, writtenmemoranda, discussions, the Committee formed theopinion that the following could have been the causes offailure either individually or severally:-

(i) Lightning

(ii) Thunder

(iii) Wind

(iv) Weakness of gable wall

(v) Weakness of canopy

2.8.2 The evaluation and analysis of the above causes of failureby the Committee afe as follows:-

LightningLightning usually create high voltage chargescapable of inducing large forces to the part of thestructure at the point of entry.

As submitted by the Electrical Engineer, there wereno burning marks noticed at the site upon inspection.Therefore 'this cause of failure was discounted.Moreover, it was observed that the building wasprotected against lightning by the lightning arresterson the adjacent high rise Development House.

ThunderThunder manifests itself by way of vibrations whichwould have caused stones from the gable wall to fal!both to the inside and outside. No stones wereobserved on the inside. Again for thunder to causesuch failure it would have been loud enough to benoticed. Since this was not noticed, this mode offailure was also discounted.

(iii) Wind

The building is single storey and is well protectedagainst wind forces by the surrounding high risestructures. Failure due to wind forces is accompanied

72

(i)

(ii)

by ripping the roofing sheets off at the gable wall.Similarly, lack of evidence of above occurrencefailure due to wind was discounted as well.

(iv) Gable Wall

ln the left side block the roof trusses which had failedresulted in weakening of the gable wall. This wascornpounded by the weakness of bonding betweenmortar and stones.

(v) CanopyAs far as the canopy was concerned there were threemain structural components which could havefailed either individually or severally namely:-

The T or I steel bottom compressive members,(struts) the inclined tension cables at the top (files)and three connections. The first connection wasbetween the struts and ties, the second was betweenthe tie and the wall and the third between the strutand the wall. The Committee observed that thestruts, ties as well as the connection had not failed atall since the ties had not elongated and shapedneither had the said connection opened up. Thestruts were all found to be straight and in theiroriginal state. The ends of T and I beams at the gablewall above the lintel level were found to be straightand with no sign of failure at all. The tension cableanchoring bolt together with the steel plate behindthe gable wall were straight and in their originalshape.

Section 2.9 Actual Causes ol Collapse

Arising from the above, the Committee concentrated itsattention on the weakened gable wall and the connectionsof both the canopy supports.

2.9.1 ln the left side block housing the Sunbeam Supermarket,the failure of the two trusses next to the gable wall causedsagging of the purlins and the ceiling joists. This downward

73

movement of purline sublected the gable wall to ahorizontal gUtward force, thuq causing a progresslve failureof the gable wall,

Therefore, out of the fpur eimilar gable ends the wall of thlsparticular blooh facing Moi Avenue was the most vulnerableas lestified by the location of the hlghest number ofcasuafties.

2.9.2 Both canopies along MOi Avenue and Tom Mboya Streethad silt, debris, leaves And wegte mattqr whlch hadaccumulated over fiany ypaf$. The canopies had poordrainage which coqld hAvq caused overload.

The gutters next to the gable walls wpre worR out at varlouopoints along their lengths resulting in serigus leakages, Theleaking water had over the yeArs pauqed rot qnd deeay tothe timber purlins, joists aq well aB the tQnguE and groove(T & G) ceiling. Thougfr the rain water down pipe may havebeen discftarging pffectively, there still - was waterstagnation due to obstfUctiqn pf flow by tne debrls, Thlsoverload on the cangpy due tO rainwater, water absorbedby the rotten timber, and the acqumulated debrlB sublectodthe weakened gable wall tp an qxoessive pulling force, TheCommittee epserved that the gable wall of tha left blockalong Moi Avgnqe was the weakest and therefsre lt toppleddown first. After the tension pables of the eanopy Bulleddown the stoneg at the points qJ anohoring whlch fell sntothe collap$ing canopy, the poorly honded stoneq above theanchorqgps immediately qpntinued to egllapse. Ao thlshappened the T and I sleel qtrute tilted down therebypusNng the stonps aboVp the lintel upwardp and outwardato complgtp the fqilure qt the gable wall, At the Bame time,the purlins and igipts of thp aanopy of the left bloqkextended the effect of failgTg to blgek LB Nq, 209/2801hquSing U.N Patpl Studiq which had its,share gf overloafl,The overload rn goniunction with the eJfbct pf the left blockcanopy qaused thp ten$ion cqbleq of the riqht block eengpyto pufl down the gahle wall qtqRes in A mAnRer similar tg theleft side.

2.9.3 These various steps in lhe fqilUre Br0A0Bg fellowed

74

each other instantaneously sueh that the whole operatlonlooked like a collapse of canopy'and wall at the eame time.It is worth noting that the canopy and gable wall along TomMboya Street are Btill lntact, However, its stability isdoubtful,

2.9.4 After careful conslderation of the foregoing the Committeoformed the opinion that the collapse of the canopy andgable wall of the bullding housing Sunbeam Supermarketwas due to:

(i)

( ii)

Failure of two roof trusses in the left blook next togable wall along Moi Avenue due to overload, decayor both over a period of tlme leading to instability ofthe gable walle;

ln addltion the Committee noted that the gable wallwas built without adequate stiffeners and laokedproper bonding at the stone/mortar lnterfapes;

Lack of proper embediment of the anchorage of thgcanopy struts and tles;

Rot and decay of timber in the.canopy due tqleakages as a result of lack of proper maintenance;

Overload on canopy due to accumulated silt, leaveo,debris and waete matter which was compounded byrainwater on the material day aa a result of lack ofproper maintenance;

(iii)

(iv)

(v)

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CHAPTER 3

RESPONSIBILITY AND LIABILITY

Arising from the technical findings above and given thegradual deterioration of this building over the years due tolack of mandatory inspection and maintenance, weapportion responsibility and liability for the collapse and theconsequent loss of life to the Nairobi City Council and thepresent proprietors of the building. Our reasons for theapportionment are set out hereunder;

Section 3.1 Nairobi City Council

3.1.1 Whereas the Building Code requires that a building beconstructed in accordance with the approved plans, thisparticular building was not built according to the originalapproved plans.

3.1.2 Several changes of user have been effected on thisbuilding. The records made available to the Commifteeshow that the left block which specifically housed theSunbeam supermarket was in 1969 converted into a motorshow room. There are no records showing when it waslater changed into a supermarket as required by the CityBye-LtWs. The Commiftee is of the view that change of userfrom a motor showroom to a supermarket which is notdocumented must have involved changes which had aneffect on the structure of the building. Since there are norecords at City Hall to show what structural changes wereeffected upon this change of user, the Committee is unableto be definitive on the matter. However, we find absence ofrecords to show change of user contrary to therequirements of the bye-laws.

3.1.3 The law requires that a building be inspected and foundhabitable prior to issuance of the annual trading licences.The Commiftee has observed that trading and busines$licences have been issued annually to the tenants by

Nairobi City Council without the mandatory annualinspection. We consUer this lack of annual inspection aflagrant breach of the law.

3.1.4 The Building Code and the Bye-laws require that partitionsin certain buildings be of specified materials. Partitions ofthe business premises is required to be of materialsspecified in the Building Gode. The Committee observedthat the partitioning wall on right block housing U.N. Patel &Sons Studio (1970) Limited was bf hazardous fire riskmaterials contrary to the requirements of the Bye-Laws.There is no evidence that the City Council ever invoked therelevant Bye-Law(s) to condemn this violation.

3.1.5 On 9th November, 1940 the then Municipal Council ofNairobi entered into an Agreement (the CanopyAgregment) with the then proprietor of the two parcels of!and. The Agreement required the Canopy to be:-

"..........constructed strictly in accordance withplans to be approved by the Council..........u.

It further required the pioprietor to:-

"..........keep the said Canopy clean and inproper repair and condition..........'..

It also required the proprietor to:-

"..........obserue all Bye-Laws in force for thetime being in Nairobi wrth respect to Canopies orsimilar structu res over public highways.........."

It is important tq note that the word 'Proprietor' was definedin the agreement to mean the origina! proprietor, his heirs,executors, administrators and assigns. ln our view, thepJesent proprietors of this builtling are bound by theprovisions of this Agreement as assignees.

We have earlier observed that the Canopy was notconstructed in accordance with its original approved plans.The Canopy accumulated dBQris and dirt over the yearswithout Nairobi City Council taking 4ny action contgmplatedby the provisions of the Agreement. Having established thatthe dilapidated and very poor state of thb Canopy was a

major contributor to the tragedy, we hold liable the parties tothe Canopy Agreement for breaching its provisions withoutany remedy.

3.1.6 On 7th December, 1995 the City Council invoked theprovlsions of the Public Health Act and issued a Noticerequiring Abatement of Nuisance in the building to theDirector(s) of Sunbeam Supermarkets.

The Notice cited several instances that constituted anuisance under the Act and required the same to beremoved within seven days. The Committee noted that noaction was taken by Nairobi City Council upon the expiry ofthe 7 days notice. There is no evidence on record to showthat any action has since been taken following the notice.

lndeed the Committee was shocked to hear from the PublicHealth Officers at City Hall that they decided not to takefurther action on the notice because precedents haveshown that it takes a long time to deal with any person whodoes not abide by such notices. lt is important to note thatthe law requires Nairobi City Council to take legal actionagainst the proprietor and/or the occupier of a building whoviolates a notice to abate a nuisance. Failure to take legalaction for the reasons given by City Council Officers isunacceptable and we hold Nairobi City Council responsiblefor failure of abatement of the nuisance which in our viewcontributed to the collapse of the building.

3.1.7 Whereas the law requires a Medical Officer of Health, asdefined in the Act, to issue notices to remove a nuisance,we observed that at City Hall, junior untrained officers andindeed anybody can issue notices. The notice to Sunbeamwas not issued by the Medical Officer of Health. The typesof nuisance set out in the notice demonstrate want ofprofessionalism and knowledge on the part of the issuer.The reasons stated in the notice demonstrated ignorance ofnot only the building but also of ryhat were the rea!problems with the building at the time. The Committee findsthis casua! and dont-care approach and inaction by CityHall Officers very worrying and legally unacceptable. lt isthe Gommittee's view that this building should have been

78

condemned long tirne ago had City Hall taken measuresrequired of it under the law. lndeed the Kbnyan lives lost on13th May, 1996 would have been saved had Nairobi CityCouncil observed its legal responslblllties properly.

Section 3.2 Agrlcultural and lndustrial HoldingsLimited (formerly OEMA)

3.2.1 Agricultural and lndustrial HOldlngs Ltd. (Hereinafterreferred to as AIH) has gone to the media and also told theCommittee that their hands are tled because they have notitle deed to the two parcels of land. ln thelr view, they couldnot do anything and could not develop the property for thatreason. The Committee disagrees wlth them for thefollowing reasons:

(D the AIH has been collecting rent from the two parcelsof land from 1977. This has been admitted by thepresent managers of AlH.

(ii) that on gth September, 1993, AIH executed with theGovernment an Exchange and Transfer of Title to thetwo pieces of land. The document was signed byNjenga Karume and Wilson Gacanja for and onbehalf of AIH and the Government respectively.

3.2.2 ln our view the right to collect rent carries with it obligationsin respect of the premises from which that rent accrues. Youcannot collect rent and use the proceeds thereof fromproperty in which you have no property interest. lt is ourconsidered opinion that the right to collect and use rentcarries with it legal obligations over the premises fromwhich that rent is collected. We consider AIH the proprietorof this building. AIH has obligations not only arising from theprovisions of the City Bye-Laws but also those in theBuilding Code. AIH's argument that lack of a title deedrelieved them of any powers over the buildings is anattempt to evade the consequences arising from breach ofher obligations under the law.

3.2.3 Having established that AIH has been collecting rent fromthis building since 1977, having also established that theGovernment signed with AIH an Exchange and Transfer ofTitle over the pieces of land on which this building iserected, the Committee is unable to understand why AIHhas not diligently pursued issuance of a title deed. Thetransfer document having been executed in 1993, theadministrative procedure of obtaining the title deed shouldnot have taken such inordinate time had AIH acteddiligently.

The Committee considers AlHs actions or inaction toprogress issuance of a title deed deliberately dilatory. Thereis sufficient correspondence on record to show that AIH hasbeen slow in pursuing the title deed. By the time of writingthis report the Committee has not been able to establishwhy the title deed has not been issued.

AIH should not be allowed to evade their responsibility inlaw on the grounds of their own inaction.

3.2.4 The Committee was informed that the dilapidated state ofthe building had been brought to the attention of AIH asrecipients of rent by the tenants, time and again. lnstead oftaking any action to remedy the situation, AIH remainedsilent and instead raised the rent in October/November1995. Despite protest from tenants that the increase wasunjustified, given the dilapidated state of the building AIHtook no notice of the protests. The tenants went to Court onthe mafter.

AIH promised an out-of-court settlement to rectify thedefects on the building. The case was then removed fromthe Court. As at the time of the tragedy, AIH had not evenhonoured the out-of-court settlemBnt to repair the building.

3.2.5 !n the existing lease agreement between AIH and SunbeamSupermarket, AIH has covenanted that it will:-

"..........keep in good and tenantable repair atland every of the...-...... together with the roof andoutside walls of the said building and the drainsidownpipes and sanitary apparatus thereof ..........".

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AIH has also undertaken under the lease agreement to:-

"..........keep the mairy structure plate glass andexterior of the said building insured against loss ordamage by fire..........".

ln the Committee's view, one cannot lease premises inwhich one has no proprietary interest. The Committeerejects AlHs view that absence of a title deed relieved it ofits obligations over that property. lndeed, the Committeeholds AIH liable for the defects in this building some ofwhich it had undertaken to keep in good and tenantablerepair under its lease agreement with Sunbeam. TheCommittee further holds AIH responsible for the failure toensure that the building from which they were collectingrent lor nearly 20 years remained in such dilapidated statethat it eventually collapsed and cause death.

The Committee holds AIH liable for the common duty ofcare under the provisions of the Occupiers Liability Act(Chapter 34, Laws of Kenya).

3.2.6 The Canopy Agreement of 1940 to which was referred toearlier binds AIH as assignees of the property. AIH hasbreached its provisions in respect of keeping the canopyclean and in proper repair and condition. lndeed, AlH, asproprietors have failed to abide by the provisions of the bye-laws goveming the canopies as set out in that Agreement.

8l

CHAPTER 4

EXTSTING LEGISLATION IN THE BUILDING INDUSTRY

Section 4.1 ObjectiveThe objective of the law in the building industry is to securesafe and healthy buildings and related infrastructure.Because buildings and physical infrastructure are prone toa myriad of hazards both during and after construction, thelaw must ensure safety and meticulous compliance withstandards so as to control, prevent and even eliminatethese hazards. The hazards pose a great risk to bothconstruction workers, tenants and also members of thepublic

4.1.1. Damage to a building may be through failure of thestructure, fire, etc. The impact of an unsafe structure mayhave immediate consequences of structural damage orcollapse but deterioration may be a gradual processspanning many years, often unnoticed but ultimatelyleading to total failure and ultimate collapse of the structure.

Alternatively errors in electrical and mechanical installationmay expose the structure to fire hazards. Sometimes fireoutbreaks may be a result of some other misdeeds but abuilding should provide some minimum protection for lifeand property in case of fire.

Disasters such as earthquakes, cyclones, flood, lightningetc. Can cause damage to structure and can be verysevere.

Even though such disasters can hardly be prevented, it ispossible to minimise the damage to construction, propertyand lives through the application of appropriate regulationsand codes.

4.1.3 There are several risks to health which result from faultyconstruction although the criteria for measuring these isoften subjective and controversial. The prominent health

82

risks in the construction industry arise from water supplyand sanitation, poor lighting and ventilation, andconstruction materials

Section 4.2 The Present legislation

4.2.1 The building industry in Kenya lacks a comprehensive andintegrated legal framework. There are several pieces oflegislatign impacting on the industry scattered all over ih theStatute books. There is need to consolidate the law toensure that the respective roles of al! parties involved in theindustry are clearly defined with attendant penalties forsecure compliance with standards set out in the law. Thelaw should also ensure professional involvement all the*ay from preparation and approval of building plans,construction and supervision of buildings and relatedinfrastructure to ensure that the standards set out in the laware cornplied with.

4.2.2 The statutes impacting on the building industry include theTown Planning Act (Chapter 134) the Local Government Act(Chapter 265), the Public Health Act (Chapler 242), lheArchitect and Quantity Surveyors Act (Chapter 525), theRent Restrictions Act (Chapter 296) and Land Control Act(Chapter 302), The Engineers Registration Act (Chaptei530) among others. These statutes describe the roles ofvarious playdrs in the building industry and apportionresponsibility in a haphazard manner. ln the result,enforcement law of the against defaulters is not onlyuncoordinated but also lengthy and costly.

4.2.3 The technical component of the laws covering planning andBuilding construction controls as set out in the'PlanningRegulations and Building Codes respectively fall underdifferent legal entities and agencies without any provisionfor harmonization. There is therefore need to combine bothinto one legal entity so that standards can be ensured anddeviations therefrom swiftly dealt with.

4.2.4 The greatest legislativeto-day is the law

impediment in the building industryenforcement procedures. The

83

administration of the various statutes is carried out byseveral agencies. For example, the sanitation aspects of theindustry is handled by public health officers; fire controlregulations by fire officers; and the construction o[ buildingsby local authorities. This arrangement does not lend itselfto effective enforcement of standards. The result has beenthat the lacuna created by the absence of coordination hasbeen exploited by building owners who have turned out tobe inspectors of their own buildings. Standards havetherefore been compromised.

This has been further cpmpounded by the fact that there isno law to-day specifying who can be a Contractor . This hascreated an opportunity for property developers to decide ontheir own men as contractors who often lack both thetraining, knowledge and are ignorant of the existence ofstandards in the building industry

4.2.5 The Committee has observed that there are numerousshortcomings in the law governing the building industry.These include:-

. Absence of references to a system for periodicreview and inclusion of new building materials,design procedures and construction methods

. Archaic and obsolete rules which tend to ignorespecialized features such as lightning protection etc.

. Material oriented regulations which causeunnecessary restrictions with the consequence thatconstruction industry has been limited to only fewbuilding materials and techniques. New options,unless' imported have little chance of beingincorporated in the regulatory instruments . This hasmade construction expensive and hence created afertile ground for cutting corners by unscrupulousproperty developers.

4.2.6 The Building Codes and regulations are incomprehensibleand lack clarity. A typical clause in one regulation reads asfollows

"No building shall be constructed so that any pad thereotcuts and projects above an imaginary line drawn from thebuilding line to the opposite side of the street at groundlevelto produce an angle of 45 degrees to the horizon'.

Simple and comprehensive building codes are desirable.

85

5.1

CHAPTER 5

RECOMMENDATIONS

From the foregoing, the Committee is of the view that theNairobi City Council and Agricultural and lndustrialHoldings should be held liable for the accident and actionshould be taken appropriately.

Both buildings on L.R. No.209/2260 and LR.2Ogl2261should be demolished or suitable ieconstruction drawingssubmitted to the releyant Authorities for approval andimplementation.

No business should be transacted in the premises becausethe building is unsafe and a risk to the members of thepublic. The premises should be fenced with approvedhoarding and the canopy along Tom Mboya Street proppeduntil action recommended in 5.2 is effected.

The Agencies charged with the responsibility of enforcingthe existing building by-laws and the Public Health Actshould be strict. We have noted that the relevantdepartments of the Nairobi City Council have been veryinept, disorganized and uncoordinated. The Committeerecommends that these departments be re-organized with aview to making them more effective.

To safeguard the safety of the public, some of the recentlyconstructed or ongoing buildings which appear unsafeshould be checked and certified for safety standards andstructural soundness. Any structures failing to meet theminimum safety standards should be rehabilitated underthe supervision of the relevant authority or demolished. TheCommittee considers several buildings in Umoja, MathareNorth, Zimmerman Estates, Highridge, and the City Centre,to name but a few, unsafe.

The Committee considers that the judicial process may behindering demolitions and subsequent re-development ofproperties in the Urban Centres. An in-depth review of theprocess of condemning buildings for demolition is required.

5.2

5.3

5.5

5.4

5.6

86

5.7 Unauthorized change of use for premises would appear tobe of great significance particularly with respect to safetystandards. ln the short term, no premises should belicensed if there has been an unauthorized change olusage which results in structures being subjected toexcessive loading, but further investigation is required toarrive at a more permanent solution to the problem.

There should be a deliberate campaign to create generalpublic awareness as to the state of buildings with particularreference to safety. This could be done by the Government,Non-Governmental Organizations and professional bodies.

The existing laws and regulations governing the buildingindustry should be enforced and any loopholes ordeficiencies should be rectified immediately, pending ?thorough study into these laws by the Committee.

5.8

5.9

87

APPENOIX I

COTTITTEE MEi'BERS

1. Dr. Reuben Mutiso Tectura lntematircnalArchitect Chaiman

2. Eng. M. Otieno Odongo Otieno Odongo & Partners,Consulting Engineers Member

3. Eng.J.J. Gahara Lecturer, Civil Engineering DeptUniversity of Nairobi Member

4. Eng Arthur W. Nyamu Chief Structural Eng., MOPW & H Member

5. Mr. Maudce O. Ayugi Director, Kenya BuildingResearch Centre, MOPW & H Member

6. Mr. Philip O. Sika Ag. Prirrcipal Supt. Architect,MOPW&H

Member

7. Mr. Dan Ameyo Senior Principal State Counsel JointOflice ol the Attomey-General Secretary

8. Eng. Mio$aelMunryu Senior Superintending Engineer, JointirOPlfV& H Secretary

9. Mr. Mi*rael N. Mugmnia Chief Superintending Architect Joint

I *, secrctary

10. Mr. Peter Nzioka CIficer Commanding PoliceDivisionCentralPollceDhrbaon, SecretariatNaimtri

88

APPENDIX 2

ISOMETRIC VIEW OF SUNBEAtf, BUILDING

,r-;;1i;;i'X

\<*"

SEI l- biln *wC tn:r. orry

89

APPENDIX 3

CROSS SECTION THROUGH CANOPY

@prg

---.

8fttn iik Jo.P gbb'€lt

Sx?Snm litftr 6,--,-

100xBnn F.rtir

l6.'mgh td.-_

gr ionlstrrb--

Irurtd Ttl shcl. homs -

Gorxlirr Z

m.s drc{ll flole

-16mn0 ftha polt

\ - (onn ilin :l

90

NANE

Dr. Reuben Mutiso

Eng. M.O0eno Odongo

Eng. J.J. Gathara

Eng. ArhurW Nyamu

ttir. Maurice O. Ayugi

Mr. Philip O. Sika

Mr. Dan Ameyo

Eng. MichaelMunzyu

Mr. Michael N. Mugwanja'

Mr. Peter Nloka

S!GNATURE

a4,

1.

2.

4.

5.

6.

7.

I

9.

91

APPENDTXII

GAZETTE NO|rICE NO.7@3

DATED 2OTH DBCEMBE& 1996

ON THE APP'OIIIITMENTOF THE

coMMrssroN oF TNQUIRY

93

APPENDIX II

Gnzerre Nolce No.7023

THE COMMISSIONS OF INQUIRY ACT

(Cap. 1o2l

AppotrurueNToF A Cot,turssroru or lruoutRv

lN EXERCISE of the powers conferred by section 3 of theCommissions of lnquiry Act, l, Daniel Toroitich arap Moi, Presidentand Commander-in-Chief of the Armed Forces of the Republic ofKenya, being of the opinion that it is in the public interest, doappoint a Commission of lnquiry to examine the existing buildinglaws, by-laws and regulations and make recommendations with aview to prevent incidences similar to the collapse of the"Sunbeam Building" and make appropriate recommendations,to be headed by-

Reuben Mutiso (Dr.).-Chairman,

Members:

Justice Sarah Odenyo,

J. J. Gathara,

Dennis M. Rimba,

Kenneth Kiplangat (Dr.),

John Cavanagh,

Otieno Odongo,

Abdi Farah Osman,

Joint Secretaries to the Commission:

Dan Ameyo,

Adila A. Bashir (Mrs.).

The commission.is required to complete the inquiry and submit itsreport within six months.

Dated the 19th December, 1996,

D. T. ARAP MO!,

President.

95

APPENDIXIII

THE PLANNING AND BUILDING (DRAFT) BILL

LAWS OF KENYA

PLAI{NING AND BUILDING (DRAFT) BILL

1997

PIINIED BY THE GOVERNMENT PRINIEN, KEI{'!TA

PLANNING AND BT]ILDING (DRAFT) BILL

ARRANGEMENT OF SECTIONS

PART I

PRELI}IINARY

Section

l. Short title and conrmeucetnent.2. Iriterpretation.

PART II

ESTABLISHMENT OF PLAI{NING AND BUILDING AUTHORITY

3. Establishrnent of Planning and Building Authoritv4. Establishrnent of Board of the Authoritv5. Functions of the Authority6. Powers of the Authority7. Meetings of the Board8. Seal and execution of documents9. Appointment and duties of the Managing Director of the Authority10. Removal of the Managing Director1 1. Appointrnent and remuneration of Authoritv statf12. Protection frorn legal action13. Furnishing of intbrrnation to the Authority14. Committees15. General Fund

l0l

16. Accounts17. Headquarters and branches of the Authority

PART III

PLANNING CONIROL

18. Permit to prepare plans19. Who may apply for a permit20. Conditions to be satisfied before submission of plans

21. Submission of plans for approval22 Rejection of physical dev6lopment plans

PART IV

QUALIHED PERSONS, AUTHORISED PERSONS ANDACCREDITED CIIECKERS

23. Establishment of a Qualified Persons' Register24. Establishment of Authorised Persons' Register25. Establishment of Accredited Checkers' Register26. Registration Committee27. Constitution of Registrdtion Committee28. Application and Registration of Qualified Persons, Authorised

Persons and Accredited Checkers29. Independence of Accredited Checker30. Applicant not possessing relevant qualifications not to be registered31. Processing of applications for inclusion in Register32. Deferred application33. Publication of Names of Persons in the Qualified Persons' Register,

Approved Pers0ns' Register and Accredited Checkers' Register34. Removal from Register35. Applications for restoration of name

lo2

36 Duties of an Accredited Checker37. Duties of a Qualitied Person38. Co-ordination of Qualified Persons

39. Establishment and cbmposition of Professionals' Disciplinarv BoardPanel

40. Professionals' Disciplinary Board41. Sanction against convicted or negligent Registered Person or

Registered Person who has misconducted himself42. Appeal

PART V

REGISTRATION OF CONTRACTORS

43. Establishment of Register of ContractorsU. Registered Contractors' Disciplinary Board Panel

45. Disciplinary Board tbr Contractors46. Sanction for convicted or negligent Registered Contractor or a

Registered Contractor who misconducts himself

PART VI

CONTROL OF BUILDING IVORKS

47 Application'to traditional and vernacular buildings48 Prohibition of building works without approval of plans and permit49 Application for approval of Building Plans50 Notice inviting objections5l Approval of Plans52 Grounds of refusal to approve plans of building works53 Provision for urgent work54 Appointment and duties of Authorised Persons

103

55 Authorisation to carry out relevant works in case of objection etc.,by persons whose property is affbcted

56 Appointment and duties of site supervisor57 Appointrnent and duties of contractors58 Tests of or in connection with building works59 Order fbr dernolition. removal, etc., of unauthorised building or

building works60 Modification or waiver of Regulations61 Custody and production of documents62 Occupation of building63 Change in use of buildings

PART VII

REGISTRATION OF BUILDINGS

64 Creation of Register of Buildings65. fl.egister of buildings to be a public docuntent66 Particulars to be included in the Register ol buildittgs67 Notice of change of particulars of registered building68 Application for regrstration of a building69. Requirements fbr registration of buildings70. Penalty

PART VIII

INSPECTION OF BUILDINGS

71. Connected tsuildings72. Periodic lnspection of building73. Notice of Inspection74. Independence of Qualified Person

IM

IPART IX

DANGEROUS BI.IILDINGS

75. Means of Escape

76. Loading, dangerous building, Emergency measures

77. Defective and dilapidated buildings78- Service of closure order

PART X

PREMISES USED FOR DANGEROUS TRADES ORPI.JRPOSES & DISPOSAL OF DANGEROUS WASTE

79. Permit to use Premises tbr certain trades or purposes

80. Application for approval of means of disposal of dangerous or toxicwaste

81. PenaltyPART XI

APPEALS

82. Appeal to the Appeal Tribunal83. Establishment of Appeal Tribunal Panel

84. Constitution of Appeal Tribunal85. Appeal to High Court

PART Xtr

TRANSITIONAL PROVISIONS

86. Transt-er of.pending applications

105

87. Approved plan not acted upon at commencement of this Act88. Buildings under construction at commencement of this ActE9. Buildings constructed prior to commenoement of this Act90. Buildings corstrdcted without approved plans91. Penalty

PART XItr

MISCELLII\IEOUS PROVISIONS

92. Act and Rdgulations93. General Penalty94. Repeal

tffi

PLAI{NING AIYD BUILDING (DRATT) BILL 19..

A Bill for

An Act of Parliament to consolidate, amend and provideihelaw relating to planning, design, construction andmaintenance pf buildings and associated worksl to makeprovision for the rendering safe of dangerous buildings andland; and to make provision for matters connectedtherewith.

Enacted by the Parliament of Kenya as follows:

PART I

PRELIMINARY

l. This Act may be cited as the Planning and Building Act. .short titlc

2. In this Act, unless the context otherwise requires - rnrcrprctari.n

'Accredited Checkern means a person who is registered as anAccredited Checker under Sectibn 28 of this Act;

'Accredited Checkers' Register" means the AccreditedCheckers' Register kept and maintained by the Authority underSection 25 of this Act;

"Advocdte' means a person registered as such under theAdvocates Act (Cap 16);

'Agentn means a Qualified Person, an Authorised Person or anAccredited Checker;

"Appeal Tribunal Panel" means the Appeal Tribunal Panelestablished by the Authority under Section 83 of this Act;

107

"Appeal Tribunal" in relation to an appeal means a Tribunalconstituted under section 84 of this Act;

"Applicant" means any person wlro makes an application underthis Act or the Regulatiorts made thereunder;

"Approved" means approved by the Authority;

"Approved Plan" means a plan approved by the Authority inaccordance with this Act and the Regulations made thereunder;

"Architect" means a person registered as such under theArchitects and Quantity Surveyors Act (Cap 525);

"Authority" means the Planning and Building Authorityestablished under Section 3 of this Act;

"Authorised Person" means a person registered as such underSection 28 of this Act:

"Authorised Persons' Register" means the Register kept andmaintained by the Authority under Section 24 ot this Act;

"Board of the Authority" means the Board established underSection 4 of this Act;

"Board of Registration of Architects and Quantity Surveyors"means the Board established under the Architects and QuantitySurveyors Act (Cap.525)

"Building" includes a ret-erence to part of the building andmeans any constructiorl work that has the provision of shelterfor its occupants or contents as one of its main purposes and isnormally designed to stand permanently in one place;

r08

"Building Services Engineer" means a person who is registeredas a Professional Engineer under the Engineers Registration Act(Cap.530) in the electrical or mechanical disciplines;

"Building Works" includes any kind of building corstruction,site formation works, ground investigation, foundation works,repairs, demolition, alteration, addition and every kind ofbuilding operations and include, installation of building servicesboth electrical and mechanical:

"Certificate of Registration" means tlre certificate issued by theAuthority under Section 28 of this Act:

"Certificate of Registration" in relation to a building means theCertificate of Registration issued by the Authority under Section67 of this Act;

"Chairman" in relation to the Appeal Tribunal means theClrairman appointed under Section 84 of this Act:

"Chairman" in relation to the Board of tlre Authority means theperson appointed as such under Section 4 of this Act;

"Chairman" i11 relation to the Disciplinary Board tbrContractors means the Chairman appointed under Section 45 ofthis Act;

"Chairman" in relatiorl to the Prof'essionals' Disciplinary Boardmeans the Chairman appointed under Section 40:

"Clrief Executive" means the Managing Director appointedunder Section 4 of this Act:

"Civil or Structural Engineer" tneans a person registered as

such under the Engineers Registration Act (Cap.530);

"Dangerous Building" means. any building which is in such a

109

users of such building or to the occupiers or users of anyneighbouring building or to the general public;

'Developern means any person who has obtained the approvalof the Authority to deve.lop any land pursuant to this Act andincludes his executors, administrators and successors in title:

'Development' means any land on which any building orinfrastructure is constructed or is in the course of construction;

'Disciplinary Boud for Contractorsn means the DisciplinaryBoard established under Section 45;

"Engineers Registration Board" means the EngineersRegistration Board established under the Engineers RegistrationAct (Cap.530);

"Foundation System" means a system of arrangement offoundation units such as t'ootirig, ratl or pile through which'theloads from a building or structure are transt'erred to thesupporting soil or rock;

nGross Floor Area" means the area contained within the outerwalls of a building and in a building with more than one floorit is the summation of the areas of the individual t'loors;

'Height of a Building' means the vertical distance measured, .in

the case of tlat roofs, from the average level of the ground andcontiguous to the building to the highest point of the buildingand, in the case of pitched roofs, up to the point where theexternal surtacp of the outer wall intersects the tinished surfaceof the sloping roof, and, in the case of gables tbcing the road,the mid-point between the eaves level and the ridge;

'Judge" meaflr i Judge of the High Court of Kenya;

ll0

'High Court" meiarui the High Court of Kenya;

"Managing Director' means the Managing' Director appointedunder Section 9 of this Act;

'Occupation Certificate' means an Occupation Certificate issuedunder Section 64 of this Act;

'Officer" includes a person appointed under Section I I of thisAct;

'Owner' includes the person for the time being receiving therent of any building, whether on his own account or as agent ortrustee or as r@eiver, or who would receive the same if thebuilding were let to a tenant;

'Physical Development Plan' means a plan for an area or partthereof, City, Municipal or Urban Council and includes a planwith reference to a trading centre;

'Planning and Building Regulations' means the Regulationsmade under this Act;

'President' means the President of the Republic of Kenya;

'Professionals' Disciplinary Board' means a Disciplinary Boardconstituted under Section 40 of this Act;

'Professionals' Disciplinary Board Panel' means the Panelestablished under Section 39 of this Act;

'Professionals' Regisrcrs" means any of the,three RegistersesAblished by the Authority under Sections 23,24 and 25;

"Qualified Person" means any Architect, Civil and/o.Structural Engineer, Quantity Surveyor, Landscape

lll

Architect, Physical Planner, Building Services Engineer andLicenced land Surveyor who is registered as a Qualified Personunder Section 26 of this Act;

"Qualified Persons' Register" means the Register kept andmaintained by the Authority under Section 23 of this Act;

"Quantity Surveyor" means a person registered as such underthe Architects and Quantity Surveyors Act (Cap.525);

"Register of Buildings" means the Register kept and maintainedby the Authority under Section 64 of this Act;

"Registration Committee" means the Committee appointed under.Section 26 of this Act;

"Registered Contractor" rneans a person whose name is for thetirne being in the Register of Contractors kept and maintainedby the Authority under Section 43 of this Act;

"Registered Contractors' Disciplinary Board Panel" means thePanel established under Section 44 of this Act;

''Register of Contractors" means the Register established by theAuthority under Section 43 of tlris Act;

"Regulations" r'neans the Planning and Building Regulations;

"Temporary Occupation Permit" means the permit issued by theAuthority under Section 62 of this Act.

t12

PART II

ESTABLISHNIENT OF' TTIE PLANNINGAND BUILDING AUTHORITY

3. (1) There is hereby established an Authority to be known as Establishrnentor

the Planning and Buiiding Authority. ;ffi "n0

Authority

(2) The Authority sliall be a body corporate with perpetualsuccession and a cornrnon seal and shall be capable in itscorporate name of -

(a) Suing and being sued;

(b) purchasing or otherwise acquiling, holding,charging and disposing of both rnovable andimmovable property;

(c) borrowing and lending money;

(d) entering into coutracts; and

(e) doing or pertbrming all such other things or acts

necessary tbr the proper performance of itsfunctions under the Act which may lawtully be

done bY a bodl' corporate.

4. (l)'fhe Management of the Authority shall vest in a Board F^stnhlishmenror'

which shall consist of: &)ard olrhe

(a) A crrainnan: AuthoritY

(b) A Pennanent Secremry of the lvlinistry in-chargetlt buildirtgs in person:

(c) Trvo distinguished retired prot-essionals one ofwhonr shall be frorn the building industry;

(d) Two distinguished and successtul businessexecutives:

ll3

(e) Four active professionals from the buildingindustry, two of whom shall'be selected fromlists submitted by the Board of Registration ofArchitects and Quantity Surveyors and theEngineer's Registration Board;A Managing Director as the Chief Executive whoshall be appointed by the Board.

(2) The Chairman and members of the Board shall be

appointed by the President;

(3) The Chairman appointed under sub-section (2) shall holdoffice for a period of three years and shall be eligible for re-appointment for a further term of three years.

(4) The members of the Board appointed under sub-section(2) shall hold office for a period of tbur years and shall beeligible for re-appointment fbr a further term of tbur years.

(5) The appointment of a Chairman or a member under sub-section (2) shall cease in any of the following cases:-

(0

(a)

(b)(c)

(d)(e)

If he is absent from three consecutive meetingsof the Board without leave or good cause;

If he is convicted of a criminal offence;If he is incapacitated by mental or physicalillness oris dead or otherwise unable or unfit to dischargethe functions of a member or is unable tocontinue as a member;If he is adjudged bankrupt;If he conducts himself in the opinion of theBoard in a manner inconsistent with membershipof the Board;

n4

(0 In the case oI a Chairman, if he serves thePresident with written notice of his resignation;

(g) In the case of a member, if he serves theChairman with written notice of his resignation.

5. The Functions of the Authority shall be to enforce theprovisions of this Act and the Regulations made there underand :-

(a) to ensure harmonization and integration of partdevelopment physical plans;

(b) to approve Physical Development and theNational Physical Development plan;

(c) to approve all building designs and plans;(d) to conduct inspections of all building projects;(e) to issue occupation certificates;(f) to issue maintenance certificates;

G) to licence, keep and maintain a Register ofcontractors;

(h) to keep and rnaintain a Register of buildings;(i) to preserve and conserve historical buildings;

0) to disseminate information to the public ol1

building requirements;(k) to advise the Government on all aspects of

development and building operations in theconstruction sector;

(l) to encoqrage, through public participation, theimprovement of the quality of life in its

(m)

(n)

neighbourhood;to register, Qualified Persons, AuthorisedPersons and Accredited Checkers;to revise and update the Planning and BuildingRegulations.

Functions of tlreAuthority.

ll5

6. The Authority shall have all powers rlecessarv fbr theperformance of its funcuons under this Act and in particdlar,the Authority shall have power .

(a) to approve National Physical Development plans;(b) to order preparatiorl of' Physical Development

plans;(c) to stop construction where such construction does

not conform with the building Regulations;(d) to order sealing otf or demolitiol of dangerous

buildings;(e) to order evacuation of any building;(t) to inspect any building and to order the

maintenance of any building the Authorityconsiders is hot well maintained;

(g) to take such other action as may be necessary inthe fuftherance of the objectives of this Act andthe Reguiations rnade thereunder.

7. (1) The Board shall rneet at least once in every month.

(2) Six members of the Board shall constitute a quorum at anymeeting of the Board, and all acts, matters or actions authorisedor required to be done by the Board may be decided at anymeeting at which a quorum is present.

(3) A Member of the Board shall attend all the meetings ofthe Board in person.

(4) The Chairman shall preside at every meeting of the Boardat which he is present 3nd in his absence, the Board shall electfrom amongst those present a member'to act as Chairman.

(5) All matters for consideration by the Board or acts to be

done by the Board shall be decided by a resolution at a meetingof the Board at which a quorum is present.

Powcrs of thc

Authority.

Mc€rings ol'thclioard.

lt6

(6) A decision of the rnajority of the members present andvoting at a lneeting of the Board shall be deerned to be a

decision of the Board.

(7) Every member of the Board shall have one vote and in theevent of an equality of votes, the Chairman of the day slrallhave a second or Casting Vote in addition to his deliberativevote.

(8) Any member who has a direct or indirect interest in anydecision that is to be rnade on any specitic matter before theBoard shall disclose the rlature of such interest at the meeting ofthe Board where such decision is being made, and disclosureshall be recorded in the rninutes of the meeting and if thernajority of the members of the Board. believe that suchmember's interest in the matter in such as to influence hisjudgement, he shall not participate in the deliberations or thedecision of the Board on such rnatter:

Provided, that if a maiority of the members in attendance at themeeting where such matter is considered detennine that theexperience or expertise of the interested member is necessary

tbr the deliberation pn the matter, they rnay permit suchmenrber to participate as they may deem appropriate.

(9) Minutes of each rneeting of the Board shall be kept inproper tbrm and shall be confirmed by the Board at the nextrneeting and signed by the Chairman at the meeting.

110) Subject to the provisions of this Act the Board rnayregulate its own procedure.

8. (1) The Common Seal of the Authority shall be kept in theCustody of the Authority and shall not be atfixed to any

'instrument or document except as authorised by the Authority.

Seal aud

executit>n ol'doculncnts.

n7

(2) The Common Seal of the Authority shall be authenticatedby the signature of the Managing Director and the Chairmtn orof one other member as may be authorised by the Authority inthat behalf.

(3) All documents, other than tlrose required by law to be

under seal, made by, and all decisions of the Board may be

signified under the hand of the Managing Director or, in the

case of a decision taken ar a meeting at which the ManagingDirector is not present, under the hand of the person presidingat such meeting.

9. The Managing Director shall, subject to the general

direction and control of tltp Board, have the power;(a) to direct the affairs and transactions of the

Board.(b) to ensure the .implementation of the decisions of

the Board.(c) to ensure the administration and control of the

servants of the Authority.

10. The Board may remove from office the Managing Directorappointed under Section 4 (l).

11. (1) The Board may appoint such other officers and servantsas it considers necessary for the efficient discharge of itsresponsibilities and functions ;

(2) The officers and servants appointed under sub-section (1)shall be remunerated in such manner and at such rates, and shallbe subject to such conditions of service, as may be determinedby the Board.

(3) The officers and servanis appointed under sub-section (l)shall, subiect to this Act, exercise such powers and functionsand perform the duties assigned to them from time to time bythe Managing Director.

Appointnrent and

dutics of thcManagiugDirector of thcAuthority.

Removal of thc-Iv{anagingDirector.

Appointment and

remuneration ofAuthority statl'.

ri8

12. (l) Neither the Board, any of-,its members, officers norservants shall be personally liable for any action which.is donein good faith on the direction of the Board or in theperformance or intended performance of any duty or in theexercise of any power under this Act or the Regulations madethereunder.

(2) Any expenses incurred by any person referred to in sub-section (l) in any suit or prosection brought against him beforeany court in respect of any act done or purported to be done by.

him under the Act or on the direction of the Board shall, if theCourt holds that such acts were done in good faith be paid outof the general fund of the Authority.

13. (1) The Board or any person officially authorised in rnatbehalf by the Board may, by notice in writing, require anyperson to furnish to the Authority or to the person soauthorised, within such period as is specified in the notice, allsuch information as is specified in such notice.

(2) The Board or any member thereof, or any officer orservant of the Authority, shall not disclose to any person or use

any information acquired under sub-section (1) except for thepurpose of achieving the objectives of the Authority unlessrequired.to do so by a Court of Law.

14. 'The Board 1nay appoint committees whether of its own

members or otherwise, to carry out such general or specialfunctions as may be specified by the Board, and may delegateto any such committee such of its powers as the Board maydeem appropriate.

15. (1) The Authority shall have its own general fund.

(2\ There shall be paid into the general fund:-

Protection fiomlegal action.

Furnishing ofinformation tothe Authority.

Committees.

Gencral fund

ll9

all such sums of money as may be paid as t'ees

under this Act, and the Regulations; and

all such sums of money as may be received bythe Authority for its operalions tiom any othersource;

(3) There shall be paid out of the fund all such sums ofmbney required to defray the expenditure incurred by theAuthority in the exercise. discharge, and performance of its

objectives, functions and duties.

(4) The members of the Board shall be paid suchremuneration and allowance out of the general fund of theAuthority as the Authority may deem appropriate.

(5) In the fulfilhnent of the objectives set out in Section 5 (l),the Authority may apply its tunds in the promotion ofpaltnership projects tbr the benefit of the general public,prtrvided that the Authority may recover the funds so appliedtrom the beneficiaries thereof.

l6 The Board shall cause proper books of accounts to be keptof its income and expenditure, assets and liabilities and all othertransactions of the Authority.

17. (l) The Headquarters of the Authority shall be in Nairobi.

(2) The Authority shall esablish branch offices in suchlocations as the Board may determine.

(a)

(b)

n ccoullts

Ilcadquancrs arrrl

branchos ul'thcAuthority.

120

PART III

PLANNING CONTROL

18. Any person who intends to prepare physical development lennitroplans of any area, for purposes of construction shall apply to the nrcparo ll.rns.

Authority for a permit.

19. (l) An application for a permit to prepare physical wlrornaya;,1,1y

development plans shall be nrade by the person tbr whom the rirr a pcrmit

plans are to be prepared or by his agent, accompanied by:-

(a) a notification, signed by the person fbr whom theplans are to be prepared.

(b) a confirmation signed by a Qualified Persorr ofhis appointment.

(c) such other documents as the Authority mayrequire.

(2), Any permit granted under this Sectiol'I, to any person, toprepare, physical development plans shall automatically lapse ifany of the persons, for any reason, ceases to be:-

(a) The person for whom the physichl developrnentplans are to be prepared.

(b) The Qualified Persorr appointed in respect ofthose plans.

20, (1) No person shall prepare or cause to pe prepared plans cond_iri,ttst.hc

for buildings or associifed works fbr sribrnission to the :l1l:i[l'.l,,,i'l]i.'Authority unl"ss ;rlarrs

t2t

(a) physical development plans have been approved.(b) there is in force a permit granted by the

Authority.

(2) The approval of physical development plans shall not bedeemed -

to confer any title to land;to act as a waiver of any term in any lease orlicence; orto grant any exemption from or to permit anycontravention of any of the provisions of this Actor the Regulations or any other written law.

21. (l) Subject to the provisions of this Act, the person forwhom any proposed physical development plans have beenprepared may apply to the Authority for approval and suchapplication shall be accompanied by -

(a) the prescribed fee;(b) the physical development plans prepared in

accordance with the Regulations;(c) such other documents as may be prescribed in

the Regulations.

(2) The Authority may -

(a) approve, subject to terms and qonditions it rnayimpose, any one or more of the plans submittedto it, or

(b) in writing direct the applicant to comply, withinsuch period as may be specified in the direction,with such requirements as the Authority mayspecity for the purpose of ensuring compliancewith the provisions of this Act and theRegulations.

(a)(b)

(c)

.Sulimission ol'Plans lirrapproval

122

(3) If the person to whom any written direction is given undersub- section (2) fails to cornply with the requirements specitiedin the direction within the time specified rherein, the Authoritymay reject the application.

(4) Where physical development plans of any parcel of landhave been approved by the Authority and the person for whornthe planning is or is to be carried out intends to depart ordeviate from the approved physical development plans, thatperson shall apply to the Authority for its approval of the saidplans showing the proposed departure or deviation and suchapplication shall be accompanied by the latter plans.

(5) Any approval granted in respect of physical developmentplans under this Section shall automatically lapse if the plans arenot implemented within the period specified by the Authority atthe time of approval provided that, the Autlrority may onapplication by the applicant extend the period.

(6) Where an approval granted under Section 19 has

automatically lapsed, the person tbr whom the plans wereprepared, or his agent may re-apply to the Authority tbr a tieslrapproval.

22. The Authority may refuse to give its approval of arlyphysical development plans where -

(a) the plans are inconsistent with the.provisions ofthis Act, the Regulations and, or any otherenactment.

the carrying out of planning works shownthereon would contravene any approved physicaldevelopment plans.

(c) it has not received such other documents as areprescribed by the Regulations;

Rc.icction ol'

l)hysicall)cvel(lpmenll)lans.

(b)

123

(d)

(e)

such t-ees as aro prescribed by the Regulationshave not been paid;the plans consist of, br any part thereof involves,the creation of any means of access or otheropening, not being a street or access road, to ortiorn any street, and the place at or manner inwhich such means of access or other openingopens on to the street is, in its opinion, such as

to be dangerous or likely to be dangerous orprejudicial to the sat'ety or converrience of tratficusing tlre street, or which may be expected to use

the same.

124

PART IVQUALIFIED PERSONS, AUTHORISED

PERSONS, AND ACCREDITED CIIECKERS

23. (1) The Authority shall keep and maintain a RegisterItereinafter referred to as the "Qualified Persons' Register" inrvhich shall be entered the names and prescribed particulars ofall persons registered in accordance with this Act as QualifiedPersons and the absence of the name of any person fiorn theRegister shall be prima tacie evidence that that person is not soregistered.

(2) The Qualified Persons' Register shall contain the followingschedules:

(a) Schedule l. consisting ot archite6ts;(b) Schedule II. consisting of civil and,or structural

engineers;(c) Schedule III, consisting of quantity surveyors;(d) Schedule. IV, corrsisting of landscape arch.itecs;(e) Schedule V, consisting of physical planners;(0 Schedule Vl, consisting of building services

engineers;

G) Schedule VII, consisting of licensed landsurveyors.

(3) The Qualified Persons' Register shall be kept andmaintained at the office of the Authority and shall be availablefor inspection by any person without charge at suclr, time as thatoffice is open tbr business.

24. (l) The Authority shall keep and mainuin a Registerhereinafter ref'erred to as the "Autlrorised Persons' Register" irrwhich shall be entered the names and prescribed particulars ofall persons registered in accordancc witlr this Act as AuthoriseclPersons and the absence of the name of any pcrsolt frorn thellegister shall be prima fasie evidence that that person is not soregistered.

Establishment ofa QualificdPcrsons'Registcr.

Iistahlislrrrrcnt olAutlurliscrll'ct solts'Itc-r.lrstcr.

125

(2) The Authorised Persons' Register shall contain thefollowing schedules:-

(a) Schedule 1, consisting of architects;(b) Schedule 1 1, consisting of civil and, or

structural engineers;(c) Schedule I I l, consisting of building services

engineers;(d) Schedule IV, consisting of quantity surveyors.

The Authorised Persons' Register shall be kept and maintainedat the office of the Authority and shall be available forinspection by any person without charge at such time as thatoffice is open for business.

25. (1) The Authority shall keep and maintain a Registerhereinafter referred to as the "Accredited Checkers Register" inwhich shall be entered the names and prescribed particulars ofall persons registered in accordance with this Act as AccreditedCheckers and the absence of the name of any person from theRegister shall be prirna facie evidence that that person is not so

registered.

(2) The Accredited Checkers' Register shall be kept andmaintained at the otfice of the Authority and shall be availablefor inspection by any person without charge at such time as thatoffice is open for business.

26. The Authority shall appoint a committee to be known as

the Qualified Persons', Authorised Persons' and AccreditedCheckers' Registration Cornmittee, hereinatier ret-erred to us the"Registration Committee" to assist it in considering applicationsfor registration as Qualified Persons, Authorised Persons andAccredited Checkers.

Establishment ofAccreditedCheckers'Itcgister

Registratir.ru

Cornrnittee

126

27 " (a)(i)

(i i)

(iii)

(iv)

(v)

(vi)

The Registration Committee shall consist of - constitution of

1 Director of the Adthority a! Chairman of the ::tJ[',H:Committee;2 architects whose names are included in'Schedule l,2 engineers whose names are included inSchedule I 1,

1 quantity surveyor whose name is included inSchedule I 1 1;

I building services engineer whose name isincluded in Schedule V1;I licenced land surveyor whose name is includedin schedule Vl I

of the Qualified Persons' Register and,

(vii) an officer of the Authority who shall be theSecretary to the Committee.

(b) The Registration Committee shall assist theAuthority in considering 'applications foiinclusion in the Qualified Persons' Register,Authorised Persons' Register and AccreditedCheckers' Register, hereinafter referred to as

"The Professionals' Registers", by:-

(i)(ii)

(ii i)

(iv)

exarnining the qualifications of applicants;making such inquiries as it considersnecessary to ascertain whether arlapplicant has the prescribed experience;conducting professional inrerviews withapplicants; and .,

advising the Authority. as to theacceptance or rejection of applications forinclusion in such Registers.

127

(c) The Registration Committee shall meet at least

twice a year or at such times and places as theAuthority shall appoint.

The chairman shall preside at every meeting ofthe Registration Committee at which he is

present, and in his absence, the Committee shallelect tiomr amongst those present, a member toact as chairman.

28. (l) Every applicant tbr registration and inclusion in any ofthe Professionals' Registers shall submit his application to tlteSecretary of the Registration Cornmittee. and every suclrapplication shall be accompanied by suclt documents atrd.

particulars as may be relevant.

(2) No person ihatl be registered as -

(d)

(e)

(a)(b)(c)

The quorurn tbr a meeting of the RegistrationCommittee shall be six members.

Qualified Person,Authorised Person or,Accredited Checker.

Application rndrcgistration ofQuelifrcdPcrsons.AuthoriscdPersons and

AccrcditcdChcckcrs.

unlgss he satisfies the Autlrority that he possesses the prescribedqualifications and practicill experience.

(3) The Authority may refuse to register as Qualified Person,Authorised Person or Accredited Clrecker. any applicant who is,

in its opinion, nol of good clraracter and, reputation or unableto carry out their respective duties urrder this Act.

(4) Where the Authority lras registered a person as a QualifiedPerson, Authorised Person or Aceredited Checker, theAuthority shall issue to the person a certificate of Registration.

128

t5) The Authority may cancel the registration of -

(a) A Qualified Person, an Authorised Person or anAccredited Checker:

(i) who is deceased;(ii) who is convicted of an offence involving fraud or

dishonesty or an offence under this Act or theRegulations;

(iii) who, in the opinion of the .Authority, is nolonger in a positiorl to carry out the duties ofaccredited checker under this Act; or

(iv) whose name has been included in the register byfraud or misrepresentation,

(b) An Accredited Checker who has contravened orfailed to cornply with Section 29.

Provided that the Authority shall not exercise its powers undersub-section 5 (a), (ii), (iii),(iv) or (b) unless an opportunity ofbeing heard has been given to the Qualitied Person, AuthorisedPerson or Accredited Checker against whom the Authorityintends to exercise its powers.

(6) Where the Authority cancels the registration of any

Qualified Person, Authorised Person or Accredited Checkerunder sub-section (5), it shall remove the name and particularsof the person tiom the relevant Register and cancel anycertificate issued to the person pursuant to sub-section (4) andthe person shall, within 14 days of being notified of theremov,ill, surrender to the Authority the said certiticate and, ifthe person fails to do so, he shall be guilty of an otfence.

129

(7) Any person whose application for registration under sub-section (1) is refused or def-erred, or who is dissatisfied with thedecision of the Authority made under sub-section 5 (a),(ii),(iii)(iv), or (b) may within 14 days of being notified in writing ofthe refusal or the decision, appeal under Section 82, to theAppeal Tribunal, against such refusal or decision.

Provided that if the appeal is against a decision made under sub-section (5), the name of the appellant shall remain in therelevant Register pending the determination of the appeal.

29. (l) At the time of the making by an Accredited Checkerof a certificate under Section 49, the Accredited Checker shallhave no prot'essional or financial interest in the building worksshown in the plans described in his certificate.

(2) An Accredited Checker shall be regarded as having aprofessional or financial interest in any building works if -

(a) he is or has been responsible for the design orconstruction of any of the building works in anycapacity;

(b) he or any nominee of his is a member, officer oremployeeof a company or other body which has a

professional or financial interest in the buildingworks; or

(c) he is a partner or'is in tlre employment of aperson who has a professional or financialinterest in the building works.

Appeals.

lrde;rendcnce ofAccrcditedChccker.

r30

(3) For purposes of this Ac't -

(a) a person shall be treated as having a professionalor financial interest in the building works even ifhe has that interest only as trustee tbr the benetitof some other person; and

In the case of married people, the interestone spouse shall, if known to the other.deemed to be also an interest of the other.

(4) For the purpose of this Act -

(b) ofbe

(a)

(b)

involvement in the building works as anAccredited Checker; andentitlement to any t-ee paid for his tunction as an

Accredited Checker,

shall not be regarded as constituting a prot'essional or financialinterest.

30. No person shall be included in any of the Professionals'Registers, unless he has the relevant qualifications for inclusionin such Register and has paid the prescribed annual fees toretain his name in the relevant Register.

31. In respect.of every application tbr inclusion in any ot theProf'essionals' Registers the Authority shall within 3 rnonthstiom the date of the meeting of the Registration Committee atwhich the application was considered -

(a) on payment by the applicant of tlre prescribedt'ee, publish in the Authority Gazette and enter inthe appropriate Register, as the case may be, thename of the applicant; or

Applicaut n()lpossessitrg

rclevantqoaliiicatious notto hcllegistered.

Proccssing ol'Applicatious lirrinclusion inRtgistcr.

l3l

(b) inforrn the applicant that his application is

deferred fbr a period not exceeding 12 moiths;or

(c) retuse his application.

32. An application that has been det-erred under Section 3l (b) fffi.-shall, when it comes up tbr consideration again -

(a) be accepted, so that the applicapt is included inthe appropriate list or registered, as the case maybe, upon payment.of the prescribed fee; or

(b) be refused.

33. The Authority shall publish semi-annually in the Authority hsric.d.orGazette the names of Qualified Persons, Approved Persons, and lg.-dffAccredited Checkers. ffiffi",

Approvcd Pcno'

lxHChcckcrr'RcdG.

34. The Authority may remove tiom any of the Professionals' R@vdftoRegisters the name of any person who - Rcshsr'

(a) is deceased;(b) is not practicing the profession in respect of

which the name of that person was included inthe Register: or

(c) is in default of paying annual subscription fee fora period exceeCing 12 months.

35. (l) A person whose name is removed under Section 34 (b) Apprisr(Dror

or (c) may apply to the Autlrority in thl prescribed form for the mT-"restoration of his name to the relevant register.

132

(2) On receipt of an application under sub-section (l) theAuthority may:-

(a) restore the name of the applicant to the relevantRegister;require that the applicant pay any penalty that theAuthority rnay irnpose for failure by theapplicant to pay annual subscription t'ees on time;defer the consideration of the application to thenext meeting of the Authority called to considersuch applications;refuse to restore the name of the applicant in anyof the Registers.

(b)

(c)

(d)

36. (l) It shall be the duty of an Accredited Checker to -

evaluate, analyse and review the structural designin the plans of any building works of theprescribed category and perform such originalcalculations with a view to determining theadequacy of the key structural elements ofthe building to be erected or affected by buildingworks carried out in accordance with those plans;andverify that key structural elements designed areconsistent with the layout shown in thearchitectural plans and any amendment thereto.

(2) Without prejudice to sub-section (l), an AccreditedChecker shall in carrying out his duties in relation to any plansof building works of the prescribed category:-

Duticr of rnAccrcdilcdChcctcr.

(a)

(b)

(a)

(b)

determine if the struitural designs :ue irlcompliance with the Regulations;check the design loading and, where applicable,wind loading;

r33

check the standards and specifications ofrnaterials to be used in the building works;ascertain the structural design concept used andidentify the key structural elements;

analyse all key structural 'elemens and thefoundation system of the building to be erectedor af'fected by building works carried out inaccordance with those plans;

determine the stability of the structural frame;check structural detailing; and

determine the adequacy of other aspects of thedesign which are peculiar to the building to be

erected or affected by the building works andwhich ur. .rr.,',iial to the structural integrity ofthe building.

(3) It shall be further the duty of the Accredited Checker tonotify the Authority of any contravention or non-compliancewith the provisions of the Act and, or the Regulations.

Provided that nothing in this Act or the Regulations shallimpose any such duty on an Accredited Checker in respect ofany such contravention or non-compliance which he did notknow and could not reasonably have discovered.

37. A Qualified Person appointed under this Act shall pertbrmthe same duties for which he is registered under the relevantAct of Registration which governs his prot'ession.

38. An Authorised Persotr shall be the single point of ret'erencefor the Authority on any building project and shall beresponsible for the co-ordination of the various QualitiedPersons involved in a building project.

(c)

(d)

(e)

(f)(e)(h)

Durier of rQuelificd Pcrrcn

Gr<rdiution ofQurlificdPcnom.

134

39. (1) There shall be a Professionals' Disciplinary Board listahlishment

Panel, which shall be appointed by the Board- of the :l|'1,:1,'llfi:llilAuthority. ll;;;;,,Lfi

(2) The Prot'essionals' Disciplinary Board Panel shall eonsistof not more than 35 members, bf whom not more than -

(a) 5 shall be architects whose names.are included inschedule [;

(b) 5 shall be civil or structural engineers whosenames are included in schedule I l;

(c) 5 shall be quantity surveyors whose names areincluded in schedule I 1 1;

(d) 5 shall be landscape architects whose names areincluded in schedule lV;

(e) 5 shall be physical planners whose names areincluded in schedule V;

(0 5 shall be building services engineers whosenames are included in schedule Vl:

(g) 5 shall be licensed land surveyors whose names

are included in schedule Vl l;of the Quatified Persons' Register.

(3) No person shall be appointed to be a member of the Panelret'erred to sub-section (2) unless he has been in practice inKenya for a.period of at least 10 years.

(4) Members of the Panel shall hold office tbr 3 years butshall be eligible for rehppointment.

40. (1) For purposes of Section 39 the Authority may, tiom I'r.r'cssionals'

time to time, appoint a Disciplinary Board to-inquire into l)i""'Pliuu'v

complaints made against any Qualified Person, AuthorisedPerson or Accredited Checker.

135

(2) Every such Board shall consist of -

(b)(c)

3 persons who are members of the Professionals'Disciplinary Board Panel at least I of whomshall be a member of the same profession as theperson in respect of whom the inquiry is beingheld:A representative of the Authority;a legal adviser.

(a)

(3) The Chairman of a Disciplinary Board appointed under thisSection shall be a member of the Board of the Authority.

(4) For purposes of any inquiry under sub-section (1), aDisciplinary Board appointed under this Section shall have allsuch powers as are vested in the High Court in relation to -

(a) enforcing the utt ndun"" of witnesses andexamining them on oath or otherwise;

(b) compelling the production of documents;(c) ordering the inspection of premises; and(d) entering upon and viewing premises.

(5) The members.of any Disciplinary Board appointed underthis Section shall be remunerated at such rate as the Authoritymay determine from time to time or in any particular case.

41. (l) Where it appears to the Authority that a QualifiedPerson, an Authorised Person or an Accredited Checker has

been convicted by a court of law of such offence or has beenguilty of such negligence or misconduct as to -

(a) render such person unfit to be in the relevantProfessionals' Register as the case may be; or

Sanction ageinstrnnvictcd orncgligcntr€gistcrrd pcrsop

or rcgistercdpcrson who has

misconductedhimsclf.

136

make the turther inclusion of such person in therelevant Prot-essionals' Register, as the case

may be, prejudicial'to the due administration ofthis Act; orrender such person {eserving of censure,

the Authority may bring the matter to the notice of a

Disciplinary Board appointed under Section 40.

(2) Where, after due inquiry, the Disciplinary Board is satisfiedthat a Qualified Person, an Authorised Person or an AccreditedChecker has been convicted of such offence or has been guiltyof such negligence or misconduet, such Board may -

(a) order that the name of such persons be removed-(i) from the relevant Professionals' Register,

as the case may be;

and if his nanre appqus in more than oneRegister, from all such Registers, eitherpermanently or for such period as th'e

Board deems fit; or

(b) order that such person be reprimanded; and

(c) order that its findings and order be published inthe Authority Gazette.

(3) On an inquiry under this Section, a Disciplinary Board maymake such order as it deems fit with regard to the payment ofthe costs of the inquiry and the coss of the Authority or of the

Qualified Person, Authorised Person or Accredited Checker inrespect of whom the inquiry-is held.

(b)

(c)

( ii)

t37

42. (a) Any Qualified Person, Authorised Person or any Appear

Accredited Checker aggrieved by any order made against himunder this Section may appeat under Section 82, to the AppealTribunal and upon any such appeal the Tribunal may s6pfirr,reverse or vary the order of the Disciplinary Board.

Provided that if the appellant's name has been ordered removedfrom any Register or Registers, his name shall remain in the

Register(s) pending the determination of the appeal.

(b) The decision of the Tribunal on any such appeal shallbe final.

l3E

PART VREGISIRATION OF CONTRACTORS

43. (l) The Authority shall keep a Register, hereinafter referred Estabrislrmentlt

to as the Register of Contractors in which shall be entered the [:"j},"fl;::.."'names of all persons who are qualified to perform the duties ofa Registered Contractor in accordance with the provisions-ofthis Act.

(2) The Register of Contractors shall contain the followingschedules -

(a) Schedule l, consisting of general buildingcontractors:

(b) Schedule ll, consisting of civil contractors;(c) Schedule lll, consisting electrical contractors;(d) Schedule lV, consisting of plumbing and

drainage contractors;(e) Schedule V, consisting of heating, mechanical,

ventilation and air conditioning contractors;(t) Schedule Vl, consisting of labour contract

contractors;

G) Schedule Vll, consisting of tire fightinginstallation contractors.

(h) Schedule Vlll, consisting of any other contractorsin the building industry not specified in any ofthe above schedules.

(3) Every applicant tbr inclusion in the Register ofContractors'shall submit his application, to the Authority.

(4) An applicant referred to in sub-section (3) shall pay -(a) a non-refundable application fee to be prescribed

by the Authority; and

139

a licence t'ee on adrnission and a fee for therenewal of his licence.

(5) (a) In respect of every application referred to in sub-section 3, the Authority shall within 3 months tiom the date ofreceipt of the application -

(i) intbrm every successful applicant to paythe licence t-ee within a specified period,and upon payment of such t-ee, his nameshall be entered in the appropriateschedule and the Authority shall cause thesuccesstul applicant's name to bepublished in the Authority Gazette, or

(ii) intbrm the applicant that his applicationhas been det'erred tbr a period notexceeding 6 rnonths; or

(iii) retlse the application.

(b) In considering an application tbr inclusion in theRegister of Contractors, the Authority shall haveregard to the . qualifications, capacity and

experience of the applicant or of those personsemployed by him who will supervise and carryout the inspection of building works.

(6) Where an application ret-erred to in sub-section 3 is

deferred or refused, the applicant may appeal under Section 82,against the decision to det-er or the refusal.

(7) The Authority shall publish semi annually in the AuthorityGazette a list bf the nanres of the persons appearing in eachschedule in the Register of Contractors.

o)

140

(8) The Authority may remove from the Register the name ofany registered contractor who cei$es, for any rea.son, to engagein the respective works for which he is registered.

(9) A name included or retained in or restored to the Registerof Contractors under this Section shall be retnoved by theAuthority with or without notice to the person concerned if theAuthority has not after the date of expiry of the relevantregistration, received the prescribed annual fee for the renewalof the licence fur a period exceeding six months since the said

- fee became payable and any such removal shall be effectivefrom'the date of expiry of that registration.

(10) A person whose name is removed under sub-section (8)may, within 12 months from the date the relevant registrationexpires, apply for the restoration of his name to the Regiqter.

( 1 1) Anapplication under sub-section l0 shall be accompaniedby the prescribed fee for such restoration and the appropriatelicense fee fbr such retention.

(12) Where the Authority allows an application made undersub-section (3) or (8) it shall -

(a) issue to the applicant as regards the relevantregistration a contractors' licence in respect ofthat registration and shall enter his name in theappropriate schedule; and

(b) in the case of an application under sub-section(10), restore the name of the applicant to theRegister.

Rcmoval ofnamc tiomRcgistcr ofContractor$.

t4t

(13) A registration under this section shall -(a) be effective, in the case of -

(i) an inclusion in or restoration to theRegister of a person's name, from thedate of such inclusion or restoration; and

(ii) a retention or further retention of aperson's name in the Register, from thedate of the expiry of the previousregistration; and

O) expire, whether or not the person's name isremoved from the relevant register, on the expiryof the period specified in the particular case inthe,application for registration as the period forwhic[ the name of the applicant is to be retainedor further retained in a register, and anyreference to the expiry of a registration shall beconstrued accordingly.

44. (l) There shall be a Registered Contractors' DisciplinaryBoar( Panel, which shall be appointed by the Board.

(2) The Registered. Contractors' Disciplinary Board Panelshall consist of not more than 42 persons of whom not morethan -

(a)

(b)

(c)

(d)

3 shall be architects whose names appear inSchedule I in the Qualified Persons' Register;3 shall be civil or structural engineers whosenames appear in Schedule 1l in the QualifiedPersons' Register;3 shall' be quantity surveyors whose namesappear in Schedule I 1 1; in the Qualified Persons'Register;3 shall be land scape architects whose namesappear in Schedule 1V in the Qualified Persons'Register;

RegistercdC0ntrdctors

DisciplinaryBoard Pancl..

142

3 shall be physical planners whose names appearin Schedule V in the Qualified Persons' Register;3 shall be building services engineers whosenames appear in Schedule Vl in the QualifiedPersons' Register;3 shall be licenced land surveyors whose names

appear in Schedule V11 in the Qualified Persons'Register;3 shall be general building contractors whosenames appear in Schedule 1 in the Register ofcontractors;3 shall be civil contractors whose names appearin Schedule I I in the Register of Contractors;3 shall be electrical contractors whose names

appear in Schedule 111 in the Register ofContractors;

(k) 3 shall be plumbing and drainage contractorswhose'names appear in Schedule lV in theRegister of Contractorg;

(i)

0)

(e)

(0

(e)

(h)

(D

(m)

(n)

3 shall be heating, mechanical, ventilation andair conditioning contractors whose names appearin Schedule V in the Register of Contractors;3 shall be labour contract confractors whosenames appear in Schedule Vl in the Register ofContractors;3 shall be fire fighting installation contractorswhose names appear in Schedule Vll in theRegister of Contractors.

(3) The members of the Registered Contractors' DisciplinaryBoard Panel shall hold ofTice for 3 ye4rs but shall be eligiblefor reappointment.

143

45. (1) For purposes of Section 44, the Authoritytime to time, appoint a Disciplinary Board todetermine complains against registered contractors.

maV ffOm Disciplinary. Board tirrhear and conrracloni

(2) Every Board appointed to hear and determine anyproceedings under sub-section ( I ) against a registered contractorshall consist of -

(a)

(b)

3 contractors who are members of the RegisteredContractors' Disciplinary Board Panel appointedunder Section 44;

4 professionals who are members of theDisciplinary Board Panel appointed under Section44;

the Authority's representative; and(c)

(d) a legal adviser.

(3) The chairman of a Disciplinary Board appointed undersub-section (1) shall be the Authority representative on theBoar4.

(4) For purposes ofany proceedings under sub-section (l), a

Disciplinary Board appointed under this Section shall have allsuch powers as are vested in the High Court in relation to-

(a) enforcing the attendance of witnesses andexamining them on oath or otherwise;

(b) compelling the production of documents;(c) ordering the inspection of premises; and(d) entering upon and viewing premises.

(5) The members of any Disciplinary Board appointed underthis Section shall be remunerated at such rate as the Authoritymay determine from time to time or in any particular case.

tu

46. (l) Where it appears to the Audrority that a registeredcontractor has been convicted by a court of law of such ot'fence,or has in the carrying out of any works in respect of hisappointment acted in a manner prejudicial to the administrationof this Act or has been guilty of such negligence or misconduct,asto-

(i) render such contractor untit to be on theRegister;

(ii) make the turther inclusion of the contractor inthe Register prejudicial to the due administrationof this Act: or

(iii) render the Contractor deserving of censure,the Authorily may bring the matter to the notice of a

Disciplinary Board appointed under Section 45.

(2) Where, at,ter due inquiry, the Disciplinary Board issatisfied that the contractor has been convicted of such otfenceor has been guilty of such negligbnce or misconduct, suchBoard may -

(a) order that the name of the contractor be removedtiom the Register of Contractors, eitherpermanentlv or tbr such period as the Boarddeems fit: or

(b) order that thd contractor be reprimanded; and(c) ensure that. its decision is published in the

Authority Gazette.

(3) On an inquiry under this Section, a Disciplinary Boardrnav make such order as the Board deerns fit with regard to thepayment of the costs ot the inquiry or with regard to thepayment of the costs of the Authority or of the contractor inrespect of whom the inquiry is held.

Sanction tbrqrdviotcd orncgligcntregistcrcdctlntnctor or'arcgistcrcdc0ntractor whomisconductshimsclt.

145

(4) Any registered conractor aggrieved by any order madeagainst him under this Section may appeal undei Section 82, tothe Appeal Tribunal and upon any such appeal the Tribunal mayconfirm, reverse or vary the order of the Disciplinary Board:

Provided that if the Disciplinary Board had ordered theremoval of the appellant's ,rlame from the Register ofContractors, the appellant's name shall remain in the saidRegister pendiilg the determination of the appeal.

(5) Any registered contractor aggrieved by the decision of theAppeal Tribunal may appeal to the High Court, provided thatif the appeal is against an order fbr the removal of his namefrom the Register of Contractors, the appellant's name shallremain in the said Register pending the determination of theappeal.

(6) The decision of the High Court in the matter shall be

final.

146

PART VlCONTROL OF BUILDING WORKS

47. This Part shall not apply to single storey vernacular houses

constructed traditionally by those in the rural areas tbr theirown use.

48. (1) Except as otherwrse provided in this Act, no person

shall commence. or carry out, or permit or authorise thecommencement or carrying out of, any building works unless -

(a) all the plans of the building works have been

approved by the Authority; and(b) there is in tbrce a permit granted by the

Authority to carry out the building works shownin the approved plans of the building works.

(2) Any.person who contravenes or tails to cornply with sub-section (1) shall be guilty of an:ot'tence and shall be liable onconviction to imprisonment tbr a term not exceeding one year.

(3) Subject to sub-section (1), neither the approval of anyplans nor the consent to the commencement of any buildingworks or street works shall be deemed -

(a) to cont'er any title to land;(b) td act as a waiver of any term in any

(c)lease or licence; orto grant any exemption tiorn or to permitany contravention of any of, theprovisions of this Act, or any otherenactment.

Applioatiou k)traditional and

vcrnacularhuildings etc.

Prohibition olbuilding workswithout approvalof plans and

perrnit.

t47

49. (l) Subject to the provisions of this Act, the personfor whom any proposed building works are to be

commenced or carried out may ipply to theAuthority in the prescribed form tbr approval ofthe plans of the building works and suchapplication shall be accompanied b1r -(a) tlre prescribed fee; -(b) the plans of the building works prepared

in accordance with the Regulations:(c) unless otherwise prescri6ed, a certificate

by an Accredited Checker whereapplicable in respect of the plans relatingto the structural elements of the buildingworks stating that, to the best of hisknowledge and belief, the plans sochecked do not show any inadequacy inthe key structural elements of the buildingworks carried out in accordance withthose plans; and

(d) such other documents ilst may beprescribed in the Regulations.

(2) The Authority shall cause all plans which meet rherequirements of sub-section (1) to be published in the AuthorityGazette indicating the following:-

(aS reference number of the applicant;(b) the street name;(c) name of the area;(d) the land reference number;(e) gross area and height of the building;(f) the nature of the developmenr.

Application lirrappmVal ofbuilding plans.

148

50. Upon receipt of an application under Sectiol 49 abOve, Noticc inviting

thl Authority may, uetbre making a decibion, by notice obftxrions'

to be published in the Authority Gazette and in the localmedia, invite objections, within a Specitied period, frornany person or persons lil6ely to be adversely affected bythg proposed building works.

5r. (1) The Authority may within a perio{ of thirtyworking days tiorn the date of receipt of anapplication -

(a) apprpve, subject to terms-and conditionsit may impose, any one or more of theplans submitted to it under Section 49: or

(b) in writing direct the applicant to comply,within such period as may be specified inthp direction, with such requirements as

the Authority may specify tbr the purpose

of ensuring cornpliance with provisions ofthis Act and the Regulations.

(2) Subject to the provisions of sub-section (1) (a), anyperson, for whom building works are !o be commenced shall atleast fuurteen days, pr.ior to the commencement of those works,notify the Authority in writirlg, the date of commencement.

(3) If the person to whom any written direction is givenrndersub-section (1) fails to comply with the requiremens specifiedin the direction within the time specitied therein, thg Authoritymay reject the plans;

(4) Where the plans of any proposed building works have beenapproved by. the Authority and the person tbr whom tltebuilding works are or are to be carried out intends to depart ordeviate from the approved plans, that person shall apply to theAuthority for its approval of the plans showing the

{ppnrvrl of.Pllns.

t49

proposed departure or deviatiorr and such application shall be

acc.ompanied by the latter plans and, unless otherwiseprescribed, by a certificate by an Accredited Checker whereapplicable in respect <lf such of the latter plans relating to theproposed building worl<s stating that, to the best of theknolvledge and belief of any Accredited Checker, those plans donot show any inadequacy in the key structural elements of thebuilding to be erected or affbcted by the building works carriedout in accordance witli those plans.

(5) Any approval granted in respect of buiiding works underthis Section shall autornatically lapse in any of the followingcases -

(a) if tire building works are not commencedwithin a period of two years from the

. date of the said approval;(b) if the building works are suspended for a

continuous period of more than 6monthsl

(c) if the approval lapses pursuant ro thisAct.

52. (l) The Authority may refuse to give its approval ofany plans of building works in any of thefollowing cases -

(a) if the plans are not such as are prescribed by thisAct and the Regulations or are not sucli as it rnay

have required under this Section:

if it has not received application tbr tlreirapproval or' if any such application does notcontain the particulars required therein;

if the carryirrg out of the building works shown

Grounds ofrclUrrl torpprovc plans ofbuilding workr,

(b)

150

(c)

(e)

(0

if it has not received such other documents as areprescribed by Regulations;

if such fegs as are prescribed by the Regulationshave not been paid;

if the building works ccinsist of. or any partthereof involves. the construction, tbrmation orlaying out of any means of access or otheropening, not being a street or access road. to.orfrom any street, and the place at or manner inwhich such means of access or other openingopens on to the street is, in its opinion, such as

to be dangeroqs or likely to be dangerous orprejudicial to the sat'ety or convenience of tratficusing the street, or which may'be expected to use

the same:

if in its opinion, it is necessary tbr it to havefurther particulars of such plans or of thebuilding works shown thereon or, where all theplans prescribed by the Regulations have notbeen submitted, to have one or more of the otherplans prescribed by the Regulations, to enable itt'ully to consider such plans;

if any turther particulars or other plans deliveredto it, upon its retusal, under sub-section (1) (h),to give its approval to any plans. are not to itssatistaction:

if it appears to it that the dernolition of a.building that requires to be dernolished beforethe building works shown on such plans can be

carried out-

(e)

(h)

(i)

0)

l5l

(i)

( ii)

will cause, or is likely to cause, a total orpartial collapse of any adjoining or ofierbuilding, or

will render, or is likely to render, anyadjoining or other building so dangerousthat it will collapse, or is likely tocollapse, either totally or partially,and it is rrot satisfied that tlre collapse orthe likelihood of the collapse, or sucltdanger or the likelihood of sdch danger tothe building, can be avoided;

will render, or is likely to render, an

ad.ioining or other building, street ornatural, tbrmed or man-made land so

dangerous that it will collapse, or be

likely to collapse, either totally orpartially, and it is not satisfied that thecollapse or the likelihood of the collapse,or such danger or the likelihood of such

danger to the building, street or land, canbe avoided;

in the case of plans showing site formationworks, piling works, excavation works orfoundation works, it appears to it that thecarrying out of such works-

(i) will cause, or is likely to cause, a total orpartial collapse of any adjoining or otherbuilding, street or natural. formed orman-made land, or

(iii)

(k)

152

(ii) will render, or is likely to render, anadjoining or other building, street ornatural, tbrmed or man-made land sodangerous that it will collapse, or belikely to collapse, either totally orpartially, and it is not satisfied that thecollapse or the likelihood of the collapse,or such danger or the likelihood of suchdanger to the building, street or land, canbe avoided:

it appears to it that the proposed user of thebuilding to which the plans relate wouldcontravene the planning provisions in this Actand, or the Regulations;

in the case of building works to be carried out ona site which in its opinion ought to be providedwith streets having adequate connoiion to apublic street, it is.not satisfied that such streetsare or will be provided;

in the case of building works to be carried out inan area of sloping ground tlre building is onewhich in its opinion must be capable of resistinglandslip debris and it is not satisfied that theplans provide adequately for th4t capability.

(?) The Authority may retuse to give its approval of any plansof street works in any of the tbllowing cases -

(a) if the plans are not such as are prescribed by thisAct and the Regulations;

(c) if the carrying out of the street works shown

(l)

(m)

(n)

Crounds ol'rclirsal to:rppr()vc plans 0fstrcel w()rks.

153

(b)

(c)

(d)

if it has not received an application for theirapproval or any such application does not containthe particulars required therein;

if the carrying out of the street works shownthereon would contravene the provisions of thisAct, the Regulations or any other enactment;

if in the case of an access road, the place at ormanner in which the access road opens on to astreet is, in its opinion, such as to be dangerousor likely to be dangerous or prejudicial to thesafety or convenience of traffic using the streetor access road, or which rnay be expected to use

the same;

if such fees as are prescribed by the Act and, orthe Regulations have not been paid;

if in the opinion of the Authority, it is necessaryfor it to have tlrther particulars of such plans toenable it tully to consider such plans;

if any further particulars delivered to it, upon itsretusal under sub-section (2) (0 to give itsapproval to any plans, are not to its satisfaction.

if it has not received and given its approval to allthe plans thereof prescribed by the Regulations;

(e)

(f)

(e)

(3) The Authority may refuse to give its consent to thecommencement of any building works or street works in any ofthe following cases -

Grounds ofrefusal to giveoonsoflt tocr)lnmencebuilding wolks()r street works.

(a)

154

(b)

(c)

(d)

(e)

if it has not received such other documents as

may be prescribed by the Regulations;

if any condition or requirement imposed by itunder Section 5l in respeet of the building worksor street works has not been complied with to itssatisfaction:

if such fees as are prescribed by the Regulationshave not been paid;

if a period exceeding 2 years has elapsed since

the approval of any of the prescribed plans inrespect of the building works'or street works;

if the carrying out of the works will cause, or islikely to cause, a total or partial collapse of any

adjoining or other building, street or natural,tbrmed or man-made land.

if the carrying out of the lvorks will render, or is

likely to render, any adjoining or other building,street or natural, formed or man-made land so

dangerous that it will collapse, or be likely tocollapse, either totally or partially, and it is notsatisfied tlrat the collapse or likelihood of the

collapse, or such danger or likelihood of such

danger to the buildings, street or land, can be

avoided;

(0

(e)

(h) if in its opinion tlre approval in the particularcircumstances is in consistent with the objectivesof this Act, the Regulations or any otherenactment.

155

53. (1) Where-

(a) any accident or emergency renders it necessaryto shore up, underpin,. dernolish or otherwisemake safe any existing building, or any natural,formed or man-made land, or to carry out anystreet works immediately; and

notice in the prescribed form of such work andgf the accident or ernergency which necessitatedthe same is given to the Authority by thebuilding owner, or the owner of the land or otherperson who under this Act is under an obligationto maintain thc land, or by the person for whomthe street works are being, or are to be, carriedout either betbre such work is authorized by himor within 48 hours after it has been commencedwhichever is the earlier,

such work rnay be commenced without obtaining theAuthority's consent provided that the said owner or thesaid person who, 'under this Act is under obligation tomaintain the land or the person tbr whom the urgentworks have been executed, shall, within 48 hours of thecompletion of those works, notity'the Authority inwriting of the nature and extent of the urBent works so

executed.

(2) Any person who contravenes the provisions of sub-section(1) shall be guilty of an offence and shall be liable onconviction to a fine not exceeding Ksh.3 milligns and in delaultto imprisonment for a term not exceeding 12 months or to bothsuch fine and imprisonment.

Provision tbr'urgcnt work.

(b)

r56

(3) If the Authority considers that the emergency no longerexists it may by order in writing servgd on the building owner,or the owner of the land or other person referred to in sub-section (1), or person fbr whom the street works or buildingworks are being carried out require that the street works orbuilding works cease until consent is obtained.

54. (1) Subject to the provisions of this Act, every person tbrwhom any building works are or are to be carried out shallappoint an Authorised Person in respect of those works.

(2) lfany Authorised Person appointed under sub-section 1t,tbecomes unwilling or unable, whether by reason of thetermination of his appointment-or for any other rea*son, to carryout his duties under sub-sectio_n (4) - -

(a) the Authorised Person shall,.rvithin 14 days ofhis ceasing to carry out his duties, notify theAuthority in writing.

(b) the contractor shall cease or shall not commencethe building works until the person tbr-whom thebuilding works are being or are to be carried outappoints another appropriate Authorised Personin respect of those building works.

(3) Where the person fbr whom any building works arebeing or are to be carried out appoints an Authorised Personpursuant to sub-section (2) (b), he shall, within 7 days, notifythe Authority of the appointment.

(4) Every Authorised Person appointed under this Section irrrespect of building works shall -

Appointmcnt rndduties ofAuthoriccdPcrnrnc.

157

(a) take all reasonable steps and exercise duediligence in supervising and inspecting thebuilding works to ensure that the building worksare being carried out in accordance with theprovisions of this Act, the Regulations, the plans

approved in respect thereof by the Authority andany terms and conditions imposed by theAuthority;

in the absence of . a site engineer, take all

reasonable steps and exercise due diligence ingiving imrnediate supervision to carrying out ofconcreting, piling, prestressing, tightening ofgrip bolts or other critical structural works toensure that the critical structural works of thebuilding works are being carried out inaccordance with the provisions of this Act, theRegulations, tlre plans approved in respectthereof by the Authority and with any terms iindconditions irnposed by the Authority;

notify the r\uthority of any contravention of theprovisions of this Act or Regulations inconnection rvith those building works;

keep and maintain at the premises on whichbuilding works are carried out sucl'r documents,books and records as may be prescribed in theRegulations;

submit to the Authority at the prescribed tirnessuch reports and certificates as may beprescribed in the Regulations;

(b)

(c)

(d)

(e)

158

notify the Authority if the building works havebeen suspended for a period exceeding sixmonths; and

(g) supply to the site engineer, site architect andcontractor of building works a copy of every planof those building works approved by theAuthority

(5) If any person contravenes or fails to comply with sub-section (2) (b), he shall be guilty of an offence and shall beliable on conviction to a fine not exceeding l0% of theAuthority's estimated cost of the works.

(6) Any Authorised Person who contravenes orfails to complywith sub- sections (4) (a), (b), (c), (d) oi'(e) shall be guilty ofan offence and shall be liable on conviction to a fine notexceeding l0o/o of his prof'essional fees.

(7) Any Authorised Person or person for whom building worksjare or are to be carried out, as the case may be, who, withoutreasonabie excuse, contravenes or fails to comply with sub-sections (2) (a), (3) or (4) (f) or (g) shall be guiltyi of an

offence.

55. (l) Where the relevant works or any part thereof cannot becarried out by reason of the objection or want of agreement ofany person whose propefty rvould be entered upon, cut throughor interfered with by or for the purpose of the works, the personin connexion with whose building works any plans for therelevant works have been approved or, as the case may be, anyof its successors may apply to the Authority fon.an order underthis Section authorizing hirn to carry out the relevant works.

(0

Authorisation tooarry outrelcvant works inua-so of oh.leotion.

ctc.. hy persons

whose propcrtyis all'ectod.

159

(2) Notice in writing of the application, of the place where itcan be inspected and of the time, which shall be a period of 30days commencing from the date of service of the notice, withinwhich objections to the relevant works may be made to theAuthority, shall be served by him on every person, not a partyto the application, whose property is proposed to be enteredupon, cut through or interf'ered with:

(3) The Authority shall consider every objection to the relevantworks made to it within the time specified in the notice and notwithdrawn and, by order in writing, may, subject to suchconditions as it considers necessary, authorize with or withoutalteration the carrying out of the relevant works.

(4) Notice in writing of any authorization under sub-section (3)or of any refusal so to authorize shall be served by the Authorityon every person required to be served with a notice under sub-section (2).

(5) The person authorized under sub-section (3) shall haveauthority to carry out the relevant works and for that purpose toenter upon any land specified in the authorization.

56. (l) Where the structural elements of any building works arerequired to be carried out under the full-time supervision of a

site supervisor, the Authorised Person appointed under Section54 1in respect of those building works shall appoint one sitesuflervisor in respect of the structural elements of those buildingwoiks.

Appointrnent and

tlutics ol'sitesuPcn/rsor.

160

(2) Where the critical structural works of any building worksare required to be carried out under the immediate supervisionof a site supervisor or Qualified Person, the Authorised person

appointed under Section 54 in respect of the building works mayappoint one or more site supervisors in respect of the criticalstructural works of those building works.

(3) No person shall be appointed as a site supervisor in respect

of any building works for the purposes of this Act unless he

possesses the adequate practical experience and qualificationsdcceptable to the Authoritl,.

(4) If a site supervisor appointed in respect of any buildingworks begomes unwilling or unable, rvhether by reason of the

termination of his appointment or fbr any other reason, to carryout his duties under sub-section (5)-

(a) the site supervisor shall, within 7 days of his

ceasing to carry ieul such duties. notify theAuthority in rvriting of that thct; and

(b) the Authorised Person appointed under Section 54

in respect of those building works shall -(i) appoint another site supervisor in his

stead; and(ii) notit'y the Authority of such appointment

rvithin 7 days fiom the date of theappointment.

(5) Every site supervisor of building works shall take allreasonable steps and exercise due diligence in giving -

a) in relation to building works which require full-time supen'ision, to the carrying out of thestructural elements clf the building rvorks; or

l6r

in relatiort to building works which requireimmediate supen'ision to the carrying out of thecritical structural works of the building works, toensure that the structural elements or criticalstructural works. as the case may be, of thebuilding works are carried out in accordance withthe plans of the building works supplied to himin accordance with Section tq @) (g) by an

Authorised Person and with any terms and

oonditions imposed by the Authority.

(6) If any site supervisor contravenes or fails to comply withsub-section (5), he shall be guilty of an offence and shall be

liable on conviction to imprisonment for a term not exceedingl2 months.

(7) Any site supervisor or Qualified Person who, withoutreasonable excuser contravenes or f'ails to comply with sub-section (4) (a) or (4) (b) (ii), respectively, shall be guilty of an

offence and shall be liable on conviction to imprisonment for a

term not exceeding 12 months.

57. (l) Subject to the provisions of sub.section (2) every personfor whom building works are to be carried out shall appoint a

contractor in respect thereof.

(2) lf any contractor appointed in respect of building worksbecomes unwilling to act or unable, whether by reason of thetermination of his appointment or for any other reason, to carryout his duties under sub-section ( I )-

(b)

Appointmcnt ard.thtties ol'conlrautors.

162

(a)

(b)

the contractor shall. within l4 days of his ceasrng

to cary out his duties, notify the Authority of thefact; and

the person tbr whom building works are to be orare being carried out shall appoint anothercontractor in his stead.

(3) Where the person for whom building works are to be orare being carried out appoints another contractor under sub-section (2) (b), he shall within 7 days thereafter notify theAuthority of the appointrnent.

58. (l) Subject to sub-section (3), the Authorised Personappointed under Section 54 in respect of the structural elementsof any building works shall carry out or cause to be carried outsuch tests of or in connection with the building works as may beprescribed or required by the Authority.

(2) Any tests that may be prescribed, or required to be clrrrieclout, under sub-section ( I ,1 shall be carried out in such mannerand at such places and times as may be prescribed in theRegulations.

(3) The Authority may, on application in relation to anyparticular building works, give a direction waiving the operationof sub-section (l) in relation to those building rvorks if it is

satisfied that the operation of sub-section (l) in relation to thatparticular case would be unreasonable.

(a) An application under sub-section (3) shall be accompaniedby such particulars as may be prescribed in the Regulations.

Tcsts of or inconncction rvithhuilding works.

Waiver of thcrcquiromcnt toc0rry out tcct.c ol'oi in oonneotionwith huildingworks.

163

(5) If an Authorised Person fails to comply with sub-section(l), the Authority rtray, by order in writing.served on the

Authorised Person, site supervisor and contractor of the buildingworks and the person for whom the building works are carriedout, require the building works to cease until the order is

withdrawn.

(6) Without prejudice to the riglrt of the Authority to exerciseits power under sub-section (5), any Authorised Person who failsto comply with any requirement under sub-section (l) shall beguilty of an offence and shall be liable on conviction to a finenot exceeding Kshs. 3 million or to imprisonment for a term notexceeding one year or to both such fine and imprisonment.

59. (l) Where in the opinion of the Authority any buildinghas been erected, or any building works are or have been carriedout, in contravention of the provisions of this Act or theRegulations, the Authority may by order in writing require -

(a) the cessation of the building works until the orderis withdrawn;

(b) the demolition of the building; or(c) such work or alteration to the building or

building works to be carried out as may be

necessary to cause the same to comply with theprovisions of the Act and the Regulations orotherwise to put an end to the contraventionthereof,

and, in every case, the order shall give notice to the O.rron ,owhom it is directed that if he fails to comp.ly with the said

( )rdcr tbrtl,cmolition,removal, ctc., ol'unaulhoriscdhuilding orhuiltling works.

tu

order, the Authority may carry out the works specified in theorder and the person may forfeit any materials resulting from thecarrying out of such works, and the order shall specify -

the manner in which the demolition, workor alteration specifiqd in the order is to becarried out;

the time within which the dpmqlition,work or alteration shall commence;

(iii) the time within which the demolition,work or alteration shall be completed; and

(ir) that the demolition, work or alterationshall be carried out wittr due diligence tothe satisfaction of the Authority.

(2) An order made under sub-section (l) shall be served-

(a) where a building has been erected, on the ownerof the building personally or through registeredpost to his last known address or by affixing thenotice on the building; or

where builcling works are being carried out, onthe person fbr whom the works are carried outand the contractor carrying out the buildingworks.

(i)

(i i)

(b)

i

I

I

Ii

II

lI

165

(3) If an order made under sub-section (l) is not compliedwith, the Authority may demolish, remove or alter, or cause tobe demolished, removed or altered, such building or buildingrvorks or take such other steps as appear to the Authority to be

necessary and may recover all expenses reasonably incurred byit irt the exercise of its powers under this Section fiom theperson in default and the person nray forfeit any materialsresulting from the carrying out any works under this sub-section.

(4) Without prejudice to the right of the Authority to exerciseits powers under sub-section (3), if any person on whom an

order made under sub-section (l) is served fails to comply withthe order, that person shall be guilty of an offence and shall be

liable on conviction to a flne not exceeding Kshs.3 Million orto. imprisonment for a term not exceeding 6 months or to both.

60. (l) Upon receipt of an application in relation to anyparticular building works. for waiver of any of the requirementsof the Regulations and if it is satisfied that such waiver is in thenational interests and is not likely to compromise the safety ofanyone. the Authority may modify or waive, subject to such

terms and conditions as it may impose, any of the requirementsof the Regulations.

Provided that the Authoritv shall, within a period of seven daysfrom the date of the grant of the waiver, publish or cause thesame to be published in the local media.

(2) Every application under sub-section (l) shall be made to theAuthority by or on behalf of the person for whom buildingworks are being or are to be carried out and shall be in suchform as may be required by the Authority and shall

Motlitication orwirrver ofRegulatrons.

.ll

{

I

t6

state the nature and extent of and reasons for the proposedmodification or waiver of those requirements and shall beaccompanied by such plans and other particulars as may beprescribed.

(3) Any person who contravenes or fails to comply rvith anyterm or condition of an approval of plans of any building works,or any term or conditipn of a permit to carry out any bqildingworks, granted to him shall be guilty of an offence and shall beliable on conviction to a fine not exceeding Kshs.5 million or to'imprisonment for a term not exceeding 12 months or to both.

61. (l) Every Authorised Person shall retain or shall cause to beretained in safe custody for a period of at least seven years allthe documents related to the building works to which he has

been appointed.

Provided that if at the expiry of the seven year periodcommencin.g from the date of coinpletion of the building works,he destroys the said documents, the documents to be deptroyedshall not include the approved drawings and calculations.

(2) Every Authorised Person who contravenes the provisionsof subsection (l) shall be guilty of an offence.

(3) Any person who, being required by or by virtue of this Actor the Regulations to .make or produce to the Authority anyplan, deglpration, certificate, report, record, notice or otherdocument, or who, for the purpose of obtaining any lieence,permit, waiver or approval from the Authority under this Act orthe Regulations or for the. purpose of establishing any factrelevant to the administration of this Act or the Regulations -'

Custody and

production ofdocumonLs.

t67

(a) makes or produces any plan. declaration,certificate, repoft, record, notice or tother

document which is false in material particufar; clr

produces any plan, declaration, certificate, report,record, notice or otherdocument which is false inmaterial particulars, or has not been made by theperson by rvhom it purports to have been made,or has been in any way altered or tampered with,

(b)

shall be guilty of an offence and shall be liabl! on conviction toa fine not exceeding Kshs. 3 qillion or to imprisonment for a

term not exceeding l2 months or to both,

62. (l) Except as othenvi3e provided in this Act, no building orpart of'a building where any building works have been carriedout, shall be occupied in any way unless the Authorised Persontogether with the cohtractor and, where applicable, the sitesupervisor have each signed the prescribed certificate that thebuilding works arb complete and have been so completed in

accordance with the approved plans and no element of thebuilding works contravenes the requirements of this Act and theRegulations and the .Authority has issued a certificate ofstafiitory completion in respect of that building or part of thebuilding:

Provided that nothing in this Section shall prohibit-

(a) the occupation by any person of any building orpart thereof'for the sole purpose of preventingany damage to the building or part thereof or anytheft of any property therein; or

()csuprtion ol'huilding.

168

(b) the occupation by any person of anv building inrespect of which a temporary occupation permithas been granted.

(2) The Authority may, on an application in the prescribedmanner in relation to any building, grant a temporary occupationpermit in respect of the building subject to such writtendirections as the Authority rnay specify and, in particular, thosewritten directions rnay-

(a) limit the period for which the temporaryoccupation permit is granted;

(b) require such work or alteration to the building tobe carried out as may be specified by the

(c)Authority; andprovide for the cornpletion of the work oralteration before the expiration of a specifiedperiod.

(3) A temporary occupation permit shall be for such period andpurpose as the Authority rnav determine and shall only be primafacie evidence that a building is suitable for occupation and isand shall not be taken to be evidence of compliance with theprovisions of this Act, the Regulations or any other written law.

(a) The Authority may amend, suspend or, in the event offailure to comply with anv written direction issued under sub-section (2), revoke any temporary occupation permit.

(5) Any person who contravenes or fails to comply with sub-section (l) or any written direction issued under sub-section (2)shall be guilty of an offence and shall be liable on conviction toa fine not exceeding Kshs. 3 million or to imprisonment for aterm rrot exceeding 12 months or to both such fine andimprisonment.

(2) Upon receipt of a notice issued under subsection (l) the

'lbrnporary

ououprIionpcrmit.

t69

63. (1) Notice shall be given to the Authority of any intendedmaterial change in the use of a building by the person intendingio carry out otauthorizing the carrying out of such change.

(2) Upon receipt of a notice issued under sub-section (l) theAuthority shall publish or cause the same to be published in theAuthority Gazette.

(3) Where the Authority has given its consent pursuant to anotice under subsection (l), and.the use of a building has

materially changed, the owner of the building shall display orcause to be displayed, in a conspicuous place on the building a

notice stating the current use of the building and the date whenthe change was effected.

(4) Where in the opinion of the Authority any building is notsuitable by reason of its construction or location for its presentor intended use, it may by order in writing served on the o\ryner

Change in use olhuildings.

or occupier -(a) within I month of the receipt of a notice under

sub-section (l) prohibit such intended use; orrequire the owner or occupier to discontinue suchpresent use of the building within I month fromthe date of service of the order:

(b)

Provided that the Authority may permit by notice inwriting such building works as it deems necessary for thepurpose of rendering the building suitable for its presentor intended use.

170

(5) The use of a building shall be deemed to be materiallychanged -

(a) where the carrying out of building works for theerection of a building intended for such usewould have contravened the provisions of thisAct; or

where the Authority could have retused to giveapproval to plans of such building works underSection 52.

(6) Any person who, except with the perrnission of theAuthority, uses, or permits a building or any part thereof to be

used otherwise than fbr the purpose specified in the approvedplan thereof, shall be guilty of an offence and shall be liable onconviction to a fine not exceedin-e ksh.3 million and in defaultl2 months imprisonment or to both such fine and imprisonment.

(b)

t7t

l

I1

PART VtrREGISTRATION OF BUILDINGS

64, The Authority shall'keep and maintain a Register hereinafter ::'"1',::;lreferred to as the "Register of Buildings" in which shall be auldings.

entered the prescribed particulars of all buildings which complywith the requirements of this Act and which have beenissued with an occupation certificate and the absence of theparticulars of any.building from the Register shall be prima facieevidence that that building is not so registered and, or does notcomply with the iequirements of this Act.

65, The Register of buildings shall be a public document and Ragirtcror

any person, upon payment of a fee to be prescribed by the :Ji|',',1"ji.1",1'"iAuthority, may apply for a search certificate of any registeredbuilding,

66. The Register of Buildings shall in respect of each building Pnrticulrn to he

contain theloilowing particilars: ' .. ll'..,llfil:'}d''(a) Registration number allocated by the Authority; Bu-irrringr.

(b) I'he Land Registration Number;(c) The physical location of the building;(d) The size of the land on which the building is

situated;(c) The limitation of use;(f) The last Inspection date;(g) The next inspection date;(h) The building's plan approval number;(i) The name of the ownei;

O The area of the building in square metxes;(k) Height of the building in storeys or floors;(l) Date of registration,(m) Any other particulars that the Authority may by

notice require to be contained in the Register.

172

67. Upon registration of a building pursuant to an applicationunder Section 64, the Authority shall issue to the applicant, acertificate of registration in the form ilrescribed in theRegulations, provided that the owner of any rqgistered building,,shall in writing, notify the Authority of any change in theparticulars contained in the registration certif-rcate issued inrespect of a particular building.

68. All Applications for registration of a building shall besubmitted by a Qualified Person, within 7 days from the date ofthe issuance of the occupation certificate provided that theAuthority shall register the building within l4 days from thedate of receipt of the application under this Section.

69. An application for registration of a building shall beaccompanied by the following-

Noticc of changcof particulan ofrogistorod

huilding.

Appliortion tbrlbr rogistrationol'n huilding.

ItoquircmonLs lirrllcgistration ol'huiltlings.

(a) Registration t'ees which shall be by order beprescribed by the Authority;

(b) all the approved plans of the building;(c) occupation certificate for the building;(d) any other document or requirements which the

Authority hy order in the Authority Gazette mayrequire.

70. Any person who contravenes any of the provisions of this I'onaltv'

Part shall be guilty of an offence and shall be liable onconviction to a fine not exceeding Kshs.500,000 or toimprisonment for a term not exceeding six months or to bothsuch fine and imprisonment.

t73

PART VITI

INSPECTION OF BUILDINGS

71. For the purpose of this Part, a building which is physically -t"1i:o"dconnected with another building ' tluildings'

(a) shall, although 'so connected, be treated as aseparate building if it is so constructed as to be

capable of remaining in position and being used

independently of the other building or as torequire only minor modification as to render it so

capable; and

shall not be treated. l, otf,", than a separatebuilding merely because it is so connected withthe other building at or below ground level or bymeans of a bridge or similar structure whetheraf'fording access or accommodation to botli.

(b)

72. (l) The owner of a building shall cause the building to beinspected after the fifth year commencing from the date the lastcertificate of statutory completion was issued in respect of thebuilding and thereafter at intervals of not more than 5 yearsfrom the completion of the last inspection of the building underthis section;

Provided that any owner of a building who fails to cause thebuilding to be inspected within the prescribed period shall beguilty of an offence and shall be liable on conviction to a finenot exceeding Kshs. 500,000 or to imprisonment for a term notexceeding six months or to both.

Pcriodioinspection ofhuilding.

t74

(2) Where the owner of a building fails to cause ttr-e building tobe inspected in accordance to sub-settion (l) the Authority shall,by notice served on the owner of the building require thebuilding to be inspected;

73. (l) Notwithstanding the provisions ofAuthority may at any time by notice served onbuilding require the building to be inspected.

Section 72 the Notice or.rnrpcction.

the owner ot a

(2) Every owner of a building to which this Part applies shall,on receipt of a notice under sub-section (l), cause the buildingto be inspected in the prescribed manner by a Qualified Personappointed by th. ownef and if the notice is not complied with,the Authprity may inspect the building or cause the building tobe so inspected by a Qualified Person appointed by it and mayrecover all expenses reasonably incurred by it in the exercise ofits powers under this secti'on from the owner of the building.

Provided that when necessary, the Qualified Person shall engagesuch other Qualified Persons as may be required to check on anyother defects and those other Qualified Persons shall each

---personally attest their findings in the inspection report.

(3) Any Qualified Person who is appointed by the owner of abuilding or the Authority under sub-section (2) to carry out an

inspection of a building under this section shall be entitled at allreasonable times to full and tiee access to the building and anypartlthereof that he is required to inspect and arfy person whohinders, obstructs or delays a Qualified Person in theperformance of his duty shall be guilty of an offence and shallbe liable on conviction to a fine not exceeding Kshs. 100.000or to imprisonment for a term not exceeding six months or toboth such fine and imprisonrnent.

175

(a) A Qualified Person appointed under sub-section (2) to carrvout an inspection of a building under this section shall -

(a) carry out the inspection in the manner prescribedin the Regulations,

(b) on completion of the inspection, prepare and signa repoft of the result of the inspection; and

(c) serve a copy of the repoft on the Authority withinsuch period as the Authoritv may specifi in thenotice under sub-section ( l)

(5) Without prejudice to the right of the Authority to exerciseits powers under sub-section (3), any owner of a building rvhocontravenes or fails to comply with a notice under sub-sectiorr(l) shall be guilty of'fence and shall be liable on conviction to a

fine not exceeding Kshs.500,000 or to imprisonment fbr a ternlnot exceeding 6 months or to both such fine and irnprisonment,

(6) Any Qualified Person who contravenes or tails to complywith sub-sections (4) (a), (b) or (c) shall be -uuilty of an ott'enceand shall be liable on conviction to a tlne not exceedingKshs.500,000 or to imprisonment fbr a term not exceeding sixmonths or to both such tine and imprisonment.

(7) The Authority may by order provide tbr the application ofthis Section with such adaptations or rnodifications as may bespecified therein to buildings in respect of which no certitjcateof fitness for occupation has been issued under the Regulations.made under any previous Acts or Regulations which are nowrepealed or superseded by this Act.

176

(8) A Qualified Person shall be personally liable for anyinjury, loss or damage occasioned to any person resulting fromany defect in a building inspected by him and fbr which defectthe he ought to have detected on reasonable examination of thebuilding.

74. (l) A Qualified Person shall not be appointed by theAuthority or owner of a building for the purpose of carrying outan inspection of a building under Section 73 if the said QualifiedPerson has any professional or financial interest in the building:

(2) A Qualified Person shall be regarded as having a

professional or financial interest in any building if -

(a) he has been responsible for the design orconstruction of the building or ady part thereof inany capacity.

(b) he or any nominee of his is a member, officer oremployee of a company or other body rvhich has

a professional or tinancial interest in the buildingor any part thereofl

(c) he is a partner or is in the employment of a

person who has a professional or financial interestin the bui{ding or any part thereot'; or

(d) he holds any interest in the building or any part

(e)thereothe occupies the building or any part thereof.

(3) For the purpose of this section-

(a) a person shall be treated as having a professionalor financial interest in the building even if he has

that interest only as trustee for the benefit ofsome other person, and

lndependencc rtl(halilied Ps'rson

177

(b) in the case of married people, the interest ofone spouse shall, if knorvn to the other be

deemed to be also an interest of the other.

(a) For the purpose of this Section -

(a) involvement in the inspection of a buildingunder Section 72;and

(b) entitlement to any fee p4id for earrying out anyinspection under Section 72;

shall not be regarded as constituting a professional or financialinterest.

178

PART D(

DANGEROUS BUILDINGS

75. (1) If it appears to the Authority that a building is not Mouu orcscapc.

provided with such means of escape in case of fire as theAuthority considers satisfactory, regard being had to thepurposes for which the building is used and the number ofpersons likely to resort to the building at any one time, theAuthority may by order require the owner of the building toexecute such work and make such provision as'may be necessaryto remedy the defect and if the owner fails to comply with theorder, the Authority may execute the order in such manner as itsthints fit and may recover all expenses reasonably incurred byit in doing so from the owner in default.

(2) If the Authority is satisfied that the safety of the publicrequires that immediate action should be taken in the case ofany building in respect of which it has given an order under sub-section (l), it may by further order in writing served on the

oowner of the building require the closure of the building, orrestricting its use by, the public and if tlre owner fails to complywith the order, the Authority may execute the order in suchmanner as it thinls fit and recover all expenses reasonablyincurred by it in doing so from the owner in default.

(3) Without prejudice to the right of the Authority to exerciseits powers under sub-section (l) or (2), any person who, withoutreasonable excuse, fails to comply with an order served on himunder sub-section (l) or (2) shall be guilty of an offence andshall be liable on conviction to a flrne not exceedingKshs.500,000 or !o imprisonment for a term not exceeding 6

months or to both such fine and imprisonment.

179

(a) The owner of any building shall take steps to ensure that themeans of escape in case of fire within the building are kept freeand unobstructed and if he fails to do so, he shall be guilty ofan offence and shall be liable on conviction to a fine notexceeding Kshs. 500,000 or to imprisonment for a term notexceeding 6 months or to both such frne and imprisonment.

76. (l) If it appears to the Authority that-

(a) a building is in such a state or situation, or isused to carry such loads, as to be dan$erous; and

(b) immediate action should be taken to remove thedanger, t

it may, if it considers it necessary, take such steps as

may be necessary for.that purpose, including ordering theclosure of the building.

(2) Before exercising its powers under this Section, theAuthority shall, if it is reasonably practicable to do so, givenotice of its intention to the owner and every occupier of thebuilding.

(3) Subject to this Section, the Authority mey recover from theowner of the building all expenses reasonably incurred by itunder this Section.

(a) So far as expenses insurred by the Authority under thisSection consist of expenses of fencing off the building, orarranging for it to .be watched, 'the expenses shall not berecoverable in respect of any period :

Peneltv tbrohstructingmcens ol escapc

in clrsc ol'lirc.

[oading.tlangeroushuilding,emcrg,cncy

mcf,sutrcs.

180

after the danger has been removed by othersteps under this Section; or

after an order made under sub-section (l) forthe purpose of its removal has been compliedwith or has been executed.

(5) Without prejudice to the right of the Authority toexercise its powers under sub-section (l), any person who,without reasonable excuse, fails to comply with an order'served on him under sub-section (l) shall be guilty of an

offence and shall be liable on conviction to a fine notexceeding Kshs.500,000 or to imprisonment for a term notexceeding 6 months or to both such fine and imprisonment.

Provided that where bodily injury or death is occasionedthrough thilure to comply with an order issued under Section77 and this Section, or a notice issued under sub-section (l),the person charged shall, on conviction, be liable to a fine notexceeding Kshs.3 millions and to imprisonment for a term notexceeding l2 months.

77. (l) lVhere, on inspection, the Authority finds anydilapidation or det'ect in a building it may by order in writingserved on the owner of such building require -

(a) such wor{<s as may be specified in the order tobe carried out;

(b) a Qualified Person to be appointed to carry outsuch investigation in relation to the building as

may be so specitied;(c) the submission for approval by the Authority

of proposals tbr remedial work to be carried outas regards the dilapidation or defect, beingproposals based.on the findings of theinvestigation; or may,

(a)

(b)

Det'ectivc and

dilapidatedhuildings.

lEt

(d) order closure of the building or restrict the use ofthe building

within such time or times iN may be specified in theorder.

(2) Where proposals for work are submitted pursuant to anorder under sub-section (l), the Authority may -

(a) approve the proposals;(b) require amendments to or substitution of the

proposals; or(c) refuse to approve the proposals.

(3) On approving any proposal for remedial works required tobe submitted under sub-section (l), the Authority ,"y by orderin writing served on the owner require the carrying out of suchapproved work within such time as may be specified in theorder.

(4) All work and investigations specified in an order under thisSection shall be carried out to such standard acceptable to theAuthority and in compliance with the Regulations.

(5) Where the owner referred to in sub-section (l) cannot befound or fails to comply with any requirement of an orderserved under this section or where there is a failure to complywith the requirement in sub-section (4) or where approval isrefused for proposals submitted under this Section, the Authoritymay, without further notice, carry out or cause to be carried out

(a) all or any part of the work or investigationspecified in the order;

182

(b)

(c)

such other investigaiions it considers necessary orexpedient; and

such remedial work as it considers to benecessary or expedient as regards the dilapidationor defect, having had regard to the findings,whether sPch investigation in relation to thebuilding is done by the owner referred to in sub-section (l) or by the Authority,

and the Authority may recover the costs thereof fromthat orv'ner.

.Provided that if the Authority considers the building to beof immediate danger, it may, without any further notice to theowner, evacuate and close the said building.

(6) Without prejudice to the right of the Authority to exerciseits powers under this Sectidn, any person who, rvithoutreasonable excuse, fails to comply with art order served on himunder this Section shall be guilty of an offence and shall beliable on conviction to a fine not exceeding Kshs.500,000 or toimprisonm€nt for a term not exceeding six months or to bothsuch fine and imprisonment.

78. (l) Where the Authority makes any order under this Actrequiring the closure of any building, the order, referred to inthis Section as a closure order shall be served on the owner andevery occupier of the building.

Sorvico ofclosurc order.

r83

(2) Except with the permission in writing of the Authority. noperson other than an employee of the Authority in the course ofhis duty shall enter or be in a building at any time while a

closure order is in force in respect of the building and anyperson who contravenes or fails to comply u,ith this sub-sectionshall be guilty of an offence and shall be liable on conviction toa fine not exceeding Kshs.50,000 or to imprisonment for a termnot exceeding 6 months or to both such fine and imprisonment.

(3) Where the Authority deems fit, it may, subject to such

conditions as it may impose, by notice in writing, permit anyperson to enter temporarily the building while a closure order isin force for the purposes of either carrying out remedial workor removing belongings fiom the said building.

(4) Any permission qranted under sub-section (3) may be

cancelled by the Authority at any time and for any reason.

(5) Where a closure order is in force in respect of a building-

(a) A police officer ffi?y, with such force orassistance as may be necessary, remove therefromany person rvho is in the building incontravention of sub-section ( I );

(b) the Authority may seal, or cause to be sealed, allor any of the entrances to or exits from thebuilding.

(6) A closure order shall remain in force in respect of a

building until the Authority has served a notice of expiry of a

closure order on the owner of the building by causing the noticeto be posted upon a conspicuous part of the building to whichit relates and by serving a copy of the notice upon the owner i

i

184

(7) Every notice of expiry of a closure order shall specifythe building to which it relates and the date upon which theclosure order expires.

(8) The provisions of this part shall supersede theprovisions of any other Act of Parliament which restricts theeffectuation of the provisions of this Section or in any wayinterferes with the application of the said provisions.

rE5

PART XPREMISES USED FOR DANGEROUS TRADES

. OR PURPOSES & DISPOSAL OF DANGEROUSWASTE

79. (l) No premises shall, except in accordance with a permitfrom. the Authority, be used by any person for any of thefollowing trades or purposes:

(a) tallow-melting and candle making;(b) making or storing matches, fireworks, carbide or

any industrial gCI;(c) making or storing charcoal;(d) a sawmill or place for depositing or storing coal,

wood, timber, attap or other combustiblematerials otherwise than for domestic use in thatplace;

(e) a foundry'or forge;(0 the manufacture, storage, treatnent, smoking or

preparation of rubber in any form;(g) the manufacture, storage or treatment of

cinematography or other films;

(h) a garage or place kept or used for repairing,painting, washing, stbring, housing or parkingmotor vehicles or a place where a pump ismaintained from which petrol or oil is suppliedto motor vehicles, except a garage or place usedin connection with a private dwelling-house andkept for private use only; and

(i) such other trades or purposes as the Authoritymay, by notification in the Authority Gazetle,pecify.

(2) The Authority may at any time suspend or revoke anypermit under sub-section (1) without assignin! any reason.

Pcrmit to usc

prcmiscs lbrocrtein tradcs orpurposcs.

1

I

i

186

(3) AnV person who uses or permits to be used any premlses

without a permit for any of the trades or purposes specified insub-section (l) shall be guilty of an offence and shall be liableon conviction to a fine not exceeding Kshs.3million or toimprisonment for a term not exceeding twelve months or to bothsuch fine 4nd imprisonment.

(4) Where the Authority is satisfied that any premises havebeen or are being used in contravention of this Section, it mayenter the premises and seize any movable property by means ofor in respect of which an offence under this Section has been oris being committed or which contains evidence of such offenceand which is found therein.

80. Any persson who produces dangerous or toxic waste on hispremises, shall -

(a) notify the Authority in writing of the nature ofsuch waste; and

(b) If he intends to dispose off the dangerous or toxicwaste, apply to the Authority for approval of themeans of disposal.

81. Any person who contravenes the provisions of Section 80,

or who fails to dispose off the dangerous or toxic waste in themarrner permitted by the Authority under Section 80 (b) shall beguilty of an offence and shall be liable on conviction to a finenot exceeding Kshs. 5 million or to imprisonment for a te'rm notexceeding 12 months or to both such fine and imprisonment.

Applioarion lbrapproval ofmcans ofdisposal ofdangeious ortoxic waste.

tE7

PART XIAPPEALS

82. A person aggrieved by any decision made by the Authority t o*l:::h"in exercise of the discretion conferred on it under the provisions Appear tnnunar'

of this Act may, excepi where the Act provides otherwise,appeal to the Appeal Tribunal against that decision in accordancewith the provisions of this Act.

83. (l) There is hereby established an Appeal Tribunal Panel. Esrabrishmenror.Appeal Tribunal

(2) Every such Panel shall consist of - Pancr'

(a) Three Physical Planners(b) Three Architects(c) Three Civil Engineers(d) Two Land'surveyors(e) Two Environmentalists(0 Three Struc.tural Engineers(g) Two Quantity Surveyors(h) Three Building Services Engineers(i) Two Landscape Architects

O Three General Building Contractors(k) Two Electrical Contractors(l) Two Air Conditioning Contractors(m) Two Plumbing, Drainage and Fire Fighting

Contractors(n) Three Civil Contractors(o) Three Prominent Developers.(p) Two Advocates of the High Court of Kenya of

.not less than seven years standing.

(3) Members of the Appeal Tribunal Panel shall hold office for3 years and shall. be legible for re-appointment.

I8E

84. (l) For purposes of Section 82, the Auihority shali from constitutionor

time to time constitute an Appeal Tribunal. Appcal rribunal'

(2) Every such Tribunal shall consist of -

(a) A Chairman who shall be a Member of the

- Board of the Authority.(b) A Secretary appointed by the Board of the

Authority for the purpose of providingadministration services to the Tribunal.

(c) The Secretary appointed under sub-section (b)shall be a person other than a member of theAppeal Tribunal Panel.

(d) Four people selected from the Panel and whoseprofession is relevant to the determination ofthe issues raised in the appeal,

'Provided that,..where necessary, a representative fromthe locality where the appeal originates, shall bb thesixth member of the Tribunal.

85. (l) A person aggrieved by the decision of the Appeal Appcarto rligh

Tribunal, on any matter, except where this Act provides court.

otherwise, may appeal to the High Court, against thatdecision.

(2) The decision of the High Court in the matter shall befinal.

1E9

PART Xtr

TRANSITIONAL PROVISIONS

86. Notrvithstanding the provisions of Section 6, all pending rransrbr or

applications for approval under any prdvious legislation P"nline.'

hereinafter referred to as "the old law" shall at the applications'

commencement of this Act be transferred to theAuthority for consideration, and in considering suchapplications the Authority shall apply the old law.

87. If at the commencement of this Act, any plans had been Approvcd plan

approved but the same had not been implemented the not actcd upon ar

Authority may on application for a permit to implement i!ffi1"1'*'the approval

(a) call upon the applicant to furnish it with alldocuments necessary to enable it consider theapplication.

(b) in its absolute discretion review the approval andin doing so it.shall apply the old law.

8b. , (l) rhe owner of - Hfffi"Tf,

(a) a building to which this Act applies and which is cormcno.mcnt

under construction, or I t of this Act"

(b) any land to which this Act applies and which isunder planning,

at the commencement of this Act shall within a period of 30days from the commencement thereof notify the Authority inwriting of that fact and the extent of the building or the planningworks as the case may be.

190

(2) Upon receipt of a notice under sub-section (1), theAuthority shall take over the inspection of those works andshall in so doing, apply the provisions of the old law.

(3) If at the commencement of this Act the carrying ouf ofbuilding works has been completed but no occupation permit has

been issued, the Authority may, on application by the ownerthereof, consider such application under the old'law.

Provided ihat, if on inspection of the building, the Authorityis satisfied that the building poses a danger to any persod or

' property or that it was constructed, or palt of it was constructedin contraveniion of the old law, it may issue such orders as itmay deem appropriate

89. (l) The owner of any building to which this Act applies andwhich was constructed prior to the commencement of this Act;shall within a period of three months from the date of thecommencement of the Act, apply to the Authority forregistration of the building.

(2) AnV person, who contravenes the provisions of this Sectionand of Section.SS (l) shall be gpilty of an offence and shall beliable on conviction to a fine not exceeding Kshs.100,000 or toimprisonment for a term not exceeding 3 months or to bothsuch fine and imprisonment.

90 (l) The owner of any building to which this Act applies andwhich was constructed without approvdd plans shall, within a

period of six months from the commencement of this Act, applyto the Authority for the registration of the building and theapplication shall disclose that the building was constructedwithout plans.

Buildingsoonstructed priorto

oommcnoomontof this Aot.

Buildingsconstructodwithout approvodplans.

l9l

(!) Upon receipt of an application under sub-section (l) theAuthority may make such orders as it may deem appropriate.

91. Any person who cbntravenes the provisions of Section 90 pcnattv

shall be guilty of an offence and shall on' conviction, be liableto a fine not exceeding Ksh.100,000 or to imprisonment for aterm ndt exceeding 3 months or to both such fine andimprisonment.

PART XIIIMISCELLANEOUS PROVISIONS ]

I

92. Where there is a contradiction in the Provisions of this Act tjlf*d,"^. f

and the Regulations made thereunder the provisions of the Actshall prevail

---- r- :

93. Any person who commits an offence for which no penalty Gencral Pcnalty

has been prescribed under this Act shall on conviction be liableto a fine not excbeding Kshs 50,000 or to imprisonment for a

term not exceeding 3 months or to both such fine andimprisonment.

94. The Regulations contained in the Building Code are hereby Repeat.

repealed.

192

APPENDIX IV

THE DRAFT REGULATIONS

r

PLANNING AND BUILDING (DRAFT) BILL

SUBSIDIARY LEGISLATION

TIIE PLANNING AND BUTLDING APPEAL(PROCEDURE) RULES

ARRANGENIENT OF RULES

Ilules

I - Short title2 - [nterpretation3 - Appeals4 - Notice of appeal5 - Respondent's address tbr service6 - Institution of appeals

7 - Appointment of Tribunal and remuneration ofmembers

8 - Death of party to intended appeal9 - Contents of memorandum of appeal

l0 - Contents of record of appealI I - Service of memorandum and recorci of appeal12 - Effect of detault in instituting appeall3 - Withdrawal of appeal

14 - Untitledl5 - Notice to adduce additional evidencel6 - Notice of hearing17 - Untitled'l8 - Parties to appear in person, by Arlvocate or

Agentl9 - Presentation of arguments in writing20 - Access to land or premises

195

2l - Appearance at hearing and dismissal for non

appearance22 - [mmunities and privileges of chairman and

members23 - Arguments at hearing24 - Offences and penalties25 - Procedure26 - Costs27 - Appeal to the High Court

t96

PLANNING AND BUILDING (DRAFT) BILL

APPENDD(

SUBSIDIARY LEGISLATION

THE PLANNING AND BUILDING APPEAL(PROCEDURE)RULES

1. (l) These Rules may be cited as the Planning and Building Shorttirle.

Appeal (Procedure) Rules.

(2) Nothing in these Rules shall be deemed to limit orotherwise affect the powers of the Tribunal to make such ordersis.may be necessary to prevent abuse of the process of theTribunal.

2. (l) In these Rules - rntcrprctation.

"Agent" means a Qualified Person, Authorised Person orAccredited Checker;"Tribunal" or"Appeal Tribunal" in relation to an appeal meansthe Tribunal constituted under Section 84 to hear and determinethat appeal;"Chairman" in relation to an Appeal Tribunal means the personappointed as its Chairman under Section 84 (2)"functions"'incltrdes powers and duties;"notice of appeal" means a notice of appeal given underRule 4(l)"Secret8ry to the Appeal Tribunal" means the person appointedas such under Section 84

(2) AnV reference in these Rules to the performance bf afunction includes the exerciseof a power of discharge of a duty.

197

3. (l) A person aggrieved by any decision made by the Appeals'

Authority in the exercise of a discretion conferred on it undbrthis Aci may, except where this Act provides otherwise, appeal

from that decision in accordance with these Rules.

(2) tf-a decision appealed from under sub-rule(l) requires the carrying out of works; anda notice of appeal as regards that decisionis given under Rule 4 (l)

(a)

(b)

with effect from the day the noticp is so given, the Authorityshall neither enforce nor permit the enforcement of such

decision, until the appeal is disposed of or unless it is withdrawnor abandoned.

(3) The Authority may enforce a decision referred to in sub-rule(2) or permit enforcement where it is of the opinion that an

emergency exists and that having regard to that emergency such

enforcement is necessarv and serves a notice on the appellantstating that due to an emergency the enforcement of the decision and the carrying out ofworks or other action is necessary.

( ) The decision of the Authority that an emergency exists forthe purposes of sub-rule (3) shall not be subject to an appeal

under Section 82.

4. (l) Any person who intends to appeal to the Tribunal [[:,:'against a decision of the Authority, shall give notice in theprescribed form in duplicate which shall be lodged with theSecretary of the Tribunal.

(2) Every such notice shall be so lodged within l4 days of thedate of the decision against which he intends to appeal.

l9E

(3) Every notice of appeal shall state rvhether it is intended toappeal against the whole or part only of the decision. and w'hereit is intended to appeal againEt part only of the decision. shallspecify the part complained of, the address fbr sen'ice of theappellant and the names of the person intended to be sen'ed u'itha copy of the notice.

r.

5 (1) Every person on whom a notice of appeal is sen'ed shallwithin 14 days after service on him of the notice of appeal lodgein the Tribunal, and serve on the intended appellant notice of afull and sufficient address for service:

(2) A notice of address of service shall be in the prescribedform.

6. An appeal shall be instituted by lodging in the AppealTribunal, within 2l days from the date the notice of appeal rvas

lodged -

(a) a memorandum of appeal in quadnrplicate(b) the record of appeal in quadruplicate(c) the prescribed fee.

7 (l) Where a notice of appeal is given under Rule 4, theAuthority shall appoint, from the Appeal Tribunal Panel. a

Tribunil consisting of.a Chairman and 4 or 5 members, tbr thepurpose of hearing and determining the appeal to which thenotice relates.

(2) The Chairman or any member of the Appeal Tribunal, shallbe paid such remuneration at such rate as the Authority nraydetermine.

Rcspondont'saddrcss tbrservice

lnstitution ofAppeals

,A.pporntment ofTrihrrnal andremuner.rtton ofrtrenrhen

t99

8. An appeal shall not be instituted in the names of a person Dealhof partvto

who is dead but may be instituted in the name of his legal intcndedappcal'

representative.

9.(i) A memorandurii of appeal shall set forth concisely and contcnts or

under distinct heads and without argument or narrative, the memorendum of

giounds of objection to the decision appealed 4gainst, and thenature of the orders which are alleged to have been wronglydecided, and the nature of the order which it is proposed to ask

the Tribunal to make.

(iD The grounds of objection shall be numberedconsecutively;

(iii) A memorandum of appeal shall be in the prescribed formand shall be signed by the appellant or his advocate or any otheragent.

10. The record of appeal shall contain certified copies of the contentsorfollowing documents ccord of appcal

(a) an index of all the documents in the recordadequately cross-referenced

(b) a statement showing the address of service of theappellant and the address of service furnished bythe Authority as required by Rule 5,

(c) the application which gave rise to the decisionappealed against,

(d) the Authoriry's notes taken at the meeting at

which the application was considered,

2W

(g) the decision of the Authority appealed against,

(f) the notice of appeal filed under Rule 4,

(g) such other documents, if ffiy, as may benecessary for'the proper determination of theappeal.

11. The appellant shall before or 7 days after lodging the :H'::jl"*memorandum of appeal and record of appeal serve copies :urd rcoord or

thereof on the Authority. aPPeal'

12. If a party who has lodged a notice of'appeal, fails to Etlbctordehult

institr:te an appeal within the prescribed time, the notice of il::ti:*tappeal shall be deemed to have been withdrawn and shall unlessthe Tribuiral otherwise orders be liable to pay the costs arisingtherefrom, of any person on whom the notice of appeal was

served.

13. An appeal may be withdrawn any time before hearing, by withdrawar.or

notice in writing to the Secretary of the Appeal Tribunal, signed "ppo"l'

by the appellant or his advocate or agent and upon receipt of itby fu Secretary, the appeal shall be deemed to have beendismissed and the Tribunal may make. such order on costs as itdeems fit.

14. When any appeal is withdrawn, the Secretary shall forthwithnotify the Authority.

15. (1) If at the hearing of an appeal the appellant intends to Noticeto.adducc

adduie-new evidence which was not adduced at the time when :lil|ilJthe application subject matter or the appeal was determined, he

shall lodge with the Secretary a notice of his intention to adduceadditional evidence and. shall serve a copy thereof on theAuthority.

201

(2) The notice referred to in sub-rule ( I ) shall be accompanredwith a copy of the additiorral evidence to be adduced during thehearing of the appeal and shall be lodged af least 7 days beforethe date appointed for the hearing of the appeal.

Provided that an appellant shall not adduce additional evidencewithout the leave of the Tribunal.

16. The Secretary shall cause notice to be given to the appellant ["*:"""'and to the respondent of the time and plaie at which an appealwill be heard.

17 Such notice shall be -siven not less than 14 days before thedate appointed for the hearing unless in any particular case, theChairman of the Tribunal directs otherwise.

18. The following shall apply as regards appearance before theAppeal Tribunal at a hearing of an appeal.

(a) a party, whether the Authority or any other partymay-

(i) be present in person and makerePresentations;(ii) be represented either by advocate,

Qualified Person, Authorised Person orAccredited Checker.

Where an appellant is represented by an advocateor any other agent, it shall not be necessary forhim to attend personally, the hearing of hisappeal, unless the Tribunal orders his attendance.

Parties to appearin person, hyadvocate oragent.

(b)

202

(c) the Authority may be represented bv an advocateor its legal officer or anv other appropriateofficer of the Authoritv.

19. (l) A party to an appeal rvho does not intend to appear inperson, or by advocate or a-sent at the hearin-rr of the appeal,may lodge in the Tribunal, a statement in rvriting of hisarguments in support of or in opposition to the appeal, and he

shall before, or l4 days atier lod-uing it sen'e a copy of it on theother party.

(2) Every such statement shall be lodged -

Presentation ofargumenls tnrvriting.

.\ccess to land orPrcmlses.

20. (l) The Tribunal mav. fbr the purpose of determining an

appeal at any reasonable time-

(a)

(b)

(a)

(b)

by an appellant w'ithin 14 days of lodging hismemorandum of appeal.

by The Authority, rvithin 14 days of sen,ice ofthe memorandum and record of appeal.

enter and inspect any land or premises itconsiders relevant tbr the plrrposes of the appeal;andmake any opening on such land or premises ortake such samples as-it considers necessary.

(2) The Tribunal may. as regards any appeal, direct any person

to do anything which the Tribunal may do under sub-rule (l).

(3) A person directed under sub-rule (2) may enter any landor premises which the Tribunal considers relevant for thepurposes of an appeal and remove anything obstructing -

203

(a) his access to or inspection of the land or premises

and make such openings oi take such samples as

the .Appeal Tribunal considers necessary forpurposes of the appeal; or

(b) the access of the Tribunal to such land orpremises for the purposes of sub-rule (l).

21. (l) If on the day fixed for the hearing of an appeal nostatement has been filed under Rule 19 and the appellant does

not appear either in pefson or by advocate or agent, the appealmay be dismissed, unless the Tribunal deems it necessary toadjourn the hearing.

(2) If on the day fixed for th.e hearing of an appeal theappellant appears, but the Authority does not appear either inperson, by advocate, agent or by any other appropriate officerand has not filed a statement under Rule 19 the appeal shallproceed unless the Tribunal deems it necessary to adjourn thehearing.

22. (l) The Chairman or a member of the Tribunal performingany function under or pursuant to these Rules shall have thesame privileges and immunities as a Judge of the High Cburt hasin relation to civil proceedings in that court.

(2) A party to any hearing ofan appeal, an agent, advocatglegal officer or any appropriate officer of the Authorityappearing before the Tribunal shall have the same immunities orprivileges such a party, 'agent, advocate, legal officer ordppropriate officer of the Authority respectively would have hadin relation to civil proceedings in the High Court.

Appcaranoc atheering and

dismissal lbr nonaPPc:uancc.

Immunilios aadprivilcgcs ofChairman and

Memhers.

2M

23. At the hearing of an appeal, the appellant shall not, withoutleavd of the Tribunal, argue any ground of appeal not specifiedin the memorandum of appeal.

24. Any person who -

(a) refuses or fails without reasonable excuse tocomply with any lawful order, requirement ordirection made or given by the Tribunal ; or

(b) disturbs or otherwise .interferes with . theproceedings of the Tribunal, commits an offenceand is liable on conviction to a fine riotexceeding Kshs.100,000 or. to imprisonment fora term not exceeding 6 morlths or to both suchfine and imprisonment.

25. (l) The Chairman may, as regards a particular hearing,determine the procedure in relation to a rnatter where provisionhas not bebn made in those Rules or the Regulations made underthis Act.

(2) The following shall apply in relation to the hearing anddetermination of an appeal -

Argumcnts rthearing.

Otfbnccs and

Penalties.

(a)

(b)

every question shall be determined by the opinionof the majority of the members of the Tribunal;

Where there is an equality of votes, the Charrmanshall have a casting vote;

205

(3) In determining an appeal, the Tribunal may make an orderconfirming, varying or reversing the decision appealed againstor substituting thereof such other decision or make such otherorder as it deems appropriate.

26. (l) Upon making an order under Rule 25 (3) the AppealTribunal may make such order as to costs as it deems necessary.

(2) Where there is more than one appellant, the Tribunalmay apportion among them, the costs if any, ordered againstthem.

(3) The Tribunal shall not award any compensation ormake an order for any other payment, other than an order forcosts referred to in sub-rule (l).

(a) Where an order for cosb is made agairst the appellant

the amount of the costs may be recovered by the Authority andthe Authority shall cause a copy of the order to be served on theappellant.

(5) AnV costs awarded against the Authority under thisRule shall be paid out of the general fund.

27. Any person dissatisfied with the decision of the Tribunalmay appeal. to the High Court within 14 days from the date ofthe decision appealed against.

Appcal to lhcHigh Couri.

2M

Fonu ARule 4 (71

LAWS OF KENYA

PLANNING AND BUILDING AUTHORITY TRIBUNAL CASE

NO. ........... OF .......... (Ye$)

NOTICE O['APPEAL

TaxuNoncrthat.............. ......(nameofappellant)bengdissatisfied

with the decision of The Aulhority grven a1....... ........oy the.....,......day

of................. .........Month)...... ... (Year) intendstoappaltorhe)dbunalagainstthesaid

decisiorlpart of the said decision as decidesthat: (specify part complained oJ)

The address for service of the appellant is: "'

It is intended to serve copies of this notice on the Planning and Building Authon

Dated this......................day of................. ..................1Month).............(Year)

Signed......... AppellanVAdvocate for the ,{ppcllantrAgent

Lodged in the Registry at .......................on the.......................Day of................

(l)

(2)

Secretary to the Tribunalzfit

Fonu BRute 5 (2)

LAWS OF KE}ryA

PLANNING AND BUILDING AUTIIORITY TRIBUNAL CASE

NO. ........... OF ...........(Year)

AppmraNr(Name oJ appellant)

AND

ReSPoNoBNT(Pluning & Buildkg Authority)

NOTICE OF'ADDRESS T'OR SERVICE

TexB Norrcr thatthe addressfor serviceof(Name of respondent)

a respondent served with notice of appeal, is...........

Dated this.... . day of ...........(Month).............(Year)

Signed..........Authority/Advocate for the AuthoritytAgent

To:-

The secretary to the Appeal Tribunal at.................

Copies to be servedon.................. .............(Name of Appellant)

LodgedintheTribunalat..................onthe.........dayof. (Iulonth).............(Year)

Secretary to the Tribunal208

I

I

I

)

I

I

I

I

Fon-uCRule 9

IAWS OF KENYA

PLA}INING AIYD BTIILDING AUTHORITY TRIBI'NAL CASE

NO. ........... OF ............(Year)

BrrwruNAPPELI"AI.IT

(Nane of oppellant)

ATID

Rrspounrrtr(Planning & Buikling Authority)

(Appeal liom a decisionof The Authority dated the.......day of ...............(Month).......(Year) in case

No...... of....... .. (Year)

MEMORANDT'M OF APPEAL

the above-named appellant appeals to the Tribunal against the whole/part ofthe above named decision on the fbllo*'ing grounds, namely:

1.

2.

3.

It is proposed to ask the Tribunal lbr an order(s) that:

(a)

o)

""""""""""" etc'

It is intended to serve copies of this memorandum on:

The Planning and Buildlng Authority

................ (Address of Authoity)

2WSecretary to the Tibunal

(

I