The collapse of a building is rarely a sudden occurrence. It is usually the endpoint of broken due diligence across the construction lifecycle: a flawed land acquisition process, deficient design, poor contractor vetting, and regulatory lapses. Authorities have referenced a worrying trend whereby developers engage qualified professionals to secure approvals, only to later replace them with unskilled contractors during construction. Before entering into any transaction, a purchaser should carefully assess the property for any risks or encumbrances that may affect its title, value, or use. The law applies a clear principle: ‘caveat emptor’ meaning buyer beware.

How can a purchaser protect themselves?

Before committing to the purchase of an off-plan apartment/unit or house, the purchaser must and should address the following four key issues:

1. Ownership (Land Title)

Conduct a land search to confirm the developer owns the land. Given the recent fraudulent transactions, it is advisable to go the extra mile and perform a historical search. As held in Dina Management v. County Government of Mombasa, the purchaser must ascertain the root of title, whether acquisition was legal, formal, and free from encumbrances. A defective title as stated in the case voids the entire transaction.

2. Developer
Run an official company search to confirm the incorporation of the developer and its compliance with statutory requirements. Further, conduct case searches to identify pending lawsuits involving the developer’s past or current projects. The cases will reveal patterns of delayed delivery, variation abuse, or prior structural complaints which are early indicators of systemic governance failure on the developer.

3. Approvals and Licenses

Request the confirmation or verification of the following:

1. Certificate of Compliance– issued by the National Construction Authority;
2. The Environment Impact Assessment License– issued and the project gazetted by the National Environment Management Authority;
3. County Government Approval of the building plans– confirming compliance with zoning, building codes, and planning policies.

Any failure to verify, inconsistency identified, or delay in obtaining these approvals constitutes a material legal red flag that purchasers should treat with caution.

4. Listed Professionals

Recent reports of collapsed buildings suggests that architects and engineers named in the approvals are sometimes disengaged mid-project. As part of due diligence, a purchaser should confirm that the listed professionals remain actively involved in supervising the works. It is also prudent to include a contractual provision requiring that the completed unit meets all approved standards and specifications, irrespective of any changes in the project’s professional team.

 Conclusion

Failure to undertake adequate due diligence exposes a purchaser to two primary risks. First, the risk of total loss of investment, particularly where a building collapse renders the development structurally unsound, subject to demolition, or incapable of lawful occupation. Second, the risk of physical injury or loss of life arising from substandard, non-compliant, or unprofessionally executed construction works.

The most effective way to safeguard against these risks is by engaging a seasoned advocate to conduct comprehensive legal due diligence before committing to any transaction. At Andersen, we verify all requisite approvals, scrutinize the professionals involved, and we ensure that sale agreements adequately protect the purchaser’s interests at every stage.

Content By:

Peter Mwangi

Legal Associate

peter.mwangi@ke.andersen.com

Dianah Mureithi

Head of Legal & Private Wealth

dianah.mureithi@ke.andersen.com