Homeowners at Karibu Homes, also known as River View Estate in Athi River, recently raised concerns about their houses developing serious defects after moving in. Their complaints point to a wider question that recurs in Kenyan property disputes: What happens when the house develops serious defects after the keys are handed over?
Understanding what is going wrong structurally is the first step, because not every crack signals that a house is unsafe. Gitonga Muchiri, an assistant resident engineer at RailRoad EPC Consultants Ltd, says some cracking falls within limits allowed under engineering codes.
“Not all cracks compromise the integrity of a structure,” he says, referring to what is termed the Serviceability Limit State. ‘The severity of a crack depends on its width, direction, location, depth and whether it continues to move.’
Hairline cracks, generally under one millimetre and consistent along their length, are typically the result of plaster drying quickly and are not usually a cause for concern. Cracks wider than three millimetres, however, warrant closer inspection.
“Tapered cracks that are narrow at the bottom but wide at the top indicate structural rotation or differential settlement. A widening crack suggests the structural elements are pulling apart,” Gitonga says.
The underlying causes vary. Foundation problems, unstable soil, poor workmanship and design flaws are all common contributors.
Gitonga notes that buildings constructed on expansive soils such as black cotton soil, on poorly compacted ground, or in areas with a high water table are particularly prone to cracking as conditions beneath them change.
Substandard foundation materials and poor masonry work compound the risk. Seismic activity, insufficient reinforcement, overloading and long stretches of wall or slab without adequate expansion joints are also cited as contributing factors.
A more serious concern arises when the same pattern of cracking appears across multiple houses within a single development.
“This might be an indicator of systemic structural distress rather than an isolated case,” Gitonga says, pointing to possible factors such as expansive soils, poor drainage, groundwater movement or inadequate soil compaction across a development.
Where cracks appear and continue to grow, his advice is to seek professional assessment rather than cosmetic repair.
“An engineer cannot diagnose a structural defect by simply looking at a crack. We must analytically evaluate the soil properties, groundwater conditions, etc,” he says.
The appropriate remedy depends on the findings. Foundation instability or expansive soil may require underpinning or micro piling, while problems linked to groundwater may call for improved drainage alongside further geotechnical investigation. Costs vary according to the extent of the damage, consultancy fees, materials, the depth of any foundation works and the specialised labour required.
Who should bear the costs?
According to Chris Gichangi, an Advocate of the High Court of Kenya and partner at G.M Gamma Advocates LLP, the developer will generally be the primary party liable where a defect is linked to poor workmanship, defective materials, inadequate design or failure to comply with approved plans and construction standards.
“The developer may in turn pursue architects, engineers, contractors or subcontractors responsible for the defect but that does not necessarily defeat the purchaser’s claim against the developer,” he says.
Court rulings
Kenyan courts have dealt with a number of such disputes.
In Winfred N. Karanja v Regnoil Kenya Limited,[2018] KEHC 3981 (KLR) a buyer of a maisonette at Diamond Park Estate in Nairobi complained of a leaking roof, inferior doors and windows, inconsistent finishes, missing electrical fittings and an uneven staircase.
A quantity surveyor estimated remedial works at approximately Sh2.15 million. The High Court found the developer in breach of contract, ordered the defects remedied and awarded the buyer Sh1.5 million in general damages.
Whether liability survives handover depends on the sale agreement and the nature of the defect.
“Most sale agreements for residential developments contain contractual mechanisms that regulate the developer’s post-completion obligations,” Chris says, citing defects liability periods, maintenance periods, warranties and procedures for reporting defects.
The expiry of an express defects liability period does not automatically extinguish every possible claim, particularly where a defect is latent, structural or could not reasonably have been detected at handover.
Disputes involving multiple homeowners tend to carry greater financial exposure.
In Michael Kimondiu and 3 others v Garden Real Estate Development Limited,[2021] KEELC 717 (KLR), purchasers at Cullinan Apartments in Nairobi took their dispute to arbitration, claiming approximately Sh96.3 million. They sought to preserve unsold units owned by the developer in case they were needed to satisfy a future award.
The developer disputed the allegations and maintained that the apartments had been properly constructed and certified for occupation.
The court’s ruling concerned preservation of the units during arbitration and did not determine whether the alleged defects existed.
John Misonga Lwangu and 122 others v Fort Properties Limited and 4 others,[2021] KEHC 563 (KLR), involved more than 100 purchasers who alleged their houses were structurally and architecturally defective and unsuitable for habitation. The 2021 ruling addressed procedural matters rather than the substantive allegations.
Chris says homeowners affected by similar defects may, depending on the circumstances, bring a joint or representative claim.
‘Kenyan procedural law permits persons with common questions of law or fact to institute proceedings jointly,’ he says, adding that this can apply to problems such as cracking, foundation settlement, drainage failures, sewerage defects or structural instability.
In Stephen Kariuki Wairia v Haraka Enterprises Limited,[2015] KECA 485 (KLR), a homeowner in Lavington withheld Sh813,075 from his contractor, citing wall cracks severe enough to break ceramic tiles and a hole in the chimney he linked to a fire that damaged his property.
Although a lower court initially ruled in his favour, the High Court later found that the works had been completed and the defects addressed, a decision the Court of Appeal upheld after considering evidence from an engineer who had inspected the house. The case illustrates that establishing what caused a defect is as important as establishing that damage exists.
Liability beyond the house
Chris notes that where a developer attributes defects to soil conditions, poor maintenance, homeowner alterations or third parties, the matter is resolved through evidence, citing “structural engineering reports, geotechnical investigations, approved architectural and structural plans, construction records, inspection reports and expert testimony.”
Liability can also extend beyond the individual dwelling. A buyer in a gated or sectional development typically has an interest in roads, drainage, sewerage, parking and security infrastructure.
The Sectional Properties Act 2020 provides for an owners’ corporation to manage and administer common property, with proprietors contributing towards its expenses. It also requires the transfer of documents including warranties, structural, electrical, mechanical and architectural drawings, and information on underground utilities.
Responsibility for defects affecting shared infrastructure depends on ownership, control, the terms of handover and the cause of the defect, Chris says. Where infrastructure problems stem from poor design, construction or materials predating handover, the developer may remain liable.
Responsibility for routine maintenance typically shifts to the management corporation or owners once infrastructure has been properly completed and handed over.
Financial losses are not always confined to repair costs. In Muigai v Kipagi Limited,[2021] KEHC 388 (KLR), a purchaser who had agreed to buy property in Thika for Sh26.5 million alleged undisclosed material defects.
The dispute proceeded to arbitration, where the purchaser sought compensation including the Sh6.5 million already paid and more than Sh1.2 million in bank interest. The arbitrator awarded approximately Sh7.55 million, and subsequent High Court proceedings concerned enforcement of that award.
According to Chris, available remedies depend on the nature and seriousness of the defects, the terms of the sale agreement and the evidence of loss. These may include an order requiring the developer to repair or complete works, damages for repair costs or diminished value, compensation for alternative accommodation or lost rental income, and, in serious cases, rescission of the contract and recovery of the purchase price.
For prospective buyers,the lawyer recommends technical, legal and background due diligence before purchasing a home in a gated development. This includes an independent structural inspection, verification of approvals, review of title documents and sectional plans, and scrutiny of management and service charge arrangements.
He also advises checking a developer’s track record and any ongoing litigation, along with soil conditions, drainage, flooding risk and ground instability.
Where defects emerge years after purchase, Chris recommends that homeowners preserve sale agreements, offer letters, completion certificates, warranties, structural and geotechnical reports, inspection reports, photographs, videos, repair quotations and invoices, along with records of alternative accommodation expenses, valuation reports and correspondence with the developer and estate management.
“Prompt acquisition and preservation of expert evidence significantly strengthens any future claim by providing credible and contemporaneous proof of defects, losses and liability,” Gichangi says.