LAW OF CONTRACT

A contract can be simply defined as a promise that is enforceable by law. The promise may be to
do something or to refrain from doing something.
The law of contract is of paramount importance to architects in Kenya, as it provides the legal
framework within which professional relationships and transactions are governed. In the context
of architectural practice, contracts serve as the foundation upon which projects are built, ensuring
clarity, accountability, and fairness for all parties involved.
First and foremost, contracts establish the terms and conditions of the architectural services to be
provided. These documents outline the scope of work, project timelines, responsibilities of both
the architect and the client, as well as the financial arrangements, including fees and payment
schedules. By clearly defining these aspects, architects can avoid misunderstandings and disputes
that may arise during the course of a project. Adhering to a well-structured contract ensures that
architects are compensated fairly for their expertise, time, and resources, fostering a sustainable
and thriving architectural profession in Kenya.
Moreover, contracts play a vital role in risk management for architects. They help in allocating
risks and liabilities among the parties involved in a construction project. Architects can specify
the standards of performance, quality of materials, and other project requirements in the contract,
ensuring that their designs are implemented correctly and in compliance with regulatory
standards. In the event of project delays, cost overruns, or disputes, the contract serves as a
reference point to resolve issues, protecting architects from potential legal complications.
Additionally, contracts provide a legal framework for resolving disputes through alternative
dispute resolution mechanisms such as arbitration or mediation. These processes can save
architects valuable time and resources that would otherwise be spent in lengthy court battles. By
adhering to contractual obligations and addressing disputes promptly, architects can maintain
their professional reputation and client relationships, which are crucial for sustaining their
practices in the long run.
Furthermore, contracts in architectural practice also address intellectual property rights,
confidentiality, and ownership of project documents. Architects invest significant time and
creativity in designing unique and innovative solutions for their clients. Contracts help protect
their intellectual property by specifying who owns the design documents and under what
conditions they can be used or reproduced. This protection is vital for architects' professional
integrity and for encouraging a culture of creativity and innovation within the industry.
Scenario
In the High Court of Kenya at Nairobi, Commercial and Tax Division, Civil Suit No. 173 of
2016, a dispute arises between the Plaintiff, Bon-Arch Associates Limited, and the Defendant,
Ninety-Four Eastchurch Properties Limited.
The plaintiff is a company of architects while the defendant is a property developer. At the time
material to this case, the defendant procured the plaintiff’s professional services as the
architectural and lead consultants for the development of luxury 41 luxury apartments on LR
1870/VI/94 (“the suit property”)
The plaintiff claims that the defendant breached their contract by failing to pay outstanding
professional fees amounting to Kshs. 32,145,586.00. The plaintiff contends that it fulfilled 90%
of its obligations based on previous contracts and that the payment was to be made in specified
installments as agreed upon in the contract terms. The defendant, acknowledging the debt in an
email, cited funding delays as the cause for non-payment. The plaintiff argues that it fulfilled its
obligations under the contract and that the defendant's failure to secure funding cannot excuse the
breach. The plaintiff also disputes the defendant's claims of insufficient supervision, citing
relevant clauses in the contract and the 4th Schedule of the Act. The plaintiff asserts that the
defendant admitted the debt and contends that the only issue lies in the defendant's liquidity
challenges.
The judge ruled in favor of the plaintiff and the defendant was ordered to pay the plaintiff Kshs.
32,145,586.00 along with 1.5% interest per month from 12th February 2016 until the full amount
is paid. Additionally, the defendant has to cover the legal costs of the lawsuit.
This case signifies the importance of law of contract to architects as he was able to sue the
defendant for breach of contract
In conclusion, the law of contract is indispensable to architects in Kenya, providing the legal
structure necessary for the smooth functioning of their professional engagements. By ensuring
clear communication, defining responsibilities, managing risks, and protecting intellectual
property, contracts empower architects to deliver high-quality services, maintain ethical
standards, and contribute positively to the built environment in Kenya. Architects who
understand and uphold the principles of contract law are better positioned to succeed
professionally, establish trust with clients, and contribute meaningfully to the architectural
landscape of the country.

LAW OF TORT
The law of tort refers to a civil law that deals with civil wrongs that are neither criminal nor of
contract against someone.
The Law of Tort holds great importance for Architects in Kenya as it shapes their professional
conduct, liability and ethical responsibilities. Equipping themselves with knowledge regarding
the law of tort and adhering to it is crucial for many reasons to architects, emphasizing their role
in the construction industry and the well-being of society.
Firstly, the law of tort establishes the legal framework within which architects operate. It defines
the boundaries of their professional responsibilities and ensures that architects are held
accountable for their actions. This is seen in CAP 525., which is the Act that governs Architects
and Quantity Surveyors under the Kenyan Constitution. Architects owe a duty of care to their
clients, ensuring that their designs are safe, functional, and compliant with regulations. If
architects breach this duty and their negligence results in harm or financial loss, they can be held
liable in tort. In Kenya we have experienced the collapse of several buildings and building
designs which are not safe, functional or both. When an architect neglects to supervise their
projects there are higher chances of producing substandard and unsafe buildings. The
accountability that stems from duty of care ensures that architects adhere to high standards of
professionalism, leading to the creation of secure and well-designed structures.
Secondly, tort law is essential for protecting the interests of various stakeholders involved in
construction projects. Architects interact with clients, contractors, suppliers, and the public. By
understanding tort law, architects can navigate complex relationships, minimize conflicts, and
ensure that all parties are treated fairly. This knowledge helps architects in drafting contracts,
specifying materials, and managing risks, fostering a transparent and collaborative construction
environment. Some Architects are also contractors therefore he/she is employed under a contract
for services however the construction workers are employed under contract of services therefore
he may take vicarious liability if a construction worker commits a tort under his orders.
Thirdly, Architects, like any professionals, can be subject to defamation claims. They need to be
cautious about their public statements and representations to avoid harming the reputation of
others, which can lead to legal action under tort law.
In conclusion, the law of tort is of paramount importance to architects in Kenya. It ensures
professional accountability, protects stakeholders' interests, fosters social responsibility, and
encourages continuous improvement. By adhering to tort law, architects contribute significantly
to the construction industry, promoting safety, innovation, and sustainable development in the
country.