What to Do the Day a Contractor Vanishes
“He Left Your Half-Built House Like That”:
| Yesterday the site was buzzing. Today there is silence — no workers, no equipment, no contractor. Your half-built walls stand open to the elements, your payments have been drawn, and your dream home is a crime scene of broken promises. You are not the first Kenyan homeowner this has happened to. And the law is on your side — if you move quickly. |
Every year, Kenyan homeowners lose millions of shillings when contractors vanish mid-project — taking advances, leaving roofless structures, unpaid sub-contractors at the gate, and owners too stunned to act. What you do in the first 72 hours will determine whether you eventually rebuild — financially and literally — or watch the case drag for years.
This guide walks you through exactly what to do, step by step, from the moment you realise the contractor is gone to the moment you are back in control. We also explain how the Construction Payments Adjudication Bill, 2025 will change the game for owners and contractors alike once enacted.
| ⚠ EMERGENCY NOTE
This guide is general legal information, not legal advice tailored to your specific situation. Construction abandonment cases are time-sensitive and fact-dependent — contact a qualified Kenyan advocate as early as possible. Evidence disappears. Limitation periods run. Your rights diminish with delay. |
Don’t Panic — Secure the Site Immediately
Your first instinct may be to call the contractor forty times. Resist it. Right now your priority is the physical structure and everything in it.
- Change the padlocks or install new ones. You may need to assert ownership under the Land Registration Act, 2012, which vests absolute ownership of registered land in the registered proprietor — that is you.
- Photograph and video everything: structural work done, materials on site, equipment left behind, defects visible to the naked eye. Date-stamp every file.
- Prepare a written inventory of all materials on site — bags of cement, steel rods, timber, fittings. These may become critical evidence and may be set off against monies already paid.
- State the precise contract terms breached — specifically the obligation to complete works by a certain date and to the agreed standard.
- Quantify the exact amounts paid versus work actually done, referencing your payment records and any quantity surveyor’s assessment.
- Give a firm deadline — typically 7 to 14 days — for the contractor to either return to site and complete the work or refund the overpaid amounts.
- State clearly that failure to comply will result in legal proceedings including an injunction, a claim for damages, and a complaint to the NCA.
- Send it by registered post to the contractor’s last known address AND by email. Keep proof of delivery.
| ⚠ CRITICAL WARNING
Do not write the demand letter yourself if you are emotional or if the amounts involved are significant. A poorly worded letter can damage your position in court — it may contain admissions, omit critical facts, or give the contractor grounds to allege that you repudiated the contract. Have an advocate draft it. |
Step 4: Commission an Independent Assessment of the Works
You need an objective, professional measurement of what was actually built. This is your quantum — the number that drives the entire claim. Without it, you are arguing in the dark.
- Engage a registered Quantity Surveyor (QS) to produce a formal valuation of work done versus the contract sum. The report will quantify how much you overpaid, or how much remedial work will cost.
- If structural defects are evident — crooked walls, poor mix concrete, substandard steel — engage a Structural Engineer to certify the defects in writing.
- Obtain three quotations from registered alternative contractors to complete or remedy the works. This is the standard method Kenyan courts use to assess rectification damages.
STEP 5: Understand Your Legal Position
When a contractor abandons your project, you are not merely dealing with a broken promise. You are the victim of a repudiatory breach of contract — one of the most serious forms of contractual wrong under Kenyan law.
What the Law of Contract Act (Cap. 23) Gives You
| 1. TERMINATION OF CONTRACT
You can formally accept the contractor’s repudiation and treat the contract as discharged. This frees you to engage a replacement contractor without fear of being sued. |
2. DAMAGES
You are entitled to be placed in the position you would have been in had the contract been performed. This includes cost of completion, rectification of defects, and consequential losses. |
| 3. RESTITUTION
Where you have paid for work never done, you are entitled to the return of that money on the basis of unjust enrichment. The contractor cannot keep money for which no value was given. |
4. SPECIFIC PERFORMANCE
In appropriate cases, a court may order the contractor to complete the works. In practice, most owners prefer a damages order over having the same contractor return to site. |
What About Materials Supplied?
If your contract included the supply of materials and those materials were paid for but not properly incorporated into the works, the Sale of Goods Act (Cap. 31, Laws of Kenya) becomes relevant. Under Cap. 31, property in goods passes in accordance with the intention of the parties as expressed in the contract.
| “The contractor was paid in full faith. The law does not require you to simply absorb that loss. It gives you tools — and now, increasingly, fast tools — to recover every shilling you are owed.” |
What if Your Contract Has an Arbitration Clause?
Many formal construction contracts contain arbitration clauses. If yours does, you are generally required to refer the dispute to arbitration rather than court in the first instance. Under the Arbitration Act (Cap. 49, Laws of Kenya), an arbitration clause is enforceable and a court may stay proceedings if one party seeks to bypass it.
| KEY TAKEAWAY
Even if your contract has an arbitration clause, you can still apply to court for urgent interim relief — for example, an injunction preventing the contractor from dissipating assets or removing materials from your site. Courts retain this emergency jurisdiction regardless of any arbitration clause. |
STEP 6: Know the New Law — The Construction Payments Adjudication Bill, 2025
This is the most important development in Kenyan construction law in a generation — and you need to understand it, even though it is not yet in force.
| LEGISLATIVE UPDATE
The “Pay Now, Argue Later” Revolution The Construction Payments Adjudication Bill, 2025 — published pursuant to the National Alternative Dispute Resolution Policy (Sessional Paper No. 4 of 2024) — proposes to introduce statutory adjudication as a mandatory, fast-track dispute resolution mechanism for all construction payment disputes in Kenya. It is modelled on the United Kingdom’s Housing Grants, Construction and Regeneration Act 1996. The core philosophy is “pay now, argue later.” An adjudicator’s decision is provisionally binding — the losing party must comply immediately — while the parties retain the right to challenge it fully in court or arbitration afterwards. How the adjudication process would work: 1. A party refers the payment dispute to an accredited Construction Adjudication Body (CAB) by written notice. 2. The CAB appoints an independent adjudicator within 7 days of receiving the reference. 3. The dispute is heard and determined within 14 days of the adjudicator receiving the respondent’s response. 4. The adjudicator issues a binding Adjudication Certificate. Any amount due must be paid within 7 days. 5. The certificate is enforceable as a High Court judgment — garnishee orders, attachment of property, and contempt proceedings become immediately available. 6. Either party may still challenge the decision in court or arbitration — but must comply with it in the meantime. Note: As at the date of publication, the Bill has been published for public participation and is proceeding through the legislative process. It is not yet law. |
STEP 7: Decide on Your Legal Strategy and Move Fast
By now you have secured the site, gathered documents, sent a demand letter, commissioned a QS report, and understood your legal position. If the contractor has not responded, it is time for formal legal action.
- Suit in the Magistrate’s Court or Environment & Land Court — depending on the amount in dispute and the nature of the claim (land-related matters fall within the exclusive jurisdiction of the ELC under Article 162(2)(b) of the Constitution).
- Arbitration — if your contract requires it. A well-conducted arbitration under the CIArb Kenya Rules can be concluded in months, not years, and the award is enforceable as a court decree under s.36 of the Arbitration Act.
- Contractual adjudication — if your contract includes an adjudication clause (common in FIDIC and JBC contracts), you can invoke it immediately for a fast, binding decision.
- NCA Complaint — in parallel with any court or arbitration proceedings, a complaint to the NCA can result in the contractor’s licence being suspended or revoked.
- Criminal complaint — where there is evidence the contractor obtained your payments by false pretences, a criminal complaint under the Penal Code (Cap. 63) is often the fastest way to bring a recalcitrant contractor back to the negotiating table.
| TIME IS EVERYTHING
Under the Limitation of Actions Act (Cap. 22, Laws of Kenya), claims based on contract must generally be brought within six years of the date of breach. But key evidence deteriorates rapidly. The strongest cases are built in the first few weeks. |
Your Day-One Checklist at a Glance
- Change site padlocks and secure all materials on site.
- Photograph and video the entire site — every wall, floor, and defect.
- Compile all payment records, receipts, and bank/M-Pesa statements.
- Retrieve the signed contract, approved plans, and all correspondence.
- Verify the contractor’s NCA registration status (nca.go.ke).
- Contact a construction law advocate for an urgent consultation.
- Instruct an independent Quantity Surveyor to assess work done.
- Send a formal, advocate-drafted demand letter by registered post and email.
- File a complaint with the NCA if the contractor is registered.
- Consider a criminal complaint if there is evidence of fraud or false pretences.
How Mukamba & Company Advocates Can Help
Construction abandonment cases are emotionally devastating and legally complex. You do not have to navigate this alone. At Mukamba & Company Advocates, our Litigation & Dispute Resolution practice handles construction and property disputes across Kenya. We understand both the law and the practical realities of the construction sector.
- Review your contract and all documents to give you a frank assessment of your legal position — within 24 hours of instruction.
- Draft and dispatch a firm demand letter that puts the contractor on notice in legally precise terms.
- Coordinate with your QS and engineer to ensure the technical evidence is litigation-ready.
- Initiate the appropriate proceedings — whether court action, arbitration, or statutory adjudication — with urgency and precision.
- Apply for urgent interim orders to freeze the contractor’s assets or restrain them from dissipating your money.
- Pursue full recovery — principal amounts, rectification costs, and general damages — through to judgment and enforcement.
| “The contractor made a calculated bet that you would not know your rights, or would be too overwhelmed to enforce them. We exist to prove them wrong.” |
| URGENT LEGAL CONSULTATION
Don’t Wait Until Your Money and Land Are Both Lost. Contact Mukamba & Company Advocates today for an urgent consultation. We will tell you exactly where you stand and what to do next — clearly, honestly, and without delay.
Mon–Tue: 9:00am – 5:00pm | Wed–Fri: 9:00am – 3:00pm | Sat–Sun: Closed Request a Free 20-Minute Consultation: info@mukambalaw.com |
Legal Disclaimer: This article is published by Mukamba & Company Advocates for general information purposes only. It does not constitute legal advice and does not create an advocate-client relationship. The law stated is accurate as at the date of publication; legislative developments — including the status of the Construction Payments Adjudication Bill, 2025 — should be verified at the time you seek legal advice. For advice specific to your situation, please contact us directly.