Engineering Services Contract

An Engineering Services Contract in Kenya governs the relationship between the parties by fixing what each must do.

Engineering practice in Kenya is regulated by the Engineers Board of Kenya (EBK), established under the Engineers Act No. 43 of 2011. Section 23 of the Engineers Act No. 43 of 2011 makes it a criminal offence for any person to practise engineering, hold themselves out as an engineer, or offer engineering services in Kenya without being registered with the Engineers Board of Kenya. A valid Engineering Services Contract must therefore identify the engineer's EBK registration number and, where the services are provided through a firm, the firm's EBK practice licence number. Courts in Kenya, applying the Law of Contract Act Cap. 23, have declared contracts with unregistered engineers unenforceable on grounds of statutory illegality.

The scope of professional engineering services in Kenya spans civil engineering covering roads, bridges, drainage, and water infrastructure; structural engineering for buildings and towers; mechanical engineering for plant, equipment, and HVAC systems; electrical engineering for power systems and installations; environmental engineering for environmental impact assessment studies under the Environmental Management and Co-ordination Act No. 8 of 1999; geotechnical engineering for foundation design and slope stability; and engineering project management. Each discipline is subject to technical standards published by the Kenya Bureau of Standards (KEBS) under the Standards Act Cap. 496.

The National Construction Authority (NCA), established under the National Construction Authority Act No. 41 of 2011, regulates construction-related engineering work and requires that all contractors and consultants working on building projects in Kenya be registered. Engineering firms providing design and supervisory services on NCA-registered projects must comply with NCA technical guidelines and submission formats. The Physical and Land Use Planning Act No. 13 of 2019 requires that structural drawings submitted to county government planning departments be signed and stamped by a structural engineer registered with the EBK.

Government procurement of engineering services is regulated by the Public Procurement and Asset Disposal Act No. 33 of 2015 and the Public Procurement and Asset Disposal Regulations 2020, which require competitive tendering for engineering consultancy contracts above specified thresholds. The Architects and Quantity Surveyors Act Cap. 525 governs the interface between engineering and architectural services where multidisciplinary design teams are engaged.

Disputes under engineering services contracts in Kenya are most commonly resolved through the Nairobi Centre for International Arbitration (NCIA) under the Arbitration Act No. 4 of 1995, which gives effect to the UNCITRAL Model Law on International Commercial Arbitration. The High Court of Kenya retains supervisory jurisdiction over arbitral proceedings and may hear disputes directly where no arbitration clause exists. The forms-legal.com Engineering Services Contract template meets all requirements under the Law of Contract Act Cap. 23 and the Engineers Act No. 43 of 2011 while incorporating international best practice for professional services agreements.

Engineering services in Kenya also intersect with the Energy Act No. 1 of 2019 and the regulations of the Energy and Petroleum Regulatory Authority (EPRA), which requires licensed electrical engineers to certify electrical installations before commissioning. The Water Act No. 43 of 2016 and the Water Services Regulatory Board (WASREB) require that water supply and sanitation infrastructure be designed and certified by registered civil or environmental engineers. The Petroleum Act No. 3 of 2019 imposes specific engineering competency requirements on upstream petroleum companies operating in Kenya.

The Kenya Accreditation Service (KENAS) established under the Kenya Accreditation Act No. 3 of 2013 accredits testing and calibration laboratories used by engineers for material testing and quality assurance on construction projects. Engineering contracts for infrastructure works commonly require material testing by KENAS-accredited laboratories, with test certificates submitted as contract deliverables.

Professional engineers in Kenya are subject to the Code of Professional Conduct published by the Engineers Board of Kenya under the Engineers Act No. 43 of 2011, which prohibits conflicts of interest, requires engineers to decline commissions beyond their competence, and mandates acting in the public interest. Breach of the Code may result in disciplinary proceedings before the EBK Disciplinary Committee and cancellation of registration. An Engineering Services Contract that expressly requires compliance with the EBK Code of Professional Conduct gives the client a contractual remedy in addition to the statutory disciplinary route, strengthening accountability throughout the project.

An Engineering Services Contract in Kenya is required whenever a client engages a licensed engineer or engineering consultancy to perform professional services on any project, regardless of scale. The absence of a written contract leaves both client and engineer without legal certainty on fees, ownership of drawings, liability for errors, and remedies for non-performance.

Infrastructure developers, real estate companies, manufacturing firms, utilities, mining operations licensed under the Mining Act No. 12 of 2016, oil and gas companies holding exploration licences under the Petroleum Act No. 3 of 2019, and all national and county government agencies require documented engineering contracts before work commences. The Auditor-General under the Public Audit Act No. 34 of 2015 and the Controller of Budget under the Public Finance Management Act No. 18 of 2012 require written contracts as supporting documentation for all government engineering expenditure.

Projects financed by development finance institutions — including the World Bank, the African Development Bank, the European Investment Bank, and the East African Development Bank — require engineering contracts that comply with the procurement guidelines of those institutions alongside Kenyan law. The Kenya National Highways Authority (KeNHA) under the Roads Act No. 2 of 2007, the Kenya Rural Roads Authority (KeRRA), and the Kenya Urban Roads Authority (KURA) all require engineering contracts for road projects that meet specific technical and legal standards before procurement under the Public Procurement and Asset Disposal Act No. 33 of 2015.

Building projects in Nairobi City County, Mombasa County, Kisumu City County, and all other county governments require submission of structural engineering drawings signed and stamped by an EBK-registered structural engineer as a condition for issuing building permits under the Physical and Land Use Planning Act No. 13 of 2019 and county by-laws. An engineering contract between the property developer and the structural engineer is prerequisite documentation for these building plan approvals.

Environmental engineering services for EIA studies required by the National Environment Management Authority (NEMA) under the Environmental Management and Co-ordination Act No. 8 of 1999 must be documented through an engineering services contract. Mining licence applicants under the Mining Act No. 12 of 2016 and energy project developers requiring licences from the Energy and Petroleum Regulatory Authority (EPRA) under the Energy Act No. 1 of 2019 similarly require documented engineering contracts as part of their regulatory compliance submissions.

Manufacturing companies pursuing quality certification under KEBS standards, water services providers regulated by the Water Services Regulatory Board under the Water Act No. 43 of 2016, and telecommunications licensees under the Kenya Information and Communications Act Cap. 411A all engage engineers on documented service contracts as part of their mandatory compliance frameworks.

Real estate investment trusts (REITs) regulated by the Capital Markets Authority under the Capital Markets Act Cap. 485A must maintain documented engineering contracts for all infrastructure and property development works forming part of the REIT portfolio as part of CMA compliance documentation. Special economic zones licensed under the Special Economic Zones Act No. 16 of 2015 are required by the Special Economic Zones Authority (SEZA) to maintain engineering contracts for all infrastructure development within the zone. These requirements make a properly executed Engineering Services Contract an indispensable element of any regulated development or investment project in Kenya.

A thorough Engineering Services Contract in Kenya under the Law of Contract Act Cap. 23 and the Engineers Act No. 43 of 2011 must contain the following key elements to be enforceable and commercially fit for purpose.

**Parties and Credentials:** The contract must identify the client by full legal name, company registration number under the Companies Act No. 17 of 2015, KRA PIN, and address. The engineer or engineering firm must be identified by full name, EBK registration number, EBK practice licence number where applicable, and professional indemnity insurance policy details. Engaging an engineer without a valid EBK registration is a criminal offence under Section 31 of the Engineers Act No. 43 of 2011 and renders the contract potentially unenforceable.

**Scope of Services:** A detailed schedule of services must be appended to the contract, specifying each phase of the engineering engagement — conceptual design, preliminary design, detailed design, tender documentation, contract administration, site supervision, and preparation of as-built drawings. The schedule must reference applicable KEBS technical standards, NCA guidelines, and any NEMA requirements under the Environmental Management and Co-ordination Act No. 8 of 1999 that apply to the project.

**Project Programme and Milestones:** The contract must include a project programme with milestone dates for delivery of key documents and services. The conditions that must be satisfied by the client — such as providing site access, geotechnical data, and utility information — before each milestone can be achieved must be clearly stated. Provisions for extension of time due to client-caused delay, force majeure events, or delay by regulatory bodies such as NEMA or county planning departments must be included.

**Professional Fees and Payment:** The fee structure — whether lump sum, percentage of construction cost in accordance with EBK fee scales under the Engineers Act No. 43 of 2011, time-based, or retainer — must be stated. All fees must be expressed in Kenya Shillings (KES). VAT obligations under the Value Added Tax Act No. 35 of 2013 at the standard rate of 16% must be addressed, as must the client's obligation to apply 5% withholding tax on fees paid to resident engineering consultants under the Income Tax Act Cap. 470. Payment milestones must be linked to delivery of specific services. Late payment should attract interest at the Central Bank of Kenya base rate plus a specified margin.

**Intellectual Property Ownership:** Ownership of engineering drawings, specifications, calculations, reports, and any software produced under the contract is governed by the Copyright Act Cap. 130, which protects original engineering drawings as artistic works. The contract must state whether ownership transfers to the client upon full payment — the most common position in Kenya — or remains with the engineer subject to a limited use licence. The engineer's right to retain a copy of all documents for professional records should be preserved regardless of the ownership arrangement.

**Professional Liability and Insurance:** The engineer's aggregate liability for professional negligence must be limited to a specified multiple of the fees earned under the contract, consistent with the engineer's professional indemnity insurance cover. Section 24 of the Engineers Act No. 43 of 2011 requires all registered engineers to maintain professional indemnity insurance. The engineer must not be liable for indirect, consequential, or loss of profit damages. The client is responsible for maintaining all-risks insurance on the construction works.

**Subcontracting:** The engineer may subcontract specialist services to other EBK-registered engineers and consultants with the client's prior written consent. The primary engineer remains liable to the client for all services, whether performed directly or through subcontractors.

**Health, Safety and Environment:** Compliance with the Occupational Safety and Health Act No. 15 of 2007, DOSHS directives, the Environmental Management and Co-ordination Act No. 8 of 1999, and NEMA conditions imposed on the project must be expressly required of both parties. Site safety plans for supervising engineers must be prepared and appended.

**Dispute Resolution:** The contract should provide a tiered dispute resolution mechanism: engineer's decision on technical matters, followed by mediation under NCIA rules, followed by arbitration under the Arbitration Act No. 4 of 1995 with the seat in Nairobi. The governing law must be stated as the laws of Kenya, including the Law of Contract Act Cap. 23 and the Engineers Act No. 43 of 2011.

**Termination Provisions:** Grounds for termination for cause by either party, the notice period required, the obligation to hand over all documentation on termination, and the fee payable for services completed up to termination must all be expressly stated. Download a complete, ready-to-use Engineering Services Contract template for Kenya at forms-legal.com, compliant with the Engineers Act No. 43 of 2011 and the Law of Contract Act Cap. 23.

**Force Majeure and Change in Law:** The contract must address events outside either party's control including natural disasters, pandemics, government prohibitions, and changes in Kenyan law or regulatory requirements that prevent performance. A change in law clause is particularly important for multi-year projects subject to evolving environmental regulations under the Environmental Management and Co-ordination Act No. 8 of 1999 or energy regulations under the Energy Act No. 1 of 2019.