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Liquidated damages

Also called: LDs · LADs · liquidated and ascertained damages · delay damages

A sum stated in a building contract, payable by the contractor for each period of delay beyond the completion date, fixed in advance as a genuine pre-estimate of the employer's loss.

Liquidated damages are the contract's answer to the question "what happens if it is late". A rate is written into the contract before anybody starts, expressed per day or per week, and if the works are not complete by the agreed date the employer may deduct it.

The word that carries the weight is liquidated: the figure is fixed in advance, so neither party has to prove actual loss when the time comes. That is the whole point of the clause. It converts an argument about consequences into a calculation.

Why the rate has to be honest

A liquidated damages rate is meant to be a genuine pre-estimate of the loss the employer would suffer from late completion. On a house that is typically the cost of continuing to rent elsewhere, plus financing costs on money already spent. On a commercial building it is lost rent.

A rate set far above any plausible loss, chosen to punish rather than to compensate, risks being unenforceable as a penalty. Whether a particular rate crosses that line is a legal question that depends on the circumstances and on the applicable law, and it is one to put to an advocate rather than resolve from a formula. The practical guidance is simpler: be able to show how the figure was arrived at. A rate derived from real rent and real financing cost is defensible. A round number chosen because it sounded serious is not.

What stops the clock

Liquidated damages accrue from the completion date until practical completion. Two things interrupt that.

An extension of time. Where a delay is caused by something the contract makes the employer's responsibility, such as late information, a variation, or in many contracts certain neutral events, the completion date is extended and damages accrue only from the new date.

Practical completion itself. The meter stops on the day the certificate says.

This is why extensions of time matter so much on a final account. They are not administrative. Each one moves the date from which damages run, and on a contract with a meaningful daily rate that is real money.

A worked example

Completion date 1 June. Liquidated damages KES 12,000 per day.

Practical completion is certified on 12 August, seventy-two days late.

Along the way the employer instructed a variation that added eighteen days, and an extension of time for eighteen days was granted in writing at the time.

Damages: 72 minus 18, so 54 days at KES 12,000, which is KES 648,000, deducted from sums otherwise due.

Note what made that calculation possible. The extension was granted in writing, at the time. On a build where delays were discussed and never formally granted or refused, that same calculation is the opening position of a negotiation rather than a result.

What goes wrong

No extensions of time were ever formally decided. The commonest and most expensive failure. Every delay is arguable at the end, and the argument is conducted without evidence.

Damages are deducted without following the contract's procedure. Many contracts require a certificate of non-completion, or a written notice, before any deduction. Deducting without it can make the deduction itself a breach.

The rate was never filled in. A contract with a blank in the liquidated damages clause does not give the employer an open-ended claim. It usually means there is no liquidated damages mechanism at all, and the employer is left proving actual loss the hard way.

Common questions

How are liquidated damages calculated?
By applying the rate stated in the contract to each day or week of delay between the completion date, as extended by any granted extensions of time, and practical completion. The rate is fixed in advance precisely so that nobody has to prove actual loss afterwards.
Can a liquidated damages rate be challenged?
It can, typically on the basis that it is a penalty rather than a genuine pre-estimate of loss. Whether a particular rate crosses that line depends on the circumstances and on the applicable law, so it is a question for an advocate. The practical protection is to be able to show how the figure was worked out.
What is an extension of time?
A formal adjustment of the completion date where a delay is caused by something the contract treats as the employer's responsibility or as a neutral event. It moves the date from which damages accrue, which is why each one should be granted or refused in writing at the time rather than argued about at the final account.
Can damages be deducted straight from a payment certificate?
Only if the contract's procedure has been followed, which often requires a certificate of non-completion or a written notice of intention to deduct. Deducting without the required step can turn a valid entitlement into a breach, so the clause is worth reading before the first deduction.

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Last reviewed 18 September 2026. This entry explains how the instrument works and is not legal or financial advice.