Conventional wisdom in this country is that the owner is to blame when a building under construction collapses. So when this happens, killing people, the owner tends to takes cover either out of fear that he will be lynched or arrested by police.

This is what happened when a five-story building fell in Kiambu on Sunday, killing three people. This is what happened when another five-storey building went down in the same town in October, last year, killing 16. This is what happened when a four-storey building collapsed in Nairobi's Ronald Ngala Street in January 2006 and killed 11.

The owners were hunted like criminals because conventional wisdom says they were to blame. This is unfortunate because the owner can provide crucial information during the search and rescue operation.

It is also unfortunate because blaming the owner often has no legal basis. It is a longstanding principle of the common law that an employer is not vicariously responsible for the acts of an independent contractor.

There are several reasons for this rule. One is that when one hires an independent contractor he is not hiring a servant and, therefore, is not liable for his conduct. An 1842 English case, Rapson v Cubitt, established the principle.

Another is that when the principle was formulated, no liability insurance was available. It was, therefore, thought that it would be ruinous for the construction industry if building owners were made liable for construction accidents. Hence, the independent contractor rule.

The rule is almost universally accepted. In the US, for example, courts have uniformly held that a person or company regularly involved in construction work is an independent contractor if hired by the building owner to perform such work. He is liable for any accidents connected with such work.

In a 1987 case, Morrisville Lumber Co v Okcuoglu, it was held that a contractor's subjective belief that he was an agent or employee is irrelevant if the objective facts establish him to be an independent contractor.

An independent contractor is defined as a person or business that performs services for another under an express or implied agreement. Take the case of John Charo v Christopher Njao. One Tuesday morning, around 10 o'clock after about two hours of work, Mr John Charo was climbing out of the pit latrine he was digging. The rope snapped and he fell like a stone to the bottom of the 50-foot-deep pit, smashing his right leg.

He was taken to Coast General Hospital, Mombasa, where they applied a plaster of Paris and gave him antibiotics and painkillers. After 10 days, the fracture showed no signs of healing. It formed a sepsis and an emergency amputation had to be carried out.

He sued Christopher Njao, who had hired him, claiming Sh250,000 for an artificial leg and Sh1 million for pain and suffering. The High Court in Mombasa, however, held that Mr Charo was an independent contractor, not an employee and so Mr Njao was not liable for his injury.

Justice David Maraga said: "Much as I sympathise with the plaintiff who suffered serious fractures, leading to the amputation of his right leg, on the evidence on record, I am nonetheless satisfied that the plaintiff was not an employee of the defendant but an independent contractor who used his own implements.

"He was, therefore, the author of his own misfortune in that he used his own old and weak rope, which got cut, causing him to fall back into the pit. In the circumstance, I dismiss his entire claim wiAth costs."

Although Mr. Charo claimed that Mr Njao had employed him as a casual labourer at Sh300 and a help of Sh200, both per week, the court believed Mr Njao had said he had agreed to pay him Sh500 a foot. Mr Njao had no right to dictate the means or the manner in which he performed the job. Mr Charo was, therefore, an independent contractor.

The verdict was not unexpected. When faced with construction accidents, courts hold that, subject to exceptions, it is the independent contractor who is liable.

Mr Charo was a perfect example of an independent contractor. He had been digging latrines and wells for other people for 13 years. He controlled his working hours and used his own tools. He was therefore an independent contractor.