During protests, fuel strikes, or any day when matatus disappear and bodabodas are overwhelmed, people find ways to move.
Neighbours offer lifts and money changes hands quietly, casually, and without much thought. What feels like community spirit in the moment is, in many cases, a legal problem waiting to happen.
Under Kenyan law, using a private vehicle to carry paying passengers without registering it as a Public Service Vehicle is generally unlawful.
Advocate Njuguna Muri of Muri Mwaniki Thige and Kageni LLP explains that the Traffic Act defines a PSV broadly as any motor vehicle that is licensed to carry passengers for hire or reward, that plies for hire, or is let out for hire, or that is carrying passengers for hire or reward. The implication is direct.
“Once payment is involved, even informally, the vehicle may be treated as a PSV in law,” Muri says.
Under Kenyan law, using a private vehicle to carry paying passengers without registering it as a Public Service Vehicle is generally unlawful.
Photo credit: Shutterstock
Advocate Muri points to the Traffic Act as the primary law being violated, particularly its provisions that require proper licensing, inspection, and authorisation before any vehicle can legally carry passengers for hire.
“Section 98 of the Act requires that PSV drivers be properly licensed and authorised, while Section 102 regulates and prohibits unlawful plying for hire. The NTSA Act reinforces these requirements by prohibiting private vehicles from operating as PSVs without compliance with NTSA licensing structures. County transport regulations may also apply where local permits are required for taxis or similar services. On top of that, insurance law is frequently breached because private motor policies typically exclude commercial passenger transport. Using a private vehicle for fare-paying passengers may amount to a breach of the insurance contract,” Muri explains.
During demonstrations or transport shutdowns, many people believe that offering paid lifts sits in a grey area the law overlooks. Muri is clear that this is not the case.
“The law does not create a formal exception for protests, strikes, or emergencies. The governing principle remains whether the vehicle is carrying passengers for hire or reward.”
Where there is evidence of repeated trips, organised passenger movement, or systematic charging of fares, the conduct may still be treated as unlawful PSV operation.
When an accident happens inside one of these informal arrangements, the question of who is responsible becomes urgent.
According to Muri, the legal responsibility may attach to multiple parties depending on the facts. The driver is usually the primary party liable under the law of negligence, particularly where careless or reckless driving caused the accident.
“The registered owner of the vehicle may also be held liable under the doctrine of vicarious liability if it can be shown that they permitted or consented to the unlawful commercial use.” says Muri.
The insurance company's position, however, depends entirely on the terms of the policy. “In many cases, insurers reject liability where the vehicle was being used for hire or reward contrary to the policy terms,” Muri says.
He points to the Court of Appeal decision in Corporate Insurance Company Limited v Rainbow Cabs and Car Hire Limited from 2023, where the court upheld an insurer's right to deny liability because the insured vehicle was being used for commercial passenger transport without proper disclosure.
“As a result, liability may ultimately rest personally on the driver and sometimes the owner, particularly where insurance cover is invalidated,” he explains.
Passengers in these vehicles carry their own set of risks. Muri says the most immediate concern is insurance uncertainty.
If the vehicle is privately insured and not covered for commercial passenger transport, passengers may find that insurance protection is unavailable or contested after an accident, which can severely delay or complicate compensation claims.
Informal operators are also difficult to trace in the event of disputes, accidents, or criminal incidents. That said, passengers are not without legal options.
“Passengers retain full legal rights to sue for compensation,” Muri confirms. “The illegality of the transport arrangement does not extinguish the driver's duty of care toward passengers. Under the principles of negligence, every driver owes a duty to ensure reasonable safety for passengers, and a breach of that duty gives rise to liability if injury occurs.”
He notes that the fact that the vehicle was operating outside PSV regulations may actually strengthen a negligence claim rather than weaken it.
Muri explains that the main difficulty lies in proving commercial intent. Payments are often made in cash or through mobile money transfers that can be described as fuel contributions rather than fares, making it difficult for enforcement officers to establish that the vehicle was operating for hire or reward.
“Enforcement tends to be reactive rather than preventive, often triggered by accidents or visible roadside violations rather than systematic monitoring,” he says.
For those who are caught, the consequences are serious. “Penalties include monetary fines, imprisonment in more serious cases, and impoundment of the vehicle. Where dangerous driving or fatal accidents are involved, criminal liability may escalate significantly under both the Traffic Act and the Penal Code. Beyond statutory penalties, individuals often face substantial civil damages arising from injury claims.”
The insurance dimension of this issue is equally serious, and Lenard Chirchir, Chief Operating Officer at Britam GI, brings it into sharper focus. “The fundamental principle is that every motor vehicle should be insured according to its intended use,” Chirchir says.
“The risks associated with a privately used vehicle are significantly different from those associated with a vehicle transporting fare-paying passengers. Insurers assess, price, and cover these risks differently.”
When a vehicle is insured under a private motor policy, the insurer assesses the risk based on personal, social, and domestic use.
If investigations reveal that the vehicle was being used to carry fare-paying passengers or operate as an informal taxi without disclosure to the insurer, Chirchir explains that this may constitute a material change in risk.
“The issue is not merely the presence of passengers, but whether the vehicle was being used in a manner that differs from what was declared when cover was arranged,” he says.
On the question of carpooling and shared rides, Chirchir draws a careful line. Where individuals are sharing transport costs informally among friends, family members, colleagues, or neighbours without the intention of generating income, the arrangement may still fall within the scope of private use.
However, where passengers are paying a fare, where transport is being offered repeatedly for financial gain, or where the vehicle is effectively operating as a public transport service, the vehicle may require commercial or PSV insurance cover including appropriate passenger liability protection.
“Periods of demonstrations, transport disruptions, or public emergencies do not automatically alter policy terms or regulatory requirements,” Chirchir says. “Motorists should ensure that their insurance cover remains appropriate for how the vehicle is being used.”
For drivers operating without the right cover, the risks are severe. Chirchir lists personal exposure to compensation claims arising from injury, disability, or death of passengers, potential repudiation of insurance claims, regulatory penalties, and significant legal costs. For passengers, the risks may be even greater.
“They may unknowingly travel in vehicles that lack adequate passenger liability cover, are uninsured, or are operating outside the regulatory framework,” he says. “In the event of an accident, recovery of compensation may become more complex and uncertain.”
Insurers are not passive in investigating these cases. Chirchir explains that investigations are evidence-based and increasingly supported by technology. “Insurers typically review police reports, witness statements, passenger accounts, mobile money transactions, ride-hailing platform records, trip histories, social media advertisements, licensing records, and the frequency and pattern of vehicle usage,” he says.
On the broader question of digital ride-hailing drivers using private vehicles, Chirchir acknowledges that while the insurance industry has evolved to offer products specifically designed for ride-hailing and commercial passenger transport, gaps still arise.
“Operators purchase private motor insurance but subsequently use their vehicles for ride-hailing or other income-generating transport services without updating their insurance arrangements,” he says.
“The key issue is not necessarily the availability of insurance solutions, but ensuring that motorists understand the importance of obtaining cover that accurately reflects their activities and exposure.”
Chirchir believes that closing these gaps requires coordinated effort. He points to the need for enhanced enforcement of insurance and PSV licensing requirements, greater public awareness around passenger liability and insurance obligations, real-time insurance verification systems integrated with transport licensing frameworks, clearer regulatory standards for ride-hailing and carpooling, and increased adoption of technology to identify uninsured or improperly insured vehicles.
“The objective should be to encourage innovation and transport accessibility while maintaining adequate safeguards for all road users,” he says. “Private vehicles should be insured as private vehicles, while vehicles carrying passengers for hire or reward should have the appropriate commercial or PSV insurance protection.”
