Under Kenya’s traffic, road and transport laws, a Probox and a bodaboda are not Public Service Vehicles (PSVs), a Double-Cabin Pick-Up is not a commercial vehicle, and there is no category of vehicle called ‘private’ vehicle.
The Traffic Act classifies motor vehicles into the following specific categories:
- – Motor cycles
- – Motor car
- – Invalid carriages
- – Commercial vehicle
- – Matatu
- – Motor ombinuses
- – Heavy commercial vehicles
- – Tractor
A saloon or station wagon car falls within the category of a ‘motor car’, what we normally call a ‘private car’. It is illegal to carry fare paying passengers or goods for purposes of trade or agriculture in such a car, without an additional license (as a PSV or a commercial vehicle).
Non-‘private’ motor vehicles (excluding motor cycles and tractors) must be licensed either as PSVs or commercial vehicles, the former to carry/transport fare paying passengers, and the latter to transport goods or agricultural produce.
Taxi Hailing Apps
As usual with technology, our laws are yet to catch-up with digital taxi hailing service providers. The innovative technology that goes into these services, enabling on-demand public service transport is still as impressive as it is efficient. However, the public passenger service it enables carries with it legitimate public interest concerns that provide a case for oversighting and regulating of these service providers by the transport regulator, the NTSA.
Were you to land at Jomo Kenyatta Airport, and opt to use one of the yellow airport taxis available there to your Nairobi destination, you may not expect that the drivers are employed by the Kenya Airports Authority (KAA), but you likely expect that KAA will bear some legal or contractual responsibility in the carriage contract in the event of damage, loss or injury. Surely it was KAA who ‘brought them’ there! Even assuming KAA does not readily accept any responsibility, it is in the public interest for the public to be able to lodge a claim against KAA in the event of a dispute relating to the carriage service, without choice of law and jurisdiction hurdles well beyond the reach of the average taxi service user.
If you have read through the Terms and Conditions of use of your Uber app (merely an example of a cab hailing service available in Kenya) you will find that as a taxi-requesting individual in Kenya, you contract with Uber’s Dutch entity when you use the Uber app to obtain a taxi service. Further down the Ts and Cs, you will find that the law governing your contract is Dutch law, and in the event of a dispute between you and Uber, you are required to have mediation and then arbitration, both to take place in Amsterdam. Away from current travel restrictions that would make it impossible for a Kenyan to travel to Europe for non-essential services, the chances and practicalities of a regular Kenya-based Uber rider even commencing the dispute resolution mechanism all the way in Amsterdam are as high as another locust invasion.
From a regulatory perspective, currently, drivers registered with the taxi-hailing digital service providers are only required to obtain PSV licenses. Taxi ‘hailing’ technology service providers (pre-Uber, my limited use of ‘hail’ was when describing my home village, and when praying the Rosary) seem to escape a number of the legal responsibilities legacy public service operators have by riding on their ‘merely technology provider’ line. There is however glaring public interest in regulating all players (including intermediaries) in the public passenger transport sector, including driver, conductor, vehicle itself, cash-light system service providers, driving schools, motor cycle sellers, SACCOs etc. Requiring and regulating matatu SACCOs is a good example of NTSA regulating an entity who, while not the matatu driver or owner, is relevant and essential to regulate in the wider public interest of ensuring safety in public transportation.
Thankfully, the NTSA has draft regulations to govern these digital service providers. Whilst we do not agree with all the current draft’s provisions (such as treating drivers as employees of the digital taxi hailing service providers), a large number of the provisions are welcome. These include requiring governing law in these contracts to be Kenyan law and requiring the service providers to have a registered entity in Kenya. Read our detailed discussion on these draft regulations here.
Bodaboda
While quite apparent that the government ought to regulate operators in public transport (public safety, taxation etc) like matatus and buses, it is unclear why the NTSA has been unable to effectively reign in on bodaboda operators. The bodaboda sector in Kenya apparently exploded from around 2013 after introduction of conditional duty remission on importation of Completely Knocked Down (CKDs) motorcycle kits. While the NTSA had an opportunity to do so in its Motor Cycle regulations, it failed to require bodabodas (two wheeled motorcycle Taxi) and tuktuk (three wheeled motorcycle Taxi) to obtain PSV licenses, while curiously requiring them to obtain PSV insurance. In essence, when you next ride on a bodaboda, be aware that it is not licensed as a PSV, which severely limits your recourse in the event of an accident, or in event of loss, injury or damage.
Probox
By default, a Probox is a ‘private’ car, unless it has been otherwise adapted for commercial use. If you have not been inside a Probox (or its ‘cousins’ Succeed etc), you may be surprised just how roomy this car is, and it is this large amount of space (not seating capacity) with low engine capacity that has made this vehicle famous among business people, and consequently infamous among other road users. Though in 2015 the NTSA banned its use to carry passengers and goods without licensing as PSVs or commercial vehicle, its use for passenger transport continues to be prevalent both within urban areas and towns. The NTSA now permits the licensing of Proboxes as commercial vehicles, essentially to transport goods or agricultural products in the course of trade, they are not permitted to operate and are not licensable as PSVs. Therefore, if you own a Probox and at any point use it for non-personal/non-domestic purposes, a police officer who flags you down is correct to require evidence that it is licensed as a commercial vehicle.
Double-Cabin Pick Up
This car seemingly combines the best of both worlds-attractive and powerful family car combined with separate space to carry tens of kilos apparently without restrictions on dimensions of goods carried. Prior to December 2014, the traffic and transport laws considered it a commercial vehicle, like the ordinary pick up. However, following the President’s directive and thereafter a Gazette notice by NTSA in December 2014, a Double-Cab Pick-Up ceased to be a commercial vehicle, making the input VAT paid when purchasing it, by default, not claimable against output VAT. Like VAT paid when purchasing a Prado and similar cars. There is of course an opportunity to demonstrate and convince the Commissioner that it is a commercial vehicle by virtue of its use. If you own one, only note to keep the open space (boot) covered or closed and locked to avoid the possible conclusion by NTSA officers that it is being used as a commercial vehicle, hence requiring commercial vehicle licensing and inspections by NTSA.