Hallo Wakili,

I was forced to alight from a matatu on a main highway at a point that was not an official stage. Although the designated stage was accessible via the service lane, the driver chose not to stop there.

I was arrested immediately afterwards, yet I believe it is the matatu crew who should have been held responsible and prosecuted for the offence.

Please outline all the legal avenues available to me for redress and share any relevant court decisions that clarify liability in situations of this nature.

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Many commuters routinely face unsafe and unlawful practices, the most common being drop‑offs or pick‑ups at non‑designated points along highways. These actions expose passengers to unnecessary harm, create pedestrian hazards, disrupt traffic flow, and often amount to obstruction.

Despite being widespread, these practices violate both traffic regulations and the fundamental rights of passengers.

Every person who uses public transport is, first and foremost, a consumer. Article 46 of the Constitution protects consumer rights, including the right to safety, health, and economic interests. These rights must be read together with Articles 27, 28, and 29, which guarantee equality before the law, inherent human dignity, and freedom and security of the person.

Although the relationship between a passenger and a matatu crew is contractual, that contract is governed by the overarching principles of duty of care and good faith, both of which flow directly from constitutional protections.

Read: What to do when a matatu conductor refuses to return your change

This raises an important question: Was it lawful for you to be arrested while the matatu sped off after forcing you to alight at an undesignated point? The arresting officer may have responded to what appeared to be an offence, which was alighting on a highway. However, the prosecutorial decision‑making required deeper interrogation. The prosecutor should have examined the circumstances leading to the arrest, including the fact that the matatu crew violated traffic regulations and breached their duty of care, thereby placing you in harm’s way.

Rule 64(d) applied alongside Rule 69 of the Traffic Rules (Cap 403) is explicit: only designated bus stops may be used for picking up or dropping off passengers. A driver commits an offence when they set down passengers at a place not authorised as a bus stop. In such cases, the driver—not the passenger—is the offender. Although the rule does not expressly mention good faith, the principle is inherent in any contractual relationship. Once a passenger boards a matatu, the crew is obligated to uphold the terms of safe carriage. This obligation is inseparable from the duty of care, which requires the crew to act with reasonable caution, attention, and responsibility to avoid exposing passengers to foreseeable harm.

Duty of care is a legal obligation requiring individuals or institutions to take steps that a prudent and competent person would take in similar circumstances.

Good faith, on the other hand, requires honesty, fairness, and conduct free from deception, exploitation, or harm. It thrives on respect for the rights and expectations of others and avoidance of manipulation or coercion. Together, these principles reinforce each other: good faith guides the intention behind actions, while duty of care guides the standard of those actions.

Read: Kenyan matatu: Necessary evil or unnecessary noise?

Returning to consumer rights, Article 46(1)(c) and (d) entitle consumers to protection of their health, safety, and economic interests, and to compensation for loss or injury arising from defective goods or services. By dropping a passenger at an undesignated point, a driver risks violating these rights and breaching the carriage contract. The courts have affirmed this position. In Ngere v Republic (Criminal Appeal E098 of 2021), the High Court upheld the conviction of a matatu driver for obstruction and for picking up and setting down passengers at an unauthorised place. The judge held that the driver bore responsibility for illegal stopping, the conductor could also be culpable, and passengers were not criminally liable.

Wrongful arrest and prosecution can be challenged through several pathways. First, one may contest the arrest at the police station, arguing that the arresting officer should have apprehended the matatu crew rather than the passenger. Second, the matter can be challenged in court, requiring the prosecutor to explain why the charges were directed at the passenger rather than the crew. This may lead to review and dismissal of the charges. Third, civil action may be pursued for wrongful arrest or negligence, potentially involving the matatu crew, their SACCO, the police, NTSA, and the Office of the Director of Public Prosecutions. Additionally, complaints may be lodged with the Internal Affairs Unit of the National Police Service and the Independent Policing Oversight Authority (IPOA).

Illegal matatu drop‑offs are a serious safety concern, but passengers are not the offenders. The law places responsibility—and the duty of care—squarely on drivers and conductors. Safer public transport requires informed passengers, responsible matatu crews, and enforcement grounded in law, safety, good faith, and the duty of care owed to every commuter.

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