Who is responsible when a Matatu causes an accident in Kenya?

One minute, passengers are arguing over the next stage fare, the next, there is twisted metal, injured passengers and police at the scene.

Then comes the question that follows almost every serious matatu crash: Who will actually take responsibility?

In Kenyan law, that answer is rarely as simple as pointing at the person behind the wheel.

Liability depends on what caused the accident, who controlled the vehicle, the relationship between the driver and operator, and the evidence available.

Start with the driver

The driver's conduct is usually the first thing investigators examine.

Speeding, dangerous driving, driving without due care or other traffic offences can lead to criminal proceedings.

The Traffic Act also places duties on a driver involved in an accident.

Where the circumstances require a report, it must be made to police as soon as reasonably practicable and within 24 hours.

A fatal crash can lead to a charge of causing death by dangerous driving where the evidence supports it.

But a criminal prosecution and a victim's compensation claim are separate legal processes.

The owner may be pulled into the case

The person whose name appears in the vehicle records is presumed to be the owner under Section 8 of the Traffic Act, although that presumption can be challenged with evidence.

Courts have distinguished between registered ownership and evidence of actual or beneficial ownership.

An owner can also face vicarious liability where the driver was acting as the owner's servant or agent.

Courts have held vehicle owners liable where that relationship was established and the driver's negligence caused the accident.

But ownership does not mean automatic liability.

The circumstances and evidence still matter.

What about the SACCO?

This is where the matatu business model becomes important.

Kenya's PSV regulations distinguish between a vehicle's owner and operator.

An operator can be the registered owner or a company/SACCO operating the vehicle under a contract or franchise arrangement, with day-to-day operational responsibility.

Operators have regulatory responsibilities covering matters such as roadworthiness, driver and conductor records, safety systems, accident reporting and third-party insurance.

A PSV operating without the required licence also commits an offence under the regulations.

That does not, however, mean a SACCO is automatically liable every time a matatu bearing its name crashes.

A court will examine its actual relationship with the vehicle, owner and crew.

Insurance does not decide who was at fault

Every motor vehicle operating on Kenyan roads is required to have compulsory third-party insurance, subject to the statutory exceptions.

For vehicles carrying passengers for hire or reward, the cover is intended to protect against liability for death or bodily injury arising from use of the vehicle.

There is, however, an important limit.

Section 5(b)(iv) of the Insurance (Motor Vehicles Third Party Risks) Act caps the insurer's statutory liability at Sh3 million for a claim by one person.

A court can award more than that, but the insurer may only be required to meet its statutory limit, leaving an outstanding balance potentially recoverable from the insured.

An insurer is therefore not necessarily the party legally “at fault”; its role is generally to meet covered liability within the terms of the law and policy after the relevant legal process.

A police abstract is not the final word

A police abstract is important paperwork after an accident, but it is not a court verdict.

Kenyan courts have repeatedly held that an abstract, on its own, does not conclusively establish negligence or liability.

It can confirm that an accident was reported and provide relevant details, but fault has to be proved through evidence.

Witness accounts, photographs, scene sketches, vehicle inspections, medical records and police evidence can all become relevant.

In some cases, courts can also apportion liability where more than one party contributed to the accident.

When the passenger dies

For a fatal crash, the deceased's family may pursue compensation under the Fatal Accidents Act, while the deceased's estate may have claims under the Law Reform Act.

The Fatal Accidents Act provides for claims on behalf of specified dependants, including spouses, parents and children, with damages potentially including loss of dependency.

The Law Reform Act provides a separate basis for claims belonging to the deceased's estate, including damages for pain and suffering and loss of expectation of life.

The two claims are handled separately but courts must avoid double compensation.

So, who is responsible?

There is no single automatic answer.

The driver may face criminal and civil consequences for negligent or unlawful driving.

The owner may be liable where the legal relationship with the driver establishes vicarious responsibility.

The SACCO or operator may be involved where it had the relevant operational or agency relationship.

The insurer may have to satisfy a covered judgment within the statutory framework.