Standing through a sunroof or leaning out of a car window looks like harmless fun to many Kenyans. It happens often during wedding convoys, on game drives, and in slow-moving traffic.
But under Kenyan law, this is a criminal offence, and it carries real consequences spanning small fines to prison terms, and manslaughter charges when someone falls and dies.
Advocate Mutua Josphat of F.M. Muteti and Co says many Kenyans misunderstand how strict the law actually is.
“The law measures this by movement and location, not speed, intent, or perceived fun,” he says. He points to Section 61 of the Traffic Act, Cap 403, which bars any person from riding or being carried outside a vehicle, including on the footboard, tailboard, steps, mudguards, canopy, or roof, except when testing or repairing the vehicle.
Rule 80 of the Traffic Rules adds another layer, stopping a driver or passenger from letting a body part stick outside a moving vehicle unless it is for giving a signal, responding to an emergency, or fixing the car.
He explains that the offence begins the exact moment a vehicle starts moving on a public road. “The offence occurs once the vehicle is in motion,” he says, adding that a car does not need to be speeding for the law to apply.
Advocate Mutua also links this to Rule 22A of the Traffic Rules, which requires seatbelts while a vehicle is in motion. A person standing through a sunroof cannot wear a seatbelt, breaking two rules simultaneously. He further notes that the Traffic Act applies to all public roads, highways, avenues, and public access routes.
“If the car is moving on a public road, the offence is committed,” he says. “If it is on a private road, no.”
There is no general right for private car owners to allow this behaviour, but a few narrow legal exceptions exist, he explains. On property such as farms or private tracks closed to the public, the Traffic Act simply does not apply, though civil negligence claims could still follow if someone gets hurt.
“Section 120 of the Traffic Act also gives the Cabinet Secretary for Transport power to exempt specific vehicles, persons, or events through a notice published in the Kenya Gazette, usually covering presidential processions, licensed campaign caravans, and film crews working under police supervision,” he says. “Game reserves and national parks form the last exception, where standing through pop-up roofs or sunroofs is permitted for game viewing under wildlife conservation rules.”
Mutua is firm that popular belief does not change legal reality, especially when it comes to wedding convoys. “There is no Gazette notice granting a blanket or temporary exemption to wedding convoys, funeral processions, or celebratory parades,” he says.
“The belief that wedding convoys are exempt from Rule 80 or seatbelt mandates is a legal myth.”
The common sight of police officers allowing such convoys to pass unbothered, he explains, is simply a matter of selective enforcement.
“A passenger standing through a sunroof during a slow moving wedding convoy commits the same offence as someone doing it at high speed on a highway, and being at a wedding carries no weight as a legal defence if an accident happens,” he says.
On the question of who bears responsibility, liability does not fall on one person alone, he explains. “It is shared across the passenger, the driver, and the vehicle owner,” he says. “The passenger is the direct offender under Rule 80 and Rule 22A, and faces an instant fine for extending a body part outside the vehicle or removing a seatbelt while it moves.”
The driver carries a heavier burden because of the control they hold over the vehicle.
“Sections 55 and 59 of the Traffic Act make it an offence for a driver to permit a passenger to ride in a dangerous position, and if that conduct leads to an accident, injury, or death, the driver can face charges of dangerous driving or causing death by dangerous driving under Section 46 of the Act,” he explains.
He lays out how the penalties vary depending on how serious the conduct is.
“A passenger who lets a body part protrude from a moving vehicle faces an instant fine of Sh1,000 under Rule 80, and an additional Sh500 for the seatbelt breach under Rule 22A, since standing or hanging out prevents the use of a safety belt,” he says. Where the conduct goes further, such as riding on the roof, sitting on a window frame, or hanging off a door, and the person refuses a police order to return to a safe position, Section 61 subsections 3 and 4 of the Traffic Act apply, he says.
“A conviction under this section can bring a fine of up to Sh10,000, imprisonment for up to one month, or both,” Mutua says.
Drivers who allow such conduct face far steeper consequences. He says permitting a passenger to ride dangerously can lead to charges of reckless or dangerous driving under Section 47, which carries substantial court fines, imprisonment of up to two years, and a mandatory judicial suspension of the driver’s licence.
“Should the passenger fall and die, the charge escalates to causing death by dangerous driving under Section 46, which carries a sentence of up to 10 years in prison,” he says.
Mutua also points to the National Transport and Safety Authority’s digital enforcement system, which logs demerit points against a driver’s smart licence record. “Every licence starts with 20 points, and safety violations trigger automatic deductions that can lead to suspension or revocation,” he says.
To show how these rules play out in real disputes, Mutua cites the case of Kariuki and 2 Others versus Kogi, Civil Appeal E002 of 2021, decided at the High Court.
“The respondent, Kogi, was travelling aboard a fourteen seater Toyota matatu on the Molo-Olenguruone road when he fell off the vehicle while hanging onto its door,” he explains. “The driver swerved to avoid potholes, causing Kogi to lose his grip and sustain serious injuries.”
The driver and the registered owner, according to him, argued they owed no duty of care since the passenger had voluntarily chosen to hang outside, and that the driver did not know anyone was hanging on.
“Kogi countered that the driver ought to have noticed him through the side mirrors, and that swerving at speed amounted to negligence,” he says.
“Both the Magistrates’ Court and the High Court on appeal held the driver and the vehicle owner jointly and severally liable, but applied the principle of contributory negligence, splitting the blame equally between the driver and the victim.”
He adds that the court awarded Sh 3.5 million in general damages and medical expenses, then reduced the payout by half to reflect the victim’s own reckless conduct.
He explains that the Children Act of 2022 places a duty on parents to protect children from physical harm, abuse, and neglect, and that knowingly allowing a child to bypass safety restraints can amount to statutory child neglect. “Agencies such as the Directorate of Criminal Investigations and child protection officers, he says, can bring proceedings against a parent found to have exposed a child to such risk,” Says Mutua.
He also cites Section 243 of the Penal Code, Cap 63, which criminalises rash or negligent conduct in a public way that endangers human life.
“A parent who allows a child to protrude from a moving vehicle can be charged under this section for reckless endangerment,” he says, adding that if the vehicle swerves or collides and the child is hurt or killed, the parent could face prosecution for gross negligence or manslaughter.
He notes that beyond criminal charges, such conduct can be raised in family court as evidence of parental unfitness, since the Children’s Court always places the best interest of the child first.
Public service vehicles carry their own set of rules, and matatus in particular see frequent violations.
He explains that conductors and passengers who hang from doorways, swing off footboards, or ride on the roof break Section 61 of the Traffic Act, which bars anyone from being carried outside a moving vehicle. PSV regulations, he adds, also require doors to remain closed while the vehicle is in motion.
“Responsibility spreads across four parties in these cases, the individual doing the hanging, the driver, the conductor, and the vehicle owner or SACCO,” he says. The individual faces a direct charge under Section 61, and police officers can order them off the vehicle under Section 61 subsection 3, he explains. A conductor caught engaging in such conduct can also lose their NTSA licence and badge, according to him.
The driver of a PSV carries the heaviest operational responsibility. Sections 58 and 103 of the Traffic Act, he explains, make it an offence for a driver to permit a conductor or passenger to ride dangerously or to operate with open doors, exposing them to fines, licence endorsements, or driving bans.
Section 110, he adds, presumes the registered owner responsible for offences involving their vehicle unless they can prove it happened without their knowledge or consent.
“The National Transport and Safety Authority can also hold SACCOs and transport companies jointly responsible for the conduct of their crews, and can suspend a vehicle’s roadworthiness certificate, revoke a route licence, or ground an entire fleet for repeated violations,” he says.
He says the case leaves a clear lesson for drivers and vehicle owners alike. “Drivers cannot turn a blind eye to safety,” he says.
He adds that sudden swerving or careless manoeuvres only deepen a driver’s fault in court, even in cases where the injured person also shares some of the blame, and that vicarious liability continues to bind vehicle owners for the conduct of their drivers on Kenyan roads.
