The State restricted commission payouts on earnings per trip in 2022 as part of a strategy to protect drivers from high fees, down from previous rates that often reached 25 percent.
At the same time, the court stopped the National Transport and Safety Authority (NTSA) from enforcing a requirement that digital taxi platforms retain detailed passenger and driver data and hand it over to the authority.
The court found the three-year data retention and disclosure requirement unconstitutional and disproportionate, saying it amounted to continuous surveillance of customers and drivers.
She declared key parts of the NTSA (Transport Network Companies, Owners, Drivers and Passengers) Regulations, 2022, unconstitutional, but suspended the declaration for 12 calendar months to allow the government to undertake fresh public participation.
The government was ordered to conduct a formal regulatory impact assessment and align the regulations with the Constitution and enabling legislation.
The court found that the regulations were gazetted while Parliament was in recess, without waiting for them to be tabled before Parliament for scrutiny and approval.
It said enforcement began before Parliament had scrutinised and approved the regulations, denying stakeholders the constitutional safeguard of legislative oversight.
The court made the declaration while ruling on a petition filed by Bolt Operations OU in 2025 challenging the constitutionality and legality of the regulations, including the 18 percent commission cap, mandatory data retention and disclosure requirements, the regulator’s powers and alleged discrimination against digital platforms.
The commission dispute concerned how fares collected from passengers are shared between digital platforms, drivers and vehicle owners across Kenya’s digital taxi market.
Under Regulation 9, a transport network agreement must provide for a commission payable to the platform that does not exceed 18 percent of total trip earnings. It also bars terms intended to push the commission above that ceiling.
The court barred enforcement of that ceiling against the petitioner and digital transport operators during the 12-month suspension.
The 2022 rules also covered licensing, driver and vehicle standards and passenger safeguards.
The commission ceiling followed complaints from drivers about charges imposed by ride-hailing companies. The drivers protested commission rates of 25 to 30 percent and demanded an 18 percent ceiling.
Read: Uber, Bolt drivers to get powers for setting fares
The High Court found the commission restrictions unconstitutional because the Government had not demonstrated their necessity or proportionality through the required regulatory process.
‘The absence of a regulatory impact statement assessing the economic consequences of such price control, through a regulation which the Court has already found lacked the necessary constitutional safeguards, compounds the arbitrariness of the measure,’ the court said.
It found that the price-setting provisions lacked statutory foundation and economic justification, and that they ‘constitute an unconstitutional deprivation of property and contractual autonomy’.
‘There was no empirical evidence of necessity or proportionality and, therefore, the restrictions cannot be justified or considered reasonable limitations under Article 24 of the Constitution.’
In regard to privacy, the dispute concerned Regulation 17, which required ride-hailing platforms to retain detailed trip and payment information for three years and surrender it to NTSA on demand.
The records include driver and passenger identifiers, pickup and drop-off locations and times, payment methods and pricing details.
The court characterised the requirement as creating a form of continuous surveillance and found the provision unconstitutional and disproportionate.
The court said the requirement created ‘a regime of continuous surveillance.’ Regulation 17 imposed obligations on digital taxi platforms by compelling them to act as custodians of surveillance data.
‘Regulation 17 infringes the right to privacy under Article 31 of the Constitution and contravenes the principles of the Data Protection Act 2019,’ she said.
Article 31 of the Constitution guarantees every person the right to privacy, including the right not to have information relating to their family or private affairs unnecessarily required or revealed.
The Data Protection Act, 2019, gives effect to this constitutional guarantee by embedding principles of data minimisation, proportionality and consent, including informed consent.
The court said that allowing compulsory disclosure of private information on demand, in the absence of adequate safeguards and a regulatory impact statement, compounded the arbitrariness of the measure. The court declined to strike down the regulations immediately, saying doing so would remove safety standards, driver verification checks and other operational rules in the digital ride-hailing sector.
‘An immediate nullification and ceasing to operate would destabilise the transport sector,’ Justice Aburili said. ‘The appropriate remedy would be to suspend the declaration of invalidity,’ she added.
The judge said the contested provisions would cease to be enforceable after the 12 months if compliance was not achieved.
The court also considered whether the regulations encroached on transport functions assigned to county governments under the Constitution.
It found that counties retain responsibility for local transport services, including taxis and parking, while the national government oversees transport safety standards and policies that cross county boundaries.
Justice Aburili held that NTSA could license digital platforms operating across counties without taking away counties’ powers over individual vehicles, drivers, parking and local transport operations.