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On the 27th of November 2025 Kenya’s High Court in Machakos will deliver judgement in a landmark case that could reshape the country’s food system. Filed by fifteen smallholder farmers from across the country, the petition challenges certain provisions in the Seed and Plant Varieties Act, Cap 326 that criminalize the sharing and selling of uncertified seed – age-old practices that have sustained communities and preserved agricultural biodiversity for generations in Kenya.
The case was heard on 20 May 2025 before Justice Ruto, four years after it was filed in July 2022. As someone closely involved in researching and coordinating this legal action, I’ve witnessed the unwavering resolve of these farmers to reclaim their fundamental right to seed since the day they filed the petition. Sadly, one of the petitioners, Anna Wanza, passed away before hearing the outcome of a case that will have such a bearing on the survival of farmers like her.
For many smallholder farmers in Africa, seed sovereignty is not an abstract concept; it is the very foundation of their livelihoods. It defends their autonomy against punitive seed laws that risk turning them into dependents of multinational seed corporations, stripping them of the freedom to breed, save, exchange, and sell the very seeds that feed their nations.
A brief history of Kenya’s seed laws
In pre-Independence Kenya, the Swynnerton Plan of 1954–1959 laid the groundwork for the formalization of agriculture, influencing the legal and policy direction that would later follow.
After independence, Sessional Paper 10 of 1965 gave the state control of the economy. As a result, the state earmarked the seed sector and sought control of the seed chain for key food crops, from breeding to multiplication and distribution as noted by Dr Peter Munyi and Bram De Jonge.
This trajectory continued with the Strategy for the Revitalisation of Agriculture in 2004 launched by President Mwai Kibaki to improve agricultural performance in the country, and the National seed policy of 2010 which was an important precursor to the Seed and Plant Varieties Act of 2012.
The Seed and Plant Varieties Act (Cap. 326), assented to on 16 May 1972, reflects the trajectory envisioned by the Swynnerton plan. This Act of Parliament grants the government regulatory authority over transactions in seeds including seed testing and certification protocols, seed imports, plant breeder’s rights, farmers’ rights and plant variety protection.
Since its enactment, this Act has undergone several amendments – in 1998, 2002, 2012, 2016, and now a proposed revision in 2025. Among these, the 2012 amendment is particularly significant, as it introduced several contentious sections that fundamentally undermined farmers’ rights. This amendment resulted from the 2011 Seed and Plant Varieties Amendment Bill sponsored in parliament by then Minister for Agriculture Sally Kosgei, and enacted on 4 January 2013. The amendment introduced provisions closely aligned with UPOV 1991 (Act of the International Convention for the Protection of New Varieties of Plants).
This compliance with UPOV 1991 placed emphasis on intellectual property rights, plant breeders’ rights, and plant variety protection – principles that often prioritize commercial breeders and the interests of multinational corporations over smallholder farmers. Prior to this, in 2009, then Minister for Agriculture William Ruto had passed a supplementary legislation on National Performance Trials including Plant Breeders Rights (PBRs) and National Variety Lists. This had a significant influence on the Seed and Plant Varieties Act of 2012, as it laid down the procedures for evaluating the performance of new plant varieties for various agro-ecological zones across the country.
In her book Globalisation and Seed Sovereignty, Dr Clare O’Grady Walshe notes that there was massive lobbying by interested seed actors such as the Seed Trade Association of Kenya (STAK), Plant Breeders Association of Kenya (PBAK) and KEPHIS during the revision of the 2002 Seed and Plant Varieties Act Cap 326. Notably, no farmer or civil society organizations were represented on the taskforce constituted by the Ministry of Agriculture in 2006 to review sections of the Seed and Plant Varieties Act Cap 326.
To illustrate this, the 2011 amendment introduced Section 19(1) into the principal Act (Cap 326) granting breeders’ rights for 20 years from the date of the grant, or 25 years in the case of trees and vines. It also inserted a new definition of breeder as “a person who breeds, or discovers and develops a seed or plant variety, and includes the employer of such a person”.
This definition is extremely broad. It leaves open the possibility that a breeder could “discover” a plant variety already used by a community, but not listed in the official index, and register it as their own innovation – a scenario that could place farmers’ seeds at risk and even amount to biopiracy.
It is noteworthy that Chapter 1, Article 1 of UPOV 1991 defines a breeder in almost identical terms: “the person who bred, or discovered and developed, a variety”. This close match between the Kenyan law and UPOV 1991 strongly indicates that the amendment was intended to ensure compliance with the treaty’s restrictive and punitive provisions.
Under Section 20(1) and 20 (1A) – (1C) of Cap 326, a breeder holds exclusive and enforceable rights over a protected variety – including its production, sale, export/import, and even harvested material derived without permission. These rights extend to new varieties essentially derived from or indistinguishable from the original, granting breeders overarching control over a broad range of genetic materials.
Then came the punitive inclusions through Section 10, subsection 4(d), (e), and (f) of the amended Act. These clauses impose fines of up to KSh 1 million or a two-year prison sentence on any person who, while not registered as a seed merchant, imports, processes, or packages seed for sale; sells or displays for sale any seed that does not match the description in a required certificate; offers for sale seed that fails to meet certification standards or has been rejected at any stage of certification.
These sections disproportionately target smallholder farmers, most of whom operate through informal seed systems that do not meet the formal certification criteria. In fact, informal seed systems supply at least 78 per cent of the seeds used in Kenyan food production. These seeds are saved, exchanged, and sold locally, forming the backbone of food production in Kenya, yet this law criminalizes such practices unless farmers conform to expensive and exclusionary certification processes.
Kenya is not alone in enforcing strict seed laws. Several other African countries are members of UPOV 1991, a convention that sets strict rules for protecting plant varieties. These include Ghana, Egypt, Tanzania, Morocco, and Tunisia. South Africa is under the older UPOV 1978. Seventeen more African countries including Burkina Faso, Benin, Togo, Mali, and Mauritania are also bound to UPOV 1991 through their membership in the African Intellectual Property Organization (OAPI).
National laws complying with UPOV 1991 are often strict, treating seed sharing, saving, and exchange as criminal offences. Similar to Kenya’s Cap 326, Ghana’s Plant Variety Protection Act of 2020 sets a minimum prison sentence of ten years for breaking plant breeders’ intellectual property rights. This law has faced opposition from farmers’ groups, such as the General Agricultural Workers’ Union, who argue that it enforces uniformity and undermines seed diversity by criminalizing the sale and exchange of protected seed varieties.
A comparable situation unfolded in India, which is not a UPOV member. Between 2020 and 2021, massive farmer protests erupted in response to government efforts to align agricultural laws with corporate interests. The primary concern were laws allowing traders and companies to buy directly from farmers outside regulated markets, without paying taxes or fees. Farmers feared this would reduce government purchases of rice and wheat at guaranteed prices, particularly harming growers in Punjab and Haryana. Tragically, the pressure and uncertainty created by these laws contributed to a wave of farmer suicides during this period. Ultimately, India’s Prime Minister Narendra Modi scrapped the controversial laws, leading farmers to call off their year-long protests.
India has historically sought a balance between farmers’ rights and breeders’ rights through its 2001 Protection of Plant Varieties and Farmers’ Rights Act (PPVFR). While largely modelled on UPOV, the law protects new varieties, existing varieties, and essentially derived varieties, while simultaneously safeguarding farmers’ rights to save, use, and exchange seeds. It also enables farmers to claim certain intellectual property rights over their own varieties.
This reveals a troubling pattern where seed and plant variety protection laws are increasingly used as tools of control rather than conservation, locking farmers out of their own seed systems while stifling innovation. As Oyunga Pala captures in his article In Search of Grandmother’s Osuga Seeds, the loss of indigenous seeds reflects not just a shift in agriculture, but a deeper erosion of cultural heritage and farmer autonomy. The Kenyan seed law, as currently framed, risks accelerating this loss by penalizing the very people who feed the nation.
Seeds as human/cultural rights
The case before the High Court in Machakos is, therefore, not just a matter of legality but also one of human rights. Article 43 of Kenya’s constitution guarantees every citizen the right to food. Article 11(3)(b) mandates parliament to protect the ownership and use of indigenous seeds and plant varieties by local communities. Articles 28 and 43 uphold the rights to dignity and livelihood. Internationally, Kenya is bound by treaties such as the United Nations Declaration on the Rights of Peasants (UNDROP) and the International Treaty on Plant Genetic Resources for Food and Agriculture, both of which affirm farmers’ rights to save, use, exchange, and sell seed.
The UN Special Rapporteur on the Right to Food, Professor Michael Fakhri, emphasizes that “the right to food is the right to life”. Despite constitutional guarantees, Kenya lacks legislation to protect peasant farmers’ rights to save, share, and sell seeds but aligns with the International Convention for the Protection of New Varieties of Plants (UPOV 1991) which heavily favours commercial breeders and restricts seed saving, exchange and sharing by farmers.
It privileges multinational corporations like Bayer and Syngenta, who are part of the four agrochemical giants that control over 60 per cent of the global seed market. Their model is built on patents and licensing, not farmer freedom. This concentration of power weakens our food system’s genetic diversity and marginalizes the very people who feed us.
Enforcing laws that privilege uniform, commercial seed systems over diverse, farmer-bred ones undermines our food and seed sovereignty. Worse, it amounts to a quiet theft of the commons where corporations depend on the genetic resources developed over generations by farming communities yet deny these same communities the right to use their own innovations freely by imposing patents and intellectual property laws.
The more a country protects farmers as custodians of seed systems, the more it upholds the right to food and life. The right to seed is not separate from human rights; it is foundational. Without access to locally adapted seeds, food sovereignty is a myth, and the promise of human dignity remains unfulfilled.
To criminalize seed sharing is therefore to criminalize life itself along with culture, biodiversity, and community resilience. In times of crisis, it is these local seed systems that carry us. During the COVID-19 pandemic, many rural farming communities survived because they relied on saved and exchanged seeds, not commercial supply chains.
In the face of climate change, farmers need seeds that are resilient, not uniform. Farmer-managed seed systems are dynamic, constantly evolving in response to pests, climate, soil, and the specific nutritional needs of communities. Seed exchange is not only an act of solidarity; it is also one of science generating new varieties, knowledge, and resilience. Conservation happens through use: seeds adapt when they are grown, saved, and shared. When laws prevent farmers from using their own seeds, they are robbed of both heritage and innovation. True resilience cannot be engineered in a laboratory or dictated by intellectual property law.
Sovereignty belongs to the people of Kenya as per Article 1 of the Kenyan constitution, and if Kenyans want resilient food systems, we must support resilient seed systems. This begins with drafting regulations that protect smallholder farmers from multinational corporations. It begins with rallying behind the smallholder farmers who nourish this country, to advocate for their right to seed. The Machakos High court now has a historic opportunity to align Kenya’s seed laws with the lived realities of its people because seeds are not commodities; they are life itself.
