The government intends to appeal the High Court’s verdict on the controversial law restricting small-scale farmers from sharing indigenous seeds by introducing criminal sanctions.
The Attorney General Dorcas Oduor and the Kenya Plant Health Inspectorate Service (Kephis) have filed a notice, signaling that the battle between them against Kisilu Musya, Samuel Wathome and Greenpeace Environment Kenya is not over yet.
The two stated that they are aggrieved with the entire judgment by Justice Rhoda Rutto, who found six sections of the Seed and Plant Varieties Act and eight rules of the Seed and Plant Varieties (Seeds) Regulations, 2016 to be unconstitutional.
“Take notice that the first and the second respondents herein being aggrieved by and or dissatisfied with the judgment of the Honourable Lady Justice Rhoda Rutto dated and delivered at Machakos on November 27, 2025, intend to appeal to the Court of Appeal against the whole of the said decision,” the notice filed by the AG reads in part.
Parliament enacted the first seeds law in 1972, after which it had amended the same over time, with the last amendment happening in 2022.
At the same time, it came up with regulations- Seeds and Plant Varieties (Seeds) Regulations-in 2017, which were revised at the same time when the Act was amended.
Nevertheless, the crust of the case filed by Musya and Wathome, and which was backed by Greenpeace Environmental Kenya NPC, and the Law Society of Kenya (LSK) was that MPs created a vague Act and criminalized the sharing of the indigenous seeds.
The court heard that the danger of the law meant that communities that often rely on each other to grow crops would end up behind bars for sharing uncertified seeds. They argued that there was no clarity on who and how all seeds that are planted in the country would be certified by the government.
At the same time, they argued that giving sweeping powers to officials to seize seeds would open a Pandora's box and expose farmers to arbitrary searches of their homes, farms and warehouses and seizure of seeds by the inspectors Kephis.
Further, the court heard that the laws gave the inspectors powers to detain anyone based on a belief that the seeds are not certified. The group led by Musya argued that it would amount to illegal detention, adding that they were apprehensive that the move was deliberately meant to keep off farmers who rely on indigenous seeds from the market.
On the flip side, they lamented that the government was giving an upper hand to suppliers from outside the country who also sell un-indexed seeds from outside Kenya.
Musya also argued that international conventions, which the government is a signatory to, give Kenyans the right to save, use, exchange and sell their farm-saved seed or propagating material.
However, they stated that the Act and the rules fail to recognize the right to maintain, control, protect and develop their own seeds and traditional knowledge.
On the other hand, they stated that by Section 10(4c, d, e, f and g) criminalizing the sale and sharing of indigenous seeds, the net effect was curtailing the right to food.
These limitations on the use, exchange and sale of farm-saved seeds will make it harder for resource-poor farmers to access improved seeds, obstructing the effectiveness of the informal seed system. Similarly, they contend that Section 10(4) contravenes Article 11(1) of the Constitution, which recognizes culture as the foundation of the Nation, mandating the State to promote all forms of national and cultural expression, including recognizing the role of indigenous technologies in the development of the nation,” they argued.
According to them, it was unreasonable for MPs to put a Sh 75,000 fee for registration as a seed merchant and annual subscription fee of Sh 10,000. The court heard that this would lock farming to the few rich in the country.
In response, the AG and Kephis urged the court to strike out the case. They argued that the case was defective and misleading. According to them, the law and regulations were made to safeguard local and small-scale farmers from harmful seeds. According to them. Act is to guide in production, processing, testing, certification and marketing of seeds and to protect the consumer (farmer) from deleterious seeds or spread of diseases, pests and weeds through the sale of uncertified seeds.
The government also claimed that Section 27A of the Act makes provisions for the protection of indigenous seeds by creation of the Centre for Plant Genetic Resources, mandated with the conservation and sustainable utilization of plant genetic resources, including indigenous seeds and plant varieties in Kenya.
It further argued that Act does not take away the indigenous characteristics of seeds or hinder further progress in Kenya’s food security. Instead, the Act defines seeds to include any seed, whether indigenous seeds or otherwise, as long as they meet the set standards.
At the same time, the government alleged that it also protects breeders of new varieties from exploitation of their varieties and ensures they recover investments in breeding, and encourages them to develop new superior ones.
Greenpeace argued that the law was encouraging arbitrary arrests and prosecution despite being unclear. The lobby argued that the government had become the judge, the jury and the executor by allowing its inspectors to seize seeds without giving farmers a chance to tell their side of the story.
The LSK argued that it was unclear what amounts to ‘a reasonable belief’ that a seed was un-indexed. At the same time, it stated that there was no channel for farmers to challenge the inspectors’ decisions.
Further, the society said that the Act and the regulations gave large-scale seed companies an upper hand, as it was sidelining as compared to those with small farms by reducing consumer access to diverse and affordable seed varieties.
Justice agreed with the petitioners, LSK and Greenpeace. She said that the law and regulations were vague, violated the right to privacy, and were discriminatory to small-scale farmers.
She observed that it was unclear how MPs came with the subscription and renewal fees.
“In this premise, registration fees of Sh75,000, annual renewal fees of Sh10,000, and the stringent requirement for registration as a seed merchant put the petitioners and small-scale farmers at a disadvantage when compared with large-scale farmers. It is not clear how the amount of Sh75,000 was arrived at in relation to the average income of the petitioners and other small-scale farmers who do not necessarily seek to venture into serious commercialization of seeds and plant varieties,” said Justice Rutto.
