Farmers want court to decriminalise dealing in indigenous seeds

A group of farmers have challenged the constitutionality of the Seed and Plant Varieties Act (SPVA).

During a hearing on Tuesday in Machakos, the farmers urged the High Court to declare several amendments unconstitutional.

The petitioners, backed by Greenpeace Africa and the Law Society of Kenya (LSK) have sued the State, arguing that numerous amendments to the International Convention for the Protection of New Varieties of Plants (UPOV) are discriminatory to small holder farmers.

They argued that the amendments seek to commercialise seed business in Kenya at the expense of the local farmers.

The farmers said that some of the amendments undertaken in 2012 and 2016 brought sweeping reinforcements to intellectual property protection for new breeders.

They argued that they also introduced punitive certification requirements for ordinary farmers.

“The amendments have infringed several constitutional rights including the right to preservation of culture. Prohibiting the saving, exchange or sale of unindexed varieties violates the fundamental rights of the Akamba community since it is part and parcel of their culture to do so,” Lawyer Muhandick told Lady Justice Rhoda Ruto.

The farmers argued they were uncomfortable that the amendments brought new regulations that accommodated infringement of the right to property by criminalizing community seed sharing.

They said the sweeping powers granted to Kenya Plant Health Inspectorate Service (Kephis) violates the right to privacy through unreasonable inspections and seizures.

“The amendments lead to denial of fair administrative action in enforcement procedures as there was no public participation prior to introduction of the said amendments. Criminalization of the failure to certify seeds is not only punitive but also erodes the petitioners’ right to culture,” the lawyer said.

Lawyer Emily Muthama, representing Greenpeace Kenya told the court that inclusion of indigenous seeds in the amendments to the 2016 Act was grossly unconstitutional.

“Article 9 of the International Treaty on Plant Genetic Resources which Kenya is signatory to does not limit the rights of farmers to save, sell or exchange seeds,” Ms Muthama noted.

She said restriction of unregistered seeds amounts to criminalizing exchange of seeds which violates Article 11 of the Constitution.

“The state must take legislative, policy and other measures to achieve progressive realization of the right to food and there is no justification for limiting the right to food,” she said.

In its submissions, LSK argued the disputed amendments encouraged dependency on commercial seed dealers while pushing for a costly registration process.

However, lawyer Peter Kuria, representing the State urged the court to throw out the petition on grounds that the cited international treaties cannot be enforced until they are accommodated in the domestic law through legislation.

“The petitioners and interested parties are more concerned with protectionist issues rather than constitutional matters. The issues in question should have been brought through parliament to fix any flaws. The petition does not meet the threshold and should be dismissed,” said Kuria.

Lady Justice Ruto fixed the judgment for November 27, 2025.