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By Jackson Okata
Nairobi, Kenya: A Kenyan court has set November 27, 2025, as the date for delivering judgment in a historic case filed by smallholder farmers challenging the legality of a law that criminalizes the sharing and selling of unregistered indigenous seeds.
Lady Justice Rhoda Rutto of the Constitutional and Human Rights Division at the Machakos High Court set the date for the ruling after hearing final submissions from the petitioners and respondents.
The Petition filed in 2022 is spearheaded by 15 smallholder farmers challenging the constitutionality of the Seed and Plant Varieties Act (Cap. 326) of 2012 and the Seeds and Plant Varieties (Seeds) Regulations, 2016.
Greenpeace Africa and Seed Savers Network, Kenya, are supporting the petitioners.
The Biodiversity and Biosafety Association of Kenya, the Law Society of Kenya, and Katiba Institute are interested parties in the case, while the Kenya Plant Health Inspectorate Service (KEPHIS) and the office of the Attorney General are listed as respondents.
The Seed and Plant Varieties Act (SPVA) was first enacted in 1972 to regulate the seed sector in Kenya. It focused on the registration, certification, and marketing of seeds.
The petitioners want legal recognition and protection of Farmer Managed Seed Systems (FMSS) and the restoration of farmers’ fundamental rights.
Punitive Law
In 2012 and 2016, Parliament introduced significant amendments to align Kenya’s laws with the 1991 International Convention for the Protection of New Varieties of Plants (UPOV 1991).
These changes reinforced intellectual property protections for commercial breeders, introduced stricter certification requirements, and expanded the regulatory authority of KEPHIS.
Petitioners argue that the mandatory requirement for certification of all seeds, including traditional and farmer-developed varieties, and the prohibition of seed sharing or selling unless registered and certified by KEPHIS, is punitive.
The smallholder farmers told the court that the seed law undermines seed sovereignty and the right to culture and knowledge transmission and criminalises the exchange of seeds — a practice central to community resilience and survival.
They say that the seed law forces them into a formal seed system that is expensive, exclusive, and unsuitable for diverse indigenous varieties and erodes community autonomy over food systems, threatening food security and ecological balance.
Lawyers Alvin Muhandick, and Emily Kinama, for the petitioners and interested parties, told the court that by criminalizing the sale, sharing, and exchange of unregistered indigenous seeds, the Act was violating Section 10 (4) of the constitution, which guarantees the right to food for every citizen.
The Law Society of Kenya, which is an interested party through lawyer Wambugu Wanjohi, argued that the majority of Kenyan farmers are smallholders whose lifeline is the farmer-managed seed systems, and criminalizing sharing was violating their rights.
In their submissions, the lawyers said the SPVA and associated regulations violate Article 11(3)(b) of the Kenyan constitution by failing to recognize and protect indigenous seed systems and cultural heritage, Article 2(6) by Contravening international treaties on protection of genetic resources ratified by Kenya, Article 43(1)(c) by violating the right to adequate food and freedom from hunger and Article 27 – Discrimination against smallholder farmers by privileging corporate seed breeders.
They also cited violations of Article 31 on privacy through unreasonable inspections and seizures of seed and plant varieties, and Articles 10 & 118 – Lack of public participation in the 2016 amendments.
The petitioners have also raised an issue with the costly registration process of new seed varieties as stipulated by the act, arguing that most smallholder farmers cannot afford the set Ksh 75,000 for every new seed and Ksh 10,000 annual fees to KEPHIS.
The State, through the Attorney General’s office, urged the court to dismiss the petition, arguing that the matter ought to be sorted out through a parliamentary process.
Elizabeth Atieno, a food campaigner from Greenpeace Africa, says protecting farmer-managed seed systems is not only about the farmer but protecting the lives of millions of Kenyans who rely on smallholder farmers for food production.
