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A. Background to the petition
1. Parliament enacted the Seeds and Plant Varieties Act, Cap 326 (the Act), which was assented to on 16th May 1972. The Act was amended severally. On 30th October 1998 by the Seeds and Plant Varieties (Amendment to the Fourth Schedule) Rules, 1998 (Legal Notice 152 of 1998), on 7th June 2002 by the Statute Law (Miscellaneous Amendments) Act, 2002 (Act No. 2 of 2002), on 4th January 2013 by the Seeds and Plant Varieties (Amendment) Act, 2012 (Act No. 53 of 2012), and on 21st September 2016 by the Seeds and Plant Varieties (Amendment) Act, 2016 (Act No. 32 of 2016). Finally, on 31st December 2022, the Act was revised by the 24th Annual Supplement (Legal Notice 221 of 2023).
2. On the other hand, the Seeds and Plant Varieties (Seeds) Regulations (the Regulations) were published on 3rd February 2017 in the Kenya Gazette Vol. CXIX—No. 15, and commenced on even date. The Regulations were revised on 31st December 2022 by the 24th Annual Supplement (Legal Notice 221 of 2023).
3. The 2022 revision of both the Act and the Regulations is the subject matter of this petition. Particularly, the petitioners challenge the constitutionality of Sections 3D (1), 8(1), 8A (1), 10(4)(c, d, e, f and g) 20(1), 20(1E) and Rules 6, 9(5), 16, 19, and the Fifth Schedule (the impugned sections/provisions).
B. Petitioners’ Case
4. By a petition dated 25th July 2022, and submissions dated 29th February 2024, the petitioners challenge the constitutionality of the impugned sections/provisions for reasons that they provide for the criminalization of selling, sharing and exchange of unregistered, uncertified and protected seeds. They contend that this action negates the farmers’ rights guaranteed under the Constitution and international treaties applicable in Kenya.
5. Concerning the violations of International Law obligations, the petitioners urge that Article 2(5) of the Constitution of Kenya (the Constitution) provides that General Rules of International Law shall form part of Kenya’s law, and Article 2(6) of the Constitution incorporates international treaties to which Kenya is a party as part of Kenyan Law. Armed with these constitutional provisions, the petitioners argue that the impugned provisions violate Kenya''s International Law obligations. They rely on the High Court decision in Wanjiku & another vs Attorney General & another; Muna & another (Interested Parties) [2012] KEHC 5410 (KLR) to urge that government, through its executive, ratifies international instruments in good faith on behalf of and in the best interests of the citizens, and that purposive interpretation and application of international law,must be adopted when considering the effect of Article 2(5) and 2(6) of the Constitution.
6. As a starting point, they emphasize that Kenya acceded to the 2001 International Treaty on Plant Genetic Resources for Food and Agriculture (the International Treaty) which under Article 9.2 defines farmers rights to include the protection of traditional knowledge relevant to plant genetic resources for food and agriculture; the right to equitably participate in sharing benefits arising from the utilization of plant genetic resources for food and agriculture; and the right to participate in making decisions, at the national level, on matters related to the conservation and sustainable use of plant genetic resources for food and agriculture. They further cite, Article 9.3, which provides that nothing under Article 9 shall be interpreted to limit any rights that farmers have to save, use, exchange and sell farm-saved seed/propagating material, subject to national law and as appropriate.
7. The petitioners also contend that the said rights are recognized and guaranteed by the 2001 African Model Legislation (the OAU), whose objective, as per its Preamble, is to recognize, protect and support the inalienable rights of local communities, including farming communities, over their biological resources, knowledge and technologies. Similarly, Article 24(1) of the OAU, justifies the existence of farmers’ rights, from the continued ‘enormous contributions that local farming communities have made in the conservation, development and sustainable use of plant and animal genetic resources that constitute the basis of breeding for food and agriculture production.
8. It is the petitioners’ further case that, Article 24(2) of the OAU affirms that, for farmers to continue making significant contributions to the conservation, development and sustainable use of plant genetic resources, their rights have to be recognized and protected. They also cite Articles 26(1)(d) and 32 which expressly permit farmers to ‘save, exchange and use part of the seed from the first crop of plants which they have grown for sowing in their own farms to produce a second and subsequent crop’.
9. In addition, they rely on Articles 27(3b) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and Articles 2(1), 2(3), 19(1) to (3), (5) and (6) to (7) of the United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas (UNDROP), to support the assertion that famers have the right to save, use, exchange and sell farm-saved seed/propagating material.
10. On breaches of fundamental rights guaranteed by the Constitution, the petitioners state that the impugned provisions violate Article 19(3) which provides that the rights and fundamental freedoms in the Bill of Rights do not exclude other rights and fundamental freedoms not in the Bill of Rights, but recognized or conferred by law, except to the extent that they are inconsistent with the Constitution. Consequently, they contend that the accession to the International Treaty and the OAU by Kenya means their respective provisions (on farmers’ rights) form binding obligations capable of enforcement in Kenya by dint of Article 2(6) of the Constitution. Further, that the farmers'' rights recognized therein on saving, sharing, selling and exchanging seeds among local communities are part and parcel of the petitioners’ Bill of Rights, necessitating protection and enforcement by the state.
11. It is the petitioners’ case that the said provisions infringe their rights to be free from and to have adequate food of acceptable quality (right to food) guaranteed by Article 43(1) of the Constitution. In addition, the provisions are in breach of Kenya’s obligation to ‘take legislative, policy and other measures, including the setting of standards, to achieve the progressive realization of the right to food obligated under Article 21(2) and the obligation to ensure the protection and enhancement of intellectual property in, and indigenous knowledge of, biodiversity and the genetic resources of the communities guaranteed by Article 11 also, echoed by Articles 9.1 and 9.2 of the International Treaty.
C. Particulars of breach
12. The petitioners contend that Section 10 of the Act is vague and expressed in ambiguous language, does not state the scope or specify the acts or omissions attracting criminal sanctions. More so, the scope of the term seed under section 10(4) is unclear and ambiguous, and the wording “sales or displays for sale any seed” under section 10(4)(e) is too wide and ambiguous. As a result, they urge that the said provision violates the rule of law and principles of legality requiring all laws with criminal penalties to be sufficiently clear, not vague and overbroad to limit understanding of its scope, to avoid its arbitrary enforcement.
13. The petitioners argue that the purpose of the Act excludes, ignores or fails to recognize the existence of indigenous seeds in Kenya, particularly in the informal sector. They contend that the purpose of the Act is directly contrary to the Constitution, which recognizes the existence and importance of indigenous seeds and the biodiversity of local communities and their respective indigenous knowledge. It is asserted that by requiring the registration of seeds merchants, certification and registration of seeds in Kenya, and criminalization of the exchange of uncertified seeds, Section 10 upsets the Constitution. The petitioners insist that the requirement for registration and certification takes away the indigenous characteristic of the seeds informally exchanged by small-scale farmers in the rural setup in Kenya.
14. It is the petitioners’ further case that the violations by the impugned provisions are unjustifiable and unreasonable limitations under Article 24 of the Constitution.
15. They expound that first, Sections 3D (1) of the Act and Regulation 21(1, 2, 3, 4, 5) of the Regulations, as far as they provide for the seizure of seeds, are unreasonable and unconstitutional. They add that this amounts to a limitation of the right to privacy enshrined under Article 31(a) of the Constitution, which guarantees the right not to have their person, home, or property searched; and Article 31(b), which guarantees the right not to have their possessions seized. Therefore, they argue that Sections 3D and Rule 21 expose farmers to arbitrary searches of their homes, farms and warehouses and seizure of seeds by the inspectors from the Kenya Plant Health Inspectorate Service (KEPHIS).
16. The petitioners also contend that Sections 3D (1) of the Act and Regulation 21(1, 2, 3, 4, 5) of the Regulations limit the constitutional right to property under Article 40(1) in that they give blanket powers to inspectors to search, seize and detain farmers'' seeds based on their belief. Further, they limit the right to fair administrative action under Article 47(1,2) of the Constitution in that the power given to the inspector to search, seize and detain seeds based on the mere belief that a violation of the Act has been committed denies the farmers and/or owners of these seeds a fair administrative action, and the vague nature of section 3D (1) of the Act can lead to arbitrary arrest and prosecution.
17. Secondly the petitioners submit that Section 8(1) of the Act contravenes Article 11(3) of the Constitution which directs the government in mandatory terms to enact legislation to recognize and protect the ownership of indigenous seeds and plant varieties, their genetic and diverse characteristics and their use by the communities of Kenya, by prohibiting the sale of un-indexed seeds hence preventing farmers from selling indigenous seeds. That it also contravenes Article 27 on equality and equal protection by the law in that the provision allows the sale/use of such un-indexed seeds/indigenous seeds outside Kenya and not in Kenya.
18. Thirdly, the petitioner contends that the mandatory requirement for registration and certification of seeds under Section 10(4c, d, e, f and g) of the Act unreasonably and unjustifiably contravene Kenya’s obligations under Article 2(5 & 6) of the Constitution, as read with Article 1, 19(d), 19(2) of UNDROP in that it fails recognize the rights of peasants and/or local Kenyan farmers right to seeds and their realities of limited resources by mandating them to use only certified and registered seeds; fails to recognise the right to save, use, exchange and sell their farm-saved seed or propagating material; and fails to recognize the right to maintain, control, protect and develop their own seeds and traditional knowledge, respectively.
19. It is also their case that Section 10(4c, d, e, f and g) by criminalizing the sale and exchange of uncertified seeds unreasonably and unjustifiably contravene the State’s obligation to ensure the realization of the right to food, which is enshrined in Article 21(2) and 43(1) (c) of the Constitution. The petitioners contextualize that 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.
20. It is also submitted that Regulation 6 of the Regulations subjects and limits the registration and certification of seeds to stringent compliance standards set out in the Fourth Schedule, coupled with the criminalization in dealing with unregistered and uncertified seeds under Section 10(4), are punitive to the small-scale farmers, hence in contravention of Articles 21(2) and 43(1)(c) of the Constitution on the right to food. Particularly, that these limitations in the production, inspection and testing of seeds, as seen under the Fifth Schedule of the Regulations, are unfairly costly for resource-poor farmers, obstructing the effectiveness of the informal seed system and potentially negatively affecting food security and household incomes.
21. For these reasons, the petitioners urge that Section 10 (4 c, d, e, f and g) as read together with Regulation 6 and 16(b) of the Regulations contravenes Kenya’s obligations under Article 2(5) and (6) of the Constitution as read together with Article 19(8) of UNDROP, and fails to take into account the needs and realities of the local and rural small scale farmers who cannot afford the prescribed registration fees of Kshs 75,000.00 for to be registered as seed merchants and the annual subscription fee of Kshs 10,000.00. Consequently, it is argued that the punitive fees are in further contravention of Article 27 (4), (5) of the Constitution, as they amount to a direct discrimination of the rural and small-scale farmers who cannot afford the said fees.
22. Furthermore, the petitioner contends that the mandatory requirement for certification and registration, involving seed processing and testing contravenes Articles 11(2) and 11(3b) of the Constitution as well as Article 19(1) of UNDROP, in that the Act fails to provide for the recognition and protection of ownership of indigenous seeds and plant varieties, their genetic and diverse characteristics and their use by the local communities. Further, such mandatory provisions fail to recognize and protect the traditional knowledge held by local and rural farmers with regard to the said indigenous seeds. Moreover, the petitioners assert that the mandatory provisions also limit their rights under Article 32(1) (2) and (4) of the Constitution as they are prohibited from freely sharing, exchanging and selling indigenous seeds, which they believe are of nutritional and medicinal benefits.
23. Fourth, the petitioners argue that Section 20 (1) of the Act is an unnecessary infringement on their own rights and the rights of other farmers to save, use, exchange and sell farm-saved seeds and other propagating material. They submit that Section 20(1E) of the Act requiring that within reasonable limits and subject to the safeguarding of the legitimate interests of the breeder, farmers may use the product of the harvest which they have obtained by planting, on their own holdings, the protected variety, removes the farmers freedom to deal with their own harvest, breaches the farmers right to food, contrary to Article 21(2) and 43(1) (c) of the Constitution. It is their case that the rights of farmers and plant breeders can be protected without necessarily violating the rights of farmers.
24. It is the petitioners’ submissions that the amendments to the Act failed the requirement for public participation under Articles 10(2) and 118(1)(b) of the Constitution. They rely on the cases of Legal Advice Centre & 2 others vs County Government of Mombasa & 4 others [2018] eKLR (Civil Appeal No. 46 of 2017) and the South African decision in Doctors for Life International vs Speaker of the National Assembly & Others (CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (cc); 2006(6) SA 416 (CC) to buttress their case.
25. Consequently, the petitioners contend that the Respondents are under an obligation to observe, respect, protect, promote and fulfil the rights and freedoms enshrined in the Bill of Rights, Chapter Four of the Constitution, which the Respondents failed to ensure in the enactment of the impugned provisions. To ensure that the petitioners'' rights are protected, the court has been invited to be guided by the Provisions of Articles 2(4), 2(5), 20(3), 21(1), and 24(1) of the Constitution, in addition to all the pleaded constitutional violations.
26. Finally, in response to the respondent''s challenge of this Court’s jurisdiction, the petitioners submit that pursuant to Articles 22 (1) and 22(2) of the Constitution, any legal person, whether acting on behalf of another, being a member of or in the interest of a group/class of persons, acting in the public interest has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of rights has been denied, violated/ infringed or threatened. Further that under Article 23(1) and Article 165(3)(b), this Court has the original jurisdiction to determine the question whether a right or fundamental freedom has been denied, violated, infringed or threatened and subsequently grant the relevant constitutionally provided reliefs. They also urge that the petition is ripe and justiciable as it raises constitutional issues and the Court is not invited to formulate new issues nor to usurp the powers of Parliament. They cite the Court of Appeal in Kenya Airports Authority vs Mitu-Bell Welfare Society & 2 others [2016] eKLR; and Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 others [2013] eKLR, to the effect that the Judiciary had the constitutional power to interpret the policies and laws as enacted and approved by the legislature and executive.
D. Reliefs Sought
27. Based on the foregoing, the petitioners seek the following reliefs;
a) A declaration that section 3D (1) of the Seed and Plant Varieties Act, Cap 326, is wholly unconstitutional and therefore void and invalid in terms of Article 2(4) of the Constitution, and it accordingly stands to be struck from the statute.
b) A declaration that section 10(4 c, d, e, f and g) of the Seed and Plant Varieties Act, Cap 326, is wholly unconstitutional and therefore void and invalid in terms of Article 2(4) of the Constitution, and it accordingly stands to be struck from the statute.
c) A declaration that Section 8(1) of the Seed and Plant Varieties Act, Cap 326, is wholly unconstitutional and therefore void and invalid in terms of Article 2(4) of the Constitution, and it accordingly stands to be struck from the statute.
d) A declaration that Section 8A of the Seed and Plant Varieties Act Cap 326 is wholly unconstitutional and therefore void and invalid in terms of Article 2(4) of the Constitution and it accordingly stands to be struck from the statute.
e) A declaration that Section 20(1) of the Seed and Plant Varieties Act, Cap 326, is wholly unconstitutional and therefore void and invalid in terms of Article 2(4) of the Constitution, and it accordingly stands to be struck from the statute.
f) A declaration that Section 20(1E) of the Seed and Plant Varieties Act, Cap 326, is wholly unconstitutional and therefore void and invalid in terms of Article 2(4) of the Constitution and it accordingly stands to be struck from the statute.
g) A declaration that Rules 6, 9(5), 16, 19 and 21(1,2,3,4,5) of the Seed and Plant Varieties (Seeds) Regulations, 2016 are wholly unconstitutional and therefore void and invalid in terms of Article 2(4) of the Constitution and it accordingly stands to be struck from the statute.
h) This Honourable Court be pleased to issue an order that each party should bear their own costs on the grounds that this Petition is in the public interest.
i) This Honourable Court be pleased to issue such further or other orders as it may deem just and expedient for the ends of justice.
E. The Respondents’ Case
28. The respondents oppose the petition through a replying affidavit sworn by the acting Director in charge of Seed Certification and Plant Variety Protection on 11th May 2023 and written submissions dated 2nd April 2024 to buttress the averments. The respondents contend that the petition is incurably defective, incompetent, frivolous and misleading. They also assert that the alleged violations are speculative, premised on falsehood, and have not been substantiated. They cite the High Court decision in John Harun Mwau vs Attorney General & 2 others, Petition No. 65 of 2011. Further, that the arguments made are mere allegations lacking precision, contrary to the threshold settled in the case of Anarita Karimi Njeri Vs Republic [1976-1980] KLR 1272.
29. Moreover, it is the respondent’s case that the petition falls afoul of the ingredients of the political question doctrine. On this note, they urge the Court to decline the invitation to exercise its jurisdiction. The respondents rely on the case of William Odhiambo Ramogi & 2 others vs Attorney General & 6 others, Mombasa Const. Petition No. 159 of 2018, [2018] eKLR; Kenya Association of Stock Brokers & Investment Bank vs Attorney General & another [2015] eKLR; and Patrick Ouma Onyango & 12 others vs Attorney General & 2 others Misc. Application No. 677 of 2005, to urge that the issues raised are non-justiciable.
30. The respondents deny the alleged breaches by the Act of International Treaty obligations or constitutional safeguards to local and small-scale farmers. On the contrary, they assert that the purpose of the 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.
31. On the place of international law, the respondents urge that, based on the hierarchy of laws in Kenya, the Constitution reigns supreme pursuant to Article 2(5) and (6) of the Constitution. They therefore contend that any law that conflicts with the Constitution is void to the extent of the conflict. In any event, the respondents argue, that the Amendments to the Act are in line with Article 9 of the International Treaty which requires that farmers’ rights to save, use, exchange and sell farm-saved seeds or propagating materials can be limited subject to national laws of treaty members.
32. On the particular alleged breaches, the respondents contend that the petitioners have not proved the allegations to the required standards. Specific to the allegations of breach, the respondent asserts that contrary to the petitioners'' assumption, Section 27A of the Act makes provisions for the protection of indigenous seeds by creation of the center for plant genetic resources, mandated with the conservation and sustainable utilization of plant genetic resources, including indigenous seeds and plant varieties in Kenya. They further argue that the amendments to the Act are in line with Article 11(3)(b), which tasks Parliament to enact a law to recognize and protect ownership of indigenous seeds and plant varieties, their genetic and adverse characteristics and their use by communities of Kenya.
33. They urge that the 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 prescribed standards. As a result, the respondents contend that the Act does not discriminate or breach the constitutional rights of the small-scale farmers.
34. In response to alleged breaches under Section 3D of the Act, the respondents argue that the said provision is not ambiguous or far-reaching in the powers given to inspectors. They respond that the provision is clear when the inspector attempts entry and seizure of materials, which are held pending finalization of investigations and trial.
35. The respondents also contend that the Act does not criminalize the planting and exchange of uncertified seeds, as it defines seeds to include seeds of indigenous varieties. But rather, Section 20(1) protects breeders of new varieties from exploitation of their varieties and ensures they recover investments in breeding, and encourages them to develop new superior varieties. They add that, be that as it may, the petitioners have not demonstrated any prejudice or loss they will suffer, subject to the requirement of section 20 of the Act.
36. Concerning alleged violations by Section 8 of the Act, it is argued that it relates only to seed varieties that have not been indexed by the national government and must be read with Section 7, which sets out the types of seeds that should be indexed. They argue that the petitioners have merely lumped up indigenous seeds and failed to demonstrate the indigenous seeds that have not been indexed, or the small-scale farmers stopped from selling them.
37. On allegation of breach of Article 27 of the Constitution, the respondents, citing Northern Nomadic Disabled Persons Organization (Nondo) vs Governor Count Government of Garrisa & another [2013] eKLR, posit that no evidence has been tendered in support. It is also urged that the petitioners have failed to demonstrate that the alleged discrimination is unreasonable or arbitrary. They emphasize that the underlying legitimate reason of the Act, including the impugned sections, is to foster agriculture and food security by ensuring the quality standard of availability of seed material, promote consumer protection and in no way prohibit the exchange of indigenous seeds between farmers.
38. On alleged breach of the right to fair administrative action under Article 47, the respondents aver that Section 3C (1) is clear in the manner and conduct of inspection and prohibits the entry of private dwellings. In any event, they contend that the Act sets clear limitations on the powers of the inspectors, an avenue to address any grievances through the Seeds and Plants Tribunal and creates offences under the Act. Moreover, that the petitioners have adopted a selective and narrow approach in the interpretation of Section 3D of the Act.
39. Concerning allegations of violations of Articles 40 and 43 of the Constitution, it is the respondents’ case that no evidence has been tendered to buttress the assertions. Similarly, the petitioners are purporting to circumvent the procedures of the Act. On the limitation of constitutional rights, the respondents contend that any limitations by the Act or Regulations are justifiable, reasonable and intended to serve an ascertainable objective. The respondents cites R vs Oakes to submit that the limitations have met the three-promoted criteria set by the Supreme Court of Canada.
40. According to the respondents, the petitioners have failed to demonstrate any such breach, and in the interest of justice and public demands, their petition is for dismissal with costs.
F. 1st Interested Party case
41. The 1st interested party participated in the proceedings jointly with the Petitioner.
G. 2nd Interested Party case
42. The 2nd Interested party, through a replying affidavit sworn by Anne Maina on 5th April 2023, and submissions dated 20th October 2024, supports the petition. It affirms the petitioners'' position and arguments in toto. It contends that the Act is unconstitutional because it contravenes the rights guaranteed by the Constitution, and unreasonably restricts farmers’ rights by criminalizing the sale, sharing, and exchange of unregistered and uncertified seeds. The 2nd interested party urges that the limitations under the Act on the use, exchange and sale of farm-saved seeds will encumber resource-poor farmers in accessing and selling improved seeds, obstructing the effectiveness of the informal seed system and negatively affecting food security and household incomes.
43. On whether sections 8(1) 8A, and 10 (4) (c) (d) (de) (f) and (g) of the Act violate Articles 11(1), (2) and (3) of the Constitution, the 2nd interested party submits that as Section 8 restricts the sale of seeds of unindexed plant varieties it violates Article 11(3) of the Constitution. Further, that Section 8(A) (1) violates Article 11(3) as read with Article 9 of the International Treaty and Article 19 of UNDROP, as it provides that only the seeds on the National Seeds Plant Variety List prepared by KEPHIS will be commercialized, extinguishing the farmers'' rights to use, exchange, save and sell farm-saved seeds.
44. The 2nd interested party further supports the contention that Sections 10(4)(c) (d) (e) (f) and (g) are in breach of Article 11 because they fail to uphold and recognize culture as the foundation of the Nation and the cumulative civilization of the people of Kenya. It urges that first, the said provisions place a mandatory requirement for farmers to exclusively use only certified and registered seeds, failure to which it attracts criminal sanctions. Second, that the impugned provision mandatorily requires certification and registration of seeds in violation of Articles 10(4) and Articles 19(1) of the UNDROP. Third, that it criminalizes the commercialization of uncertified seeds and the sale of seeds by unregistered merchants.
45. According to the 2nd interested party, these provisions erode the culture and uniqueness of the indigenous people of Kenya and are contrary to Article 11 of the Constitution and similar international obligations. It cites Mohamed Ali Baadi & others Vs Attorney General & 11 others [2018] eKLR; and Gitau & 11 others Vs County Commander Kiambu & 3 others (Petition E020 of 2023) [2024] KEHC 1659 to support this assertion
46. The 2nd interested party further argues that Section 3D of the Act, as read with Regulations 21(1), (2), (3), (4), and (5), contravenes Article 27, so far as it provides for seizure of seeds. Further that Section 10(4)(c), (d), (e), (f), and (g) of the Act and Regulations 6 and 16(b), which
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A. Background to the petition
1. Parliament enacted the Seeds and Plant Varieties Act, Cap 326 (the Act), which was assented to on 16th May 1972. The Act was amended severally. On 30th October 1998 by the Seeds and Plant Varieties (Amendment to the Fourth Schedule) Rules, 1998 (Legal Notice 152 of 1998), on 7th June 2002 by the Statute Law (Miscellaneous Amendments) Act, 2002 (Act No. 2 of 2002), on 4th January 2013 by the Seeds and Plant Varieties (Amendment) Act, 2012 (Act No. 53 of 2012), and on 21st September 2016 by the Seeds and Plant Varieties (Amendment) Act, 2016 (Act No. 32 of 2016). Finally, on 31st December 2022, the Act was revised by the 24th Annual Supplement (Legal Notice 221 of 2023).
2. On the other hand, the Seeds and Plant Varieties (Seeds) Regulations (the Regulations) were published on 3rd February 2017 in the Kenya Gazette Vol. CXIX—No. 15, and commenced on even date. The Regulations were revised on 31st December 2022 by the 24th Annual Supplement (Legal Notice 221 of 2023).
3. The 2022 revision of both the Act and the Regulations is the subject matter of this petition. Particularly, the petitioners challenge the constitutionality of Sections 3D (1), 8(1), 8A (1), 10(4)(c, d, e, f and g) 20(1), 20(1E) and Rules 6, 9(5), 16, 19, and the Fifth Schedule (the impugned sections/provisions).
B. Petitioners’ Case
4. By a petition dated 25th July 2022, and submissions dated 29th February 2024, the petitioners challenge the constitutionality of the impugned sections/provisions for reasons that they provide for the criminalization of selling, sharing and exchange of unregistered, uncertified and protected seeds. They contend that this action negates the farmers’ rights guaranteed under the Constitution and international treaties applicable in Kenya.
5. Concerning the violations of International Law obligations, the petitioners urge that Article 2(5) of the Constitution of Kenya (the Constitution) provides that General Rules of International Law shall form part of Kenya’s law, and Article 2(6) of the Constitution incorporates international treaties to which Kenya is a party as part of Kenyan Law. Armed with these constitutional provisions, the petitioners argue that the impugned provisions violate Kenya''s International Law obligations. They rely on the High Court decision in Wanjiku & another vs Attorney General & another; Muna & another (Interested Parties) [2012] KEHC 5410 (KLR) to urge that government, through its executive, ratifies international instruments in good faith on behalf of and in the best interests of the citizens, and that purposive interpretation and application of international law,must be adopted when considering the effect of Article 2(5) and 2(6) of the Constitution.
6. As a starting point, they emphasize that Kenya acceded to the 2001 International Treaty on Plant Genetic Resources for Food and Agriculture (the International Treaty) which under Article 9.2 defines farmers rights to include the protection of traditional knowledge relevant to plant genetic resources for food and agriculture; the right to equitably participate in sharing benefits arising from the utilization of plant genetic resources for food and agriculture; and the right to participate in making decisions, at the national level, on matters related to the conservation and sustainable use of plant genetic resources for food and agriculture. They further cite, Article 9.3, which provides that nothing under Article 9 shall be interpreted to limit any rights that farmers have to save, use, exchange and sell farm-saved seed/propagating material, subject to national law and as appropriate.
7. The petitioners also contend that the said rights are recognized and guaranteed by the 2001 African Model Legislation (the OAU), whose objective, as per its Preamble, is to recognize, protect and support the inalienable rights of local communities, including farming communities, over their biological resources, knowledge and technologies. Similarly, Article 24(1) of the OAU, justifies the existence of farmers’ rights, from the continued ‘enormous contributions that local farming communities have made in the conservation, development and sustainable use of plant and animal genetic resources that constitute the basis of breeding for food and agriculture production.
8. It is the petitioners’ further case that, Article 24(2) of the OAU affirms that, for farmers to continue making significant contributions to the conservation, development and sustainable use of plant genetic resources, their rights have to be recognized and protected. They also cite Articles 26(1)(d) and 32 which expressly permit farmers to ‘save, exchange and use part of the seed from the first crop of plants which they have grown for sowing in their own farms to produce a second and subsequent crop’.
9. In addition, they rely on Articles 27(3b) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and Articles 2(1), 2(3), 19(1) to (3), (5) and (6) to (7) of the United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas (UNDROP), to support the assertion that famers have the right to save, use, exchange and sell farm-saved seed/propagating material.
10. On breaches of fundamental rights guaranteed by the Constitution, the petitioners state that the impugned provisions violate Article 19(3) which provides that the rights and fundamental freedoms in the Bill of Rights do not exclude other rights and fundamental freedoms not in the Bill of Rights, but recognized or conferred by law, except to the extent that they are inconsistent with the Constitution. Consequently, they contend that the accession to the International Treaty and the OAU by Kenya means their respective provisions (on farmers’ rights) form binding obligations capable of enforcement in Kenya by dint of Article 2(6) of the Constitution. Further, that the farmers'' rights recognized therein on saving, sharing, selling and exchanging seeds among local communities are part and parcel of the petitioners’ Bill of Rights, necessitating protection and enforcement by the state.
11. It is the petitioners’ case that the said provisions infringe their rights to be free from and to have adequate food of acceptable quality (right to food) guaranteed by Article 43(1) of the Constitution. In addition, the provisions are in breach of Kenya’s obligation to ‘take legislative, policy and other measures, including the setting of standards, to achieve the progressive realization of the right to food obligated under Article 21(2) and the obligation to ensure the protection and enhancement of intellectual property in, and indigenous knowledge of, biodiversity and the genetic resources of the communities guaranteed by Article 11 also, echoed by Articles 9.1 and 9.2 of the International Treaty.
C. Particulars of breach
12. The petitioners contend that Section 10 of the Act is vague and expressed in ambiguous language, does not state the scope or specify the acts or omissions attracting criminal sanctions. More so, the scope of the term seed under section 10(4) is unclear and ambiguous, and the wording “sales or displays for sale any seed” under section 10(4)(e) is too wide and ambiguous. As a result, they urge that the said provision violates the rule of law and principles of legality requiring all laws with criminal penalties to be sufficiently clear, not vague and overbroad to limit understanding of its scope, to avoid its arbitrary enforcement.
13. The petitioners argue that the purpose of the Act excludes, ignores or fails to recognize the existence of indigenous seeds in Kenya, particularly in the informal sector. They contend that the purpose of the Act is directly contrary to the Constitution, which recognizes the existence and importance of indigenous seeds and the biodiversity of local communities and their respective indigenous knowledge. It is asserted that by requiring the registration of seeds merchants, certification and registration of seeds in Kenya, and criminalization of the exchange of uncertified seeds, Section 10 upsets the Constitution. The petitioners insist that the requirement for registration and certification takes away the indigenous characteristic of the seeds informally exchanged by small-scale farmers in the rural setup in Kenya.
14. It is the petitioners’ further case that the violations by the impugned provisions are unjustifiable and unreasonable limitations under Article 24 of the Constitution.
15. They expound that first, Sections 3D (1) of the Act and Regulation 21(1, 2, 3, 4, 5) of the Regulations, as far as they provide for the seizure of seeds, are unreasonable and unconstitutional. They add that this amounts to a limitation of the right to privacy enshrined under Article 31(a) of the Constitution, which guarantees the right not to have their person, home, or property searched; and Article 31(b), which guarantees the right not to have their possessions seized. Therefore, they argue that Sections 3D and Rule 21 expose farmers to arbitrary searches of their homes, farms and warehouses and seizure of seeds by the inspectors from the Kenya Plant Health Inspectorate Service (KEPHIS).
16. The petitioners also contend that Sections 3D (1) of the Act and Regulation 21(1, 2, 3, 4, 5) of the Regulations limit the constitutional right to property under Article 40(1) in that they give blanket powers to inspectors to search, seize and detain farmers'' seeds based on their belief. Further, they limit the right to fair administrative action under Article 47(1,2) of the Constitution in that the power given to the inspector to search, seize and detain seeds based on the mere belief that a violation of the Act has been committed denies the farmers and/or owners of these seeds a fair administrative action, and the vague nature of section 3D (1) of the Act can lead to arbitrary arrest and prosecution.
17. Secondly the petitioners submit that Section 8(1) of the Act contravenes Article 11(3) of the Constitution which directs the government in mandatory terms to enact legislation to recognize and protect the ownership of indigenous seeds and plant varieties, their genetic and diverse characteristics and their use by the communities of Kenya, by prohibiting the sale of un-indexed seeds hence preventing farmers from selling indigenous seeds. That it also contravenes Article 27 on equality and equal protection by the law in that the provision allows the sale/use of such un-indexed seeds/indigenous seeds outside Kenya and not in Kenya.
18. Thirdly, the petitioner contends that the mandatory requirement for registration and certification of seeds under Section 10(4c, d, e, f and g) of the Act unreasonably and unjustifiably contravene Kenya’s obligations under Article 2(5 & 6) of the Constitution, as read with Article 1, 19(d), 19(2) of UNDROP in that it fails recognize the rights of peasants and/or local Kenyan farmers right to seeds and their realities of limited resources by mandating them to use only certified and registered seeds; fails to recognise the right to save, use, exchange and sell their farm-saved seed or propagating material; and fails to recognize the right to maintain, control, protect and develop their own seeds and traditional knowledge, respectively.
19. It is also their case that Section 10(4c, d, e, f and g) by criminalizing the sale and exchange of uncertified seeds unreasonably and unjustifiably contravene the State’s obligation to ensure the realization of the right to food, which is enshrined in Article 21(2) and 43(1) (c) of the Constitution. The petitioners contextualize that 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.
20. It is also submitted that Regulation 6 of the Regulations subjects and limits the registration and certification of seeds to stringent compliance standards set out in the Fourth Schedule, coupled with the criminalization in dealing with unregistered and uncertified seeds under Section 10(4), are punitive to the small-scale farmers, hence in contravention of Articles 21(2) and 43(1)(c) of the Constitution on the right to food. Particularly, that these limitations in the production, inspection and testing of seeds, as seen under the Fifth Schedule of the Regulations, are unfairly costly for resource-poor farmers, obstructing the effectiveness of the informal seed system and potentially negatively affecting food security and household incomes.
21. For these reasons, the petitioners urge that Section 10 (4 c, d, e, f and g) as read together with Regulation 6 and 16(b) of the Regulations contravenes Kenya’s obligations under Article 2(5) and (6) of the Constitution as read together with Article 19(8) of UNDROP, and fails to take into account the needs and realities of the local and rural small scale farmers who cannot afford the prescribed registration fees of Kshs 75,000.00 for to be registered as seed merchants and the annual subscription fee of Kshs 10,000.00. Consequently, it is argued that the punitive fees are in further contravention of Article 27 (4), (5) of the Constitution, as they amount to a direct discrimination of the rural and small-scale farmers who cannot afford the said fees.
22. Furthermore, the petitioner contends that the mandatory requirement for certification and registration, involving seed processing and testing contravenes Articles 11(2) and 11(3b) of the Constitution as well as Article 19(1) of UNDROP, in that the Act fails to provide for the recognition and protection of ownership of indigenous seeds and plant varieties, their genetic and diverse characteristics and their use by the local communities. Further, such mandatory provisions fail to recognize and protect the traditional knowledge held by local and rural farmers with regard to the said indigenous seeds. Moreover, the petitioners assert that the mandatory provisions also limit their rights under Article 32(1) (2) and (4) of the Constitution as they are prohibited from freely sharing, exchanging and selling indigenous seeds, which they believe are of nutritional and medicinal benefits.
23. Fourth, the petitioners argue that Section 20 (1) of the Act is an unnecessary infringement on their own rights and the rights of other farmers to save, use, exchange and sell farm-saved seeds and other propagating material. They submit that Section 20(1E) of the Act requiring that within reasonable limits and subject to the safeguarding of the legitimate interests of the breeder, farmers may use the product of the harvest which they have obtained by planting, on their own holdings, the protected variety, removes the farmers freedom to deal with their own harvest, breaches the farmers right to food, contrary to Article 21(2) and 43(1) (c) of the Constitution. It is their case that the rights of farmers and plant breeders can be protected without necessarily violating the rights of farmers.
24. It is the petitioners’ submissions that the amendments to the Act failed the requirement for public participation under Articles 10(2) and 118(1)(b) of the Constitution. They rely on the cases of Legal Advice Centre & 2 others vs County Government of Mombasa & 4 others [2018] eKLR (Civil Appeal No. 46 of 2017) and the South African decision in Doctors for Life International vs Speaker of the National Assembly & Others (CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (cc); 2006(6) SA 416 (CC) to buttress their case.
25. Consequently, the petitioners contend that the Respondents are under an obligation to observe, respect, protect, promote and fulfil the rights and freedoms enshrined in the Bill of Rights, Chapter Four of the Constitution, which the Respondents failed to ensure in the enactment of the impugned provisions. To ensure that the petitioners'' rights are protected, the court has been invited to be guided by the Provisions of Articles 2(4), 2(5), 20(3), 21(1), and 24(1) of the Constitution, in addition to all the pleaded constitutional violations.
26. Finally, in response to the respondent''s challenge of this Court’s jurisdiction, the petitioners submit that pursuant to Articles 22 (1) and 22(2) of the Constitution, any legal person, whether acting on behalf of another, being a member of or in the interest of a group/class of persons, acting in the public interest has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of rights has been denied, violated/ infringed or threatened. Further that under Article 23(1) and Article 165(3)(b), this Court has the original jurisdiction to determine the question whether a right or fundamental freedom has been denied, violated, infringed or threatened and subsequently grant the relevant constitutionally provided reliefs. They also urge that the petition is ripe and justiciable as it raises constitutional issues and the Court is not invited to formulate new issues nor to usurp the powers of Parliament. They cite the Court of Appeal in Kenya Airports Authority vs Mitu-Bell Welfare Society & 2 others [2016] eKLR; and Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 others [2013] eKLR, to the effect that the Judiciary had the constitutional power to interpret the policies and laws as enacted and approved by the legislature and executive.
D. Reliefs Sought
27. Based on the foregoing, the petitioners seek the following reliefs;
a) A declaration that section 3D (1) of the Seed and Plant Varieties Act, Cap 326, is wholly unconstitutional and therefore void and invalid in terms of Article 2(4) of the Constitution, and it accordingly stands to be struck from the statute.
b) A declaration that section 10(4 c, d, e, f and g) of the Seed and Plant Varieties Act, Cap 326, is wholly unconstitutional and therefore void and invalid in terms of Article 2(4) of the Constitution, and it accordingly stands to be struck from the statute.
c) A declaration that Section 8(1) of the Seed and Plant Varieties Act, Cap 326, is wholly unconstitutional and therefore void and invalid in terms of Article 2(4) of the Constitution, and it accordingly stands to be struck from the statute.
d) A declaration that Section 8A of the Seed and Plant Varieties Act Cap 326 is wholly unconstitutional and therefore void and invalid in terms of Article 2(4) of the Constitution and it accordingly stands to be struck from the statute.
e) A declaration that Section 20(1) of the Seed and Plant Varieties Act, Cap 326, is wholly unconstitutional and therefore void and invalid in terms of Article 2(4) of the Constitution, and it accordingly stands to be struck from the statute.
f) A declaration that Section 20(1E) of the Seed and Plant Varieties Act, Cap 326, is wholly unconstitutional and therefore void and invalid in terms of Article 2(4) of the Constitution and it accordingly stands to be struck from the statute.
g) A declaration that Rules 6, 9(5), 16, 19 and 21(1,2,3,4,5) of the Seed and Plant Varieties (Seeds) Regulations, 2016 are wholly unconstitutional and therefore void and invalid in terms of Article 2(4) of the Constitution and it accordingly stands to be struck from the statute.
h) This Honourable Court be pleased to issue an order that each party should bear their own costs on the grounds that this Petition is in the public interest.
i) This Honourable Court be pleased to issue such further or other orders as it may deem just and expedient for the ends of justice.
E. The Respondents’ Case
28. The respondents oppose the petition through a replying affidavit sworn by the acting Director in charge of Seed Certification and Plant Variety Protection on 11th May 2023 and written submissions dated 2nd April 2024 to buttress the averments. The respondents contend that the petition is incurably defective, incompetent, frivolous and misleading. They also assert that the alleged violations are speculative, premised on falsehood, and have not been substantiated. They cite the High Court decision in John Harun Mwau vs Attorney General & 2 others, Petition No. 65 of 2011. Further, that the arguments made are mere allegations lacking precision, contrary to the threshold settled in the case of Anarita Karimi Njeri Vs Republic [1976-1980] KLR 1272.
29. Moreover, it is the respondent’s case that the petition falls afoul of the ingredients of the political question doctrine. On this note, they urge the Court to decline the invitation to exercise its jurisdiction. The respondents rely on the case of William Odhiambo Ramogi & 2 others vs Attorney General & 6 others, Mombasa Const. Petition No. 159 of 2018, [2018] eKLR; Kenya Association of Stock Brokers & Investment Bank vs Attorney General & another [2015] eKLR; and Patrick Ouma Onyango & 12 others vs Attorney General & 2 others Misc. Application No. 677 of 2005, to urge that the issues raised are non-justiciable.
30. The respondents deny the alleged breaches by the Act of International Treaty obligations or constitutional safeguards to local and small-scale farmers. On the contrary, they assert that the purpose of the 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.
31. On the place of international law, the respondents urge that, based on the hierarchy of laws in Kenya, the Constitution reigns supreme pursuant to Article 2(5) and (6) of the Constitution. They therefore contend that any law that conflicts with the Constitution is void to the extent of the conflict. In any event, the respondents argue, that the Amendments to the Act are in line with Article 9 of the International Treaty which requires that farmers’ rights to save, use, exchange and sell farm-saved seeds or propagating materials can be limited subject to national laws of treaty members.
32. On the particular alleged breaches, the respondents contend that the petitioners have not proved the allegations to the required standards. Specific to the allegations of breach, the respondent asserts that contrary to the petitioners'' assumption, Section 27A of the Act makes provisions for the protection of indigenous seeds by creation of the center for plant genetic resources, mandated with the conservation and sustainable utilization of plant genetic resources, including indigenous seeds and plant varieties in Kenya. They further argue that the amendments to the Act are in line with Article 11(3)(b), which tasks Parliament to enact a law to recognize and protect ownership of indigenous seeds and plant varieties, their genetic and adverse characteristics and their use by communities of Kenya.
33. They urge that the 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 prescribed standards. As a result, the respondents contend that the Act does not discriminate or breach the constitutional rights of the small-scale farmers.
34. In response to alleged breaches under Section 3D of the Act, the respondents argue that the said provision is not ambiguous or far-reaching in the powers given to inspectors. They respond that the provision is clear when the inspector attempts entry and seizure of materials, which are held pending finalization of investigations and trial.
35. The respondents also contend that the Act does not criminalize the planting and exchange of uncertified seeds, as it defines seeds to include seeds of indigenous varieties. But rather, Section 20(1) protects breeders of new varieties from exploitation of their varieties and ensures they recover investments in breeding, and encourages them to develop new superior varieties. They add that, be that as it may, the petitioners have not demonstrated any prejudice or loss they will suffer, subject to the requirement of section 20 of the Act.
36. Concerning alleged violations by Section 8 of the Act, it is argued that it relates only to seed varieties that have not been indexed by the national government and must be read with Section 7, which sets out the types of seeds that should be indexed. They argue that the petitioners have merely lumped up indigenous seeds and failed to demonstrate the indigenous seeds that have not been indexed, or the small-scale farmers stopped from selling them.
37. On allegation of breach of Article 27 of the Constitution, the respondents, citing Northern Nomadic Disabled Persons Organization (Nondo) vs Governor Count Government of Garrisa & another [2013] eKLR, posit that no evidence has been tendered in support. It is also urged that the petitioners have failed to demonstrate that the alleged discrimination is unreasonable or arbitrary. They emphasize that the underlying legitimate reason of the Act, including the impugned sections, is to foster agriculture and food security by ensuring the quality standard of availability of seed material, promote consumer protection and in no way prohibit the exchange of indigenous seeds between farmers.
38. On alleged breach of the right to fair administrative action under Article 47, the respondents aver that Section 3C (1) is clear in the manner and conduct of inspection and prohibits the entry of private dwellings. In any event, they contend that the Act sets clear limitations on the powers of the inspectors, an avenue to address any grievances through the Seeds and Plants Tribunal and creates offences under the Act. Moreover, that the petitioners have adopted a selective and narrow approach in the interpretation of Section 3D of the Act.
39. Concerning allegations of violations of Articles 40 and 43 of the Constitution, it is the respondents’ case that no evidence has been tendered to buttress the assertions. Similarly, the petitioners are purporting to circumvent the procedures of the Act. On the limitation of constitutional rights, the respondents contend that any limitations by the Act or Regulations are justifiable, reasonable and intended to serve an ascertainable objective. The respondents cites R vs Oakes to submit that the limitations have met the three-promoted criteria set by the Supreme Court of Canada.
40. According to the respondents, the petitioners have failed to demonstrate any such breach, and in the interest of justice and public demands, their petition is for dismissal with costs.
F. 1st Interested Party case
41. The 1st interested party participated in the proceedings jointly with the Petitioner.
G. 2nd Interested Party case
42. The 2nd Interested party, through a replying affidavit sworn by Anne Maina on 5th April 2023, and submissions dated 20th October 2024, supports the petition. It affirms the petitioners'' position and arguments in toto. It contends that the Act is unconstitutional because it contravenes the rights guaranteed by the Constitution, and unreasonably restricts farmers’ rights by criminalizing the sale, sharing, and exchange of unregistered and uncertified seeds. The 2nd interested party urges that the limitations under the Act on the use, exchange and sale of farm-saved seeds will encumber resource-poor farmers in accessing and selling improved seeds, obstructing the effectiveness of the informal seed system and negatively affecting food security and household incomes.
43. On whether sections 8(1) 8A, and 10 (4) (c) (d) (de) (f) and (g) of the Act violate Articles 11(1), (2) and (3) of the Constitution, the 2nd interested party submits that as Section 8 restricts the sale of seeds of unindexed plant varieties it violates Article 11(3) of the Constitution. Further, that Section 8(A) (1) violates Article 11(3) as read with Article 9 of the International Treaty and Article 19 of UNDROP, as it provides that only the seeds on the National Seeds Plant Variety List prepared by KEPHIS will be commercialized, extinguishing the farmers'' rights to use, exchange, save and sell farm-saved seeds.
44. The 2nd interested party further supports the contention that Sections 10(4)(c) (d) (e) (f) and (g) are in breach of Article 11 because they fail to uphold and recognize culture as the foundation of the Nation and the cumulative civilization of the people of Kenya. It urges that first, the said provisions place a mandatory requirement for farmers to exclusively use only certified and registered seeds, failure to which it attracts criminal sanctions. Second, that the impugned provision mandatorily requires certification and registration of seeds in violation of Articles 10(4) and Articles 19(1) of the UNDROP. Third, that it criminalizes the commercialization of uncertified seeds and the sale of seeds by unregistered merchants.
45. According to the 2nd interested party, these provisions erode the culture and uniqueness of the indigenous people of Kenya and are contrary to Article 11 of the Constitution and similar international obligations. It cites Mohamed Ali Baadi & others Vs Attorney General & 11 others [2018] eKLR; and Gitau & 11 others Vs County Commander Kiambu & 3 others (Petition E020 of 2023) [2024] KEHC 1659 to support this assertion
46. The 2nd interested party further argues that Section 3D of the Act, as read with Regulations 21(1), (2), (3), (4), and (5), contravenes Article 27, so far as it provides for seizure of seeds. Further that Section 10(4)(c), (d), (e), (f), and (g) of the Act and Regulations 6 and 16(b), which
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