By Antynet Ford

Lady Justice Rhoda Cherotich Rutto has declared key sections of Kenya’s Seed and Plant Variety Act (2012) unconstitutional, overturning provisions that made it illegal for farmers to save, share, or sell uncertified seeds, with penalties of up to two years in jail or a Sh1 million fine.

In her ruling, the judge said: “The ancient right of farmers to save and share seeds supersedes commercial interests, reshaping the legal balance of power between communities and agribusiness worldwide.”

The petition, filed by 15 smallholder farmers from the Seed Savers Network, challenged the Act’s compulsory certification framework, which is overseen and enforced by KePHIS, arguing that it criminalised traditional seed systems and undermined farmers’ rights.

KePHIS had defended the restrictive regulations, arguing they were necessary to guarantee seed quality and maximise yields. However, the court found that criminalising farmer-saved seed systems violated constitutional rights and was not a proportionate means of regulating the sector.

The farmers’ seed sales were made illegal under the Act’s 2016 regulations, which covered all leading food crops, across cereals (maize, wheat, barley, sorghum, rice, millet, pearl millet, oats, triticale), pulses (dry beans, green-podded beans, peas, green gram, cowpea, pigeon pea), oil crops (sunflower, oil-seed rape, linseed, soybean, groundnut, sesame), root and tuber crops (Irish potato, sweet potato, cassava), cotton, and a wide range of forage grasses and pasture legumes. Any sale of uncertified seed from these crops was banned.

KePHIS has since earned an estimated Sh50m to Sh250m a year from seed certification services. 

But while the overturning of the law may dent KePHIS revenues, Beatrice Wangui, one of the petitioners, said it will ends years of hiding and restricted sales, and help food security and climate change adaptation.

“In a month we have been making around Sh8,000 or even up to Sh12,000 from the sale of yellow, purple and red maize seeds together with indigenous vegetable seeds,” she said. “With the court ruling, the sale is expected to shoot to up to Sh20,000 and more because we shall not be selling the seeds in fear of being jailed or fined any more.”

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“As the court has decided, we shall have freedom to share and sell our seeds without the punitive law. As a farmer, I am the owner of the seeds which, after harvesting, we do the germination and moisture tests before storing them for replanting in different seasons.”

Tabby Munyiri, Communication and Advocacy Strategist at Seed Savers Network, said the judgment validates the organisation’s long-running push for reform.

“The ruling has given us strength and vindicated some of our recommendations as farmers will now be free to sell their indigenous seeds,” she said.

“Farmers were operating with a lot of uncertainty because there was the fear of being arrested,” she said. “We expect that they will soon be stocking seeds in bulk, packaging and selling, because the quality of their seeds is good.”

Seed Savers is participating in the national review of the Seed and Plant Variety Act to align it with the ruling.