Landmark Victory for Kenya’s Small-Scale Farmers: Insights from the Wathome Case

For many Kenyan farmers, adapting to climate change has meant preserving and sharing indigenous seeds that thrive where commercial varieties often fail under erratic rainfall and prolonged droughts.¹ These traditional crops, cultivated through generational knowledge, have quietly underpinned food security in vulnerable regions by offering affordability, resilience and autonomy in the face of climate stress.²

The Seeds and Plant Varieties Act (Cap. 326) was assented to on 16 May 1972 and came into force on 1 January 1975. Since then, it has undergone several amendments, the most recent being on 31 December 2022.³ The Act regulates transactions in seeds, including mandatory testing and certification, as well as the maintenance of a plant variety index.⁴ It also governs the introduction of new varieties, secures proprietary rights for breeders, and establishes a national centre to safeguard indigenous seeds and plant genetic resources.⁵

The most significant amendment was in 2012, which introduced several controversial provisions that curtailed farmers’ rights and aligned with the 1991 Act of the International Union for the Protection of New Varieties of Plants (UPOV), strengthening intellectual property protections that largely favoured commercial breeders and multinational corporations over smallholder farmers.⁶ Among these were punitive provisions under Section 10 (4) (d), (e), and (f), which imposed fines of up to Ksh 1 million or a two-year prison term on anyone who, without being registered as a seed merchant, imports, processes, or packages seed for sale; sells or displays seed that does not match its certified description; or offers for sale seed that fails to meet certification standards or has been rejected at any stage of certification.

It has been noted that the above provisions disproportionately affect smallholder farmers, who rely on informal seed systems supplying the majority of Kenya’s seeds and would face criminal penalties unless they comply with costly certification requirements.⁷ In essence, the amendment outlawed the long-standing practices (traditional seed practices) that have historically sustained Kenya’s agriculture and food security.⁸ The role of indigenous seeds in agriculture is crucial. Cultivated over generations to suit local soils and climates, they are resilient to pests, diseases, and extreme weather while supporting biodiversity and community food system resilience.⁹ Additionally, they are affordable and provide access to a wider range of crop varieties and more nutritious food options.¹⁰

In contrast, certified seeds compromise the autonomy of local farmers, who are forced to buy specific pesticides and fertilizers each season, trapping them in a persistent cycle of debt.¹¹ These chemicals also pose serious risks to human health and the environment, contaminating soil and water, killing beneficial insects, and disrupting ecosystems.¹² The clash between farmers’ traditional seed practices and the statutory regulation of seeds ultimately came before the High Court for determination. Thus, this blog interrogates the petition as well as the court’s determination, offering an intellectual property lens through which to understand the judgment and its wider implications.

Farmers’ Grievances: Examining the Petition

On 27 November 2025, the High Court of Kenya sitting in Machakos delivered a highly anticipated judgment in a constitutional petition filed by smallholder farmers in Wathome & 14 others v Kenya Plant Health Inspectorate Service & another; Greenpeace Environmental Kenya & 2 others,¹³ challenging the Seeds and Plant Varieties Act.¹⁴ The Court ruled entirely in favour of the petitioners, invalidating several provisions of the Act and its accompanying Regulations.¹⁵

The petition was lodged by fifteen (15) small-scale farmers, supported by interested parties, including Greenpeace Environmental Kenya and the Biodiversity and Biosafety Association of Kenya (BIBA Kenya).¹⁶ They challenged several provisions of the Act including the Seeds and Plant Varieties (Seeds) Regulations, 2016¹⁷ that require all seeds to be registered, certified, and sold only by registered merchants.¹⁸ The petitioners contended that these laws effectively criminalized the sharing, exchange, and sale of indigenous and uncertified seeds, which are central to the livelihoods and cultures of rural Kenyan communities.¹⁹

Additionally, they challenged the constitutionality of the aforementioned provisions, claiming that they violated the farmers’ rights guaranteed under the Constitution and international treaties applicable in Kenya.²⁰ Concerning violations of international law obligations, the petitioners argued that Kenya’s accession to the 2001 International Treaty on Plant Genetic Resources for Food and Agriculture protects farmers’ traditional knowledge and ensures equitable benefit-sharing under Article 9.2.²¹ The Treaty also guarantees farmers a role in national decision-making on the conservation and sustainable use of plant genetic resources.²²

They further noted that Article 9.3 of the treaty preserves farmers’ rights to save, use, exchange, and sell farm-saved seeds and propagating material, subject to national law.²³ The petitioners further argued that these rights are recognized and protected under the 2001 African Model Legislation (OAU), with Article 24(1) acknowledging farmers’ role in conserving and sustainably using plant and animal genetic resources.²⁴ In addition, they cited Article 27(3)(b) of the TRIPS Agreement and Articles 2(1), 2(3), and 19(1) to

(3), (5) and (6) to (7) of the UN Declaration on the Rights of Peasants and Other People Working in Rural Areas (UNDROP). These provisions affirm that farmers are entitled to save, use, exchange, and sell farm-saved seeds and propagating material.²⁵

Regarding constitutional rights, the petitioners argued that the impugned provisions violate Article 19(3) of the Kenyan Constitution, which provides that the rights and fundamental freedoms in the Bill of Rights do not exclude other rights recognized or conferred by law, so long as they are consistent with the Constitution.²⁶ They contended that Kenya’s accession to the International Treaty and the African Model Legislation (OAU) makes the provisions on farmers’ rights binding and enforceable under Article 2(6) of the Constitution.²⁷ In particular, the petitioners argued that the rights recognized in these instruments, such as saving, sharing, selling, and exchanging seeds within local communities, formed part of their constitutional rights and therefore required protection and enforcement by the state.²⁸ In summation, the petitioners contended that the impugned provisions infringed the constitutional right to food under Article 43(1), breached the State’s obligation under Article 21(2) to progressively realize that right, and undermined the protection of indigenous knowledge and biodiversity guaranteed by Article 11 and reflected in Articles 9.1 and 9.2 of the 2001 International Treaty on Plant Genetic Resources for Food and Agriculture.²⁹

Seeds of Justice: Farmers’ Rights Upheld

The court identified the following primary issues for determination: whether it possessed jurisdiction to hear the petition, whether the impugned provisions of the Seeds and Plant Varieties Act and its 2016 Regulations were unconstitutional, and the appropriate orders for costs.³⁰ Affirming its jurisdiction, the court reasoned that the political question doctrine³¹ did not apply because the legislature had already finalized its law-making mandate, making any challenge to the statute’s constitutionality fall squarely within the court’s jurisdiction under Articles 23(1) and 165(3)(b), read together with Article 22(1) of the Constitution, and thus the court had jurisdiction to hear and determine the petition.³² The court’s ratio decidendi further established that seed saving and sharing are protected “indigenous technologies” and cultural practices under Article 11 of the Constitution, which places a mandatory obligation on the state to recognize and protect the ownership of indigenous seeds.³³

Further, the court ruled that the right to food under Article 43(1) of the Constitution is violated when the informal seed system is criminalized, as such restrictions create an unconstitutional “economic dependency” on commercial breeders that undermines the right to be free from hunger.³⁴ The court also found that broad enforcement powers based on an undefined “reasonable belief” without procedural safeguards violate the rights to privacy and fair administrative action, while exorbitant registration fees (Kshs 75,000) constitute “indirect discrimination” by unfairly marginalizing small-scale farmers based on their social and economic status.³⁵ Consequently, the court declared the impugned provisions unconstitutional and void, ordering each party to bear their own costs.³⁶ Nonetheless, the Attorney-General and the Kenya Plant Health Inspectorate Service (Kephis) have filed a notice of appeal, indicating their intention to challenge the judgment.³⁷

An Intellectual Property lens on the Case

The court’s decision redefined indigenous seed systems by recognising traditional practices, such as seed saving, exchange, and sharing, as “indigenous technologies” under Article 11(2)(b) of the Constitution.³⁸ This affirmed the state’s obligation to protect and support these practices as part of national development, highlighting that the informal seed system is not a legacy of the past but a form of traditional knowledge that cannot be legislated out of existence.³⁹ The court further held that Article 11(3)(b) of the Constitution requires Parliament to enact laws that explicitly safeguard indigenous ownership of seeds and plant varieties. By requiring all seeds to be registered, certified, and indexed in a national list, the court held that the Act effectively ignored the existence of indigenous varieties.⁴⁰ This suggests that formal intellectual property (IP) registration systems cannot be used to suppress or delegitimize indigenous ownership.⁴¹

The judgment also limited plant breeders’ rights, striking down provisions granting exclusive control over production, reproduction, and marketing of protected varieties.⁴² Extending such exclusivity to farmers’ harvests creates economic dependency, undermines property rights, and threatens food security;⁴³ this implies that IP rights for breeders are not absolute and cannot be used to extinguish the traditional rights of farmers to deal with their own harvests.⁴⁴

On international obligations, the court affirmed the applicability of the general rules of international law in Kenya.⁴⁵ Therefore, instruments such as the TRIPS Agreement and the United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas (UNDROP), as invoked by the petitioners, protect farmers’ rights ‘to save, use, and sell farm-saved seed/propagating material’.⁴⁶

In doing so, they limit the reach of commercial intellectual property interests by requiring States to ensure that seed policies and IP laws respect peasants’ rights and realities,⁴⁷ while permitting flexibilities for a balanced sui generis system that does not unduly restrict traditional farm-saved seed practices.⁴⁸ Finally, the court stressed that the state must protect both genetic resources and the intangible knowledge associated with indigenous seeds, and that establishing a Plant Genetic Resources Centre alone is insufficient when laws continue to criminalise the communities sustaining those resources.⁴⁹

In conclusion, the court’s ruling makes clear that IP rights are not absolute but must balance private incentives with the public good. By invalidating provisions that criminalized sharing uncertified seeds, the court ended a system that favoured wealthy commercial actors over smallholder farmers. It affirms that the rights to food and cultural practice must be the ultimate benchmarks for IP legislation. Thus, Kenya’s seed laws should align with the Constitution and international instruments, ensuring progress respects farmers’ autonomy.

Image used was generated using Gemini.