A Kenyan court has struck out a government-sponsored law that restricted smallholder farmers from freely utilizing farm-saved seeds and engaging in seed exchanges among themselves.
The High Court, sitting in Machakos town 62 km southeast of Kenya's capital, Nairobi, in November 2025 struck down several sections of the Seeds and Plant Varieties Regulations, which were gazetted in February 2017 before they were revised again in December 2022.
The case was brought to court in 2022 by several petitioners, including civil society groups and farmers' organizations, against proponents of the punitive regulations led by the Kenya Plant Health Inspectorate Service (Kephis), a government agency with a mandate to ensure the quality of agricultural inputs and produce.
The petitioners told the court the regulations criminalize the sharing and exchange of uncertified seeds, a traditional practice among smallholder farmers, who produce 80% of the country's food, thereby threatening the sustainability of indigenous seed varieties and biodiversity.
The regulations outlined in the Seeds and Plant Varieties Act (Cap. 326) made it a criminal offence for anyone to engage in “the sale or display for sale of any seed” without registration of the sellers and certification and registration of the seeds.
However, the petitioners argued such provisions in the law "exclude, ignore or fail to recognize the existence of indigenous seeds in Kenya, particularly in the informal sector, contrary to the Constitution, which recognizes the existence and importance of indigenous seeds and the biodiversity of local communities and their respective indigenous knowledge."
They also contested the requirement for the registration of seed merchants, certification and registration of seeds in Kenya, and the criminalization of the exchange of uncertified seeds, saying it is against the country's Constitution.
"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," the petitioners told Justice Rhoda Rutto.
The judge concurred with the petitioners and subsequently declared as unconstitutional 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 of the Act, saying these sections of the Act fail 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."
For Greenpeace Africa, the judgment “effectively decriminalizes the age-old practice of saving, sharing and exchanging indigenous seeds, affirming that Farmer-Managed Seed Systems (FMSS) are a protected right, not a criminal activity.”
According to the Alliance for a Green Revolution in Africa (AGRA), the seed regulations "prohibit farmers from sharing, exchanging or selling uncertified and unregistered seeds, imposing severe penalties."
Previously, Kephis, which was to oversee the implementation of the new regulations, defended the new rules, saying they were a measure to “ensure that seeds produced or imported into Kenya meet certification requirements to ensure farmers get maximum benefits upon planting the seeds.”
The regulations, the agency said, were to prevent the sale of fake seed and provide for punishment of fake seed dealers, ensure that seed sold in Kenya is of suitable varieties that have been tested and found to perform satisfactorily under Kenyan agro-ecologies, while providing for breeders to recover their investment in breeding by protecting them from unfair use of their varieties.
The new regulations also proposed the establishment of a tribunal to hear appeals and complaints on seed-related issues, particularly those emerging from compliance or violation of the regulations.
The Seed and Plant Variety Act (Cap. 326), which was first established in 1972 and has since been reviewed twice and amended in 2016, focuses on regulation of commercial production and sale of seeds.
Kephis says Kenya's informal seed system, which involves recycling and informal sharing and exchange of seeds by farmers, has no regulations to govern it.
It further added indigenous seeds need to be certified once they undergo the necessary tests, such as germination, purity freedom from disease and having defined variety characteristics.
“In most cases, indigenous seeds are produced informally and maintained by farmers and local communities through several generations, and the Act does not prohibit the saving and sharing of indigenous seeds between farmers for noncommercial purposes,” it said.
Kenya is one of the countries in Africa where indigenous seeds, distributed largely through the informal marketing channel and are considered suitable in addressing persistent challenges such as drought, pests and diseases.
An estimated 216,000 metric tons of planting material is utilized in the establishment of staple crops in Kenya with the potato planting materials accounting for more than 117,000 metric tons, equivalent to 54% of the total, while corn seed makes up 54,000 metric tons of overall supply, according to a report by the U.S. Department of Agriculture published in the first quarter of 2025.
“However, Kenya faces a significant seed deficit, with annual demand for planting materials continuing to rise, driven largely by the growing need for high-yielding hybrid seeds,” the report says.
Among the key market players are the Kenya Seed Company, a government-owned company with an 80% of the maize market share, leading players from the region such as East African Seed Company, Western Seed, Freshco Seeds and Simlaw Seeds.
Several multinational firms such as Seed Co, Bayer and Corteva are also active in the production and supply of different hybrid and specialty seeds.
Although the Kenya High Court has invalidated several portions of the Seeds and Plant Varieties (Seeds) Regulations for criminalizing the selling, sharing and exchange of unregistered, uncertified and protected seeds in the country, a similar law is being pushed for approval at the East African Legislative Assembly, an organ of the East African Community, a regional intergovernmental organization of eight Partner States. The countries include Kenya, Tanzania, Uganda, Rwanda, Burundi, South Sudan, the Democratic Republic of Congo and Somalia.
The eight governments, through their ministers responsible for EAC affairs, claim the East African Community Seed and Plant Varieties Bill, 2025, is to "provide for the coordination of evaluation, release and registration of plant varieties among Partner States and also to pave the way for the provision for common processes for seed certification and protection of plant varieties within the Community."
Furthermore, the Bill, the ministers say, is anchored on Article 106 of the EAC Treaty, in which the Partner States undertook to strengthen their cooperation in quality seed development and production through research and plant breeding, while seeking to provide for seed certification, testing and marketing to facilitate and create an enabling environment for private sector seed multiplication and distribution.
However, the bill's critics now say, in its current form, the proposed law "contains significant gaps that risk undermining farmers’ rights and farmer-managed seed systems in East Africa
"The majority of smallholder farmers rely on saving, exchanging, and using farm-saved seeds for food security, biodiversity, and climate resilience—especially during emergency situations."
The Network says the Draft Bill "largely prioritizes formal seed systems, offering limited recognition and protection for farmers’ customary seed practices. If adopted without safeguards, it could restrict these practices, reduce seed diversity and increase farmers’ dependence on commercial and external seed sources."
The Network and other civil society groups, farmer organizations, research institutions and development partners are seeking to forge a united front in pushing for amendments to the Bill and propose practical recommendations "to ensure that the final law supports farmers’ rights, FMSS and resilient seed systems."
Meanwhile, AGRA is calling for a rethinking of the management of the continent's seed systems to avert the risk of marginalizing smallholder farmers, hence perpetuating food and nutrition insecurity, increased dependence on food and seed imports and increased inequalities across the continent.
"Moreover, the existing policies that promote corporate-managed seeds are eroding the seed biodiversity preserved by smallholder farmers over generations," it said in a recent report.