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State moves to appeal landmark judgment on indigenous seed rights
Charity Mdivo displays bottles containing assorted indigenous seeds in Kayata village, Makueni County, on November 3, 2025. She grows indigenous crops to cope with erratic rainfall due to climate change.
What you need to know:
- For years, smallholder farmers feared arrest for saving and sharing indigenous seeds; this week, the High Court changed everything.
- A landmark judgment has struck down seed laws that punished farmers with fines and jail terms.
Until this weekend, Charity Ndivo spoke only in hushed tones about an enviable enterprise she has built over the years by exchanging assorted indigenous seeds collected from elderly neighbours who have long guarded them with pride.
The agroecology champion, who operates a makeshift indigenous seedbank in Itulu, Makueni County, is among millions of smallholder farmers who have heaved a sigh of relief after the High Court halted government efforts to criminalise the saving and sharing of indigenous seeds.
The High Court in Machakos has overturned several provisions of the Seed and Plant Varieties Act that outlawed the saving, sharing and selling of uncertified seeds, declaring key sections of the law unconstitutional. These provisions—introduced through amendments to the law—had imposed penalties of a Sh1 million fine or a jail term of up to two years.
“Section 3D (1) of the Seed and Plant Varieties Act is hereby declared unconstitutional for violating Articles 31(a), 40(2) and 47 of the Constitution,” Justice Rhoda Rutto said on Friday.
“We no longer have to look over our shoulders when talking about indigenous seeds. The court decision has set us free to use and openly promote the uptake of indigenous seeds. It is a boost to food security and food sovereignty,” Ms Ndivo told the Nation in an interview.
She is part of a fast-growing community of small-scale farmers who have returned to indigenous crops as a way of coping with erratic rainfall linked to climate change. On her three-acre farm, she grows red and yellow maize, dolichos lablab, mung beans, cowpeas, pigeon peas and assorted bean varieties long thought to be extinct.
She also grows sorghum and a black finger millet variety praised by nutritionists as a rich source of carbohydrates, dietary fibre and plant protein. Her farm also supports bananas, cassava, sweet potatoes, citrus fruits and mangoes. In addition, she keeps indigenous chickens, cows and goats, and rears at least 800 tilapias in a pond fed by run-off water harvested from a nearby road.
Ms Ndivo’s enterprise is anchored in the Kamba community’s long-standing tradition of saving and exchanging indigenous seeds. “Over the years, we have established that indigenous seeds mature quickly and tolerate drought, pests and diseases far better than hybrid ones. Nutritionists say many indigenous crops are also rich in nutrients,” she said.
A 2016 amendment to the Seed and Plant Varieties Act—originally enacted in 1972 to regulate the seed industry—restricted Ms Ndivo and other smallholder farmers from fully benefiting from indigenous varieties. The amendment criminalised indigenous seed saving and exchange.
The law also empowered Kenya Plant Health Inspectorate Service (Kephis) inspectors to raid homes and seize uncertified seeds. Anyone wishing to sell seeds was required to register as a seed merchant. Petitioners argued that these certification requirements—which demanded Sh75,000 for registration and Sh10,000 annually for renewal—unfairly discriminated against smallholder farmers.
This prompted 15 smallholder farmers under the Seed Savers Network to challenge the Act in court. Their petition, filed in 2022, stated that criminalising the saving and sharing of indigenous seeds violated farmers’ rights and breached international treaties to which Kenya is a party.
They further argued that restricting uncertified seeds threatened biodiversity, food security and cultural heritage, and that the amendments had been introduced without public participation as required by law.
Greenpeace Africa, an interested party in the case, told the court that the government was exposing smallholders to exploitation by multinational seed corporations. “Article 9 of the International Treaty on Plant Genetic Resources, which Kenya has ratified, does not limit the rights of farmers to save, sell or exchange seeds. There is no justification for restricting the right to food,” said lawyer Emily Muthama.
The government, however, denied violating any rights and defended the criminalisation of uncertified seed trading. Kephis insisted the amendments were meant to protect farmers from diseases and low yields associated with uncertified seeds.
But the High Court sided with the petitioners. Justice Rutto found several sections of the law unconstitutional, including Section 3D, which had exposed farmers to arbitrary searches of their homes, farms and stores by Kephis inspectors.
“The registration fee of Sh75,000, the annual renewal fee of Sh10,000, and the stringent requirement for registration as a seed merchant, place smallholder farmers at a disadvantage compared with large-scale farmers,” the judge said in her November 27 judgment.
She added that many small-scale farmers operate informally and that such formalisation offers them little benefit. She also faulted the government for failing to conduct adequate public participation. “Public participation is a living principle of the Constitution. It ensures that people continue to exercise their sovereign authority in governance,” she said.
The Attorney-General and Kephis have since filed a notice of appeal, signalling their intention to challenge the judgment. “Take note that the 1st and 2nd respondents herein, being aggrieved by and dissatisfied with the judgment of Lady Justice Rhoda Rutto delivered at Machakos on November 27, 2025, intend to appeal to the Court of Appeal,” reads the notice filed on December 2, 2025, by State Counsel Peter Kuria.
Meanwhile, petitioners have continued to celebrate what they describe as a crucial step towards enhancing food security. They are Samuel Wathome, Damaris Kiloko, Mary Munyoli, Anna Wanza, Kisilu Musya, Christine Ndola, Johnson Mulinge, Veronica Kibondo, Richard Opete, Lucy Wanjiru, Francis Ngiri, Beatrice Wangui, Peninah Ngahu, Elly Onde and Alice Sungu.
They say the judgment restores farmers’ right to save and sell indigenous seeds. Ms Wangui, who grows indigenous beans and maize, hopes her monthly income will grow from the current Sh10,000–Sh12,000 to at least Sh20,000. “We expect higher sales because we shall no longer be selling in fear of arrest,” she said.
The Seed Savers Network also welcomed the judgment. “There is still much work to be done to ensure that indigenous seeds are recognised in law. We are part of the team revising the legislation. Farmers who have been operating with uncertainty can now stock, package and sell seeds, provided they preserve them well. Once people begin trusting indigenous seeds, this will strengthen climate action and food security,” said Tabby Munyiri, the network’s communication strategist.
