Page 1 of 103 BASELINE STUDY/SURVEY REPORT ON THE SEED SECTOR IN KENYA By Evans Olonyi Sikinyi, PhD National Consultant Seed Trade Association of Kenya P.O. Box 2581 –00202 Nairobi, Kenya E-mail: [email protected][email protected]Tel: +254 20 271 3619 Mobile: +254 722 767 026 September, 2010
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baseline study/survey report on the seed sector in kenya
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In terms of quantities of seed produced about 44,000tons of seeds was produced by the
end of 2009 compared to 1999 when production was below 25,000tons (KEPHIS).
The trend is shown in the figure below for the past nine years.
INFORMAL SEED SECTOR
The informal seed sector has been in operation in Kenya particularly for the small scale
farmers. According to the National Seed Policy document for Kenya, the source and
quality of most of the planting materials and seed purchased, multiplied and marketed
by the informal seed sector may not be known, yet this is the major source of planting
material for the farmers. For example, “road-side” nurseries for forest and fruit trees do
not have clearly documented sources. Other informal sources of seed include farm-
saved seed, farmer-to-farmer exchange, local markets, Non Governmental
Organizations (NGOs) and Community Based Organizations (CBOs). Growers of
flowers and ornamental plants do import and/or locally multiply planting material for their
own use or sale to other local growers, yet they are not registered as seed dealers.
Moreover, some Relief Agencies who supply emergency seed, do not always obtain
such planting material from registered seed dealers, and so such seed may not be of
known quality. However, the informal seed sector sometimes voluntarily use KEPHIS
seed testing services to determine quality status of their seed for own use. As farming
becomes more commercial, the focus is shifting towards formal seed though.
Seed traded and used in Kenya is made up of local production and imported seed. As
part of the trade business there are exports of seed to particularly its neighbors in the
region. The movement of seed within and between countries can be restricted by
regulations governing seed certification and standards, phytosanitary measures, variety
testing and release procedures, plant variety protection and import and export
requirements.
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This report contains some findings on the study, the situation on the above issues on
the seed sector in Kenya, as outlined below.
A. SEED CERTIFICATION STANDARDS
The Kenya Plant Health Inspectorate Service (KEPHIS) is a regulatory body established
under the State Corporations Act (Cap 446) pursuant to Legal Notice No. 305 of 18th
October, 1996. The corporation officially commenced operation in November, 1997.
Seed certification was previously undertaken by the National Seed Institute under the
then Ministry of Agriculture that later became the National Seed Quality Control Station
which was transferred to Lanet under the Kenya Agricultural Research Institute. Among
other functions, KEPHIS is mandated to undertake the following:
1. Co-ordinate all matters relating to crop pests and disease control; 2. Establish service laboratories to monitor the quality and levels of toxic residues in
plants, soils and crop and animal produce; 3. Administer Plant Breeders Rights (PBR) in Kenya and serve as a liaison office for
the International Union for the Protection of new Varieties of Plants (UPOV), thus, the custodian of the Plant Breeders‟ Rights Register;
4. Undertake inspection, testing, certification, quarantine control, variety testing and description of seeds and planting materials;
5. Undertake grading and inspection of plants and plant produce at the ports of entry/exit;
6. Develop and implement standards on both imported and locally produced seeds; 7. Approve all importation and exportation licences for plants and seeds; 8. Implement the national policy on the introduction and use of genetically modified
plant species, insects and micro organisms in Kenya; 9. Establish posts at convenient locations for quarantine, inspection and quality
control of fertilizer and seeds and monitor levels of residues of agricultural inputs and their environmental effects; and
10. Establish linkages for collaboration with various local and international government and non-governmental organisations so as to execute its tasks more professionally
In performing the above mandates KEPHIS is responsible for seed certification as per standards stipulated in The Seeds and Plant Varieties (Seeds) regulations under CAP 326. Seed certification was undertaken by the National Seed Institute under the then Ministry of Agriculture that later became the National Seed Quality Control Station and transferred to Lanet under the Kenya Agricultural Research Institute.
Seed is the basic input that sets the potential for crop yield hence requires defined
processes in its production, processing and marketing. Seed Quality Assurance
Services operate within the guidelines and procedures stipulated in The Seeds and
Plant Varieties Act (Cap 326) of the laws of Kenya.
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Inspections (both in the field and factory processing) are undertaken as per standards,
which are equivalent to the OECD standards, to which Kenya is a member. Laboratory
seed tests and analysis are carried out as per the ISTA standards/rules, to which Kenya
is also, a member.
The main objectives of seed certification can be broadly classified as two fold,
1. To ensure that farmers receive the best possible, quality seed, so as to maximize
their crop production, and
2. To ensure that farmers are not at risk of being provided with low quality seed by
fraudulent traders.
There is need to ensure high quality seed because
Good quality seed is the basis of all agricultural production
Seed quality is an essential tool for trade
Official recognition of quality-guaranteed seed thus:
facilitates international trade
contributes to removing technical trade barriers
Seed Certification involves the following processes,
i) Document verification
The applicant, who must be a registered seed company or merchant, must provide
proof of origin of the variety and crop that they intend to grow. Only registered Seed
growers contracted by registered Seed Merchants can grow seed for certification.
ii) Field inspection
Field inspection means an examination of a crop seed field for conformity to laid out
standards as part of seed certification program
After approval for the grower has been given and the seed crop has been planted, an
application for field inspection is made to the certifying agency, KEPHIS. The following
are checked in the field; -
• Isolation distance from other crops of the same species.
• Total area of the seed crop.
• Trueness to type of the variety including off-types and foreign varieties
• Diseases and pests occurrence
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• Proper detasseling in case of hybrid maize
• Proper crop husbandry
iii) Factory processing
After seed harvest, processing is undertaken, where the following are checked
• Factory cleanliness
• Lot examination
• Seed sampling
iv) Seed testing/analysis
During seed testing in the laboratory the following are examined.
Verification of the received samples (Sealed samples)
Purity analysis
Viability tests (through germination and the tetrazolium tests).
Moisture tests where a seed lot may show high moisture content.
Pathological test (fungal, bacterial and viral tests).
v) Labeling and sealing
Every seed lot is then tagged with a label and a seal as required by law.
This ensures that the seed cannot be tampered with without damaging the
seal, label or container beyond repair.
vi) Post Control
Means the growing of plants from seed lots which have been certified to further
determine and confirm cultivar or variety purity and freedom from seed born disease.
These are tests where samples of the lots of the certified seeds are grown out in the
field, alongside the known true representative of the variety, to evaluate their
performance. This is to ascertain that the preceding control control measures have
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been effective. They ensure that varietal characters remain unchanged during
multiplication.
In Kenya the Seed certification must follow the steps below:
1. Be a registered seed merchant with KEPHIS (Form SR 3 &4)
2. Register as a seed grower (Form SR 1 & 2)
3. Register seed crop for inspection (Form SR 5)
4. Provide proof of origin of seed to be used
5. The variety to be inspected for certification must have undergone National
Performance Trials and DUS tests passed and released for commercialization
6. Seed fields must be inspected to determine whether the field is in compliance
with standards for varietal identity and purity, isolation, and freedom from weeds
and other crop species (Inspection results Form SR 6)
7. Raw seed from approved fields must be tracked to maintain traceability
(Transport order SR 7)
8. Seed lot must be inspected during processing (Work order SR 8)
9. Representative samples from processed seed lots must be tested for germination
and purity to determine compliance with seed standards (Request for testing,
seed testing certificate & Stop sale order Forms or found in SR 9, 10 & 11
respectively)
10. Seed lots that meet the certification standards are sealed and or labeled
11. Certified seed lots must then be post controlled.
Note: The SR forms are as in Appendix 2 and are also available on KEPHIS website
(www.kephis.org)
Under the Kenyan seed law, there are crops that fall under voluntary certification
(Schedule I), and those under compulsory certification (Schedule II).Those under
The initial classification of the varieties was based on what was considered at that time
to be important for food security and secondly those crops that had an active breeding
system in place to support variety development. Presently, many other crops have been
found to be of economical importance, hence of food security as well. Moreover, most
crops have a breeding system in place, to support the crop development. Given that the
Seed Act empowers the minister to alter the list of the crops under compulsory
certification, it has been proposed most crops should fall under this category.
The standards for seed certification in the field, processing in the factory and laboratory
testing for Kenya (Schedule II) and the proposed Eastern Africa Region are as shown in
the appendix 1
The „Seeds and Plant varieties Act‟ CAP 326 has been reviewed in several areas, but
particularly to allow i) for authorization of some aspects of seed certification to the seed
industry (preliminary inspections, Pre-harvest inspections, seed sampling and
Dispatch), ii) accession to the 1991 UPOV Convention and iii) effecting more punitive
penalties for persons who contravene the Seed Act. It also allows for importation of
seed from OECD member countries into Kenya under the banner of „Incomplete
certified seed‟ for final certification in the country.
Future plans for the seed certification standards.
Harmonization of the Kenyan Standards with the regional standards to facilitate trade within the region as proposed. This will call for Kenya to domesticate the few recommendations proposed that may not be in the law. This requires the finalization of the review of the Seeds and Plant Varieties Act Cap 326
Additional information that is necessary for harmonization in the region.
For effective harmonization to occur, it is necessary for all the countries to put in place certain measures, to put them at par. One major area for trade is the accreditation to international protocols and standards, to which Kenya is a member, while the others are not. This also calls for participation in the international seed schemes
Challenges that have affected the seed sub-sector
• The lack of a Seed Policy to allow for the amendment of the Seeds and Plant Varieties Act, CAP 326, created a procedural problem that slowed down the review of the Act and implementation of the proposed changes. However, the policy document has now been finalized and is due for launching.
• Seed regulations committee functions overlap with the KEPHIS Board functions. Though this was seen as a problem by some seed stakeholders, the issues had been handled at the level of the Ministry ant the regulator. Additionally the Seeds and Plants tribunal provided for in the law was not established for a long time.
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This has however been put in place and are awaiting publication of the rules of procedure, to operate.
• The seed industry has grown from a single seed company in 1970‟s to 13 companies in 1998 and further to over 80 seed companies in 2010. The companies produce or marketed seed amounting to about 11,514 tonnes of seed in 1998 that increased by about 61% in 2004 (18,592 tonnes) and over 42,000 tonnes in 2009. Though the current Act does not recognize the liberalized open market, the regulator had put in place operational measures to facilitate trade. This must be reflected in the reviewed Act.
• While the Act empowers the Director of Agriculture (KEPHIS) to register seed merchants, there is no provision for deregistration of the same in case of violation of the Act.
• Out of the 118 court cases on “fake” seed that KEPHIS has brought before courts, only 45 have been successfully prosecuted and determined. The fines awarded by the court have ranged from Ksh. 1000/= to 12,500. The jail terms provided range from 3 months to 6 months, and have rarely been imposed. These fines and jail terms are not deterrent enough to prevent a repeat of the same offences, which has been a common feature.
B. PLANT VARIETY EVALUATION, RELEASE AND REGISTRATION
Under the Seeds and Plant Varieties Act, Cap 326, the Minister was empowered to
make regulations for conducting variety testing, release and registration for
commercialisation purposes. Though these had not been in place, variety testing,
release and registration has been going on in Kenya for several years, as the National
Performance Trials. These regulations were finally prepared and are contained in the
supplementary issue of the Seeds and Plant Varieties Act (Cap 326) of January 2009,
as “The Seeds and Plant Varieties (National Performance Trials) Regulations, 2009.
The regulations designates the Kenya Plant Health Inspectorate Service (KEPHIS) as
the body responsible in management of National Performance Trials (NPTs), data
collection and analysis from all performance trials and compilation of the final report,
publication of approved and released varieties, maintenance and updating of the index
(National Variety List) of existing plant varieties and maintain a Register of all
applications for performance trials and any exemptions granted.
In the past, Variety evaluation and release has been cited as a major barrier in availing
seed of new varieties to farmers on time. The long time taken for the tests, the lack of
specific conditions or criteria for release, the time required for the Minister of Agriculture
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to announce the release of the varieties and restrictions of introduction of foreign
varieties and seed were of major concern. Similarly, the variety testing and release was
previously co ordinate and carried out by the Kenya Agricultural Research Institute,
which was an interested party in breeding, release and commercialization of varieties.
KARI‟s objectivity in conducting these trials was therefore questioned. Moreover, with
the liberalization of the seed industry, it was necessary to have an independent
institution conducting and co-ordination that would have the confidence of the
stakeholders. With the formation of KEPHIS in 1997, the Performance Trials were finally
taken over in the year 2000.
Over the last ten years areas of concern have been handled in an effort to improve and
regularize the tests. The period of tests have been set at two seasons or years
(depending on the crop) as opposed to when it was said to take up to four years. The
number of crops under test increased to cover other crops as opposed to only maize,
the release criteria developed and test protocols documented for each crop. The
management of the trials was placed under the National Performance Trials Committee
which consisted of all stakeholders while the approval for release was vested in the
National Variety Release Committee, chaired by the Ministry of agriculture. The times
for these committees to meetings was fixed. These changes did culminate in the
finalization of the NPTC regulations that were published in the year 2009. The key
features of the regulations are:
The management of the tests was vested in the National Performance Trials Committee
(NPTC) whose membership was re constituted to have permanent independent
members, to avoid decisions being made by interest groups. The members are:-
(a) The Managing Director (KEPHIS), who is the chair and provide secretariat services,
(b) One representative from the Ministry of Agriculture (c) One representative from the Seed Trade Association of Kenya (d) two representatives from the Plant Breeders Association of Kenya (e) Not more than 4 crop specialists can be co-opted by MD – KEPHIS
The functions of the NPTC are:
1. To plan and oversee the conduct of performance trials in the field. 2. Review performance trials protocols, guidelines and minimum number of
candidate varieties to constitute a performance trial. 3. Evaluate performance trials report & make recommendations to the release
committee. 4. Review applications for performance trials. 5. Provide feedback to the applicants on performance of their entries in the
performance trials.
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6. Develop rules for the conduct of meetings. 7. Invite applicants who had candidate plant varieties in the trials to attend trials
committee meetings.
The regulations also sets the National Variety Release Committee (NVRC) comprising
members at the policy level, as follows,
a. The Agriculture Secretary, Ministry of Agriculture (AS) who is the chair and convener of the meetings.
b. The Managing Director, KEPHIS, who is the secretary to the committee. c. The Director responsible for matters relating to extension or research
liaison, Ministry of Agriculture. d. The CEO, Seed Trade Association of Kenya. e. The Chairman, Plant Breeders Association of Kenya. f. One representative of academic institution higher learning offering training
in seed science and technology, to be appointed by the Agriculture Secretary.
g. The CEO, Kenya National Federation of Agricultural Producers. h. One representative of the consumer industry appointed by the Agriculture
Secretary.
The functions of the NVRC as stipulated in the regulations are to:
1. Consider the report of the NPTC and its recommendations. 2. Consider the DUS report for the candidate varieties. 3. Approve and release qualifying varieties. 4. Determine fees for any application under these regulations. 5. Moderate on any disputes relating to these regulations. 6. Provide advice on policies and procedures on performance trials. 7. Prepare a list of approved and released Plant varieties for KEPHIS for
gazettment by KEPHIS. 8. Determine the procedures for withdrawal of released plant varieties. 9. Determine the nomenclature to be applied to new varieties and to invite
applicants of successful candidate plant varieties to attend variety release meeting.
The regulations clarify that the effective date of a release of a variety is the date that the
NVRC releases it. Previously this had been contentious since the minister would have
to make the official announcement. However the Minister would not make the
announcement until adequate quantities of seed was available for the farmer. The
advantage of the NVRC date of release allows the owner of the variety to initiate the
multiplication process and also negotiate licensing agreements with potential multipliers
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of the variety. For those foreign based varieties, it allows for immediate importation of
the seed if the variety is certified elsewhere.
Similarly, the regulations require the secretary to the NVRC, KEPHIS, to publish the list
of the released varieties, within 14 days of release by the NVRC. This publication also
enters the varieties on the (updates) National Variety List, which is the official list of
released varieties that are eligible for commercialization in Kenya. The National Variety
List, with all the detailed information contained therein, constitutes the official
registration, which is updated by KEPHIS for the Ministry of Agriculture.
The official Release and registration of a new variety therefore is a process whereby a
plant variety listed under the second schedule has satisfactory:-
1. Undergone National performance trial for at least two seasons for all varieties and found to be superior to commercial checks in terms of yield or other special attribute(s). In the proposed harmonized regional regulations, one season for a variety officially released in any of the East African countries provided the applicant provide release data)
2. Proven to be Distinct, uniform and stable in the essential characteristics. 3) Valid descriptor for seed certification. 4) Been approved and released by the NVRC 5) Multiplication for commercialization initiated
Once a variety has been officially released, it is gazetted and entered on the National Variety List that elaborates cultivars approved and gazetted for commercialization. Commercialization can either be done by the applicant or others under license.
C. PHYTOSANITARY MEASURES IN KENYA Phytosanitary measures include any legislation, regulation or official procedure, which have the purpose of preventing the introduction or spread of quarantine pests. These will include plant import procedures and Phytosanitary certification. The Plant Protection Act of the Laws of Kenya (Cap 324) commenced on 28th
August, 1937 and came into force in 1962 which was later revised in 1979. The Act
encompasses rules for prevention of introduction and spread of pests and diseases
destructive to plants. The Plant Importation Order, that details the rules of operation,
was amended in 1955, 1960, 1961, and 1971. This has been further revised to take
on board the prevailing harmonization and changing circumstances, and is awaiting
approval and publication. Additionally, the Noxious Weeds Act, Cap 325 provides for
the suppression of spread of noxious weeds in Kenya, and is key instrument in the
Phytosanitary measures.
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Phytosanitary services in Kenya include the following:
1. Undertaking grading, inspection and certification of plants and plant produce at
ports of entry and exit (Phytosanitary & Quality Assurance).
2. Undertaking field, laboratory & facility inspection and certification of planting
materials (Quarantine services).
3. Implementation of the national policy on the introduction and use of GMOs in
Kenya (Protocol on Biosafety).
4. Facilitation of introduction of bio-control agents (KSTCIE)
5. Coordination of matters relating to crop pests diseases & noxious weeds (WTO-
SPS Agreements).
6. Conformity checks and certification of produce (EU Reg: EC No. 1148/2001).
7. Monitoring & surveillance of pests, diseases and noxious weeds.
8. Enforcement of quarantine in widest context (Pest Risk Analysis; Plant health
9. Participation in Policy formulation, Regulation and Standards-setting for Trade
facilitation.
Rational of the Phytosanitary measures
The increase in global and domestic trade has increased movement of plants and plant
products including regulated articles. This may pose a great risk of introduction of pests,
diseases and noxious weeds that not present in the area. This is, and has been proved
to be a threat to agriculture and the environment.
KEPHIS is the National Plant Protection Organization (NPPO) of Kenya which is a member of the International Plant Protection Convention (IPPC). IPPC provides guidelines on Phytosanitary Measures (ISPM), which are based on internationally accepted principles for Phytosanitary measures in conformity with the articles of the IPPC, which:
• Provides for exchange of information
• Provides for development of internationally harmonized standards (the ISPMs –presently 34 ISPMs have been adopted)
Kenya is a contracting party to the WTO- SPS Agreement
Plant Import Regulations
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These are in 3 categories
1. Imports that are permitted
Risk of importation is low and permits are issued after fulfilling application requirements.
2. Imports under quarantine
Risk of importation in high and material is held under examination until risk assessment can be done.
3. Imports that are prohibited
These are materials that are too risky to introduce into the country and include material such as opium. Materials under this category can only be imported with the approval of the Kenya Standing Technical Committee on Imports and Export (KSTCIE).
Procedures for importation of plant materials
• One wishing to import must make an application for Plant Import Permit (PIP) to the regulator, KEPHIS, under the prescribed form.
• The PIP details the conditions that must be met for the material to be allowed in. This will vary with the crop and the area or country of origin.
• Authorities in country of origin will issue a Phytosanitary Certificate (PC) based on the conditions of the PIP
• All plant materials must be declared at point of entry and inspected
• Prohibited or non compliant material will either be destroyed or shipped back
Procedure of export of plant materials
• The applicant must avail the import conditions of destination country that are contained in the Plant Import Permit from the country of destination
• Under Cap 319, Plant materials meant for export, must be inspected at the point of exit for:
– Pests and diseases
– Chemical residues on the surface
– Quality, grading, packaging.
• Must have undergone field inspections during active growth and issued with a Phytosanitary certificate
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• The Phytosanitary certificate issued must accompany the plant materials.
• For materials regulated under CITES appropriate authority is required from CITES office at the Kenya Wildlife Service (KWS).
Kenya has had a list of pests and diseases that are considered of quarantine
importance. Similarly the other countries have also had their lists. Over time some of the
pest on these lists have changed status, and may no longer be of quarantine pests,
since they are already present. Similarly, there may be new pests that have emerged
that may be of quarantine importance or non quarantine but of economic importance
hence needing regulation. Lack of updated lists has been cited as an impediment to
trade. Restrictions to seed and plant material movement are imposed by various
authorities on grounds that may be incorrect. It was therefore found necessary to review
and come up with an updated list for the region.
A Quarantine Pest List for Kenya, Uganda and Tanzania has been prepared by a
Technical Working Group (TWG) of Phytosanitary experts drawn from the National
Plant Protection Organizations (NPPO‟s) of Kenya, Uganda, Tanzania, Rwanda and
Ethiopia. The Working Group was facilitated by the Eastern Africa Seed Committee
(EASCOM) under the Policy Analysis and Advocacy Program of the Association for
Strengthening Agricultural Research in Eastern and Central Africa (ASARECA).
EASCOM Secretariat is hosted by the Seed Trade Association of Kenya (STAK) in
Nairobi.
This Quarantine Pest List is a culmination of revisions of earlier drafts started in
September, 2005, continued in May 2006 and completed in May, 2009. The current
Pest List was revised in September 2010, using additional information from the national
plant protection authorities. As Rwanda was not represented in all the TWG
deliberations, its Q-Pest list was not included when finalizing the Q-Pest List for Kenya,
Uganda and Tanzania. Though not complete for the region, Quarantine Pest List will
serve as a useful guide in developing quarantine pest lists for the other countries in East
Africa and the rest of ASARECA member countries.
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The Document will principally serve to guide NPPO‟s of the three participating East
African Community Member States in revising their pest lists by removing non-
quarantine pests or adding new ones to ease cross-border trade in agricultural seeds.
Future plans for Phytosanitary services in Kenya
Build capacity on Pest Risk Analysis and Surveillance as a basis of developing the quarantine pest lists.
Plant Health laboratory at KEPHIS has been identified as a centre of excellence for COMESA region (PQS has been identified as a centre of excellence).
Strengthen the implementation of harmonized SPS measures in the region.
D. PLANT VARIETY PROTECTION IN KENYA
Introduction
The legislation for protection of plant varieties in Kenya is contained in the Seeds and Plant Varieties Act (1972), which became operational in 1975 and was revised in 1991. The legal framework for implementation of plant variety protection in Kenya was finalized and gazzetted in the supplementary issue of the Seeds and Plant Act (Cap 326) of November 1994. The office to administer the rights was founded in 1997 and has functioned under KEPHIS since 1998. Kenya acceded to UPOV under the 1978 convention in May 1999 and KEPHIS has put in place the necessary machinery for protection of plant varieties (or granting of plant breeders rights) in the country. Plant breeders are therefore encouraged to seize the opportunity and protect their varieties. To-date, 591 applications have been received from local and international applicants, and 106 of which have been approved for grant of Plant Breeders Rights. The tests necessary for variety protection or grant of plant breeder‟s rights are underway for the remaining applications.
Meaning of Variety Protection
A plant variety is a plant grouping within a single botanical taxon of the lowest rank,
which grouping, irrespective of whether the conditions for the grant of a breeder‟s right
are fully met, can be defined by the expression of the characteristics resulting from a
given genotype or combination of genotypes, distinguished from any other plant
grouping by the expression of at least one of the characteristic and considered a unit
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with regard to its suitability for being propagated unchanged, thus a protected variety is
a plant variety for which plant breeders rights have been granted to the owner of the
variety and the variety complies with the internationally recognized standards, i.e.
distinctness, uniformity, stability and novelty, and also designated by prescribed variety
denominations. The protection is marked by a grant of special title of protection.
Purpose of Plant Variety Protection
Variety protection is the protection of a plant variety against unauthorized or unlawful
use without the consent or authorization by the owner of the variety who has been
granted plant breeders‟ rights. The breeders‟ rights (for protected varieties) are granted
exclusively to persons or institutions discovering, breeding or developing new varieties
of plants. They are proprietary rights granted by the state to a breeder who has filed an
application for protection of a variety and are granted for a specific period of time and on
meeting certain conditions. These have the effect of encouraging competition amongst
breeders to breed new plant varieties and rewarding those who have been successful in
innovating new varieties. The varieties accessioning grant of plant breeders rights are
the varieties to be protected against infringement form unauthorized or unlawful use by
others and are said to be protected.
When a variety is protected in Kenya, the holder of the plant breeder‟s rights shall be
entitled to reasonable compensation for anything done during the application period
which, if done after the grant of the rights, would constitute an infringement on them. In
particular, the rights entitle the holder to prevent anyone doing any of the following acts
with respect to the propagating material of the protected variety without his
authorization, when such a variety is protected.
Production or reproduction (multiplication);
Conditioning for the purpose of propagation;
Offering for sale, selling or any marketing activity;
Exporting or importing; and
Stock for any of the purpose mentioned above. Under the proposed harmonized regulations, the conditions on propagating material include:
(i) production or reproduction (multiplication)
(ii) conditioning for the purpose of propagation
(iii) offering for sale
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(iv) selling or other marketing
(v) exporting
(vi) importing
(vii) stocking for any of the purposes mentioned in (i) to (vi) above ,
The acts referred to in items (i) to (vii) in respect of harvested material, including
entire plants and parts of plants, obtained through the unauthorized use of
propagating material of the protected variety shall require the permission of the
breeder, unless the breeder has had reasonable opportunity to exercise his right in
relation to the said propagating material.
These additional requirements will need to be included in the Kenyan laws.
The person by whom the application is made is the one entitled to the protection of
variety to which the application relates. The holder to such rights may give authority for
any of the above acts that require authorization, with or without conditions or limitations.
Under the proposed harmonized regulations, the protection may also apply to
harvested materials obtained through unauthorized use of propagating material of
the protected variety. In case of a variety of a prescribed description, the protection
conferred on the holder of plant breeder‟s rights shall also apply to any product
which is made directly from the harvested material and is of the prescribed
description. However, the protection cannot extend to the use by a farmer for
propagating purposes in the field, on his own holding, of the product of the harvest
which he has obtained by planting on his own holding, propagating material of the
protected variety (farmers privilege) or a variety which is essentially derived from
the protected variety).
Under the Kenyan system, varieties covered by breeder‟s rights include the
protected variety itself, but also those varieties that are not clearly distinguishable
from the protected variety as well as varieties that require repeated use of the
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protected variety. However under the harmonized regulations these provisions
shall also apply in relation to
(i) varieties which are essentially derived from the protected variety, where the
protected variety is not itself an essentially derived variety
(ii) varieties which are not clearly distinguishable from the protected variety and
(iii) varieties whose production requires the repeated use of the protected variety
These aspects will be included in the Kenyan law
Exceptions to Variety Protection
Variety protection is applicable to new varieties of any plant species but not to algae
and bacteria. The rights (or protection) do not extend to:
Persons growing or using a protected variety for acts done privately and for non-commercial purposes;
Use of plants or parts of the protected variety for human consumption or other non-propagating purposes; and
Use of plants or parts of the protected variety for experimental purposes.
Acts done for the purposes of breeding other varieties
Farmers privilege to save and replant or exchange seeds harvested from protected variety
Under the present law the Farmers privilege is not included expressly, though in the proposed harmonised law, it has been included and Kenya will have to include it
Conditions for Variety Protection
Plant breeders‟ rights will be granted and the variety protected when an application has
been made (see appendix) and the variety is proved to be:
New – It is deemed to be new if at the date of filing an application for the protection, propagating or harvested material of the variety has not been sold or otherwise disposed of to others, by or with the consent of the breeder, for purposed of exploitation of the variety. It is new if it has not been sold or offered for sale with the agreement of the owner in Kenya for more than 1 year before the date of application, or sold outside Kenya for more than six years for trees and vines and four (4) years for the rest of crops.
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Distinct – a variety clearly distinguishable from any other variety whose existence is a matter of common knowledge at the time of the filing of the application.
Uniform – deemed so if, subject to the variation that may be expected from the particular features of its propagation, it is sufficiently uniform in its essential characteristics.
Stable – if it‟s essential characteristic remain unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of each such cycle.
Properly denominated – i.e. designated by a denomination which is destined to be the generic designation. The domination must enable the variety to be identified and must not consist solely of figures. It must not mislead or cause confusion concerning the characteristics, value or identity of the variety or of the breeder and must be different form every denomination which designates, in any member stare of UPOV, an existing variety of the same botanical species or of a closely related species. (When a variety is offered for sale, it shall be permitted to associate a trademark, trade name or such similar indication with a registered variety denomination and if such indication is so associated, the denomination must nevertheless be easily recognizable).
Tests Required for Protection
The mandatory tests to qualify a variety for protection and grant of plant breeder‟s rights
are known as DUS (distinctness, uniformity and stability) tests. These tests are
undertaken by KEPHIS on payment of prescribed fees (US $600 per entry) and are
aimed at establishing that the variety is distinct, uniform and stable. However, the
breeder must generate his own description before submitting an application for official
tests, as they form part of the technical questionnaire. These tests allow for comparison
of candidate variety with all other known varieties of comparable characteristics. The
tests done by KEPHIS are the official and confirmatory tests and these last for two
years (or seasons) and normally carried out at one site. Principally, theses tests are
different from the national performance Trials (NPT) in duration, number of sites and of
replications. However, in situations where the capacity to conduct the tests is not
available in the country, the necessary arrangements are made to purchase the results
from a UPOV member state where such tests were conducted.
Any person applying for the plant breeder‟s rights or protection of a variety should
ensure he submits his materials to KEPHIS for these tests with the required fees.
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Duration of Protection
A grant of plant breeders‟ rights or protection of a variety shall have effect:
In case of trees and vines for 18 years from date of grant
In other cases for 15 years from the date of grant.
These were renewable but not exceeding 25 years
Under the proposed Regional harmonized regulations, the period has been adjusted to
25 and 20 years respectively and non renewable
Exhaustion of breeder rights.
Plant Breeders‟ Rights shall not extend to any act concerning material of the protected
variety if the material:
Has been sold or otherwise marketed in Kenya by, or with consent of, the holder of the rights, or is derived from a material which has been so sold or otherwise marketed outside Kenya with the consent of the breeder.
Application for Variety Protection
Those wishing to be considered for plant variety protection need to observe the
following:
1. Submit duly filled application forms 2. Fill the relevant crop technical questionnaire 3. Submit a copy of the Power of Attorney if application is by an agent 4. Submit a letter of Assignment if application is by an agent 5. Provide the State of Protection detailing where the variety may be protected 6. Provide two detailed photographs of the material for ornamental and fruits trees 7. Provide the plant materials for tests when requested to 8. Pay the required fees for application plus others for the tests and certificates
PBR Application Process
1. Examination and verification of the PBR application 2. Application Gazettement whereby any objections to be received within 60 days 3. Objections to be handled by the authorised officer but any party that is aggrieved
by his decision can appeal to the Seeds and Varieties Tribunal 4. DUS tests (growing tests) carried out for 2 seasons or takeover of test results if it
already exists in other UPOV member state 5. Decision to grant or reject PBRs 6. Grant annual maintenance fee to be paid
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Protective Direction
This is a provisional protection giving an applicant interim protection of the variety while
the application is being processed and ceases when a grant has been issued or
rejected. During the period of provisional protection, an applicant is entitled to legal
proceedings against a person whose actions would constitute on infringement if the
rights have been granted.
Table.1 Charges for PBR services
TYPE OF CHARGES FEES IN US$
1. Application of a grant of plant breeders rights 200
2. Application for an extension of period of grant 100
3. Application for a compulsory license 70
4. Application for protective direction 40
5. Certification for protective direction 120
6. Application for surrender of a grant 30
7. Application for an opportunity to make representations 120
8. Inspection of register and documents 40
9. For technical evaluation of a variety 600
10. Grant of Plant Breeder‟s Rights Certificate 240
11. Fro a duplicate copy of the register or other document 0.50/page
12. Annual fees for grant 200
13. Purchase of a report from a testing authority in another country 320 Swiss francs
14. Replacement of lost or destroyed certificate 40
15. Claim of priority from a preceding application outside Kenya 20
16. For change of an approved denomination 80
17. Reinstatement of an abandoned application on petitions 80
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18. Surcharge for late payment 60
This system has worked well for Kenya for the last 13 years but there may be need to
review the fee structure for the protection and testing to harmonize with the region
Important Points to be observed for Protected Varieties
Maintenance of Protected Varieties:
The holder of plant breeder‟s rights whose variety has been protected would ensure
that, throughout the period for which the protection has effect, he is capable of
producing propagating material which is capable of producing the protected variety.
Nullity:
The protection shall be declared null and void if when the rights were granted, the
protected variety did not meet the criteria, or that the person to whom the rights were
granted was not the person entitled to the grant of the rights and the rights have not
subsequently been transferred to him or his successor in title.
Cancellation of Protection:
The period of protection may be terminated if the protected variety no longer meets the
set criteria or the holder of the rights can no longer provide the propagating material,
among other reasons.
Present Situation in Kenya
The Seeds and Plant Varieties Act do require that the Minister will make Schemes of
plant varieties that are eligible for protection. The plant variety protection (Plant
Breeder‟s Rights) Schemes were first gazetted in Kenya in May 2001, which covered
the following crops:
Table.2 Schemes of crops under protection in Kenya
Scheme Legal Notice Number
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Fruit, Nut and Tree Crops Scheme 70
Vegetables Scheme 71
Trees and Woody Climbers Scheme 72
Root and Tuber Crops Scheme 73
Maize Scheme 74
Ornamentals and Herbaceous Plants Scheme 75
Oil and Fiber Crops Scheme 76
Other Cereals Scheme 77
Pulse Scheme 78
Pasture Plants and grasses scheme 79
With the schemes in place, plant varieties for crops included can be applied for
protection in Kenya and plant breeder‟s rights granted upon meeting the stipulated
requirements. Under the proposed harmonized regulations protection will be available in
all genera and species and therefore there will be no need for the schemes.
Since the implementation of the PVP system in 1997, a total of 1056 applications for PVP had been received by September, 2010. There was a slow rate of application in the initial stages. However in 2001 there was a surge in PVP applications from local breeders reflecting an increased awareness among breeders in public institutions on the need to protect their varieties and the utilization of the notion of „varieties of recent creation‟, which is also provided for under the UPOV Convention. Local (Kenyan) breeders have submitted 385 of the total PVP applications, while 671 are from foreign applicants. Of the local applicants, 330 applications are from Public Institutions, while 55 are from the Private Sector. Out of the total applications, Food crops account for 369, Cash crops 805, while Forest Trees (Eucalyptus) have 8 applications. As of October 2010,293 titles had been granted and were based on DUS examinations conducted in Kenya or Test reports taken over from other UPOV member states/authorities that Kenya collaborates with.
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Fig.1. Trends in PBR applications in Kenya1997 to 2010
Source: KEPHIS
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Table3. Distribution of PVP Applications by Country
Source: KEPHIS
E. SEED IMPORT/ EXPORT DOCUMENTATION PROCEDURES
REQUIREMENTS
The seed traded in Kenya comprises of locally produced seed and imported seed. Seeds are
also exported from Kenya of which is either locally produced or re exports of imported seeds. All
imported seed must meet the national quarantine requirements, the minimum Kenyan
standards and must have been tested for adaptability in the country. Within the African
region, Kenya has been trading seed with Uganda, Tanzania, Rwanda, Zambia,
Zimbabwe, South Africa, Sudan and Somalia. There is however trade on international
level, particularly in vegetable and other horticultural crops.
In order to import into or export seed out of Kenya one must:-
1. Be a registered seed merchant.
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2. The merchant must give a notice to import/export seed by filling form SR 14 provided by KEPHIS.
3. Obtain a Plant Import Permit (PIP) from KEPHIS and a Phytosanitary Certificate from the corresponding Seed Certifying body in the country of origin for imports.
4. Obtain an international orange (International Seed Testing Association (ISTA) certificate from the official seed tester (KEPHIS) or the corresponding seed certifying body in the country of origin for imports. This will accompany the seeds.
5. Seed to be inspected by KEPHIS at the port of exit/entry.
6. Obtain an international orange (ISTA) certificate from the official seed tester (KEPHIS)
for exports or the seed certifying body in the country of origin for imports. This will
accompany the seeds.
7. The Seed must be inspected by KEPHIS at the port of exit/entry, sampled & verification
tests done, before sale- imports
It should be noted that Research and educational institutions, and a few other qualifying organizations may import seeds for trial or experimental purposes. This is on condition that a) there are limits on the amount (weight) of seed to be imported and b) The seed shall not be distributed for commercial purposes.
There are a number of seed related institutions which need registration to deal in seed business. These are basically the Seed merchant, and his agents, subagents, stockists, and seed growers.
Requirements for registration as a Seed Merchant are as follows:-
a. The applicant must be a registered company in Kenya, to be eligible for application as a seed merchant.
b. Be conversant with and be ready to comply with the conditions as set out in the seed Act and the seed regulations (The Seed and Plant Varieties Act: Cap 326, Laws of Kenya).
c. Have adequate and knowledgeable personnel who are conversant with seed matters. d. Specific requirements for production, processing, marketing and distribution are as
follows:
1. Production:
i. One must have adequate land and equipment to handle basic seed or proof of availability.
ii. Contractual agreement with growers to grow seed.
iii. Adequate field officers to advise growers.
2. Processing: i. Equipment and machinery to process seed.
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ii. Storage space.
iii. Capacity to print and label packets /containers as required by the seed regulations.
iii. Marketing
iv. Adequate distributive channels that covers all the agriculturally important region of the country.
v. Have agreement with agents /sub-agents / stockist to distribute seed on one's behalf.
3. Marketing and Distribution
i. The merchant’s appointed agents/sub-agents/stockists should be identifiable as such
ii. They should have understanding and knowledge on seed issues iii. They should have adequate storage.
The application should be made through the secretary of the seed committee (MD
KEPHIS) to register as a seed merchant by filling form SR 3 and enclosing the
registration fee as stipulated by the seed regulation. KEPHIS seed inspectors will then
visit and inspect the premises of the applicant to establish whether the condition for
registration for the appropriate category, have been met, upon which the applicant is
registered or advised on corrective measures, if any. One can apply for one, two or all of
the activities above. Requirements for one to be a Seed Stockist in Kenya
a. One must own or lease a permanent business outlet suitable for selling seed
b. Be appointed by a registered seed merchant as their seed stockist c. Apply to the District Agricultural Committee (DAC) to be considered for
appointment as a seed stockist or sub-agent d. Collect application forms (SR 12) from the nearest KEPHIS regional office
and pay the prescribed fees per application. e. The applicant and seed merchant should fill in the forms and return them
to the KEPHIS regional office.
KEPHIS seed inspectors will then inspect the premises of the applicant to establish whether they:-
i. Have adequate storage capacity for seed quantities that one may desire to store.
ii. Is clean, vermin proof, and waterproof. iii. Has enough lighting and is well ventilated. iv. Have suitable display (e.g. not in direct sunlight)
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If approved, the regional office will then prepare the Seed Seller’s License (Form SR 13). This is issued in the name of the applicant and sent to the seed stockist.
The seed merchant will issue a seed stockist a card to the appointed stockist who has been licensed to sell seed. This card and licensed should be displayed and readily available for inspection by seed inspectors.
Kenya is receiving the not finalized certified seed from Uganda for purposes of
processing and testing. It is hoped that in future this will be extended to the rest of the
countries in the region under the proposed grey label for the inter agency certification.
F. MEMBERSHIP TO INTERNATIONAL ORGANISATIONS
Kenya undertakes its operations as per the set International standards, rules and regulations.
The country has joined or acceded to and is a member of international bodies/organizations as
stated below:
Organization for Economic Cooperation and Development (OECD) Seed Scheme
for field inspection of seed
International Seed Testing Association (ISTA) for the laboratory test of seed
Acceded to UPOV 1978 convention for plant variety protection
International Plant Protection Convention (IPPC) for Phytosanitary measures
Cartagena Protocol on Biosafety – CBD
World Trade Organization (WTO)
South African National Accreditation System (SANAS) which is a full member of
International Laboratory Accreditation Commission (ILAC)
ISTA and SANAS carried out laboratory audit and accreditation under the International
standards (ISO 17025 – 2005). This allows for recognition of the test results given by our
laboratories internationally.
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Appendix 1. SEED CERTIFICATION STANDARDS
Table1. Seed classes- Kenya
The Act has set out eight classes of seed. The eight are shown in the table below.
Code Classes Seed Parents Colour of
Labels colour
1 Br. Breeder Progeny of parental stock.. … … … White
2 Pb. Pre-basic Progeny of parental stock or certified
breeder’s seed… … … White
3 B. Basic Progeny certified breeders seed or certified
pre-basic seed White
4 C.1 Cer.1st gen. Progeny of certified pre-basic seed or
certified basic seed….. Blue
5 C.2 Cert.2nd
Gen. Progeny of certified basic seed or certified 1st generation……..
Pink
6 C.3 Cer.3rd gen.
Progeny of certified 1st generation or certified 2nd generation……
Pink
7 C.4 Cer.4th gen. Progeny of certified 2nd generation or certified 3rd generation…….
Beans have been certified in Kenya for a while though re use of produce by farmers is common. The proposed standards will further strengthen the process.
Table18. Proposed Seed Certification Standards
RICE (Oryza sativa)
Field Standards
Seed Classes
Basic C1 C2
Rainfed Paddy Rainfed Padd
y
Rainfed Paddy
Land requirements (seasons
before)
1 2 1 2 1 2
Isolation(meters) 5 5 5 5 5 5
Maximum Off-types (%) 0.01 0.01 0.1 0.1 0.1 0.1
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Minimum Number of
inspections
2 2 2 2 2 2
Red rice (or noxious weeds) 0 0 0.1 0.1 0.1 0.1
Diseases
Rice blast 0.1 0.1 2.0 2.0 2.0 2.0
Bacterial leaf blight 1.0 1.0 2.0 2.0 2.0 2.0
White tip nematode 0 0 1.0 1.0 1.0 1.0
Laboratory standards
Pure seed % 99.0 99.0 98.0 98.0 98.0 98.0
Maximum Inert matter % 0.95 0.95 1.95 1.95 1.95 1.95
Maximum Other seeds % 0.05 0.05 0.05 0.05 0.05 0.05
Minimum Germination % 80 80 80 80 80 80
Maximum Moisture Content
%
13 13 13 13 13 13
Importation of rice seed is prohibited or subjected to quarantine requirements. Though
rice certification scheme was not available in Kenya previously, it has now been put in
place following the demand for the service and increase in varieties and dealers.