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Plant breeders’ rights in Kenya

Kenya is estimated to have a population of approximately 40 million people, of which an estimated 75% make their living from the agricultural sector in some way or another.

According to some sources, the agricultural sector accounts for as much as 25% of Kenya’s gross domestic product. It is thus safe to say that agriculture plays an integral role in the Kenyan economy.

Recent erratic weather patterns have resulted in unpredictable yields with many farmers having lost a substantial part of their crops to drought. There is thus a continuous need for new plant varieties, such as drought tolerant agricultural crops, to be introduced into the Kenyan agricultural sector in order to support the Kenyan food sector during the dry season.

The Seeds and Plant Varieties Act (“the Act”) recognizes and protects the rights of breeders through the granting of plant breeders’ rights (“PBRs”) to those who apply to protect their intellectual property through the Kenya Plant Health Inspectorate Services (“KEPHIS”) who regulated and administer these rights.

Application and grant

In order to be granted a PBR, the breeder, which may be a natural person or a legal entity such as a company, must be cited as the applicant. The application must be accompanied by an application fee payable to KEPHIS, as well as propagating material of the plant variety. The propagating material must go through quarantine and other phytosanitary tests to ensure that injurious pests, diseases and other noxious weeds are not introduced into Kenya.

A plant breeders right will be granted to a plant variety if it fulfils the non-technical requirement of novelty, as well as the technical requirements of distinctiveness, uniformity and stability.

A plant variety is considered to be new if, at the date of filing the application with KEPHIS, propagating material or harvested material of the plant variety has not been sold or otherwise disposed of to third parties with consent of the breeder, for purposes of exploitation of the variety in Kenya for a period of more than one year, or outside Kenya, for a period more than six years in the case of trees or vines, or four years in the case of any other plant varieties.

Kenya is a member of the International Union for the Protection of New Varieties of Plants (“UPOV”), having recently acceded to the 1978 version of the UPOV Convention. In accordance with the UPOV Convention, KEPHIS conducts Distinctness, Uniformity and Stability (“DUS”) tests to determine if a plant variety fulfils the technical requirements referred to above. After conducting the DUS tests KEPHIS will issue a DUS report, which may be favourable or unfavourable. If a favourable DUS report has already been issued in another UPOV member country, KEPHIS will accept such report for purposes of granting PBRs for the relevant plant variety in Kenya.

It typically takes between two and three years for PBRs to be granted after filing the application with KEPHIS. Subject to the payment of renewal fees, PBRs are in force for 25 years for vines and trees, and for 20 years for all other plant varieties, calculated from the date of grant.

The holder of PBRs has the exclusive right to do the following:

a) produce or reproduce;

b) condition for the purpose of propagation;

c )offer for sale;

d ) sell or market;

e) export;

f ) import; or

g) stock for any of the purposes of (a) to (g) propagating material or harvested material of the plant variety.

The PBR owner may also permit third parties to do any of (a) to (g) above by granting licences to third parties. This is particularly valuable from a commercial point of view. The PBR owner can, for instance, license nurseries to propagate plants of the varieties, charging them propagation fees. The nurseries can then propagate trees, which are sold to farmers. The nurseries will typically be required to add an additional tree royalty to the purchase price of such trees, the tree royalties being payable to the PBR owner.

In recognizing that a majority of Kenyan farmers are subsistence farmers, the Act makes provision for these farmers, albeit to a limited extent. The Acts provides that subsistence farmers may use the produce of their harvest which they have obtained by planting, on their own land without infringement the PBRs of the PBR owner. These provisions are based on reasonable limits and subject to the safeguarding of the legitimate interests of the PBR owner.

Filing tendencies in Kenya

Notwithstanding the need for improved plant varieties in the food sector, the most recent publicly available annual report published by KEPHIS indicates that more PBR applications are filed for ornamental plant varieties than for agricultural varieties.

In 2013, 67 PBR applications were filed in Kenya for roses, while only 10 applications were filed in respect of plant varieties in the food sector. This most likely due to the fact that Kenya is the third largest exporter of cut flowers in the world,

The way forward

From a socio-economic point of view, the introduction of new plant varieties will lead to better yields in the agricultural sector, which will in turn improve food security in Kenya. Increased investment in horticulture, by Kenyan and foreign investors alike, should also increase employment in Kenya.

Kenya is known for its export of coffee and tea to various international markets. Lessor known facts are that approximately one third of roses sold in Europe are grown in Kenya and that Kenya is also a leading producer of fresh produce such as onions, cabbages and mangoes.

Kenya is a country rich in opportunities and it would be wise for any PBR owner to consider Kenya as an important jurisdiction when commercialising its new plant varieties.

For more information kindly contact Llewellyn du Toit

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