New Plant Varieties
– Seeds and Plant Varieties Act, 1972 (Chapter 326), Laws of Kenya, as amended up to Act No. 53 of 2012 (Revised Edition 2019).
– The Seeds and Plant Varieties (Plant Breeders Rights) Regulations, 1994.
– The Seeds and Plant Varieties (Plant Breeders Rights) (Fruit, Nut and Tree Crops Scheme) Regulations, 2001.
– The Seeds and Plant Varieties (Plant Breeders Rights) (Vegetables Scheme) Regulations, 2001.
– The Seeds and Plant Varieties (Plant Breeders Rights) (Roots and Tuber Crops Scheme) Regulations, 2001.
– The Seed and Plant Varieties (Maize Scheme) Regulation, 2001.
– The Seeds and Plant Varieties (Plant Breeders Rights) (Ornamental & Herbaceous Plants Scheme) Regulations, 2001.
– The Seeds and Plant Varieties (Plant Breeders Rights) (Oil and Fibre Crops Scheme) Regulations, 2001.
– The Seeds and Plant Varieties (Plant Breeders Rights) (Other Cereals Scheme) Regulations, 2001.
– The Seeds and Plant Varieties (Plant Breeders Rights) (Trees and Woody Climbers Scheme) Regulations, 2001.
– The Seeds and Plant Varieties (Plant Breeders) (Pulses Scheme) Regulations, 2001.
– The Seeds and Plant Varieties (Plant Breeders Rights) (Pasture Plants and Grass Scheme) Regulations, 2001.
– The Seeds and Plant Varieties (National Index of Plant Varieties) Regulations, 2006.
– The Seeds and Plant Varieties (National Performance Trials) Regulations, 2009.
– The Seeds and Plant Varieties (Variety Evaluation and Release) Regulations, 2016.
– The Seeds and Plant Varieties (Seeds) Regulations, 2016.
Membership in International Conventions
– International Convention for the Protection of New Varieties of Plants (UPOV), 1978 Act, since May 13, 1999, and 1991 Act, since May 11, 2016.
– International Plant Protection Convention, since October 2, 2005.
Applicant: any person who bred, developed or discovered the plant variety or his successor in title.
Foreigners: no distinction is made between foreigners and Kenyan citizens.
Conditions for protection: the plant variety must be distinguishable by one or more physiological, morphological, cytological or other characteristics from other varieties whose existence is common knowledge at the time of the application. The plant variety must be sufficiently uniform and homogeneous having regard to the particular features of its reproduction or vegative propagation, and stable in its characteristics.
Not registrable: algae and bacteria.
Novelty notion: is not novel, a plant variety whose existence is common knowledge, is one that is under cultivation or is in commercial use, or one that is recognized in botanical literature or one of which there is precise descriptions in any publication. Plant variety must be defined by a name.
Filing Office: Plant Breeders Rights Office (PBRO), under the Kenya Plant Health Inspectorate Services (KEPHIS).
Filing requirements for an application:
1. A form of appointment of agent (power of attorney), if the applicant is represented by an agent;
2. Prescribed application form stating the name of the applicant and details of the plant variety, address for service of documents; if the applicant is a foreigner, his country of origin as well as information regarding similar applications in any other country;
3. If the applicant is a successor in title, documentary evidence establishing his title. If the applicant is a partnership, the application must be signed by all partners or by one partner on behalf of the firm. If the applicant is a body corporate, a society or another similar organization, the application must be signed by the secretary or other principal officer or by its authorized agent;
4. A completed technical questionnaire applicable to the particular genus, obtainable from the PBRO;
5. Color photographs representing the variety in case of fruit, ornamental and tree varieties;
6. A sample seed as specified by the PBRO, in the case of an arable crop, pasture, amenity grass and vegetable varieties;
7. A declaration that the information given is correct;
8. An application for a protective directive where such is required;
9. Such information and facility as may be requested by the authorized officer;
10. The prescribed application fee;
11. If any requested document is not in English, a certified translation is required.
Note: there is no requirement for an agent for an applicant whose ordinary residence or principal place of business is in Kenya. However, for an applicant whose residence or place of business is outside Kenya, the applicant must be represented by an agent.
Examination: the application is evaluated, examined and verified by KEPHIS after which an acknowledgement of the application is issued within five working days. If the application meets the requirements in the Seeds and Plant Varieties Act, a notice is issued for the gazettement of the application. This process takes about three months from the date of filing.
Publication: the application is published in the Kenya Gazette for a period of sixty days, during which period objections may be received. If there is any objection, it is considered by the Minister or any authorized officer and if the complainant is not satisfied with the decision of the Minister or authorized officer, he may appeal to the Seeds and Plants Tribunal. If the objection is successful, the application is rejected and the applicant informed in writing. If there is no objection to the variety protection and the new variety had undergone the Dominant, Uniform and Stable (“DUS”) test in a member country of the International Union for Protection of New Plant Varieties (“UPOV”), KEPHIS shall take over the test results from the UPOV member country and the applicant granted the PBR certificate after payment of the grant fee. If the variety had not undergone the DUS tests, the tests shall be carried out for a period two growing seasons (i.e. two growing cycles, where a growing cycle involves planting seeds and raising a crop to maturity).
Granting: if the variety meets the DUS criteria, the applicant is granted the PBR certificate after payment of the grant fee. After granting of the PBR certificate, a notice for gazettement is submitted to the Ministry of Agriculture. Upon grant of the PBR certificate, the PBR is deemed to be protected under the Act.
Beginning of protection: from date of granting.
Scope of protection: a certificate of grant of plant breeders rights confers on its owner an exclusive right to produce the propagating material for commercial purposes, to offer it for sale and to stock it for any other purposes, and to authorize others to do similar acts.
Duration: fixed period of twenty years from the date of the grant, except in respect of trees and vines where the duration shall be twenty-five years from the date of the grant.
Renewal: not possible.
Annuities: no annual fee required.
Protective direction: pending the examination, an applicant may ask for a protective direction pending the outcome of his application for grant of plant breeder’s rights. The applicant must give an undertaking that between the time when the request is made and the time when the grant is allowed or refused, no plants of the variety and no material forming part of it, shall be offered or exposed for sale or sold in Kenya by the applicant or without his consent. A protective direction shall protect him from infringement pending the outcome of the application for grant.
Infringement is an offense and attracts either a fine of Kshs 3,000 or imprisonment for a term of three months, or both.
Modification of Protection after Registration
Cancellation: the relevant Minister will notify the grantee of his intention to cancel the grant thirty days before the intended cancellation, giving reasons.
Compulsory licenses: may be granted.