Point in Time
Act No: CAP. 326
Act Title: SEEDS AND PLANT VARIETIES
[ Date of commencement: 1st January, 1975. ]
[ Date of assent: 16th May, 1972. ]
Arrangement of Sections
PART I – PRELIMINARY
1.
Short title

This Act may be cited as the Seeds and Plant Varieties Act.

PART II – SEEDS
4.
Civil liabilities of sellers of seeds
(1)

If and so far as seeds regulations provide that a statutory statement shall constitute a statutory warranty for the purposes of this section, the statutory statement, when received by a purchaser, and notwithstanding any contract or notice to the contrary, shall have effect as a written warranty by the seller that the particulars contained in the statutory statement are true.

(2)

If and so far as seeds regulations apply this subsection to the particulars in a statutory statement and prescribe limits of variation in relation to those particulars, those particulars shall, for the purposes of any legal proceedings on a contract for the sale of the seeds to which the statutory statement relates, be deemed to be true except so far as there is a misstatement in the particulars which exceeds the limits of variation so prescribed.

(3)

If and so far as seeds regulations apply this subsection to the particulars in a statutory statement, such particulars shall, for the purposes of any legal proceedings on a contract for the sale of seeds to which the statutory statement relates, be deemed to be true unless it is made to appear on a test carried out at a testing station, and made on a sample taken in the prescribed manner and within the prescribed period, that the particulars were untrue.

(4)

Where a purchaser intends to obtain a test of seeds for the purposes of subsection (3) of this Act, the seller of the seeds shall give written notice of such intention not more than the prescribed period after delivery to the purchaser of the seeds under the sale, and seeds regulations shall prescribe a procedure for the taking of a sample of seeds to be tested for the purposes of the said subsection which will afford to the seller of the seeds or his agent an opportunity of being present when the sample is taken, and of obtaining part of the sample.

(5)

A contravention of seeds regulations shall not affect the validity of a contract for the sale of seeds or the right to enforce such a contract.

5.
Defences in proceedings for offences against seeds regulations
(1)

If and so far as seeds regulations for the purposes of this section prescribed limits of variation in relation to the particulars in a statutory statement, it shall be a defence to proceedings under this Act for including in a statutory statement any false particulars to prove that the mis-statement in the particulars alleged to be false do not exceed the limits of variation so prescribed.

(2)

Subject to the provisions of this section, it shall be a defence to proceedings—

(a)

under this Part for including false particulars in a statutory statement; or

(b)

for an offence against seeds regulations relating to the nature, condition or quality of any seeds; or

(c)

for an offence against seeds regulations relating to a prescribed name or designation or description,

to prove—

(i) that the accused took all reasonable precautions against committing an offence of the kind alleged and had not at the time of the alleged offence any reason to suspect that an offence was being committed by him; and
(ii) where the accused obtained the seeds to which the alleged offence relates from some other person, that on demand by or on behalf of the prosecutor the accused gave all the information in his power with respect to the name and address of that other person and with respect to any statutory statement or other document in his possession or power relating to the seeds and the contract of sale.
(3)

If, in any proceedings under this Part for including false particulars in a statutory statement, any of the particulars alleged to be false are particulars which, by seeds regulations, are to be particulars ascertained by means of a prescribed test, the defence under subsection (2) of this section shall not be available unless it is proved—

(a)

that those particulars were ascertained on such a test and that the test was made not earlier than the date, if any, prescribed for the purpose; or

(b)

that—

(i) the accused purchased the seeds from another person who, in connection with the sale, duly delivered to the accused a statutory statement giving particulars of the seeds which were the same as the particulars alleged to be false; and
(ii) the accused had no reason to believe that paragraph (a) of this subsection did not apply in relation to those particulars.
6.
Presumption regarding statutory statements

For the purposes of this Part and of any seeds regulations, any statutory statement made in respect of seeds which are in distinct portions shall be presumed to be made both in respect of the seeds as a whole and also in respect of each portion taken separately.

7.
Index of names of plant varieties
(1)

The Minister may, in accordance with the provisions of this section, cause to be prepared an index of names of plant varieties for use in connexion with the sale of seeds of those varieties.

(2)

The Index shall be compiled in sections, and each section shall define the class of plant varieties to which it relates in such terms as to make it possible to determine whether any plant variety belongs to the class or not, irrespective of whether that variety is for the time being in the Index or not.

(3)

Different sections of the Index may be prepared, and may be brought into force, at different times.

(4)

Notice of the coming into force of a section of the Index, and of all additions, corrections and erasures in a section of the Index after it has come into force, shall be published in the Gazette, and in such other manner as is appropriate for ensuring that persons particularly concerned with the Index, or with the class of plant varieties to which the section of the Index relates, have their attention drawn to it.

(5)

After a section of the Index has come into force, any person who, in selling seed of a plant variety for which a name is given in that section, uses some name not given in the Index for that plant variety, being a name which serves or is intended by him to serve to distinguish the seed from seed of other plant varieties within the class to which the section relates, shall be guilty of an offence.

(6)

The Minister may, for the purposes of this section, arrange for the establishment of a reference collection of plant material.

(7)

The First Schedule to this Act shall have effect as to the procedure for compiling the Index and the other matters therein mentioned.

(8)

In this section and sections 8 and 9 and the First Schedule to this Act —

“class” means a class of plant varieties to which a section of the Index relates;

“name” includes any designation, and for the purposes of those provisions, a plant variety shall not be regarded as distinct from another plant unless it is sufficiently distinguishable by one or more of such important characteristics as may be prescribed.

PART III – SEED TESTING
12.
Certificates of test
(1)

A certificate of the result of a test by a seed analyst of a sample taken by an authorized officer for the purposes of any of the provisions of this Act shall be in the form prescribed by seeds regulations.

(2)

A certificate of the result of a test at a testing station of any sample taken for the purposes of this Act, and purporting to be issued by a seed analyst—

(a)

if the sample was taken by an authorized officer, shall, if a copy of the certificate has been served on the accused, be sufficient evidence of the facts stated in the certificate in any proceedings for an offence under this Act; or

(b)

if the sample was taken by a person other than an authorized officer in order to obtain a test for the purposes of subsection (3) of section 4 of this Act, shall be sufficient evidence of the facts stated in the certificate in any such legal proceedings as are mentioned in that subsection,

unless, in either case, either party to the proceedings requires that the person issuing the certificate be called as a witness.

13.
Use of samples in criminal proceedings
(1)

Evidence shall not be adduced in proceedings for an offence under Part II respecting a sample taken by an authorized officer unless the sample was taken in the manner prescribed by seeds regulations.

(2)

Seeds regulations shall provide for samples being divided into at least two parts, and for one of the parts being given to the owner of the seeds or to such other person as may be prescribed by seeds regulations, and shall provide for a third part of the sample to be retained for production in all cases where use may be made of it by the court under this section.

(3)

A certificate in the form prescribed by seeds regulations purporting to be issued by an authorized officer and stating that a sample was taken in the prescribed manner shall be sufficient evidence of the facts stated in the certificate.

(4)

If part of a sample taken by an authorized officer is sent to a testing station, it shall be so sent as soon as practicable after the sample is taken.

(5)

A copy of a certificate issued by a seed analyst stating the result of a test of part of a sample taken by an authorized officer shall be sent to the person to whom any other part of the sample is given.

(6)

In any proceedings for an offence under this Act in respect of seeds which have been sampled by an authorized officer, the accused shall not be required to plead to the charge less than fourteen days from the day upon which he has received a copy of any certificate of a seed analyst which the prosecutor intends to adduce as evidence.

(7)

In proceedings for including in a statutory statement false particulars concerning matters which are, under seeds regulations, to be ascertained for the purposes of the statement by a test of the seeds, if any sample of the seeds has been taken by an authorized officer the part of such sample required to be retained as mentioned in subsection (2) of this section shall be produced at the hearing, and the court, if it thinks fit on the request of either party, shall cause the part so produced to be sent to a seed analyst who shall transmit to the court a certificate of the result of a test of that part of the sample.

(8)

A sample taken in accordance with the Seeds Act (Cap. 326) prior to its repeal by this Act shall be deemed to have been taken in the prescribed manner for the purposes of subsection (1) of this section.

PART IV – CONTROL OF IMPORTS AND PREVENTION OF CROSS-POLLINATION
PART V – PLANT BREEDER’S RIGHTS
24.
Regulations
(1)

The Minister may make regulations for the purposes of this Part, and without prejudice to the generality of that power, the regulations may provide for—

(a)

applications for the grant of plant breeder’s rights;

(b)

the charging of fees, including periodical fees payable by the holders of plant breeder’s rights;

(c)

anything which is to be prescribed under this Part.

(2)

Regulations under this section may permit an authorized officer—

(a)

in the case of any failure to pay any fees payable in connexion with an application to such officer under this Part, to refuse such application; and

(b)

in the case of a failure of a holder of plant breeder’s rights to pay any fees payable in connexion with those rights, to cancel the grant of those rights,

with or without a right of appeal, and the regulations may provide for the restoration of the application or grant if the failure to pay fees is made good.

(3)

Regulations under this section may, in particular—

(a)

prescribe the information and facilities to be afforded by an applicant for the grant of plant breeder’s rights, and the reproductive and other plant material to be submitted at the time of the application or subsequently;

(b)

prescribe the tests, trials, examinations and other steps to be taken by such applicant or an authorized officer before a grant of plant breeder’s rights is made, and the time within which any such steps are to be taken;

(c)

restrict the making of repeated applications upon the same subject;

(d)

prescribe the circumstances in which representations may be made upon any matter under this Part;

(e)

make provision for the keeping of registers and records of matters under this Part, and the rectification of such registers and records, and prescribe the circumstances in which they may be inspected by members of the public;

(f)

make provision for the publication or service of notice of applications and decisions made under this Part;

(g)

prescribe the manner of dealing with objections to applications under this Part.

25.
False representation and information
(1)

Any person who, knowingly or recklessly, makes any false representation that he is entitled to exercise any plant breeder’s rights, or any rights derived therefrom, shall be guilty of an offence, and for the purposes of this subsection it shall be immaterial whether or not the plant variety in respect of which such representation is made is actually the subject of any plant breeder’s rights.

(2)

If any information—

(a)

submitted in any application under this Part for a decision against which an appeal lies to the Tribunal; or

(b)

submitted by or on behalf of the applicant in connexion with any such application; or

(c)

given in pursuance of a request made under subsection (3) of section 22 of this Act,

is false in any material particular and the person giving such information knows that it is false or gives the information recklessly he shall be guilty of an offence.

26.
Application of Part to Government
(1)

If any servant or agent of the Government infringes any plant breeder’s rights or makes himself liable to civil proceedings under section 21 of this Act, the infringement or wrong is committed with the authority of the Government, then civil proceedings in respect of the infringement or wrong shall lie against the Government.

(2)

Subject to subsection (1) of this section, no proceedings shall lie against the Government by virtue of the Government Proceedings Act (Cap. 40) in respect of the infringement of plant breeder’s rights or of any wrong mentioned in the subsection.

(3)

This section shall have effect as if contained in Part II of the Government Proceedings Act (Cap. 40).

PART VI – THE SEEDS AND PLANTS TRIBUNAL
28.
Establishment of Tribunal
(1)

There shall be a Seeds and Plants Tribunal in relation to which the provisions of the Sixth Schedule to this Act shall apply.

(2)

The Minister may make regulations under this section in respect of any appeals to the Tribunal under this Act, or under any regulations made under this Act, for all or any of the following purposes—

(a)

to authorize any person, in addition to the appellant and the person whose decision is appealed against, to appear and be heard as parties to any appeal;

(b)

to provide for suspending, or authorizing or requiring the suspension of, the operation of any decision pending the final determination of any appeal in respect thereof;

(c)

to provide for the publication of notices or the taking of other steps for securing that persons affected by any such suspension are informed thereof.

PART VII – GENERAL
31.
Institution of criminal proceedings
(1)

Notwithstanding any provision of any other written law as to time limits in criminal proceedings, where a part of a sample has been tested by a seed analyst proceedings for including in a statutory statement false particulars concerning the matters which, under seeds regulations are to be ascertained for the purposes of the statement by a test of the seeds, being proceedings relating to the seeds from which the sample was taken, may be brought at any time not more than six months from the time when the sample was taken.

(2)

If, at any time before a test is begun to ascertain whether a part of a sample of seeds is of a specified variety or type, and not more than six months after the sample was taken, the person to whom any other part of the sample was given, or any other person, is notified in writing by an authorized officer that it is intended to test the seeds and that, after the test, proceedings may be brought against that person for including in a statutory statement a false statement that seeds were of a specified variety or type, then, notwithstanding any provision of any other written law as to time limits in criminal proceedings, any such proceedings relating to the seeds from which the sample was taken may be brought against the person so notified at any time not more than two years from the time when the sample was taken, and a certificate purporting to be issued by an authorized officer and stating that a person was so notified shall be sufficient evidence of that fact.

(3)

Proceedings for an offence relating to a statutory statement which has been delivered to a purchaser of seeds, or relating to seeds which have been sold and delivered, may be brought before a court having jurisdiction at the place of delivery of the statement or seeds.

32.
General provisions as to offences
(1)

Where an offence under this Act committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, he as well as the body corporate, shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

(2)

Proceedings for any offence under this Act may, without prejudice to any jurisdiction exercisable apart from this subsection, be taken against a person before the appropriate court in Kenya having jurisdiction in the place where that person is for the time being.

34.
Supplemental provisions as to regulations

Any regulations under this Act—

(a)

may make different provision for different types or classes of plant varieties, for different seasons of the year, and for other different circumstances;

(b)

may contain such supplemental, incidental and transitional provisions as may appear to the Minister to be expedient;

(c)

may provide penalties not exceeding those mentioned in section 33 of this Act for any breach of the regulations.

35.
Repeal

The Seeds Act (Cap. 326) is hereby repealed.

FIRST SCHEDULE

[Section 7.]

PROCEDURE FOR COMPILING AND AMENDING THE INDEX
1.
(1)

As a first step in compiling a section of the Index, the Minister shall, after consultation with representatives of such organizations as he deems to have a substantial interest in the matter to be regulated and of such other interests as appear to him to be concerned, cause to be prepared a provisional list of plant varieties which are within the class of plant varieties to which the section of the Index will relate, and the seeds of which are in commercial use as reproductive material.

(2)

The Minister shall publish the provisional list in the Gazette and in such other manner as appears to him appropriate for ensuring that the persons particularly concerned have their attention drawn to the list, and shall publish with the list a notice giving the necessary information as to the manner in which and time within which applications seeking additions, corrections and erasures may be made.

(3)

The Minister may bring a section of the Index into force notwithstanding that the section is incomplete because the Minister has not come to a determination in regard to any particular plant varieties.

2.

The Minister may, at any time after a section of the Index comes into force, entertain applications from persons seeking additions, corrections or enasures in that section, and may make such additions, corrections and erasures as may appear to him to be called for not-withstanding that no application has been made in that behalf.

3.
(3)

If at the time when a name, or more than one name, is being selected for a plant variety for the purposes of the Index, there are one or more names which are for the time being in use for that plant variety, that name, or names from among those names, shall be preferred unless the Minister is satisfied that there are special circumstances calling for the use of a name or names not so in use.

(2)

The Minister may require a person making an application for the inclusion of a plant variety in a provisional list, or in a section of the Index, to submit a name for that plant variety.

(3)

If it appears to the Minister that no name in use or submitted to him is suitable, he may refuse to include the plant variety in the Index until a name has been submitted which is, in his opinion, suitable.

4.

The Minister may require persons making applications which involve the question whether two or more plant varieties are distinct, to supply information and material for carrying out examinations, trials and tests.

5.
(1)

The Minister, after consultation with representatives of such interests as appear to him to be concerned, may make regulations—

(a)

governing the form and manner in which applications may be made under this Schedule;

(b)

prescribing the period within which a person making application under this Schedule is to supply material or information in support of his representations;

(c)

prescribing the quantity and kind of material to be so supplied;

(d)

prescribing the manner in which applications are to be made in respect of any matter connected with the alteration of the Index, and for the information to be afforded and the material to be submitted, in connexion with any such application.

(2)

Regulations under this paragraph may prescribe the fees to be charged for carrying out examinations, tests and trials and for making searches in the Index.

SECOND SCHEDULE

[Section 16.]

CROSS-POLLINATION INJURING PROTECTED CROPS
1.

An application under section 16 seeking the issue of a notice under that section shall be in writing.

2.

Before deciding whether to issue a notice in accordance with the application the Minister shall serve a notice on the occupier of the land concerned giving him particulars of the application and informing him of his right to make representations.

3.

The Minister shall, if so requested within such time as may be specified in the notice under paragraph 2 of this Schedule, afford to the applicant and to the occupier of the land an opportunity of appearing before and making representations to a person appointed by the Minister for the purpose.

4.

In deciding whether to issue a notice in accordance with the application, and in deciding the terms thereof, the Minister shall have regard—

(a)

to the need to maintain, in the interests of the public, the purity of the seed of the protected crop;

(b)

to the degree to which the injurious cross-pollination will or may diminish to the value of the protected crop or disturb arrangements made for the purpose of maintaining the purity of the seeds thereof;

(c)

to the value, if any, of the controlled crops or plants and the inconvenience or disturbance involved in complying with a notice.

THIRD SCHEDULE

[Section 17.]

PROTECTION OF APPLICANT FOR RIGHTS WHILE APPLICATION IS PENDING
1.
(1)

An applicant for the grant of plant breeder’s rights shall, in his application, state whether he is also applying for a direction by the authorized officer under this Schedule in respect of the plant variety to which the application relates.

(2)

An applicant applying for a protective direction shall include in the application an undertaking to the effect that, subject to the exceptions in subparagraph (3) of this paragraph in the period between the making of the application and the time when the question whether the application is to be allowed or refused is finally determined (or, if the undertaking is discharged under this Schedule at an earlier time, until that time) no plants of the plant variety, and no material forming part of, or derived from plants of that variety, will be offered or exposed for sale or sold in Kenya by the applicant or with his consent.

(3)

An undertaking under this paragraph shall not prevent the applicant from making an offer for sale or sale which in the period before the application would be permitted by subparagraphs (3), (4) or (5) of paragraph 2 of Part II of the Fourth Schedule to this Act, or the exposure for sale of material where an offer for sale of that material would be so permitted.

(4)

If the authorized officer is satisfied that the applicant has duly given the undertaking, and that he has furnished that officer with all such information, facilities and material as that officer may require for the purposes of the application for the grant of plant breeder’s rights, the officer may, if he thinks fit, give a protective direction.

(5)

The authorized officer shall not give a protective direction if there is any evidence before him which tends to show that the applicant, or the person whose successor in title the applicant claims to be, is not the person who bred or discovered the plant variety to which the application relates.

2.
(1)

While a protective direction is in force, anything which, if the plant breeder’s rights to which the application in question relates had been granted, would have constituted an infringement of those rights, or would under subsection (5) of section 21 have been actionable in proceedings by the holder of those rights, may be the subject of proceedings under this paragraph.

(2)

Proceedings may be brought under this paragraph, by the applicant in whose favour the protective direction is made, against any person for an injunction requiring that person, while the protective direction is in force, not to do any of the things which may be the subject of proceedings under this paragraph, and the court may, if it thins fit, grant an injunction accordingly on such terms as appear to the court to be just.

(3)

An undertaking not to institute or prosecute proceedings under this paragraph, whether or not any consideration is given for the undertaking, shall be void, and if the authorized officer is satisfied that an applicant in whose favour a protective direction has been given has given any such undertaking, whether or not the undertaking be enforceable at law, he shall withdraw the protective direction.

(4)

A protective direction shall cease to be in force when the question whether the application for the grant of plant breeder’s rights is to be allowed or refused is finally determined, or at such earlier time as is provided under the provisions of this Schedule.

3.
(1)

The authorized officer may at any time, if in all the circumstances it appears to him to be just, withdraw a protective direction, and shall do so if he is satisfied that there has been a breach of the undertaking given by the applicant under paragraph 1 of this Schedule.

(2)

The undertaking given by an applicant under paragraph 1 to this Schedule shall cease to be binding when the protective direction is withdrawn.

4.
(1)

If at any time the authorized officer is satisfied that there has been a breach of the undertaking given under paragraph 1 to this Schedule, he may refuse the application for the grant of plant breeder’s rights.

(2)

If there is a breach of an undertaking given under paragraph 1 to this Schedule, the applicant shall be guilty of an offence.

FOURTH SCHEDULE

[Section 18, L.N. 152/1998, s. 2.]

PART I – PRIORITIES BETWEEN APPLICANTS FOR RIGHTS
1.
(1)

If the plant variety was independently bred or discovered by two or more persons, the first of those persons who makes an application relating to that variety in the form prescribed for the purposes of this Schedule by regulations under section 24 of this Act shall be the person entitled to the grant of plant breeder’s rights.

(2)

As between two persons making applications on the same date, the one who was first in a position to make a valid application for the grant of plant breeder’s right, or would have been first in that position if Part V of this Act and the relevant scheme had always been in force, shall be the person entitled to a grant of plant breeder’s rights.

2.
(1)

For the purposes of paragraph 1 of this Part, an application duly made in a country to which this paragraph applies when the application is made shall be treated as if duly made under this Act if the conditions in this paragraph are satisfied.

(2)

No account shall be taken under this paragraph of an application made in a country outside Kenya at a time when the plant variety to which the application relates was not one falling within a species or group prescribed by a scheme as a species or group in respect of which plant breeder’s rights may be granted.

(3)

Not more than twelve months after the application duly made in that country, the applicant must make his application under this Act in the form prescribed for the purpose by regulations under section 24 of this Act, being a form which includes a claim in respect of the priority of the application in the said country.

(4)

Within three months of the application under this Act, a copy of the documents constituting the application in the country, certified as correct by the authority in that country to whom the application is made, must be submitted to the authorized officer.

(5)

If applications have been made in more than one country to which this paragraph applies, and have been so made at different dates, the period of twelve months mentioned in subparagraph (3) of this paragraph shall be taken from the earlier or earliest of those applications, and subparagraph (4) of this paragraph shall be construed accordingly.

(6)

If priority is established for an application by virtue of this paragraph after a grant of plant breeder’s rights have been made in pursuance of an application against which the priority is established, the authorized officer shall cancel that grant.

(7)

The Minister may, by notice in the Gazette, designate any country or territory as a country to which this paragraph applies, and may from time to time vary or revoke any such order but not so as to prejudice applications already made in Kenya or elsewhere.

3.

Regulations under section 24 may provide for the forfeiture of any priority obtained under this Schedule if the person making the application does not, within a period prescribed by the regulations, satisfy all the requirements which are to be satisfied by an applicant before a grant of plant breeder’s rights can be made.

PART II – RULES FOR GRANT OF RIGHTS
1.
(1)

The plant variety must—

(a)

be sufficiently distinguishable by one or more important morphological, physiological or other characteristics from any other variety whose existence is a matter of common knowledge at the time of the application, whatever may have been the origin, artificial or natural, of the initial variation from which it resulted;

(b)

be sufficiently varietal pure;

(c)

be sufficiently uniform or homogenous having regard to the particular features of its sexual reproduction or vegetative propagation;

(d)

be stable in its essential characteristics, that is to say, it must remain true to its description after repeated reproduction or propagation or, where the application prescribes a particular cycle of reproduction or multiplication, at the end of each cycle,

and the agro-ecological value must surpass, in one or more characteristics, that of existing varieties according to the results obtained in official tests.

(2)

For the purposes of subparagraph (1) of this paragraph, common knowledge may be established by reference to plant varieties already in cultivation or exploited for commercial purposes, or those included in a recognized commercial or botanical reference collection, or those of which there are precise descriptions in any publication.

[L.N. 152/1998, s. 2(b).]

2.
(1)

Subject to this Schedule, in the period before the scheme by virtue of which the application is made came into force, no plants of the variety, and no material forming part of, or derived from, plants of the variety may have been offered for sale or sold by any person in Kenya or elsewhere.

(2)

Subject to this Schedule, in the period beginning with the date when the said scheme came into force and ending with the date of the application, no plants of the variety and no material forming part of, or derived from plants of the variety, may have been offered for sale or sold by or with the consent of the applicant in Kenya or elsewhere:

Provided that the restriction imposed by this subparagraph shall not apply to sales or offers for sale made outside Kenya during the period of four years ending with the date of the application.

(3)

Subparagraphs (1) and (2) of this paragraph shall not apply—

(a)

to an offer for sale of a stock of material of any plant variety in connection with an offer for sale of the title to apply for the grant of plant breeder’s rights in respect of that plant variety; or

(b)

to any sale of material of any plant variety if at the time of the sale or subsequently the purchaser becomes the person entitled to make an application for the grant of plant breeder’s rights in respect of that plant variety.

(4)

Where an applicant makes, or proposes to make, arrangements under which some other person uses reproductive material of the plant variety under the control of the applicant for the purpose of increasing the stock of the applicant, or of carrying out tests or trials, and under which the whole of the material produced, directly or indirectly, from that reproductive material, and any unused reproductive material, becomes or remains the property of the applicant, then subparagraphs (1) and (2) of this paragraph shall not apply—

(a)

to a sale or offer for sale of the reproductive material by the applicant to any such person as part of such arrangements; or

(b)

to a sale by such person to the applicant of the material produced, directly or indirectly, from that reproductive material.

[L.N. 152/1998, s. 2.]

3.
(1)

Where an application for the grant of plant breeder’s rights is made at a time not later than twelve months after this Part comes into operation, and the applicant does not ask for a protective direction, subparagraphs (1) and (2) of paragraph 2 of this Part shall not apply to an offer for sale or sale in the period beginning six months before this Part comes into operation and ending with that time if the authorized officer is satisfied that the applicant took all steps reasonably open to him to ensure that any person to whom material of the plant variety has been offered or sold during the said period has been informed in writing that an application for a grant of plant breeder’s rights may be made in respect of the variety.

(2)

Where an application is allowed by virtue of this paragraph, subsection (2) of section 23 of this Act shall not apply to any compulsory licence granted in respect of the plant variety to which the application relates.

FOURTH SCHEDULE

[Section 18, L.N. 152/1998, s. 2.]

PART I – PRIORITIES BETWEEN APPLICANTS FOR RIGHTS
1.
(1)

If the plant variety was independently bred or discovered by two or more persons, the first of those persons who makes an application relating to that variety in the form prescribed for the purposes of this Schedule by regulations under section 24 of this Act shall be the person entitled to the grant of plant breeder’s rights.

(2)

As between two persons making applications on the same date, the one who was first in a position to make a valid application for the grant of plant breeder’s right, or would have been first in that position if Part V of this Act and the relevant scheme had always been in force, shall be the person entitled to a grant of plant breeder’s rights.

2.
(1)

For the purposes of paragraph 1 of this Part, an application duly made in a country to which this paragraph applies when the application is made shall be treated as if duly made under this Act if the conditions in this paragraph are satisfied.

(2)

No account shall be taken under this paragraph of an application made in a country outside Kenya at a time when the plant variety to which the application relates was not one falling within a species or group prescribed by a scheme as a species or group in respect of which plant breeder’s rights may be granted.

(3)

Not more than twelve months after the application duly made in that country, the applicant must make his application under this Act in the form prescribed for the purpose by regulations under section 24 of this Act, being a form which includes a claim in respect of the priority of the application in the said country.

(4)

Within three months of the application under this Act, a copy of the documents constituting the application in the country, certified as correct by the authority in that country to whom the application is made, must be submitted to the authorized officer.

(5)

If applications have been made in more than one country to which this paragraph applies, and have been so made at different dates, the period of twelve months mentioned in subparagraph (3) of this paragraph shall be taken from the earlier or earliest of those applications, and subparagraph (4) of this paragraph shall be construed accordingly.

(6)

If priority is established for an application by virtue of this paragraph after a grant of plant breeder’s rights have been made in pursuance of an application against which the priority is established, the authorized officer shall cancel that grant.

(7)

The Minister may, by notice in the Gazette, designate any country or territory as a country to which this paragraph applies, and may from time to time vary or revoke any such order but not so as to prejudice applications already made in Kenya or elsewhere.

3.

Regulations under section 24 may provide for the forfeiture of any priority obtained under this Schedule if the person making the application does not, within a period prescribed by the regulations, satisfy all the requirements which are to be satisfied by an applicant before a grant of plant breeder’s rights can be made.

PART II – RULES FOR GRANT OF RIGHTS
1.
(1)

The plant variety must—

(a)

be sufficiently distinguishable by one or more important morphological, physiological or other characteristics from any other variety whose existence is a matter of common knowledge at the time of the application, whatever may have been the origin, artificial or natural, of the initial variation from which it resulted;

(b)

deleted by L.N. 152/1998, s. 2 ;

(c)

be sufficiently uniform or homogenous having regard to the particular features of its sexual reproduction or vegetative propagation;

(d)

be stable in its essential characteristics, that is to say, it may remain true to its description after repeated reproduction or propagation or, where the application prescribes a particular cycle of reproduction or multiplication, at the end of each cycle,

and the agro-ecological value must surpass, in one or more characteristics, that of existing varieties according to the results obtained in official tests.

(2)

For the purposes of subparagraph (1) of this paragraph, common knowledge may be established by reference to plant varieties already in cultivation or exploited for commercial purposes, or those included in a recognized commercial or botanical reference collection, or those of which there are precise descriptions in any publication.

[L.N. 152/1998, s. 2(b).]

2.
(1)

Subject to this Schedule, in the period before the scheme by virtue of which the application is made came into force, no plants of the variety, and no material forming part of, or derived from, plants of the variety may have been offered for sale or sold by any person in Kenya or elsewhere.

(2)

Subject to this Schedule, in the period beginning with the date when the said scheme came into force and ending with the date of the application, no plants of the variety and no material forming part of, or derived from plants of the variety, may have been offered for sale or sold by or with the consent of the applicant in Kenya or elsewhere:

Provided that the restriction imposed by this subparagraph shall not apply to sales or offers for sale made outside Kenya during the period of four years ending with the date of the application.

(3)

Subparagraphs (1) and (2) of this paragraph shall not apply—

(a)

to an offer for sale of a stock of material of any plant variety in connection with an offer for sale of the title to apply for the grant of plant breeder’s rights in respect of that plant variety; or

(b)

to any sale of material of any plant variety if at the time of the sale or subsequently the purchaser becomes the person entitled to make an application for the grant of plant breeder’s rights in respect of that plant variety.

(4)

Where an applicant makes, or proposes to make, arrangements under which some other person uses reproductive material of the plant variety under the control of the applicant for the purpose of increasing the stock of the applicant, or of carrying out tests or trials, and under which the whole of the material produced, directly or indirectly, from that reproductive material, and any unused reproductive material, becomes or remains the property of the applicant, then subparagraphs (1) and (2) of this paragraph shall not apply—

(a)

to a sale or offer for sale of the reproductive material by the applicant to any such person as part of such arrangements; or

(b)

to a sale by such person to the applicant of the material produced, directly or indirectly, from that reproductive material.

[L.N. 152/1998, s. 2.]

3.
(1)

Where an application for the grant of plant breeder’s rights is made at a time not later than twelve months after this Part comes into operation, and the applicant does not ask for a protective direction, subparagraphs (1) and (2) of paragraph 2 of this Part shall not apply to an offer for sale or sale in the period beginning six months before this Part comes into operation and ending with that time if the authorized officer is satisfied that the applicant took all steps reasonably open to him to ensure that any person to whom material of the plant variety has been offered or sold during the said period has been informed in writing that an application for a grant of plant breeder’s rights may be made in respect of the variety.

(2)

Where an application is allowed by virtue of this paragraph, subsection (2) of section 23 of this Act shall not apply to any compulsory licence granted in respect of the plant variety to which the application relates.

FOURTH SCHEDULE

[Section 18, L.N. 152/1998, s. 2.]

PART I – PRIORITIES BETWEEN APPLICANTS FOR RIGHTS
1.
(1)

If the plant variety was independently bred or discovered by two or more persons, the first of those persons who makes an application relating to that variety in the form prescribed for the purposes of this Schedule by regulations under section 24 of this Act shall be the person entitled to the grant of plant breeder’s rights.

(2)

As between two persons making applications on the same date, the one who was first in a position to make a valid application for the grant of plant breeder’s right, or would have been first in that position if Part V of this Act and the relevant scheme had always been in force, shall be the person entitled to a grant of plant breeder’s rights.

2.
(1)

For the purposes of paragraph 1 of this Part, an application duly made in a country to which this paragraph applies when the application is made shall be treated as if duly made under this Act if the conditions in this paragraph are satisfied.

(2)

No account shall be taken under this paragraph of an application made in a country outside Kenya at a time when the plant variety to which the application relates was not one falling within a species or group prescribed by a scheme as a species or group in respect of which plant breeder’s rights may be granted.

(3)

Not more than twelve months after the application duly made in that country, the applicant must make his application under this Act in the form prescribed for the purpose by regulations under section 24 of this Act, being a form which includes a claim in respect of the priority of the application in the said country.

(4)

Within three months of the application under this Act, a copy of the documents constituting the application in the country, certified as correct by the authority in that country to whom the application is made, must be submitted to the authorized officer.

(5)

If applications have been made in more than one country to which this paragraph applies, and have been so made at different dates, the period of twelve months mentioned in subparagraph (3) of this paragraph shall be taken from the earlier or earliest of those applications, and subparagraph (4) of this paragraph shall be construed accordingly.

(6)

If priority is established for an application by virtue of this paragraph after a grant of plant breeder’s rights have been made in pursuance of an application against which the priority is established, the authorized officer shall cancel that grant.

(7)

The Minister may, by notice in the Gazette, designate any country or territory as a country to which this paragraph applies, and may from time to time vary or revoke any such order but not so as to prejudice applications already made in Kenya or elsewhere.

3.

Regulations under section 24 may provide for the forfeiture of any priority obtained under this Schedule if the person making the application does not, within a period prescribed by the regulations, satisfy all the requirements which are to be satisfied by an applicant before a grant of plant breeder’s rights can be made.

PART II – RULES FOR GRANT OF RIGHTS
1.
(1)

The plant variety must—

(a)

be sufficiently distinguishable by one or more important morphological, physiological or other characteristics from any other variety whose existence is a matter of common knowledge at the time of the application, whatever may have been the origin, artificial or natural, of the initial variation from which it resulted;

(b)

deleted by L.N. 152/1998, s. 2 .

(c)

be sufficiently uniform or homogenous having regard to the particular features of its sexual reproduction or vegetative propagation;

(d)

be stable in its essential characteristics, that is to say, it may remain true to its description after repeated reproduction or propagation or, where the application prescribes a particular cycle of reproduction or multiplication, at the end of each cycle.

(2)

For the purposes of subparagraph (1) of this paragraph, common knowledge may be established by reference to plant varieties already in cultivation or exploited for commercial purposes, or those included in a recognized commercial or botanical reference collection, or those of which there are precise descriptions in any publication.

2.
(1)

Subject to this Schedule, in the period before the scheme by virtue of which the application is made came into force, no plants of the variety, and no material forming part of, or derived from, plants of the variety may have been offered for sale or sold by any person in Kenya or elsewhere.

(2)

Subject to this Schedule, in the period beginning with the date when the said scheme came into force and ending with the date of the application, no plants of the variety and no material forming part of, or derived from plants of the variety, may have been offered for sale or sold by or with the consent of the applicant in Kenya or elsewhere:

Provided that the restriction imposed by this subparagraph shall not apply to sales or offers for sale made outside Kenya during the period of six years in the case of trees and vines, and four years in the case of others, ending with the date of the application.

(3)

Subparagraphs (1) and (2) of this paragraph shall not apply—

(a)

to an offer for sale of a stock of material of any plant variety in connection with an offer for sale of the title to apply for the grant of plant breeder’s rights in respect of that plant variety; or

(b)

to any sale of material of any plant variety if at the time of the sale or subsequently the purchaser becomes the person entitled to make an application for the grant of plant breeder’s rights in respect of that plant variety.

(4)

Where an applicant makes, or proposes to make, arrangements under which some other person uses reproductive material of the plant variety under the control of the applicant for the purpose of increasing the stock of the applicant, or of carrying out tests or trials, and under which the whole of the material produced, directly or indirectly, from that reproductive material, and any unused reproductive material, becomes or remains the property of the applicant, then subparagraphs (1) and (2) of this paragraph shall not apply—

(a)

to a sale or offer for sale of the reproductive material by the applicant to any such person as part of such arrangements; or

(b)

to a sale by such person to the applicant of the material produced, directly or indirectly, from that reproductive material.

3.
(1)

Where an application for the grant of plant breeder’s rights is made at a time not later than twelve months after this Part comes into operation, and the applicant does not ask for a protective direction, subparagraphs (1) and (2) of paragraph 2 of this Part shall not apply to an offer for sale or sale in the period beginning six months before this Part comes into operation and ending with that time if the authorized officer is satisfied that the applicant took all steps reasonably open to him to ensure that any person to whom material of the plant variety has been offered or sold during the said period has been informed in writing that an application for a grant of plant breeder’s rights may be made in respect of the variety.

(2)

Where an application is allowed by virtue of this paragraph, subsection (2) of section 23 of this Act shall not apply to any compulsory licence granted in respect of the plant variety to which the application relates.

FOURTH SCHEDULE

[Section 18, L.N. 152/1998, s. 2, Act No. 2 of 2002, Act No. 53 of 2012, s. 26.]

PART I – PRIORITIES BETWEEN APPLICANTS FOR RIGHTS
1.
(1)

If the plant variety was independently bred or discovered by two or more persons, the first of those persons who makes an application relating to that variety in the form prescribed for the purposes of this Schedule by regulations under section 24 of this Act shall be the person entitled to the grant of plant breeder’s rights.

(2)

As between two persons making applications on the same date, the one who was first in a position to make a valid application for the grant of plant breeder’s right, or would have been first in that position if Part V of this Act and the relevant scheme had always been in force, shall be the person entitled to a grant of plant breeder’s rights.

2.
(1)

For the purposes of paragraph 1 of this Part, an application duly made in a country to which this paragraph applies when the application is made shall be treated as if duly made under this Act if the conditions in this paragraph are satisfied.

(2)

No account shall be taken under this paragraph of an application made in a country outside Kenya at a time when the plant variety to which the application relates was not one falling within a species or group prescribed by a scheme as a species or group in respect of which plant breeder’s rights may be granted.

(3)

Not more than twelve months after the application duly made in that country, the applicant must make his application under this Act in the form prescribed for the purpose by regulations under section 24 of this Act, being a form which includes a claim in respect of the priority of the application in the said country.

(4)

Within three months of the application under this Act, a copy of the documents constituting the application in the country, certified as correct by the authority in that country to wh