WIPO Lex

Seeds and Plant Varieties Act (Chapter 326) (Revised Edition 1991)

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LAWS OF kENYA

The Seeds and Plant Varieties Act

CHAPTER 326

KSh. 84

Revised Edition 1991 (1977)

Printed and Published by the Government Printer Nairobi

CHAPTER 326

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THE ··SEEDS AND PLANT VARIETIES ACT

ARRANGEMENT OF SECTIONS

Section PART I-PRELIMINARY

1-Short title.

2-Interpretation.

PART II-SEEDS

3-Seeds regulations.

4-Civilliabilities of sellers of seeds.

5-Defences in proceedings for offences against seeds regulations.

6-Presumpti.on regarding statutory statements.

7-Index of names of plant varieties.

8-Restrictions on sales_: of seeds of unindexed plant varieties.

9-Performance trials and reports.

10-0ffences, etc.

PART III-SEED TESTING

11-Seed testing stations.

12-Certificates of test.

13-Use of samples in criminal proceedings.

14-Tampering with samples.

PART IV-CONTROL OF IMPORTS AND PREVENTION OF CRoss- POLLINATION

15-Control of imports of potentially deleterious seeds.

16-Prevention of injurious cross-pollination.

PART V-PLANT BREEDER's RIGHTS

17-Grant of plant breeaer's rights.

IS-Conditions for grant of rights.

19-Period for which rights exercisable.

20-Nature of rights.

21-Protected plant varieties.

22-Maintenance of reproductive material.

23-Licences.

.l4-Regulations.

25-False representation and ir:tforl}1a.~ion.

26-Application of Part to Government.

27-Interpretation of -Part.

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PART Vl-TBE SEEDS AND PLANTS TRIBUNAL

Section

28-Establishment of Tribunal.

29-Jutisdiction ot" Tribunal.

pART VII-GENERAL

30-Powers of entry.

31-Institution of criminal proceedings.

32-General provisions as to offences.

33-General penalty.

34-Supplemental provisions as to regulations.

35-[Spent.]

SCHEDULES.

I of 1972.

Short title.

Interpretation.

CHAPTER 326

THE SEEDS AND PLANT VARIETIES ACT

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Commencement: 1st January, 1975

An Act of Parliament to confer power to regulate transactions in seeds, including provision for the testing and certifica- tion of seeds; for the establishment of an index of names of plant varieties; to empower the imposition of restriction on the intwduction of new varieties; to control the importation of seeds; to authorize measures to prevent injurious cross-pollination; to provide for the grant of proprietary rights to persons breeding or discovering new varieties; to establish a Tribunal to hear appeals 2nd other proceedings; and for connected purposes

PART I-PRELIMINARY

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

2. In this Act, unless the context otherwise requires-

"authorized officer", in connexion with any provision of this Act, means a public officer authorized by the Minister by notice in the Gazette to exercise the functions specified in such provision;

"compulsory licence" means a licence granted by the Minis'ter under sectiion 23;

"the Index" means the index of names of plant varieties prepared under ·section 7;

"Minister" means the Minister for the time being res- ponsible for matters relating to agriculture;

"plant breeder's rights" means rights granted under seotii:on 17;

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"plant variety" means an assemblage of cultivated indivi- duals vvhich are distinguished by any character (morphological, physiological, cytological, chemical or others) significant for

the purpose of agriculture, horticulture or forestry, ·and which when reproduced (sexually or asexually) retain their di:stlinguishing charadters;

"positive direction" means a positive direction given under paragraph 1 'Of the 'Jlhiird Schedule in regard to an application for plan't breeders' flights;

"seed" means that part of a plant which is or is intended to be used for propagation and includes any seed, seedling, corm, cutting, bulb, bulbil, layer, marcott, root, runner, scion, set, split, stem, stock, stump, sucker or tuber so used or intended to be so used;

"seed analyst" means a suitably qualified person on ths staff of a testing station;

"sell" includes barter, exchange, and offering or exposing for sale;

"scheme" means a scheme relating to plant breeder's fight'S made under Part V;

"seeds regulations" means regulations made under section 3·

"statutory statement" means a statement given in pur- suance of seeds regulations, whether the statement be in the form of a notice. or other document, or in the form of par- ticulars given on any Jabe], container or package, or in any other form, and includes a statement delivered under sub- seot~on (5) of se:otiion 30;

"testing station" means an official seed testing station established under sectron 11;

"the Tribunal" means the Seeds and Plants Tribunal estab- lished tlnder reoti:on 28.

PART II-SEEDS

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3. (1) The Minister, after consultation with representatives Seecb of such organizations as he deems to have a substantial interest regulations. in the matter to be regulated and of such other interests as appear to him to be concerned, may make reo-ulations for the

• 0

regulatiOn and control of the production, processing, testing,

certiflcation and marketing of seeds, and without prejudice to 1ihe generaE;ty of ·this power, the regulat'i'Ons may, in par- ticular, be made for any or all of the following purposes-

(a) for ensuring that reliable and adequate information is afforded as to the nature, condition and quality of seeds intended for sale;

(b) for preventing the sale of seeds which are deleterious, or which have not been produced in specified con- ditions, or which have not been tested for purity or germination, or \Vhich are of a plant variety of which the performance has not been subjected to trials;

(c) for requiring the registration of persons growing any specified crop for the main purpose of seed produc- tion, or of persons selling any seed;

(d) for preventing the spread of plant disease by the sale of seeds;

(e) for requiring the treatment of seed, by any specified means, for the ccmtrol of plant disease and regulating the importation, quality, testing and sale of any material used in such treatment;

(j) for regulating the descriptions under which seed IS sold;

(g) for regulating, controlling or prohibiting the export of seeds;

(!z) for prescribing anything which, under this Part. is to be prescribed or which, under any other provision of this Act, is to be prescribed by seed3 regulations.

(2) Seeds regulations may include provisions as to the packets, bags, trays or other containers in which seed may be sold or delivered to purchasers, and requirements as to the marking of such containers.

(3) Without prejudice to any other provisions of this section, seeds regulations may-

(a) require information to be given in a prescribed manner, which may include the giving of it on any label, container, or package, as regards seeds which are sold, and may require the seller to deliver a state- ment, containing prescribed particulars, to the pur- chaser within such time as may be limited by the regulations;

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(h) require any of the particulars contained in such state- ment to be particulars ascertained on a test of the seeds;

(c) prohibit the selling of seeds which have not been certified in the prescribed manner, or which contain more than a prescribed proportion of weed seeds, or of weed seeds of a prescribed kind, or which lack any other prescribed quality factor;

(d) prohibit the use, in relation to the sale of seeds, any prescribed name, designation or description except where the seeds have been grown or selected under the prescribed conditions;

(£") require persons who deal in seeds to supply to the prescribed authority information as to, and to keep records of-

(i) transactions in seeds generally or in seeds of specified kinds;

(ii) statutory statements given or received by them, and other statements or invoices given or received by them in connexion with the sale of seeds;

(iii) processes or treatments applied to seeds;

(iv) the results of tests of seeds,

and authorize prescribed persons to ca11 for produc- tion of such records;

(f) where persons who deal in seeds also grow seeds, require such persons to supply to the prescribed authority information as to, and to keep records of-

(i) acreages sown;

(ii) the yields of the crops,

and authorize prescribed persons to call for produc- tion of such records;

(g) regulate the procedure to be observed at, and the conduct of testing stations and other establishments at which tests may be carried out for the purposes of the regulations;

(h) regulate the manner in which tests are to be made for the purposes of this Part.

Civil liabilities of sellers of seeds.

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(4) In prescribing the manner in which samples are to be taken for the purposes of this Part or of seeds regulations, tthe regulatron:s-

(a) may impose conditions as to the persons empowered to take samples and the places where they may be taken;

(b) may require the person taking a sample to give part of it to the owner of the seeds or to some other person, may prescribe the manner in which the sample is to be divided into parts, and may impose duties in respect of the making or labelling and the preservation of the parts of the sample;

(c) may provide for the identification, by the labelling or marking of their container, or by some other method, of seeds from which a sample has been taken.

(5) Seeds regulations may exempt, or authorize the exemption of, any person or class of persons, or persons genera1ly, from compliance with any of the provisions of the regulations, and may provide that such exemptions are to be, or may be made, subject to conditions.

(6) Any person who includes in a statutory statement any- thing which is false in a material particular shall be guilty of an offence.

4. (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 mis- statement in the particulars which exceeds the limits of vari- ation so prescribed.

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(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), the sellcT of the seeds shall give wfiitten notice of such intention not more than 1the prescribed peri'od after cleliivery to the purchaser of the seeds under the sale, and seeds regulations shall pres- cribe a procedure for the taking of a sample of seeds to be tested for the purposss of tha1t 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. (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 shaH be a defence to proceedings under this Act for including in a statutory state- ment 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 this seotio:n, 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 the nature, condition or quality of any seeds; or

to prove-

Defences in proceedings for ofTences against seeds regulations.

Presumption regarding statutory statements.

Index of names of plant varieties.

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(i) that the accused took all reasonable precautions against committing an ofYcnce of the kind alleged and had not at the time of the alleged offence any reason to suspect that an offence was being com- mitted 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 .telst, 1t'he defence under subsection (2) shall not be available unless ~'t ~'S pr'oved-

(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 connexion 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 para- graph (a) did not apply ·in relation to those rpwticuf!:a:rs.

6. For the purposes of this Part and of any seeds regula- tions, 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. (1) The Mirrri'ster may, ·in accordance with this section, cause tro bi3 prepared 'an index of names ·of plant varieties for use ~n connexiorn Wii'th 'the sale of seeds of ·those variieities.

(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, irrespec- tive of whether that variety is for the time being in the Index or not.

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(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 appro- priate for ensuring that persons particularly concerned with the Index, or with the class of plant varieties to \vhich 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 shall have effect a.s 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 Sc:hedule-

"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.

8. (1) Subject to this section, after a ~ection of the Index has come into force any person who, m sening seed of a plant variety which is within the class to which that section of the Index relates, but which is not in the Index, uses a name which serves or is intended by him to serve to distinguish such seed from seed of other plant varieties within that class, shall be guilty of an offence.

Restrictions on sales of seeds of unindcxed plant varieties.

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(2) Subseoti'on (1) shall not apply to a pers'on who reasonably believes >that 1the seed-

(a) is to be used for scientific purposes or for the purposes of research; or

(b) will be used outside Kenya.

(3) \Vhere any person makes, or proposes to make, arrangements under which some other person uses seed under the control of the first-mentioned person for the purposes of increasing the first-mentioned person's stock, or of carrying out tests or trials, and under which the whole of the material produced, directly or indirectly, from the seed, and any un- used seed, becomes or remains the property of the first- mentioned person, subsecdi'On (1) shall not apply-

(a) to a sale of the seed by the first-mentioned person to the other person as part of such arrangements; or

(b) to a sale by that other person to the first-mentioned person of seed produced, directly or indirectly, from that seed.

(4) Except as provided by paragraph 3 (3) of the First Schedule, arr applicatron for ,the inclus'ion of a plant variety in the appropriate seoti'On of the Index a:f1ter it has come into force 'shall be granted only-

(a) when the agro-ecologica1 value surpasses that of the existing ones in some aspect according to the results in official tests;

(b) is sufficiently distinguishable from any other variety whose existence is a matter of common knowledge at the time of application;

(5) If at any time it appears to the Minister that a deci- s1ron cann'ot be given on an applicat'i!on in respect of an Index merr~ioned in subsec:tlion (4) within three years from the time when the applicant has complied with the conditions prescribed under the First Schedule, or if so directed by the Tribunal, he shall cause an entry to be made in the Index giving to the plant variety concerned such provisional name as is appropriate, and when the decision is given such correction shall be made to the Index as may be necessary to give effect to the decision.

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9. (1) The Minister may, by order, bring this section into force for any class of plant varieties within the Index, and thereafter this section shall apply to any new plant variety within that class. ·

(2) For the purposes of this section, a plant variety shall be a new plant variety if it was not in the Index on the date when the order under subsection (1) came into force, unless ift: has been exempted under subsecti'on (3).

(3) The Minister may, on an application from any person and on being satisfied that seed of a plant variety, although not in the Index, was in commercial use in Kenya before the order under subsection (1) came into force, exempt ,tJha't plant vari'elty from 1the provi:si'oll'S 'Of ·this seotion.

(4) Subject to this S"ecttion, it shall be an 'Offence-

(a) to sell seed of a new plant variety to which this section applies; or

(b) to advertise any such seed for use,

until seed of that plant variety has been submitted for the purpose of performance trials in accordance with this section, and until a report on the result of such trials has been published in the prescribed manner, and this subsection shall apply whether or not an offer or advertisement relates only to sales after the trials and report.

(5) Subsection (4) shall not apply :to a sale of any seed which 1s mYt in Kenya when 1tthe sale is made but, subjeCit to lthis section, where a person ha's acquired se!ed of a new plant va:r!iety ·ro which this seoti'on ~ppl'i'es, being seed which was not in Kenya when he acquired it, he shall be guilty of an offence if, ~in 'the course of business, he-

(a) uses any of that seed in Kenya as reproductive material at any !time when, under subsec~ion (4), ~t 'is unlaw- full~o seH seed of tt!hat plant va!fi'ety; or

(b) at any time so disposes of any of that seed, otherwise than by way of sale, while it is in Kenya as to make it available for use in Kenya as reproductive material.

Performance trials and reports.

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(6) Subsection (4) shall n'Ot apply 1to any sale of the kind described :in subsection (3) of section 8 and subseot1:on (5) sha:ll IWt apply 'tn 'the use of seed for rthe purpose of carrying out tests or !trials.

(7) If it appears to the Minister that a new plant variety to which this section applies has undergone performance trials and that an adequate report of the result of those trials is generally available, or that there is any other sufficient reason for exempting such variety from the provisions of subsections (4) 'and (5), he may direct 1tha1t 'those subsecti'ons shaH cease

1uo apply Ito 'Seed of tha:t plan!t varie~ty, but without prejudice lt:o any ·lia:bH~ty for any offence previously commiltted.

(8) For all new plant varieties to which this section applies there shall be a time limit by which, so far as practicable, the report on the result of the performance trials is to be published, and if such report is not published within such ti:rne lin1i:t, subsec~ions (4) and (5) sha'll cease to apply 1to seed of 'that plan1t varliety, but wi1thout prejudice :to any liabiH'ty for any offence previously commiltted.

(9) The time limit in respect of an annual crop for the purposes of subseobion (8) ·s!haU, except so far as seeds regulations may ·otherwise pmvide for any class or part thereof, be three years from the date on which the per- formance trials commence.

(1 0) Entries made in a section of the Index after an order under this section has come into force in relation thereto shall-

(a) be made in such a manner as will distinguish those entries from all earlier entries, and as will indicate which of the later entries relate to plant varieties exempted under subseoti·on (3); and

(b) contain additional entries showing when subsections (4) m:td (5) 'have ce;a:sed ,to apply :to seeds of ithe plant varieties concerned.

(11) Without prejudice to any other provision of this Part, seeds regulations may provide-

(a) for the manner of making applications under sub- secitii'On (3) and of making :a:ppl'iC<lltions for submi'~Ving pJ:anit variieJries for performance tt:Dials;

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(b) for the information to be afforded by an applicant and the materials to be submitted at the time of application or subsequently;

(d) for the compiling of a register of applications for the submission of seeds for performance trials, of the reports of the results of such trials and of the dates of publication of the reports, and for including entries which will show the date when the time limit under subseotion (8) will fall;

(e) for requiring the publication of notice of any direction under subseo~ion (7) and of any cla:ss where a report ri'S n!ot pubHslTed wi:th1in tlm !time hm1i't under sub- seo~ton (8);

(f) for the payment of fees in respect of matters under this section.

(12) Reference in this section to advertising are references to advertising in any medium, including sound and television broadcasting, but do not include the communication of information in any publication for scientific purposes or pur- poses of research.

10. (1) If any information submitted by or on behalf Offencea, etc. of-

(a)a person making an application or representations in respect of any matter connected with the compila- tion or alteration of the Index; or

(b) an app1icant under subsec1tion (3) of seotion 9,

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

(2) Notwithstanding any provision of any other written law as to time limits in criminal proceedings, proceedings in respect of an offence under sections 7, 8 or 9 may be brought aft any ttime Il!o!t m'ore 1tlhan 1two yea·rs from the da!te upon w:hioh r~t is al1eged Wait such offence wa:s commi'rted.

Seed testing stations.

Certificates of test.

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(3) It shall be a defence to proceedings in respect of an offence under sections 7, 8 or 9 to prove-

(a) 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

(b) 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 those seeds and the contract of sale.

PART III-SEED TESTING

11. The Minister shall, either alone or in conjunction with any other body, establish one or more official seed testing stations.

12. (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 purport- ing 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 suftlcient 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 nf subsectiiJon (3) 'of section 4, shatl be sufficien!t ev"ideince 'Of ~ihe faots Slta'ted in tthe certificate in any such legal proceedings as are men- tioned in that subsection,

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

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13. (1) Evidence shall not be adduced in proceedings for an offence under Patit II rcspcot:ing a sample taken by an authorized uft!ccr unless '[:llc S<lmplc was taken 'lll 1the manner prescribed by seeds regula:hons.

(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 regula- tions 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 state- ment 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 ito be rreJta:ined 'as ment'i'oned :in subsection (2) shall be produced at 1the heating, and il:he couDt, if it thinks fit on the request of either party, shall cause the part so produced to be sent t.o a seed analyst who shall transmit to the court a certificate of the result of a test of that part of the sample.

(8) [Spent}.

Use of sarnpks in criminal proceedings.

Tampering with samples

Control of imports of potentially d::letcrious seeds.

14. If any person-

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(a) tampers with any seeds so as to procure that a sample taken in the manner prescribed by seeds regulations for any purpose does not correctly represent the bulk of the seeds; or

(b) tampers with any sample so taken; or

(c) with intent to deceive, sends, or causes or allows to be sent, to any testing station, to be tested for any purpose, a sample of seeds which to his knowledge does not correctly represent the bulk of the seeds,

he shall be guilty of an offence and liable to a fine not exceed- ing five thousand shillings or to imprisonment for a period rrot exceeding ·six mon't:hs ·or to bo'th.

PART IV-CONTROL OF IMPORTS AND PREVENTION OF

CRoss-POLLINATION

15. (1) If it appears to the Minister that It IS necessary or expedient that he should be able to exercise the powers conferred by this section for the purpose of preventing the importation into Kenya-

(a) of seeds which, if used as reproductive material in Kenya, will or may cause deterioration of domestic types of varieties of plants by cross-pollination, phy- sical admixture or other means; or

(b) of seeds which are unsuitable for use in Kenya be- cause they are of a type or variety which have been developed iq. countries with different climate, difierent hours of daylight or other different condi- tions,

he may, by order, apply this section to seeds of any type or variety specified in the notice.

(2) An order under this section may provide for excepting from a specified type or variety any description of seeds defined in any manner and, in particular, any description of seeds defined by reference to the country or territory where they were grown or from which they have been consigned to Kenya, or any seeds which are the subject of a nrescribed certificate.

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(3) The importation of all seeds to which this section applies is prohibited except under the authority, and in accordance with the terms, of a licence granted by an autho- rized officer, and any person who imports or attempts to import any seeds in contravention of this subsection shall be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to imprisonment for a term not exceeding two yea:rs or 1to bO!th.

(4) A licen:ce under subseot'i·on (3) may be, to any degree, geneml or spedific, and may be modified or revoked by an au1rhorfizetl office1r aJt any 1time.

(5) An order under this section shall be made after con- sultation with representatives of such interests as appear to the Minister to be concerned and may-

(a) include provision as to the methods by which import- ers may be required to prove whether consignments of seeds fall within any exception specified in the order;

(b) prescribe the form and manner in which applications are to be made for licences and the form of licences, and the fees payable therefor;

16. (1) This section shall have effect for the purpose of maintaining the purity of seeds of any types and varieties of plants ·specified in an ·order under subsection (2).

(2) The Minister may by order bring this section into force in an area in any part of Kenya in \Vhich persons are engaged in growing crops of seeds of any type or variety of plant specified in the order, if he is satisfied that in that area satisfactory arrangements, whether legally enforceable or not, have been made for locating such crops so as to isolate them from crops or plants which might cause injurious cross-pollina- tion.

Prevention of injurious CfOSS·

pollination.

(3) An order under this section-

(a) shall be made after consultation with the persons responsible for the arrangements mentioned in sub- secJti:on (2) and wiJt!h persons representative of such

IP/N/1/KEN/P/l Page 21

other 1.i:nlteres1ts as a·ppcar to ,the MitJ~:>~Lvi to be concerned;

(b) shall state the types and varieties of plants which are to be protected by the order;

(d) may relate to more than one area and, if so, may make different provisions under paragraphs (a) and (b) in respect of .('he different areas to which i{ relates.

(4) If in any area where this section is in force controlled crops or plants are growing and, on an application made m racco•rdance Wiibh 'the Second Schedule, the M·inister is sa;bisfied-

(a) that they are causing, or may cause, injurious cross- pollination in a protected crop which is being grown in that area; and

(b) in the case of controlled crops or plants which are not self-sown, that the person growing them did not give to the persons responsible for the arrangements meiruti·oned 1in s:ubsecUion (2) such TI'Oit·ice of his linte:n:ti:on ~~o grmv lth:ose crops or plan:ts to the flowering stage as would have enabled them to take any appropriate steps for altering the arrangements,

he may serve a notice on the occupier of the land where the controlled crops or plants are growing requiring him to take such steps as may be specified in the notice for the purpose of preventing any of the controlled crops or plants from causing or continuing to cause injurious cross-pollination in the pro- tected crops.

(5) If the person served with a notice under subsection (4) do:es n'o1t comply wit~1 a:ny requirement ~n the notice, tthe Minister may authorize any person :to enter on the land concerned and do what the person so served has failed to do or, if in the opinion of the Minister that would no longer serve the purpose for which the notice was served, may take such other action as appears to the Minister appro-

IP/N/1/KEN/P/1 Page 22

priate for that purpose, and where, when the default occurs, further obligations remain under the notice, the Minister may also take such action as appet:'lrs to him appropriate to meet the purposes for which those further obligations were imposed.

(6) Vlhere the Nlinister takes any action under sub- sectti·on (5), ·he may recov0r from rvhe person on wll'Om ~~he noitice wa's served a sum equal to 1the re:as:onable cost incurred by the Minister or his agents in taking such action, and such sum sh:1ll be a civil debt recoverable sum- marily by the Minister.

(7) Any person authorized jn writing by the Iviinister may, on production if so required of his authority, at all reasonable times enter on any land, but not into any dwelling- house, in an area \vhere this section is in force for the pur- pose of ascertaining whether controlled crops or plants are growing on the land or of inspecting and taking samples of any controlled crops or plants growing on the land.

(8) A notice under this section or the Second Schedule may b0 served by ,Je!aving it at, ·or s:-nding it by pre- pa!icl reg'is,te:red p'O'Sit to, 1the last krrown address ·of the pe:rson en whom it is to be served, and if it is not practicable after reasonable inquiry to ascertain llis name and address, the notice may be served by addressing it to him as "the occupier" of the land and affixing it or a copy of it to some conspicuous object on the land.

(9) Without prejudice to any other proceedings under this section, any person who-

(a) unreasonably fails to comply with any requirement in a notice under this section; or

(b) obstructs or impedes, or attempts to obstmct or impede, a person acting in the exercise of the powers conferred by subsection (5) of this section,

shall be guilty of an offence.

(1 0) In this sec::tron, and in 'the Second Schedule-

"controlled crops or plants" means crops, grown for any purpose, of the types of varieties of plants which are protected by an order in the area concerned, and such

additional kinds of crop or plants, whether grown or self-sown and whether of those or any other types or varieties, as may be specified in such order for the pur- poses of this definition;

Grant of pbnt breeder's rights.

Cnndilions for grant of rights.

IP/N/1/KEN/P/1 Page 23

"the occupier", in the case of unoccupied land, means the person entitled to the occupation of the land;

"protected crop" means a crop of a type or variety of plant which is protected by an order in the area concerned, being a crop grown for the purpose of produc- ing seeds.

PART V-PLANT BREEDER's RIGHTS

17. (1) Rights may be granted in accordance with this Part in respect of plant varieties of such species or groups as may be specified by a scheme made by the Minister under this Part.

(2) Subject to this Part, plant breeder's rights shall be granted by the authorized officer if he is satisfied that the condi,tiorrs Jaiid down 'in seotlron 18 are fulfilled.

(3) The Ta1ird Schedule shail'have effe:ot for the prolte:cbion o£ an applican't fm plan't bre:eder'·s 1<ights pending a dedsi'on on his applicaMon.

(4) Before making a scheme, the Minister shall consult 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 the Minister to be concerned, and any scheme-

(a) may make different provision for different species or groups of plant varieties;

(b) may contain such supplemental, incidental and transi- tional provisions as appear to the Minister to be appropriate;

so, hmvevcr, that the variation or revocation of a scheme shall not prejudice a grant of plant breeder's rights made before the variation or revocation takes effect.

18. (1) The conditions laid down in this section must be fulfilled as respect both the applicant for plant breeder's rights and the plant variety to which the application relates.

IP/N/1/KEN/P/1 Page 24

(2) An applicant for plant breeder's rights must be the person who bred or discovered the plant variety concerned, or his successor in title, and the provisions of Part I of the Fouril.h Schedule shaH have effect regarding priodties between two or more persons who have independently bred or discovered a plant variety.

(3) A plant variety must conform to the rules set forth in Pa:t~t II 'Of the Fomith Schedule.

(4) References in this section and in the Fourth Schedule Jt'O the di'scovery of a p1anlt vwrieJty are rc.ferences to 1he discovery 'of a plan:t varlie!ty vvhether grmving in the wild or occurring as a genetic variant, whether artificially induced or not.

19. (1) A scheme shall prescribe the period, not exceeding twenty-five years, for which plant breeder's rights are to be exercisable.

(2) As regards fruit trees and their root-stocks, forest and ornamental trees and grape vines, the period prescribed under this section shall be not less than eighteen years, and a statement in a scheme to the effect that a species or group of plant varieties fall under this subsection shall be conclusive.

(3) As regards pJant varieties not coming within sub- seciti'on (2), the period prescribed under !this section shall be n'clt kss il1han fifteen ye'ars.

(4) Subject to the following provrsrons of this section, the period for which plant breeder's rights are exercisable shall be the relevant period prescribed by the scheme concerned commencing on the clay on which the grant of the plant breeder's rights takes effect.

(5) If, on the application of the holder of any plant breeder's rights, an authorized officer is satisfied that, for reasons beyond the control of the applicant, such holder has not been adequately remunerated by the grant of the rights, such officer may extend the period for which such rights are exercisable, subject to such restrictions, conditions and other provisions, if any, as the officer concerned may think appro- priate so, however-

(a) that the period· as extended shall not exceed twenty- five years; and

Period for which rights exercisable.

Nature of rights.

IP/N/1/KEN/P/1 Page 25

(b) where the period as extended is less than twenty-five years, no further extension shall be made under this subsection.

(6) A holder of plant breeder's rights may at any time make an application to the authorized officer offering to sur- render his rights and if, after notice of the application has been given in the prescribed manner, and after the prescribed procedure for hearing any person on whom the right to object has been conferred by the regulations has been followed, such officer is satisfied that the rights may properly be surrendered, he may accept the offer and terminate the rights concerned.

(7) The Minister shall cancel the grant of plant breeder's rights in any case where he is satisfied-

(a) that any information submitted in the application for the grant of the rights, or any information submitted by or on behalf of the applicant in connexion with the application, was incorrect and that, if the autho- rized officer l1nd known thnt such information was incorrect, he would have reft1sed the grant: or

(h) that facts have been discovered which, if known before the grant, would h::rve resulted in the grant being refused on the grounds thnt rule 1 or rule 2 in Part II ·of ithe Fourth Schedule was I10't sa:tisficcl m re:spect nf the plant variety concerned.

(8) The aulhorized officer shall revoke or, if it has begun, :tennins!te, any e.x•tensiion under subsecfion (5) -if at any time he is s~tisfied tint any information submitted in the application under that subsection or any information submitted by or on behalf of the 8pplicant, \vas incorrect and that, if the true facts had been known before the extension had been allowed, the application would have been refused.

20. (1) Subject to i!:'his Parit, and of any other written law, flihe holder of plant breeder's rights ;in a plant variety shall have the exclusive right ito do, and to authoriize o·thers to do, ithe following-

(a) produce propagating material of the variety for com- mercial purposes, to commercialize it, to offer it for sale, to export it, to stock it for any of these purposes and to have any or all of their activities perforn1ed.

IP/N/1/KEN/P/1 Page 26

(b) in the circumstances described in the Fifth Schedule 'to exercise the ether rights vl1erein spesrfie:d,

and, subject to this section, infringements of plant breeder's rights shall be actionable at the sui't ·of the bolder of such rights, and in any proceedings for such an infringement all such relief, by way of damages, injunction, account or o~herwise shall be available as is available in any corresponding proceedings in respect of infringements of other proprietary rights:

Provided that in so far as the production and the stock- ing for production of the propagating material of a variety for which pJant breeder's rights have been granted, is undertaken solely for research purposes or for developing new varieties in the breeder's own nursery this shall not be deemed to be at variance with the exclusive right of the holder of a plant breeder's rights.

(2) Paragraph (a) of subsection (1) shaJl nc·t apply to the SJ1e of reproductive metterial vv:-1ich is not in Kenya when it is sold, but if any person p:.1rchases such material outside Kenya and uses it in Kenya as reproductive material, the P'Jrchasc.. and subsequent usc sl1a1l together con- stitute an infringement of the plant breeder's rights and the purchaser shall be liable to be proceeded against in respect of such infringement, and reference in this subsection to using reproductive material of a plant variety as reproductive material in Kenya includes reference to so disposing of that material (otherwise than by way of sale) while it is in Kenya as to make i1 available for use in Kenya as reproductive material.

(3) There shall be no right to damages m rc~pcct of an infringement of plant breeder's rights-

(a) if the person infringing the rights was not aware, and had no reasonable grounds for suspecting, that the plant variety in question was the subject of such rights; or

(b) in a case where the infringement consists of a breach of conditions attached to a licence, if that person had no notice of any of those conditions,

IP/N/1/KEN/P/1 Page 27

but the person who would, but for the foregoing provisions of this subsection, be entitled to damages shall be entitled to an account of profits in respect of the infringement, and to payment of any amount found due on the account, whether any other relief is granted under this section or not.

(4) The holder of plant breeder's rights may, in authoriz~ ing other persons to exercise his exclusive rights, impose any conditions.. limitations or restrictions which may be imposed by the holder of any other kind of proprietary rights, and plant breeder's rights shall be assignable in the same manner as other kinds of proprietary rights.

(5) A sale of the reproductive material of a plant variety which is the subject of plant breeder's rights, being a sale by the holder of such rights or by any other person authorized to grant a licence in those rights-

(a) shall not imply that the seller authorizes the purchaser to produce the reproductive material for the purpose of sale or export; but

(b) subject to any express terms or conditions imposed by the seller, shall imply that the seller authorizes the purchaser to sell the reproductive material sold to him.

(6) In 1this sedtion and in the Fif•th Schedule references to seEl'ing reproductive material iinclude reference:s 1to any transadtion effe:cted ;in t•he course of business-

(a) under which the property in the reproductive material passes from one person to another; or

(b) under which such material is made over by one person to another in pursuance of a contract under which he will use the material for growing further repro~ ductive material or other crops,

and paragraph (b) shaH apply irrespective of whether the •oon'tmot pr·oYi·de.:; that the property in the crop will be in the person to be regarded as the seller, or the person to be regarded as the purchaser, or a third party, and any reference to purchasing or a purchaser shall be construed accordingly.

IP/N/1/KEN/P/1 Page 28

21. (1) The Minister may by regulations under this section provide for the selection of names for plant varieties which are the subject of applications for plant breeder's rights and for the keeping of a register of the names so selected.

(2) The Minister shall cause notice of all entries made in the register, including alterations, corrections and erasures, to be published in the Gazette and in such other manner as appears to the Minister to be convenient for bringing such entries to the attention of all persons connected therewith.

(3) After a section of the Index has come into force, the part of the register dealing with the class of plant varieties to which that section relates shall, so far as practicable, be com- bined with the Index.

(4) Without prejudice to the genemlirty ·of subsection (] ), regula:t•iiQns made thereunder may in particular-

(a) prescribe the circumstances in which representations may be made regarding any decision as to the name to be registered in respect of any plant variety;

(b) make provision for the publication or service of notices of decisions which are to be made;

(c) prescribe the times at which, and the circumstances in which, the register may be inspected by members of the public.

(5) If, where a name is registered under this section for a plant variety, any person uses that name, or a name so nearly resembling it as to be likely to deceive or cause confusion, in selling-

(a) reproductive material of a different plant variety within the same class; or

(b) where under paragraph 1 of the Fifth Schedule plan't breeder's rights 'in the firs't-mentironed plant variety have been extended to material other than reproductive material, that other material from a different plant variety within the same class,

such use of the name shall be a wrong actionable in proceedings by the holder of plant breeder's rights in such_ first-mentioned plant variety, but it shall be a defence to a claim for damages

in any such proceedings to prove that the defendant took all reasonable precautions aga!nst committing a wrong of the kind alleged and had not, when using the name, any reason to suspect that it was wrongful.

Protected plant varieties.

MaiiHenanc<! of reproductiv<! materb!.

IP/N/1/KEN/P/1 Page 29

(6) In this section, "name" includes any designation, and references to plant varieties as being within the same class are references to them as all being within one class which is either-

(a) a class consisting of all plant varieties of the species or groups prescribed by any one scheme; or

(b) any other class of plant varieties prescribed for the purposes of this subsection by any scheme.

22. (I) The provisions of this section shall apply in relation to all plant varieties except such as fall within any species or group which is excluded from such provisions by a scheme.

(2) Every holder of a plant breeder's rights sha11 ensure that, throughout the period for which the rights are exercis- able, he is in a position to produce to an authorized oflker reproductive material which is capable of producing the variety to which the rights relate \Viih the morphological and physiolo- gical and other characteristics taken into account when the rights \Vere granted in respect of the variety.

(3) It shall be the duty of every holder of plant breeder's rights to afford to an authorized officer all such information and facilities as such officer may request for the purpose of ascertaining whether such holder is fulfilling his obligation under subsecti'on (2), including faci1.ities for the inspecti·on of 1'he measures taken for the preservation of the plant variety.

(4) If at any time the Minister is satisfied that any holder of plant breeder's rights-

(a) has failed to comply with any request made under sub- section (3); or

(b) is no longer in a position to fulfil his obligations under subsection (2),

he shall cancel the grant of such rights.

IP/N/1/KEN/P/1 Page 30

23. (1) The holder of plant breeder's rights has the obliga- Licences. tion to stock the market with propagating material at reason- able prices and he may do this by himself or he may grant such licences as are necessary to stock the market with propagating material on reasonable tem1s and conditions.

(2) 11he obligation re-ferred to in subsection (1) shall inc'lude the obligation of >the hoJde.r of plant breeder's rights to furnish the licensee with the propagating material he needs at a reasonable price if be is to make proper use of the licence.

(3) If the Minister, upon the application of any person, is of the opinion that the stocking of the market with the propagating material is not adequately ensmed, he shall com- municate this to the holder of the plant breeder's rights, stating the reasons for his opinion ancl shall enable him to remedy the situation and, if tbe holder fails to do so, grant any such rights as respects the plant variety in the form of a compulsory licence to interested parties.

(4) A scheme may pres:cribc for the purposes of this subsection a period or periods for any species or group, or different species or groups, of plant varieties and a compulsory licence in respect of such plant varieties shall not have effect durjng the specifie-d pe.riod commencing on the date upo-n which the plant breeder's rights concerned were granted.

(5) In entertaining applications for settling the terms of compulsory licences, the Minister shall endeavour to secure that the plant variety is available to the public at reasonable prices, that it is distributed as widely as possible, that it is maintained in quality, and that there is reasonable remunera- tion for the holder of the pla11t breeder's rights concerned.

(6) A compulsory licence may include terms obliging the holder of the plant breeder's rights to make reproductive material available to the licensee.

(7) Where-

(a) the holder of the plant breeder's rights to which an application under subseotion (3) relates is, or is represented by, a society or other organiwvion which has as its main object, or one of its main objects, the negotiation or granting of licences to exercise plant breeder's rights, either as the holder of the rights or as agent for holders;

IP/N/1/KEN/P/1 Page 31

(b) an organization, whether claiming to be representative of persons requiring licences or not, or a person whether requiring a licence or not, applies to the Minister for an opportunity of making representations concerning the application, and the Minister is satisfied that such organization or person has a substantial interest in the application and that the application involves issues which may affect other applicants for compulsory licences under this section; and

(c) if ithe applicant under paragraph (b) is arr organizati:on, .the Minister is sa!tlisfied uhat :it is reas·onably representative of the class of persons whioh it claims 1to represent,

the Minister shall afford to the organization or person applying under paragraph (b) an opportuni'ty of making representations to hlim and of being heard by the Minister or by a person appo!iUited by the Minister for that purpose.

(8) The Minister, before granting a compulsory licence shall satisfy himself that the applicant is financially and other- wise in a position, and intends, to exploit the rights to be conferred upon him in a competent and businesslike manner, and that the grant of such licence will not compromise the maintenance of the reproductive material concerned.

(9) Without prejudice to the remedies available to the holder of a compulsory licence by the taking of proceedings in any court, the Minister may, if it is represented to him by any person that the holder of the plant breeder's rights concerned has failed to meet any obligation imposed upon him by such licence, and if he is satisfied that the representations are correct, cancel the grant of such plant breeder's rights.

(10) The Minister may at any time, on application made by any person concerned, extend or limit, or vary in any other respect, or revoke, a compulsory licence.

(11) A compulsory licence may be granted whether or not the holder of the plant breeder's rights concerned has pre- viously granted licences to the applicant for the compulsory licence or to any other person, and shall not be an exclusive licence.

IP/N/1/KEN/P/1 Page 32

(12) If and so far as any agreement purports to bind any person not to apply for a compulsory licence it shall be void.

24. (1) The Minister may make regulations for the pur- Regulations. poses of this Part, and without prejudice to the generality of that power, 1the 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;

(2) Regulations under this section may permit an autho- rized 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 g\ant 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, m 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 sub- sequently;

(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;

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

Fal>c representation and information.

Application of Part to Government.

Cap. 40.

IP/N/1/K.EN/P/1 Page 33

(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 insp~cted 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. (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 sub- section it shall. b;; imm<1L::rial wbethr:r or not th~; pl:-d1t 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

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. (1) If any servant or agent of the Government infringes any plant breeder's rights or makes himself liable to civil procee.clings under section 21 and ;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) Subjcot to subsection (1), no p.tocee:dings sh'all lie against the Government by virtue of the Government Proceedings Act in respect of the infringement of plant breeder's -1'igh:ts ·or of any wrong mentioned in rthe subsection.

(3) This section shall have effect as if contained in Part II of tbe Government Proceedings Act.

IPIN/1/KEN/P/1 Page 34

27. (1) References in this Part to reproductive material are references to reproductive material of plant varieties and include references-

(a) to seed for sowing;

(b) to seed potatoes and other vegetative propagating material;

(d) to ornamental plants and parts thereof when used commercially as propagating material in the produc- tion of ornamental plants and cut flowers.

(2) References in· this Part to an applicant for .plant breeder's rights include, where the context allows, references to the applicant's predecessors or successors in title.

PART VI-THE SEEDS AND PLANTS TRIBUNAL

28. (1) There shall be a Seeds and Plants Tribunal in relraJt'i'On !to Whlch 1t!he provi!skms of lflh.e Sixth Schedule 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 appeal~d 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.

29. (1) Any person aggrieved by any deciswn-

(a) to refuse any application under subsection (4) of section 8 or subsedtii'on (3) of seccit>J19; ~r..

In1erprotation of part.

Establishment of Tribunal.

Jurisdiction of Tribunal.

Cap. 49.

IP/N/1/KEN/P/1 Page 35

(b) to allow or refuse the grant of plant breeder's rights; or

(d) to allow or refuse an application under subsection (5) of seotion 19; or

{e) to term-inate an extens:ion granted under the subsection (5) of section 19; or

(f) to allow or refuse any application made under sub- 'section (1), (7) or (8) of section 23,

may appea.ll to ~the T:riibuna1 aga!i:nst 'tha:t decision.

(2) Any regulations made under this Act may confer ·rights of appeal to the Tribunal from decisions taken under such regulations.

(3) There shall be a final appeal to the High Court, from a· decision of the Tribunal, on any question of law, but subject -thereto a decision of the Tribunal shall be final and conclusive.

(4) The Tribunal shall, in addition to any other jurisdic- tion conferred upon it, bear and determine any matters agreed :to be referred to the Tribunal by any arbitration agreement ·relating to the infringement of plant breeder's rights, or to ·matters which include such infringement, but subsection (3) shall nat apply in relatti'on 'to any jur.isdictlion conferred by this subswrion.

(5) The fees payable to the Tribunal for acting under any arbitration agreement shall be such as the Tribunal may deter- mine, and nothing ·in section 11 of the Arbitration Act shall be taken as applying to the Tribunal.

(6) In this section, "arbitration agreement" has the mean- . ing assigned to it in section 2 of the Arbitration Act.

IP/N/1/KEN/P/1 Page 36 pART VII-GENERAL

Powers of· entry.

30. (1) The powers of entry conferred by subsection (3) may be exercised for ·lthe purpose of exercising--

(a) the further powers conferred by subsections (4) and (5); o:r. . . . . .

(b) any powers of calling for, inspecting or taking copies of rec~rds or other documents conferred by seeds regulatiOns,

or for the purpose of ascertaining whether there is, or has been, on or in connexion with the premises, includin·g any vehicle or vessel, any contravention of any of the provisions of this Act or any regulations made thereunder.

(2) This section shall not authorize enfry into any premises which are used exclusively as a private dwelling.

(3) An authorized officer may, on production if.. so required of proof of his authority, at all reasonable hours enter any premises---

(a) which he has reasonable cause to believe to be used for any purpose of a business in the course of which seeds are sold, whether the sale is by wholesale 'or retail, and whether the person conducting it acts as principal or agent; or

(b) on which he has reasonable cause to believe that there is any seed which has been sold and which are to be delivered, or are in the course of delivery, to the purchaser, and the power of entry under this para- graph may be exercised when the seed is in transit in the course. of delivery to the purchaser, and in particular when it is in any vehicle or vessel in the course of delivery.

(4) An authorized officer may, on any premises, including a vehicle or vessel, which he has power under this section. to enter, examine any seed which he finds there and may with~ out payment take samples of any seed so found.

(5) The owner of any seeds which are offered or expos'ed for sale, or are stored for the purposes of sale, or any person authorized to sell such seeds, may be required by an authorized officer to deliver to him such statement, if any, as the person selling them would, by seeds regulations, be obliged to deliver to a purchaser of such seeds, and to deliver it V(ithin the time prescribed for such a statement.

(6) This section shall apply with regard to-

(a) all kinds of seeds in respect of which an offence may, under any circumstanceS, be committed under seeds regulations; and

Institution of criminal proceedings.

IP/N/1/KEN/P/1 Page 37

(b) seeds of all plant varieties which are within any class to which a section of the Index which has come into force relates.

(7) Any person who-

(a) fails to comply with any requirement made under subsection (5) of this section; or

(b) obstructs or impedes, or attempts to obstruct or impede, any authorized officer acting in exercise of the powers conferred by this section,

shall be guilty of an offence.

31. (1) Notwithstanding any proviSion of any other -written la\.v as to time limits in criminal proceedings, where a part ·of a sample has been tested by a seed analyst proceed- ings· 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 autho- rized officer that it is int~nded to test the seeds and that, ~fter 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 certi- ficate 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 yYhich has been delivered to a purchaser of seeds, or relating to seeds which have beeri sold and delivered, may be brought" before a court having jurisdiction at the place of delivery of the statement or seeds.

IP/N/J/KEN/Pil Page 38

32. (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 o.f the body corporate, or any person who w~s purporting to act in any such capacity, he as well as the body corporate, shall be guilty of that offenee 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 appro- priate court in Kenya having jurisdiction in the place where that person is for the time being.

33. A person guilty of an offence under this Act for which no other penalty is provided shall be liable to a fine not exceeding three thousand shillings or to imprisonment for a peri'Od no't exceeding 'three mon1ths 'Or ·to both.

34. 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 transi- tional provisions as may appear to the Minister to be expedient;

35. [Spent.]

FIRST SCHEDULE (s. 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 w\!I relate, and the seeds of which are in commercial use as reproductive material.

General provisions as to offences.

General penalty.

Supplemental provisions as to regulations.

FIRST SCHEDULE-(Contd.)

IP/N/1/KEN/P/1 Page 39

(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 erasures 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. (1) 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 circum- star+ces 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 sub- mitted 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;

IP/N/1/KEN/P/1 Page 40

FIRST SCHEDULE-(Contd.)

(d) prescribing the manner in which applications are to be made in respect of any matter connected with the alteration of th~ Index, and for. the information to · be afforded ·and ·the material to b.e 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 maldng searches in the Index.

SECOND SCHEDULE (s. 16)

CRoss-PoLLINATION INJURING PROTECTED CRoPs

1. An applicalbi'On 11;nder seo:ion 16 seeking .tJhe issue of a. notice under 1thait section s!ha:J.l be in writi·ng.

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 spe:Ciified in :the no:'ice under paragraph 2, 1afford rto rt:he applica'IJ.;t

a1nd ·to ltthe occupier of the olan.d an opporttuni1ty of appearin;g before 13Jlld maiking represen~"ations rt:o a person appoilfilted by ,tJhe Minister for nhe 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 ·pu biic, the purity of the seed of the protected crop;

(b) to the degree to which the.injurious cross-polliryati9n will 9r may diminish to the value of the protec~ed 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.

TIITRD SCHEDULE (s. 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.

THIRD SCHEDULE-(Contd.)

IP/N/1/KEN/P/1 Page 41

(2) An applicant applying for a protective direction shall include in ltihe appliC3!tion an undie11baking •t'O rthe effect Jth:a,t, subject to the . exceptions in .suhpa·ragraph (3) in the peri,od between !he rna/king of tihe applica:ti'on and !the rtrime when tthe question whether the application is to be allowed or refused is finally deter- mined (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 paTagraph 2 of Pm;t II of tthe Fo.ur1tll. Schedule, or lt!he exposure for sale 'Of ma1erial 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 bre~der's rights, the officer may, if he thinks fit, give a protective dir~cfion. ·

()) The authorized officer shall not give a protective direction if 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 UJnder subsection (5) of se;:,tion 21 have been acmionable in prdceed:ings by the holder of !those righrt:s, 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 protec- tive 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 thinks 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 rhe 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 with.draw the protective direction.

IP/N/1/KEN/P/1 Page 42

THIRD ScHEDULE-(Contd.)

(4) A protective. direction shall cease to be in force when the question,· whether .the·. app~cation. 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 &haft[ cease ltD be bindiing when ,1fb.e prDitrotive driredtli.OUl is withdrawn.

4. (1) If at any time the authorized officer is satisfied that there has been a breach of :the undertaking gi\'en under p3.rJ·graph 1, he may refuse trhe applioafbion for ilhe g:rarnt of pla1n1t breeder's ri_g~hts.

(2) If there is a breach of an undertaking given under para- graph 1 rtlh.e applicant sh:aU be guiMy of an offence.

FOURTH SCHEDULE (s. 18)

PART I-PRIORITIES BETWEEN APPLICA!"'TS 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 purpcYses of ;tlhis Schedule by regulcutli1ons under seati,Oin 24 shtali be -the perSJOn eDJtfutled itJo rtfue grant of planit breeder's r.i:gblts.

(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 rights, 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 applica- tion 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 appli- cation 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 seclt!ion 24, being a fiorm which includes a· ol:aim .i!n respect of the priority of the application in the said country.

FouRTH SCHEDULE-(Contd .)

IP/N/1/KEN/P/1 Page 43

(4) Within three months of the application under this Act, a copy oif .tfb.e do.:mmelJ!tts constitutling tthe appliccutllo•n in tbe counrt:ry, 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) shall be !taken from .t!he earlier •or ear.liest of those lalpplicaltllons, and subpara,graph (4) shall tbe 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. Regula:tii:ons under .seobion 24 may provide for the forfeiture ,of H·ny priorilty ·o'btruined under lthis Schedule if rthe perSDn maJking !the :arppli'Catt<i~o•n does not, mtbin 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 shaH-

(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 reproduc~ion 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 character- istics, that of existing varieties according to results. obtained in. official tests.

IP/N/1/KEN/P/1 Page 44

FoURrn ScHEDULE-(Contd.)

{2) For lthe purposes of subpmagrB.~ph (1), oommQn knowledge may be estJabLi-9hed by reference il!o plant varieties already ~n cuLtiva!tion or exploited for commercial purposes, or itfrlose 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 tl;le date of the application, no plants of the variety and no material foiming 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 .ur 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) shall not apply-

(a) to an offer for sale of a stock of material of any plant variety in connexion 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, arrange- ments 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 applica:n:t, ltjben subparagraphs (1) aind (2) Shall n:o~t apply-

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

(b) to a sale by such person to the applicant of the material produced, directly or.. jndirectly, from .that reproductive material.

FoURTH ScHEDULE-(Contd.)

IP/N/1/KEN/P/1 Page 45

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 no.t 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 beginninO' 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, subsedtion (2) of secGon 23 shaN nort apply t'o 1<vny compulsory licence granted in respec1t of ltihe plant var-iety Ito whioh the applioa;tion relaltes.

FIFfH SCHEDULE (s. 20)

Pl..ANT BREEDER'S RIGHTS IN SPECIAL CASES

Sale of cut blooms, fruits, etc.

1. (1) If it appears to the Minister that, in the case of any species or group of plant varieties, plant breeders will not receive adequate remuneration unless they have control civer the production or propa- gation of the plant variety in Kenya for the purpose of sales of cut blooms, fruit or some other part or product of plants of the variety, and the control \vill be of substantial benefit to the plant breeders, he may, by a scheme, provide that, in respect of any plant variety of the species or group prescribed by the scheme, plant breeder's rights shall include the exclusive right to, and to authorize others to, produce or propagate that variety for the purpose of selling such parts or products of the variety as may be prescribed by the scheme.

(2) A scheme conferring any such rights may also provide that plant breeder's rights shall include the exclusive right to, and to authorize others to, sell the parts or products of the variety in relation to which the rights are extended in so far as they are obtained by the seller from plants of the variety which the seller has himself produced or propagated.

Use of reproductive material for production of certain other plant varieties.

2. Plant breeder's rights shall include the exclusive right to, and to authorize others to, use the reproductive material of the plant variety concerned for the purpose of producing; in order to sell it, the reproductive material of another plant variety if, but only if, the nature of that other variety is such that repeated production of the reproductive material of that other variety is not possible without the repeated use of reproductive material of the plant variety to which the rights relate.

IP/N/1 /KEN/P/1 Page 46

SIXTH SCHEDULE.

THE SEEDS AND PLANTS TRIBUNAL

The Chairman

(s. 28)

1. (1) The Minister shall appoint a chairman for the Tribunal who shall be anJ. advoe<lite.

(2) The appointment of the chairman shall be for such term as the Minister may specify in the instrument of appointment, and a person who ceases to hold office as chairman shall be eligible for re- appointment.

(3) The chairman may at any time resign his office by notice in writing to the Minister.

(4) If the Minister is satisfied that the chairman is unfit to con- tinue in office or incapable of discharging his duties. he mav revoke the appointment of the chairman.

2. In the case of the temporary absence or inability to act of the Cibairman, illhe Minister may appoint any {t,if:ierJperson ·who. is"-~ an adva:BJte i:o aot as de:putry for it!he chairman, atD.d a person so appointe'd shall, when so aoting, !have <lll!l 'bhe funotions of 't!ht?. chairman:

The Panels

3. (1) The Minister shall draw up and from time to time revise-

(a) a panel of persons who have wide general knowledge in the field of agriculture, horticulture or forestry; and

(b) a panel of· persons who have specialized knowledge of particular species or groups of plants,

and the members of the Tribunal, other than the chairman and deputy chairman, shall be selected from those panels in accordance with this Schedule.

(2) The power to revise the panels shall include power to terminate a person's membership of either of them ..

Remuneration

4. The Minister may pay to members of the Tribunal such remuneration and such. allowances as the Minister may, with the approval of the Treasury, determine.

Procedure

5. (1) The jurisdiction of the Tribunal shall be exercised by three members consisting of the chairman and a member selected from each of the two panels, and references in this Act to the Tribunal shall be construed accordingly.

(2) The member from the panel of those with specialized knowledge shall be selected for his knowledge of the subject matter of a particular case or class or group of cases.

SIXTH SCHEDULE-(Contd.)

IP/N/1/KEN/P/1 Page 47

(3) The members of the panels who are to deal with any case shall be selected as follows-

(a) the Minister may select a member or members to deal with that particular case or class or group of cases; or

(b) the Minister may select for a class or group of cases members from amongst whom members to deal with any particular case shall be selected by the chairman.

(4) Any decision of the Tribunal shall be taken, in the event of a difference between the members, by the votes of the majority.

(5) If, after the commencement of the hearing of any proceed- ings before the Tribunal, one of the three members of the Tribunal becomes incapable of continuing to hear the proceedings on account of sickness or for any other reason, the proceedings may, with the consent of all parties thereto, be continued before the remaining two members of the Tribunal and heard and determined accordingly, but if the two members differ in opinion the case shall, on the application of any party to the proceedings, be re-argued before and determined by the Tribunal as ordinarily constituted..

' . (6) A decision of ·the Tribunal shall not be questioned on the

ground that a member was not validly appointed or selected. ·

6. (1) The Tribunal, in exercising its statutory jurisdiction, may order any party to the proceedings to pay to any other such party either a specified sum in respect of the costs incurred by the second- mentioned party, or the taxed amount of those costs, and any costs required to be taxed for that purpose shall be taxed in the same manner and on the same scale as costs in a subordinate court of the first class.

(2) The Chief Justice may make rules as to the procedure in connexion with proceedings before the Tribunal in exercise of its statutory jurisdiction and as to the fees chargeable in respect of those proceedings, and in particular the rules may make provision-

. (a) as to the circumstances in which the Tribunal need not, or shall not, sit in public;

(b) as to the form of any decision of the Tribunal;

(d) as to the evidence, and the form thereof, which may be required or admitted;

(e) as to the examination of the parties and of witnesses; (f) as to the procedure for securing the attendance of witnesses

and the production of documents.

(3) The chairman of the Tribunal shall have power to administer oaths to witnesses in any proceedings before the Tribunal.

(4) In this paragraph, "statutory jurisdiction" means any jurisdic- tion of the Tribunal exercisable by or under this Act or any other written law, except for its jurisdiction in any reference under an arbitration agreement.

肯尼亚

KE029

Seeds and Plant Varieties Act, 1972 (Chapter 326, Revised Edition 1991)