The High Court has dismissed four petitions challenging the lifting of the ban on genetically modified (GMO) foods.  

The ruling is a major victory for President William Ruto and paves the way for introduction of GMOs in Kenya.

Justice Lawrence Mugambi’s ruling gave nod to Ruto’s October 3, 2022, Cabinet decision to lift a 10-year ban on GMOs, initially instituted by the coalition government on November 8, 2012, a move that will have a major shift in the country’s agricultural policies.

Five petitions challenging the Cabinet decision to lift the GMO ban were brought before Justice Mugure Thande for consolidation and hearing.

Justice Thande ordered at the time that one of the petitions filed by the Law Society of Kenya (LSK) which challenged the adoption of BT Maize (GMO Maize) be heard by the Environment and Lands Court.

In October 2023, Justice Oscar Angote dismissed the case, which paved the way for the rollout of BT Maize.

It is this judgement that the AGs office wanted adopted by Justice Mugambi who was hearing the other four petitions that had already been consolidated.

Justice Mugambi while agreeing with the AG said: “In view of the above, the court hereby finds that the current petition is res judicata. It is struck out with no orders as to costs.”

Lawyer Paul Mwangi had told the court that the Environment Court judgement was not binding on their petitions.

He said that a number of the constitutional principles interpreted by Justice Angote in the judgement fell under the Human Rights Division of the High Court.

He faulted the judgement saying that it went outside its jurisdiction.

Mwangi raised the issue of public participation saying Ruto’s Cabinet did not consult Kenyans before lifting the ban and this was not contained in the LSK petition that challenged the BT Maize rollout.

He argued that the LSK petition did not challenge the Cabinet dispatch on whether it was a statutory instrument and would therefore be subject to the procedure under the Statutory Instruments Act.

Mwangi told the court that Kenyans were kept in the dark on GMO seeds and foods that will be adopted in the country to allow them to make an informed decision.

Lawyer Kevin Oriri, representing the Kenyan Peasants League (KPL), argued that the LSK petition only focused on BT Maize.

Oriri said that the consolidated petitions were challenging the constitutionality of the Cabinet decision to lift the GMO ban altogether.

He argued that the GMO ban was lifted without involving the stakeholders and their case highlights the consequential violations or threats to fundamental human rights that arise from this policy shift.

KPL further argued that lifting the ban was a critical decision with far-reaching ramifications and ought to have been first subjected to public participation.

They said that farmers’ rights to seed, food, biological diversity and food sovereignty were under direct threat if the GMO policy was adopted.

The government had accused petitioners of going on a fishing expedition for a favourable decision given that what Justice Angote dismissed in the LSK petition were the same issues they were raising.

“In sum, creating or entertaining the spectre of two conflicting decisions from two courts of equal status can only embarrass our system of justice,” argued advocate Muthomi Thionkolu.

Thionkolu said that the government had put measures in place to assure the health and safety of Kenyans.

He argued that a decision by the Cabinet had not breached any laws and so did the institutions charged with the rollout of GMOs.

The case was supported by the National Biosafety Authority and current Tourism CS who urged Justice Mugambi to dismiss the cases.

The Kenya University Biodiversity Consortium and the Association of Kenya Feeds Manufacturers also joined the AG saying that the case had been overtaken by events.