Basmati Without a Passport: Kenyan Court of Appeal on Registration, Recognition, and the Constitutional Limits of TRIPS in Kenyan Trade Mark Law
Abridged Version — Issue 003 drops tomorrow at 1:00 PM, subscribe to read the full commentary here → mwangolawreview.com
On 13 October 2009, the defendant, Krish Commodities Limited, applied to register six different word marks in Class 30, including Wali Basmati Rice, Nawab Basmati Rice, and Rajah Basmati Rice. Each of the six words expressly disclaimed exclusivity in the word “Basmati.” The Indian statutory export body, the Agricultural and Processed Food Products Development Authority of India (hereafter “APEDA”), filed opposition notices against the applications. It argued that the word “Basmati” is a geographical indication (GI) which denotes aromatic long-grain rice grown at the Himalayan foothills of India and Pakistan. Therefore, allowing registration would mislead Kenyan consumers and give Krish an unfair advantage over a geographical product that was already protected elsewhere.
After sixteen years of court litigation, the answer to APEDA’s objection to Krish’s application to register “Basmati” was still no. Crucially, on 3rd October 2025, for the first time at an appellate level, the Kenyan Court of Appeal [“the Court”] (Karanja, Muchelule and Ngugi JJA.) rejected the second appeal by APEDA in its judgement in APEDA v Krish Commodities Ltd [2025] KECA 1587. The ruling was straightforward: that, without a formal recognition or prior registration of “Basmati” as a geographical indication (GI) under Kenyan law, the appellant, APEDA, had no legal basis to object to the trademark applications by Krish. This was a procedural finding, but the silences echoing from the judgement are as important to consider as its rulings, and there is urgency for practitioners to comprehend both.
At the time of the filing of the marks’ application, the operative provisions for GI under Kenyan law was section 40A(5) of the Trade Marks Act (Cap. 506), which permitted the registration of geographical names as certification or collective marks. APEDA argued that the term “may” in the provision suggested optional registration, submitting that, on the strength of this claim, “Basmati” could be informally protected based on its global reputation and the reception clause in the Kenyan constitution’s Article 2(5) and (6) of the Constitution, which domesticates the TRIPS Agreement. The Court rejected this invitation, holding that TRIPS is not self-executing in Kenya and that it is domesticated through section 40A. The justification was that the word “may” implied registration eligibility and not optionality, which could permit an informal route of recognition. Expressly, protection commences upon formal registration, and not a minute earlier. The Court explicitly drew a line: no registration in Kenya, no legal capacity to object to a registration application by another party.
The judgement disappoints on various fronts. The Court refused to determine the GI status of “Basmati” at all, rightly reiterating that it lacked the jurisdiction to delve into a fact-finding of the first instance at a second appeal. But in doing so, the Court missed the chance to lay the jurisprudential foundations on “genericness”, which is a pending question, especially given the claim of descriptive usage of “Basmati” in the Kenyan market for other local products such as Ahero and Mwea rice. The judgement’s engagement of the constitutional issues is also narrow, surface-level even. It leaves wide open the question whether the Constitution’s Article 2(5) and (6) create any residual judicial role in policing manifestly misleading uses of established GIs before formal registration is obtained. And lastly, the Court mentions Kenya’s dedicated GI Act 2019 as a sui generis (standalone) legal framework for Geographical Indications (GIs) [25]. In reality, no such Act was ever passed into law. The Geographical Indications Bill, 2007, and unpublished Geographical Indications Bills, 2019 and 2024, were not enacted into law. At the time of this publication, the GI Bill 2026 is still pending before the parliament. On the whole, the Court squandered the opportunity to begin laying the foundation for the underdeveloped GI jurisprudence in Kenya.
For advocates, the Court’s message is procedural but urgent. Foreign GI holders desirous of Kenyan protection must engage the domestic legislation directly, now the Trade Marks Act (Cap. 506), as the primary route, and approach the court second. The Court was unequivocal: registration is the baseline, not a technicality. APEDA could have filed for recognition many years ago. It failed to do so and paid a hefty price throughout the judiciary.
The Judgement in APEDA v Krish Commodities is conclusive on one thing: it ends the “may” debate; there is no optionality under Kenyan law, which permits an informal route of recognition. What it fails to do is to substantively advance the underdeveloped Kenyan GI jurisprudence. There is an urgent need for clarity on genericness and international IP obligations’ constitutional reception. These questions remain wide open, and the next litigant who approaches the court with their registration in order will compel the Court to confront them directly.
This is an extract from the full case commentary in Mwango Law Review — Issue 003, going live tomorrow, Tuesday 16 June at 1:00 PM. Read the complete analysis, including paragraph-level citations, comparative law, and a critique of the constitutional dimension, at mwangolawreview.com
Gody Mwango is an advocate at Mwango Law Advocates, Mombasa, specialising in constitutional litigation, judicial review, and commercial law. He is the founder and managing editor of Mwango Law Review.