A commentary of Kenya Agricultural and Processed Food Products Development Authority (APEDA) v Krish Commodities Limited (Civil Appeal 610 of 2019) [2025] KECA 1587 (KLR)
What are Geographical Indications?
Across the world, certain product names immediately signal their origin and uniqueness. Take for instance Champagne from France, Scotch whisky from Scotland, Parmesan cheese from Italy, or Kilimanjaro coffee from Tanzania.
What these products have in common is that their identity and reputation are inseparable from the regions where they are produced. The law recognises such products as Geographical Indications (GIs), a category of intellectual property designed to protect names whose quality and character are tied to a specific place.
Basmati rice fits squarely within this category. Its aroma, grain structure, and longstanding reputation are linked to particular regions in India and Pakistan, which is why it is widely treated as a protected GI internationally.
Yet, the recent APEDA v Krish Commodities Ltd. decision highlights an important lesson: global recognition alone does not create enforceable rights in Kenya. Without domestic registration, even renowned GIs like Basmati face significant hurdles in securing legal protection within our jurisdiction.
From the Registrar to the Court of Appeal: How the Dispute Unfolded
The dispute began in 2009, when Krish Commodities Ltd. sought to register six composite trademarks for its rice products, among them Wali Basmati Rice and Nawab Basmati Rice.
In each application, the company expressly stated that it was not claiming exclusive rights over the words Basmati or Rice, signaling that the marks were intended to be used as whole phrases rather than ownership of the name itself.
APEDA challenged these applications, arguing that Basmati is a recognized Geographical Indication for rice grown in specific regions of India and Pakistan. Allowing the marks, they argued, would weaken the integrity of the GI and potentially mislead Kenyan consumers about the true origin and qualities of the rice.
The Registrar disagreed and dismissed the opposition. The High Court in 2017 affirmed the decision, and APEDA appealed to the Court of Appeal. The appellate court upheld all previous decisions and ruled against APEDA.
Why APEDA Lost: The Court’s Key Reasoning
The Court of Appeal’s reasoning was straightforward-
- Basmati has never been formally recognised or registered in Kenya as a Geographical Indication.
- Kenya does not automatically enforce foreign GIs simply because they are recognised internationally.
- TRIPS obligations exist at the international level but cannot be enforced domestically without local legislation.
- Krish’s marks were composite and included disclaimers, meaning the company was not trying to monopolise the word Basmati.
- No evidence was presented to show Kenyan consumers were misled or confused.
The Legal Landscape: TRIPS, Domestic Law, and Certification Marks
Kenya is a World Trade Organization (“WTO”) member and bound by the Trade Related Aspects of Intellectual Property (“TRIPS”) Agreement, which sets minimum standards for protecting GIs. However, TRIPS protections only apply locally if implemented through national law.
Currently, Kenya does not have a standalone GI statute. Instead, GIs must be protected under the Trade marks Act, particularly Section 40 & 40A, which allows geographical names to be registered as certification marks or collective marks.
A certification mark acts as an official seal confirming that a product originates from a designated area and meets set standards. This is the proper route for GI protection in Kenya. APEDA did not register Basmati as a certification mark, meaning it lacked enforceable rights within Kenya’s borders.
This case confirms that international reputation is not enough. Without domestic anchoring, GI rights cannot be enforced in Kenya.
Written by: George Laichena | IP Lead