Access and Benefit Sharing Under the Nagoya Protocol: A Guide for Bioprospecting and Natural-Compound Sourcing in Kenya

Kenya ratified the Nagoya Protocol on access to genetic resources in 2014, and the domestic rules implementing it have been rewritten twice in the past two years. A company sourcing plant material, microbial strains, or traditional knowledge in Kenya for research or product development needs to know both the underlying access and benefit sharing mechanism and which regulation currently governs it, since the framework has moved faster than most published commentary reflects.

Kenya’s Nagoya Protocol Status Is Settled, the Domestic Rules Are Not

Kenya signed the Nagoya Protocol on 1 February 2012 and ratified it on 7 April 2014, per the Convention on Biological Diversity’s own official list of parties. That part of the picture is stable. What has changed is the domestic regulation that implements the Protocol day to day. The long-standing instrument was the Environmental Management and Co-ordination Regulations of 2006, made under the parent Environmental Management and Co-ordination Act, with the National Environment Management Authority, NEMA, as the competent national authority. Those 2006 Regulations are still widely cited in secondary commentary, but they have been superseded. A draft 2023 revision proposing higher fees and penalties was still ungazetted as of late 2024. Kenya Law’s own gazette index then shows the framework replaced twice in quick succession in 2025: first by Legal Notice 19 of 2025, commenced 7 February 2025, which was itself repealed on 24 March 2025 by Legal Notice 68 of 2025, the currently operative instrument. A company relying on this article should confirm LN 68/2025’s text directly before treating any specific fee or timeline figure as current, since the full text was not reliably accessible during this research and NEMA’s own portal is the fastest way to check.

What the Mechanism Actually Requires

Whatever the exact current fee schedule, the underlying access and benefit sharing mechanism established across the 2006 Regulations and their 2025 successors follows a consistent structure. “Access” covers obtaining, possessing, or using genetic resources for research, bioprospecting, conservation, industrial application, or commercial use. An applicant must demonstrate Prior Informed Consent from the relevant lead government agency and from interested or local persons connected to the resource, such as a community holding traditional knowledge about a plant’s use. Once consent is secured, the parties negotiate Mutually Agreed Terms, embodied in a Material Transfer Agreement between the permit holder and the relevant lead agency or community, and no genetic resource may be transferred out of Kenya without that MTA in place. NEMA has moved permit applications onto a new online portal, live from 28 July 2025, which is confirmed directly on NEMA’s own site regardless of the underlying regulation’s exact current fee figures.

Benefit Sharing Can Be Monetary or Non-Monetary

Under the historical 2006 framework, benefit sharing could take a monetary form, such as access fees, milestone or royalty payments, licence fees, or contributions to a trust fund, or a non-monetary form, such as technology transfer, capacity building, joint intellectual property arrangements, or database access. There is no indication this basic structure has changed under the 2025 regulations, since Kenya’s ABS obligations flow from the same Nagoya Protocol commitment regardless of which domestic instrument implements it in a given year. A company negotiating access to a Kenyan genetic resource should expect benefit sharing to be a genuine negotiation covering both forms, not a fixed statutory fee that substitutes for it.

Penalties Have Moved Upward Across the Successive Frameworks

The 2006 Regulations set a penalty on conviction of imprisonment up to eighteen months or a fine up to KES 350,000, or both. The 2023 draft revision, before it was overtaken by the 2025 instruments, proposed raising this to one to four years imprisonment or a fine of KES 2,000,000 to 4,000,000. Because the exact penalty figures currently in force under LN 68 of 2025 were not independently verifiable at the time of this research, a company should not treat either the 2006 figure or the 2023 draft figure as the current law, but should expect the direction of travel to be upward and confirm the operative figure with NEMA or Kenya Law directly before relying on it in a compliance assessment.

What This Means for a Bioprospecting or Natural-Compound Company

A company sourcing genetic resources in Kenya, whether plant material for a pharmaceutical compound, a microbial strain for industrial application, or traditional knowledge underlying a formulation, should build in three steps before any material moves: securing Prior Informed Consent from both NEMA as the national authority and the relevant community or local interest holder, negotiating Mutually Agreed Terms that specify both monetary and non-monetary benefit sharing, and executing the resulting Material Transfer Agreement before export. Given how recently the domestic regulation has changed, a fresh check of NEMA’s current portal and the gazetted text of LN 68 of 2025 is worth doing immediately before any new application, rather than relying on a fee schedule or timeline drawn from older commentary or the superseded 2006 Regulations.