The Coffee Act (No. 8 of 2026) is a major reform of coffee regulation in Kenya. It took effect on 27 March 2026 after a passage through Parliament that began in 2023. Reading the published text closely, we have found several drafting problems that matter in practice: cross-references that point to the wrong provision, a transitional clause that names the wrong regulator, conflicting provisions on who licenses commercial millers, and key terms left undefined. None of them makes the Act unworkable, but each creates risk for licence holders and applicants until it is fixed. This article sets them out and suggests how to manage each one.
1. The transitional clause names the wrong regulator
Section 104 preserves directions, orders, authorisations, licences, permits and registrations made by the Agriculture and Food Authority in relation to coffee that were valid immediately before the Act came into force. It does so by deeming them to have been given, issued or made “by the Authority” under the Act. Section 2, however, defines “Authority” as the Capital Markets Authority, not the Coffee Board of Kenya.
Read literally, AFA’s coffee licences are deemed to be Capital Markets Authority licences, which makes no sense for a buyer’s or warehouse licence. The intention to carry them across to the Board is clear from section 100, which transfers AFA’s coffee rights and obligations to the Board, and section 103, which reads references to AFA as references to the Board. A court would very likely read section 104 purposively. Licence holders should nonetheless keep their original AFA licences and any gazettement records, and raise the point with the Board if a licence carried over from AFA is ever questioned.
2. Two authorities for commercial millers
The Second Schedule lists the commercial coffee miller’s licence as a licence issued by the Board. Section 25(1)(e) provides that a person shall not operate a commercial coffee miller unless they have obtained a licence from the county government where the operation is undertaken, and section 27 requires commercial millers to register with that county. On a literal reading, a commercial miller needs both licences. Until the point is clarified, millers should apply to both authorities and record what each says it requires. Our map of who issues each coffee licence sets out the full allocation.
3. The integration rules have misaligned cross-references
Section 28(5) bars a coffee buyer and its associated entities from carrying on business as a commercial miller, broker, roaster, agent or warehouse operator, and section 28(7) bars a commercial miller from acting as a buyer, broker, roaster or agent. Section 28(8) then stops a licensing authority from issuing a licence that would contravene subsections (6) or (7), but does not mention subsection (5). Section 28(9) creates an offence for contravening subsection (1), the duty to apply for a licence, rather than subsections (5) and (7). The probable intention was to back the integration rules with a criminal sanction, but the text does not clearly do so. In practice the rules will be enforced at the licensing stage and through cancellation under section 36, so they should be treated as binding. Our article on the Coffee Act’s limits on vertical integration discusses structuring around them.
4. Key terms are not defined
Two terms that carry real weight are not defined in section 2.
“Associated” entity. The integration rules in section 28 depend on whether two businesses are associated, but the Act does not say what association means. Common shareholding, shared directors, group membership and long-term contracts could all be argued either way.
“International exchange”. Section 72 permits sale through an international exchange and section 78 sets the contract rules, but the Act does not say what counts as one or who decides. The Cabinet Secretary must prescribe regulations on such sales under section 78(4).
5. Pending applications are not addressed
The transitional provisions cover existing licences, rights, obligations, contracts, legal proceedings and staff, but not applications lodged with AFA and still undecided on 27 March 2026. Section 100 arguably transfers AFA’s obligation to decide them to the Board, but the Board could equally require a fresh application under section 28. Our note on pending AFA coffee licence applications explains the practical steps an applicant in that position should take.
How the gaps are likely to be fixed
Most of these problems can be resolved in two ways. The Cabinet Secretary has a broad power under section 99 to make regulations, including on forms, application processes, the conditions for issuing licences and the regulation of trading, which could define “associated” and “international exchange” and set out how pending applications are handled. The cross-reference errors in sections 28 and 104 and the miller conflict between section 25 and the Second Schedule need amendments to the Act itself, which in Kenya are commonly made through a Statute Law (Miscellaneous Amendments) Bill. Industry bodies and licence holders with a stake in the outcome can raise these points with the Board, the Ministry and Parliament’s agriculture committees, and through public participation when regulations are published for comment.
Until then, the safe approach is to read the Act purposively, comply with the stricter of any two competing requirements, and get the licensing authority’s position in writing before relying on an interpretation.
How We Can Help
Clay & Associates Advocates advises coffee businesses, investors and industry bodies on the Coffee Act, including licensing strategy around these gaps and submissions on draft regulations. See our legal guide to coffee processing and export in Kenya, and contact our Regulatory & Compliance team to discuss how the Act affects you.
Sources: Coffee Act (No. 8 of 2026), Kenya Law, sections 2, 25, 27, 28, 36, 72, 78, 99, 100, 103, 104 and Second Schedule.
Frequently asked questions
Are AFA coffee licences still valid under the Coffee Act?
Yes. Section 104 preserves AFA coffee licences that were valid before 27 March 2026, although it deems them issued by “the Authority”, which the Act defines as the Capital Markets Authority. The intention to transfer them to the Coffee Board is clear from sections 100 and 103.
Who licenses commercial coffee millers under the new Act?
The Act points both ways: the Second Schedule names the Board, and section 25(1)(e) names the county government. Apply to both until the conflict is resolved.
Is breaching the buyer and miller integration rules a criminal offence?
The penalty in section 28(9) is drafted to apply to subsection (1), not to the integration rules in subsections (5) and (7). Breach can still lead to refusal or cancellation of a licence.
How will these drafting problems be fixed?
Through regulations under section 99 for undefined terms and procedures, and through amendments to the Act for the cross-reference and conflict problems.
Need advice on your own matter?
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This article is general information on Kenyan law as at its publication date, not legal advice. Reading it does not create an advocate and client relationship.
