UNIVERSITY OF NAIROBI

UNIVERSITY EXAMINATIONS 2019/2020

THIRD YEAR EXAMINATIONS FOR THE DEGREE OF BACHELOR OF LAWS
GPR: 325 LAW SCIENCE AND TECHNOLOGY

DATE: AUGUST 17, 2020 TIME: 24 HOURS

INSTRUCTIONS:

1. This exam must be submitted within twenty-four hours.

2. This paper contains four questions.
3. Candidates must answer THREE questions.
4. Question 1 is compulsory and carries 30 Marks. The other two questions candidates must
answer carry 20 marks each.
5. Answers must be supported by statutes, case law and any other relevant legal authorities.
6. Be brief and succinct in your answers.
7. Indicate the question being answered before all your answers.
QUESTION 1

Quattro Agrobiotech is a US based multinational in the agricultural sector. The company’s

business is organized in three main divisions, namely:

(i) Seed & Traits Division;

(ii) Crop Protection Division; and
(iii)Software and Digital Services Division.

The Seeds & Traits Division’s main business is development of varieties of seeds that have
varying traits that can offer highest qualities of yields possible under different climatic
conditions, notwithstanding weather variabilities, pests and diseases. Scientists employed at
this Division are using classical genetic modification techniques such as transfection and
transformation, but also latest gene editing techniques such as CRISPR and cisgenesis in the
discovery process. At the same time, they are also employing high-end gene editing tools
such as mutagenesis which are not per se genetic modification but considered by some
scientists to be advanced plant breeding methods.

The company’s Crop Protection Division is involved in developing pesticides and herbicides
and other chemicals to protect crops against pests and diseases. The Crop Protection Division
recently diversified to biological control, an integrated pest management strategy which
involves deployment of a pest’s natural predator. One of the company’s crop protection
products is Real Californicus which contains a predatory mite, Amblyseius Californicus for
the management of spider mites. Spider mites are very destructive pests in both greenhouses
and open fields cultivation environments.

The Software and Digital Services Division is the latest addition to Quattro’s agrobusiness
line. This division is using Internet of Things (IoT), data science and Artificial Intelligence to
develop software and other tools to promote precision agriculture. Using these tools, they
have developed a product ably named m-Kulima that integrates crop variety traits, satellite
imagery, farm soil moisture and texture, day light measurement, temperature, and other micro
climate inputs to predict crop maturity rates, future disease and pests incidences and
ultimately, expected crop yields every planting season. In fact, using m-Kulima modelling
software, a farmer from his kitchen table can predict with reasonable degree of certainty,
expected yields for every variety purchased from the bouquet of seeds available from Qauttro
Agrobiotech. M-Kulima is therefore a very versatile and potentially revolutionary product
which if put in the hands of many farmers can ease decision making at many different levels
in crop production process up to the market.

In February 2020, the US Trade Representative (USTR) announced that the US and Kenya
are launching negotiations for a free trade agreement. Market access for goods and services in
the agricultural sector is one of the issues under negotiation. Quattro Agrobiotech wishes to
seize this opportunity to enter into the Kenyan market. They see market opportunities for
their goods and services, given that Kenya is also a production hub for a myriad of
greenhouse and open field crops, from cut flowers, fruits to vegetables, for export not only to
the US but other markets such as the EU. The window for interested parties to make
presentations to the USTR is due to close on 30th August 2020. In order for Quattro
Agrobiotech to prepare its presentation to the USTR, they would like to receive advice on the
state of play on some aspects of Kenyan laws which in their view are very critical to their
business.

Having heard of your legal prowess in their line of business, Quattro Agrobiotech have
approached you on the following matters:

(a) They would like to know whether data collected in an individual’s farm concerning
farm soil moisture and texture, rainfall patterns, temperature and crop yields is
 personal property or personal data and the extent to which Article 31 of the
Constitution of Kenya and the Data Protection Act, 2019 apply to such data. This is
important for m-Kulima to be offered in the Kenyan market, it is necessary for this
product to be fine-tuned using such data.
(10 MARKS)
(B) Three years ago, Real Californicus was released in Colombia. However, it appeared
that not only was the predatory mite Amblyseius Californicus contained in Real
Californicus effective against the spider mite but also its secretions led to the
withering of leaves for some coffee varieties leading to stunted berry yields.
Obviously, while Real Californicus may prove successful for some farmers, it may
also cause untoward harm to the Kenyan coffee farming community. The company
has therefore formed the opinion that a trial for Real Californicus is necessary prior
to the product being offered in the Kenyan market. What statutory procedures are they
likelytoencounterinundertakingthetrial?
(10 MARKS)

(c) Quattro Agrobiotech understands that Kenya’s biosafety law is very stringent such
that it might be very difficult for their genetically modified (GM) seeds, and hybrid
seeds developed by mutagenesis, to enter the market. In fact, they think that should
any liability claims ever be launched against them in relation to their GM seeds and
hybrid seeds developed by mutagenesis under the current legislation, Kenyan courts
will find the US court decision in Dewayne Johnson v. Monsanto Co CGC-16-
550128, California Superior Court, County of San Francisco (San Francisco)
and the European Court of Justice in Case C528/16 very persuasive. Short of being
advised to the contrary, they are considering putting forward a proposal to the USTR
for Kenya’s biosafety law to be relaxed with a view to easing market access for their
seeds. Advice on whether they should pursue the proposal for negotiations towards
relaxation of Kenya’s biosafety law.
(10 MARKS)
QUESTION 2

One medical device that is proving very critical in the care of hospitalized Covid-19 patients
is a ventilator. Prior to the onset of the Covid-19 pandemic, ventilator manufacturing was the
preserve of the very few medical devices companies based in the western world. However,
the Covid-19 pandemic has led many individuals, companies, countries and institutions to
harness resources, skills and knowledge internally in the manufacturing of ventilators rather
than lie in wait for devices supply from traditional manufacturers. In Kenya, at least two
prototype ventilators have been produced since March 2020: one by a consortium involving
Kenyatta University, and another by a local motor vehicle manufacturer, Mobius. The speed
at which Kenyan academic institutions and industry have responded in assembling skills and
resources to produce a ventilator indicates that the country possesses immense potential in
manufacturing many technology products that are otherwise imported. A government
bureaucrat was recently heard to say that “The legislative environment has a critical role to
play in enabling this innovative environment to thrive.”

Discuss the legislative framework for innovation in Kenya and the extent to which it
facilitates or stifles innovations and inventions such as those highlighted above. (20 MARKS)
QUESTION 3

There is a general corpus of international law that falls in the realm of law, science and
technology. To what extent has Kenya domesticated this general corpus of international law?
Do you think that the processes of domestication of conventions that fall in the realm of law,
science and technology give due regard to Kenya’s local circumstances? (20 MARKS)
QUESTION 4

Professor Akili Mingi is a well-known and controversial geneticist working for a private
research laboratory in Kabete, Nairobi. He has crossed swords severally with the Government
of Kenya for the kind of research he undertakes in the field of genetics. Prof. Akili Mingi was
invited to the Annual Forbidding Science Conference in Helsinki, Finland to present the
results of a controversial paper he wrote arising from research he undertook with successful
and clinical results. Upon his return to Kenya from the conference, he was arrested at the
JKIA and charged with criminal offences revolving around endangering the lives and health
of the persons who took part in the clinical tests.

The Kenya Association of Professional Scientists questions the utility of prosecuting Prof.
AKili Mingi, and claims that the invocation of the criminal justice process in the
circumstances of the case can only stifle research and innovation. Consequently, the
Association has approached you to prepare a detailed opinion on the interplay between law,
science and technology that would persuade the Director of Public Prosecutions to reconsider
the decision to prosecute Prof. Akili Mingi. Kindly provide the required opinion.
(20 MARKS)