Traditional knowledge and cultural expressions in Kenya: a study on why they need an IPR regime to be protected

Abstract

One of the most important aspects of a people's cultural and intellectual history is their traditional wisdom. It is a reflection of their historical and social distinctiveness, and it makes a significant contribution to the well-being of those people in their latter years, which ultimately leads to their environmentally sustainable development. On the other hand, the protection of traditional knowledge through intellectual property law has not yet been recognised in its entirety, and there is still a requirement for the establishment of a legislation that would safeguard it. In order to accomplish this objective, there is a widespread agreement that a regime that is unique to itself ought to be established, with the customary rules being regarded as being of important importance in the protection. This dissertation demonstrates that the proposed legislative intent to protect traditional knowledge via customary law in Kenya has not yet yielded results. The ongoing inclusive subordinations of the latter will influence any deliberate efforts to safeguard the former. This conclusion has been drawn after a comprehensive analysis of the current implementation of African customary law within the existing personal law frameworks that recognise it as the foundational legal system. This foundation represents one of the various nuanced subordinations, with such nuance remaining ingrained within the Kenyan legal framework regarding traditional knowledge. The negative consequences of this situation, as observed in personal law regimes, are likely to persist unless modifications are adopted.