The Kenyan High Court has dealt a major blow to the government’s ambitious plan to digitize all public procurement, temporarily suspending the mandatory use of the new Electronic Government Procurement (eGP) system across all state agencies and county governments.
Justice Bahati Mwamuye issued the conservatory orders today, effectively halting enforcement of a Treasury circular that would have forced all public entities to exclusively use the digital platform for their procurement needs.
The suspension will remain in effect until October 15, 2025, unless the court decides to extend or modify the orders.
This ruling came after the Council of Governors, alongside four other petitioners including International Legal Consultancy Ltd., challenged Treasury Cabinet Secretary John Mbadi’s directive in court.
They argued that the government had rushed the implementation without proper consultation or legal framework.
Back to Paper and Digital Options
Under the court’s orders, public procurement entities are no longer compelled to use only the digital system. Instead, they must comply with existing law that allows tender submissions in both electronic and manual formats.
The National Treasury and Public Procurement Regulatory Authority must now accept and process both types of submissions equally, provided they meet legal requirements.
This decision essentially returns the procurement process to its previous state, where organizations could choose between digital and paper-based submissions rather than being forced onto a single platform.
A Three-Way Battle
The suspension shows the bitter standoff between President William Ruto, Treasury CS John Mbadi, and county governors over the digital procurement rollout.
President Ruto had taken a hardline stance, warning officials resistant to reforms like the electronic procurement system that it would not be business as usual.
He accused unnamed officers of sponsoring negative media coverage to discredit the platform, telling reluctant officials to find other jobs if they weren’t willing to cooperate.
However, county governors pushed back forcefully. At a September 1 press conference, the Council of Governors accused the Treasury of sidelining counties in the rollout despite their critical role in public procurement.
They dismissed claims that they were deliberately blocking reforms and instead pointed to persistent problems with the existing Integrated Financial Management Information System (IFMIS), warning that similar issues could plague the new digital system.
Constitutional Concerns
The petitioners raised several constitutional issues with the mandatory implementation. They argued that the government failed to conduct meaningful public participation as required by the Constitution and implemented the system without proper consultation with county governments.
Meanwhile, the Council of Governors contended that the system violates constitutional provisions for procurement preferences and doesn’t adequately protect previously disadvantaged groups.
They also argued that the centralized approach undermines county government autonomy as guaranteed in the Constitution.
Lawyer Peter Wanyama, representing the petitioners, pointed out that over 4,000 health centers across the country, many in rural areas with poor connectivity, would struggle to procure essential supplies through the digital system. The connectivity challenges could have serious implications for primary healthcare delivery.
The petitioners want an 18-month suspension to allow for proper remedial measures, including developing a detailed regulatory framework, conducting genuine public participation, and implementing the system in phases rather than all at once.
They argued that the current approach doesn’t accommodate the transitional challenges facing different government entities. The petition noted that all 47 county governments have been unable to put into use their 2025/2026 budgets for procurement because the old IFMIS system has become inaccessible unless they join the new digital platform.
The matter is set for hearing on October 14, where the court will determine whether to extend the suspension or allow the government to proceed with its digital procurement mandate.
