A consortium of three companies has asked the High Court to dismiss a petition challenging the procurement of the Sh104.8 billion Integrated Healthcare Information Technology System (IHTS), arguing that the case is founded on illegally obtained documents.
The consortium—comprising Safaricom, Konvergenz Network Ltd and Apiero Ltd—said Busia Senator Okiya Omtatah and his co-petitioners failed to disclose the source of confidential documents relied upon in the petition, thereby infringing on the companies’ right to privacy.
The illegal evidence argument
Mr Omtatah told the court that he received the documents, which include details of the consortium agreement and audited accounts of Konvergenz Network Ltd, from a whistleblower.
However, the consortium argued that even if the documents were obtained from a whistleblower, Mr Omtatah should have sought them through formal channels.
Konvergenz Network Ltd submitted that although Article 35(1) of the constitution guarantees the right to access information, the right is not absolute and may be limited where such limitation is reasonable and justifiable.
“It cannot, therefore, be permissible for a petitioner to, on the one hand, approach this court ostensibly to defend the Constitution and, on the other hand, impede the administration of justice by relying on illegally obtained evidence,” the firm said.
Through lawyer Issa Mansur, the consortium argued that the entire petition is irredeemably tainted and incapable of being salvaged.
Auditor-General’s "expired" report
The court also heard that the petitioners cannot rely on the Auditor-General’s report for the 2023/2024 financial year to support claims that the procurement process was fraudulent.
According to the consortium, the report was prepared outside the constitutional timelines, noting that Article 229 of the Constitution requires the Auditor-General to submit audit reports within six months after the end of a financial year—by December 31, 2024, in this case.
“In the circumstances, the report of the Auditor-General is a nullity to the extent that it was prepared outside the limitation period and is therefore inadmissible before this honourable court,” the court was told.
The consortium defended the project, saying the Ministry of Health sought to establish a digital health “superhighway” to integrate key players in the health ecosystem as part of government healthcare reforms aimed at achieving universal health coverage.
The platform, the consortium said, will link national core digital health services with healthcare providers at both national and county levels, as well as the Social Health Authority (SHA), the Kenya Medical Supplies Authority (Kemsa), the Pharmacy and Poisons Board, and the Kenya Medical Practitioners and Dentists Council, ensuring interoperability across services.
Safaricom said the consortium was not single-handedly selected, as alleged by the petitioners. Instead, the Ministry of Health conducted a study to identify a suitable partner and settled on the consortium due to its extensive ICT infrastructure capable of providing connectivity to more than two-thirds of the country.
Mr Omtatah, together with Eliud Matindi and Magare Gikenyi are seeking to have the procurement process quashed, arguing that the consortium is masquerading as an investor while, in reality, supplying basic software and securing billions of shillings from taxpayers over a 12-year period.
The petitioners further argue that the consortium was handpicked without a fair, transparent or competitive bidding process, in blatant violation of the Public Procurement and Asset Disposal Act and the Public Private Partnerships Act.
They also claim that despite the colossal sums involved, the government failed to comply with legal requirements governing public tenders.
“In addition to being illegal, Kenyans will derive no value for the billions being paid to the Safaricom Consortium. The system remains the property of the vendors, and the government gains no ownership,” Mr Omtatah submitted.
He warned that this would leave the country’s critical healthcare data in the hands of a private entity, without delivering any long-term public investment benefits.
The petitioners have also raised concerns that regulations meant to operationalise the digital health framework could infringe on the right to privacy by centralising sensitive medical data without adequate legal safeguards, consent mechanisms or oversight.
They want the court to quash both the contract and the subsidiary legislation being used to implement the Social Health Insurance Fund (SHIF).
