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Win for governors as court suspends CS Mbadi’s e-procurement directive
Cabinet Secretary for the National Treasury and Economic Planning John Mbadi .
The High Court has suspended the mandatory use of electronic procurement by all public procurement entities and county governments, as ordered by Treasury CS John Mbadi.
Justice Bahati Mwamuye suspended the mandatory use of the electronic Government Procurement System (e-GP system) by all public procurement entities, pending the determination of a petition by the Council of Governors and four others.
The petitioners further said there was no meaningful and qualitative public participation as required by Article 10 of the Constitution and the decision was made without consulting the county governments as required by Article 6(2) and Article 189 of the Constitution.
The CoG argued that although the e-procurement was timely idea, its implementation should be done in compliance with the constitution and the system should not be hurriedly developed and quickly implemented.
“A conservatory order be and is hereby issued staying the decision of the Cabinet Secretary, National Treasury and Economic Planning and the Public Procurement Regulatory Authority’s Circular No E04/2025 which required the mandatory use of the Electronic Government Procurement System [e-GPS] by all public procurement entities,” the court said.
The judge directed the case to be heard on October 14.
CoG, alongside Issa Elanyi Chamao, Patrick Karani Ekirapa, Paul Kirui and International Legal Consultancy Ltd, termed Mr Mbadi’s decision as sudden and impulsive, arguing that there was no legal, regulatory or policy framework that anchors the e-GP system.
They want the court to suspend the decision for 18 months to allow for remedial measures to be undertaken.
The measures, according to the petitioners include a regulatory framework to support the platform, to allow for consultation with county governments, for public participation to be conducted and to allow for phased out implementation.
It is their argument that the e-GP System violates article 227(2) of the constitution because it does not allow for procurement through categories of preference in the allocation of contracts.
Further, the petition stated that the system does not contain modules for the protection or advancement of persons, categories of persons or groups previously disadvantaged by unfair competition or discrimination.
They said the mandatory implementation of the e-GP system at both levels of government had not considered the autonomy and distinctiveness of the county governments as provided for under article 6(2) of the constitution.
“Because significant public funds are channeled in the counties and the objectives of devolution in article 154 of the constitution, there is need for the e-procurement at the devolved level not to be overly centralized,” lawyer Peter Wanyama said.
The lawyer said the system should allow for greater competition in the public procurement process through creation of an enabling environment for small, medium and micro enterprises while retaining quality and standards.
Mr Wanyama said section 7(2)(c) of the Public Procurement and Assets Disposal Act (PPDA Act) requires the Treasury to develop regulations for a system which operates, respects and promotes the distinctiveness of the national and county levels of government.
He further said there was need for a substantive regulations on e-procurement and the regulations should, among others, provide for the use of traditional methods of procurement (open tendering), alternative methods (such as restricted tendering and use of framework contracts) and emerging methods (such as competitive dialogue), all through an e-procurement platform.
“At the base, the implementation of the e-GP System should have been done in phases. Each phase should be preceded by adequate training and public participation,” he said.
The petitioners pointed out that a phased implementation will accommodate the hugely apparent transitional challenges.
Mr Wanyama there are more than 4,000 health centres in the country, which provide primary health care and majority of them are situated in rural areas where there is little or no connectivity at all.
Yet, he added, the health centres are now required to procure essential supplies through the e-GP system.
“Because of eccentric connectivity, challenges they face, they are unable to procure essential supplies. This has far reaching implications on the provisions of primary healthcare to Kenyans at the lower level.
The petition added that all the 47 county government are yet to operationalise their 2025/2026 budgets on any procurable items as the Ifmis system is inaccessible unless they are on-boarded in the e-GP system.
The court directed the Treasury and the procurement authority to accept both electronic and manual submissions of tender documents and to process the same equally, irrespective of their form of submission and provided that they meet the criteria set out in the Act.
