Court suspends Treasury's e-procurement system use order

The High Court in Nairobi on Monday handed counties and all government agencies a reprieve after suspending the Treasury Cabinet Secretary John Mbadi’s decision requiring them to use the Electronic Government Procurement System (e-GPS).

President William Ruto had directed that all public procurement entities should now shift to the unified system.

However, Justice Andrew Mwamuye directed that they can continue using the existing systems, including manual tendering, until the case filed by Peter Kirui, Legal Consultancy Group Ltd,  Patrick Ekirapa and Council of Governors is heard and determined.

“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 by all public procurement entities,” ruled Justice Mwamuye.

He, however, gave a caveat that the orders would lapse on October 15, 2025, unless extended by the court.

 In this case, the five argued that although it was necessary to have public procurement done on a digital platform, the implementation of the same was against the Constitution.

According to their lawyer, Peter Wanyama, the involvement of technology has its disadvantages.

He stated that the assumption was that everyone in the country possessed technological knowledge and access to it is discriminatory towards those who have not been educated or do not own a smartphone or a computer.

He argued that the new system was procured without meaningful public participation and without prior training of the users.

At the same time, Wanyama said that county governments were not consulted before the Treasury started the process.

“There is no legal, regulatory or policy framework that anchors e-GP system Noteworthy, on  August 12, 2025, the Public Procurement and Regulatory Authority issued a Circular No. 04 of 2025 to fill the apparent gaps but pursuant to the provisions of the Statutory Instruments Act, Chapter 2A of the Laws of Kenya, the National Assembly annulled the circular on August 19, 2025 because it violates the Constitution of Kenya, the Public Procurement and Disposals Act, and the entire provisions of the Statutory Instruments Act,” argued Wanyama.

He also said that the new system had not cured the old problem where some of the groups were left out of the government tenders.

He stated that the system should have been done in phases. According to him, national and county governments are being forced to adopt a system they are not sure about.

At the same time, Wanyama argued that some areas have no connectivity to the internet or mobile networks.

“ For example, there are more than 4000 health centres in Kenya. They provide primary health care to Kenyans. Majority of them are situated in rural areas where there is little or no connectivity at all, yet it is mandatory to procure essential supplies through the e-GP system,” he said.

He further argued that the new system has heavily disrupted the procurement process in counties.

According to him, three counties that had been piloted are still unable to use the system. At the same time, he said that the registration of suppliers and creation of users of the system has been centralized, hence, locking out mama mbogas and wanjikus in the grassroots from participating in procurement opportunities.

“All county health facilities have been severely affected since they cannot even procure emergency supplies. The health facilities staff have not also been trained,” argued Wanyama.

In her supporting affidavit, Council of Governors (CoG) Chief Executive Mary Mwiti said all 47 governors had raised their concerns with the Treasury CS but their voices were ignored.

She said that CoG decided to move to court to have their grievances addressed.