The High Court has temporarily suspended the Treasury’s directive requiring all public entities and county governments to exclusively use the electronic Government Procurement System (e-GP system).
The order comes after the Council of Governors (CoG) and four other petitioners challenged Treasury Cabinet Secretary John Mbadi’s decision, arguing that the move was rushed, unconstitutional, and lacked public participation.
Justice Bahati Mwamuye issued conservatory orders suspending the mandatory roll-out of the system pending the determination of the case. The judge directed that the matter be heard on October 14, 2025.
“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 ruled.
Counties Say Rollout Was Sudden and Unconstitutional
The CoG, joined by Issa Elanyi Chamao, Patrick Karani Ekirapa, Paul Kirui, and International Legal Consultancy Ltd, described Mr. Mbadi’s directive as sudden and impulsive. They argued that the order lacked a legal, policy, or regulatory framework to support the new platform.
The petitioners asked the court to suspend the decision for 18 months to allow the government to:
- Develop a regulatory framework to anchor the e-GP system.
- Hold consultations with county governments.
- Conduct meaningful public participation.
- Roll out the system in phases rather than impose it abruptly.
They further argued that the platform violated Article 227(2) of the Constitution since it did not provide for preference-based procurement in awarding contracts.
Concerns on Counties’ Autonomy and Public Participation
The petition also raised concerns that the system failed to protect or advance groups historically disadvantaged by discrimination or unfair competition.
According to the petitioners, imposing the e-GP system on both levels of government ignored the autonomy of counties as enshrined in Article 6(2) of the Constitution.
Lawyer Peter Wanyama, representing the petitioners, told the court that procurement at the devolved level should not be overly centralized:
“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,” he said.
Wanyama added that the system should foster greater competition by creating space for small, medium, and micro enterprises, while upholding quality and standards.
Counties’ Budgets Stalled
The petitioners revealed that none of the 47 county governments has operationalized their 2025/2026 budgets for procurable items because the IFMIS system remains inaccessible unless counties are fully integrated into the e-GP platform.
In response, the court directed the Treasury and the Public Procurement Regulatory Authority to accept both manual and electronic tender submissions. It further ruled that both forms of applications must be processed equally, provided they meet the requirements set out in the Public Procurement and Asset Disposal Act.
What Next
The suspension of the Treasury’s order offers temporary relief to county governments and procurement stakeholders, who say they were caught off guard by the sudden shift.
The October 14 hearing will determine whether the government can proceed with the mandatory e-GP rollout or whether it must redesign its approach to align with constitutional principles of public participation, devolution, and inclusivity.
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