NAIROBI, Kenya, Mar 25 — The High Court has upheld the procurement of Integrated Healthcare Information Technology System (IHITS) terming procedural deficiencies insufficient to nullify the multi-billion-shilling contract.
In a judgment delivered on Tuesady, Justice Bahati Mwamunye ruled that the Ministry of Health lawfully procured IHITS under a specially permitted procurement framework, even as he flagged gaps in transparency and documentation.
“The procurement process, though procedurally imperfect, does not demonstrate fraud, bad faith, or fundamental illegality,” the judge held, adding that such shortcomings “do not warrant the drastic remedy of nullifying the impugned contract.”
The petitioners had challenged the technical and financial capacity of a Safaricom-led consortium awarded the tender, arguing that the evaluation was flawed and opaque, but the Court declined to second-guess procurement experts, emphasizing institutional limits in judicial review.
“Procurement evaluation involves technical and commercial judgments which courts are generally ill-equipped to undertake and should not interfere with unless clear illegality or irrationality is demonstrated,” the ruling states.
Justice Mwamunye found that the consortium’s bid had been evaluated by a duly constituted committee and supported by evidence of prior projects and partnerships with global technology firms.
He held that “the procuring entity was therefore entitled to evaluate the overall capacity of the consortium collectively rather than assessing each entity in isolation.”
The court also dismissed the petitioners’ allegations of fraud, including claims based on discrepancies between preliminary negotiations and the final contract value, for lack of proof.
“Allegations of fraud must not only be specifically pleaded but must also be strictly proved,” the judge ruled.
Justice Mwamunye asserted that no cogent evidence had been presented to demonstrate dishonesty or bad faith, stressing that “mere suspicion, inference, or disparity in figures cannot suffice.”
Exceptional circumstances
At the heart of the dispute was the Ministry’s use of Section 114A of the Public Procurement and Asset Disposal Act, which allows for specially permitted procurement in exceptional circumstances.
The Court upheld the use of this framework, noting it had been approved by the National Treasury and followed through the requisite stages including issuance of a request for proposals, evaluation, negotiations and contract execution.
However, Justice Mwamunye cautioned that the provision is not a shield against scrutiny, stating that “it is not a license for opacity” and that administrative discretion must be exercised transparently and rationally.
He found that the justification for limiting competition was insufficiently documented and that the level of transparency expected for a project of such magnitude was not fully demonstrated, though these deficiencies did not invalidate the process.
MoH role
On whether MoH had usurped the mandate of the Digital Health Agency (DHA), the Court found that the agency, established under the Digital Health Act, 2023, was not operational at the time of procurement and lacked the resources and capacity to undertake a project of that scale.
“Requiring that only the non-operational DHA could have procured the IHITS would have led to an absurd and unworkable outcome,” the judge observed.
He held that the Ministry acted within its residual facilitative mandate to ensure continuity of healthcare reforms and avoid an operational vacuum.
The Court also dismissed broader challenges to the legal framework underpinning the Social Health Insurance Fund (SHIF), finding that the relevant regulations were valid and had not been annulled by the Senate.
The judge noted that Sections 15(2) and 23(1) of the Statutory Instruments Act are constitutional, and that the establishment of the Primary Healthcare Fund, the Social Health Insurance Fund and the Emergency, Chronic and Critical Illness Fund under the Social Health Insurance Act is consistent with the Constitution.
“The statutory and regulatory architecture establishing the system is constitutionally sound,” Justice Mwamunye ruled.
Govt rebuked
However, the Court delivered a sharp rebuke on the implementation of SHIF, finding that the nationwide rollout on October 1, 2024 was premature and violated constitutional rights.
“Implementing the system on a fixed date, before adequate registration and digital functionality were in place, was unreasonable,” the Court found, detailing how patients were denied essential services including dialysis and cancer treatment in the early days of the transition.
“Socio-economic rights are not abstract or aspirational ‘paper rights’—they demand tangible, real-world protection,” Justice Mwamunye stated, concluding that the rollout violated the right to health and human dignity.
Despite these findings, the Court declined to nullify either the IHITS contract or the SHIF system, citing the risk of destabilizing the health sector and noting that by early 2025 more than 18.7 million Kenyans had already been onboarded.
“To nullify the system… would risk precipitating a profound disruption in the health sector,” the judge warned, opting instead for a structural interdict requiring corrective action.
Justice Mwamunye directed the Ministry of Health and other respondents to ensure that no person is denied emergency or life-saving treatment.
He also ordered the implementation of fair means-testing mechanisms for non-salaried Kenyans, strengthened transparency and accountability in the IHITS procurement and implementation process, and establishment of a clear and publicly accessible mechanisms for lodging and resolving complaints.
The respondents must file a comprehensive compliance plan within 90 days and thereafter submit quarterly progress reports for one year to demonstrate implementation and safeguard the progressive realization of the right to health.
Justice Mwamunye underscored the Court’s attempt to balance constitutional fidelity with practical realities.
“Universal Health Coverage cannot merely be proclaimed; it must be delivered in a manner that respects the dignity, health, and trust of the people,” he noted.
