RULING
1. This ruling relates to two applications, one is dated the 30th October, 2025 and the other one dated the 10th November, 2025 (herein the 1st and the 2nd applications respectively).
2. The 1st application is brought under Sections 1A,1B, 3, 3A and 63 of the Civil Procedure Act, Order 40 Rules 1, 2, 3, 4 and 51 of the Civil Procedure Rules, Sections 2 ,66 (1) (3b) (4) of the Public Procurement and Asset Disposal Act, 2015; Section 11 (1) (j) of the Ethics and Anti-Corruption Commission Act,2011; Sections 2, 23, 45, 51, 52, 53 & 56C of the Anti -Corruption and Economic Crimes Act and all the enabling provisions of the law.
3. The application is premised on the grounds set out on the body of the same, and it is supported by the annexed affidavit sworn by Juliet Kavala, on the even date. Through the application, the plaintiff/applicant has sought the following Orders;
1) Spent.
2) Pending the hearing and determination of this application, this Honourable Court be pleased to issue an interim order of injunction to restrain the Interested Party herein from paying the 4th Defendant Kshs. 166,295,500.00 being the balance of the contract price in respect of Tender No. 1223215 for the development, installation, testing, training, commissioning and support services of an enterprise resource planning system. (ERP)
3) Pending the hearing and determination of the plaintiff’s suit, this honourable court be pleased to issue an interim order of injunction to restrain the Interested Party herein from paying the 4th Defendant Kshs. 166,295,500.00 being the balance of the contract price in respect Tender No.1223215 for the development, installation, testing, training, commissioning and support services of an enterprise resource planning system (ERP).
4) In the alternative to prayers 2 and 3 above, pending hearing and determination of the plaintiff’s suit, this Honourable court be pleased to issue an interim order of prohibition to prohibit the Interested Party herein from paying he 4th Defendant Kshs.166,295,500.00 being the balance of the contract price in respect of Tender No. 1223215 for the development, installation, testing, training, commissioning and support services of an enterprise resource planning system (ERP)
5) Costs of the application be provided for.
4. The 2nd application is brought under Order 40 Rules 5 and 7 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act. It is premised on the grounds set out on the body of the same, and it is supported by the annexed affidavit sworn by Max Muturi Chege on the 10th November, 2025. Through the application, the applicant has sought the following Orders;
a. Spent.
b. This court be pleased to determine this application on a priority basis owing to the impeding paralysis of the Applicant’s functions.
c. This Honourable Court be pleased to vary and/or set aside its temporary injunctive orders issued on the31st October 2025.
d. Costs be provided for.
5. In the 1st application, the applicant avers that on or about the 30th March,2023, the interested Party advertised an invitation for bids for tender which indicated the closing date for submission of bids as 6th April, 2023, by which date the interested Party had received one bid from the 4th Defendant.
6. The applicants states that one of the mandatory technical requirements set out in the Tender document was the provision of Audited Financial Statements for the last three years (2022, 2021 and 2020) demonstrating: -
i) Three years’ average turnover of 400 million and above
ii) Profitability of at least 100 Million per year
iii) Positive cash flow
iv) Asset base of not less than 500 Million
7. That in its bid for the tender, the 4th defendant provided financial statement for 2022, 2021 and 2020 purportedly audited by the firm of MSM Chris & Associates, and contrary to the representations by the 1st, 2nd and 3rd defendants in the 4th defendant’s bid document, the plaintiff’s investigations established that the 4th defendant’s financial statements for 2022, 2021 and 2020 were never audited by the said firm. That additionally, the 4th defendant provided bank statements for USD bank account number 8069940029 held at NCBA Bank purportedly depicting a positive cash flow, which according to the applicant, were fraudulently and illegally edited to depict a purportedly healthy cash flow and profitability.
8. Further, that in its bid document, the 4th defendant represented that, one, Evah Mukami and Kennedy Gitara are among its employees and provided their purported curriculum vitae but to the contrary, the said Evah Mukami and Kennedy Gitara were not employees of the 4th defendant as alleged.
9. The applicant also averred that the contract agreement between the interested party and the 4th defendant was executed on the 24th April, 2023 and it stipulated the contract sum as Ksh. 230,000,000 with the contract period of 6 months which was to commence not later than 14 days from the date of execution.
10. It was also the applicant’s contention that the award of the tender to the 4th defendant, and the extension of the contract between the interested Party and the 4th defendant was illegal, fraudulent and a conspiracy by the defendants to confer a benefit and/or public funds to the 4th defendant and a breach of fiduciary duty and/or trust on the part of the 5th and 6th defendants.
11. That the 4th defendant has already received a total of Ksh. 63,704,500 being public funds that it fraudulently acquired in respect of the Tender and the applicant is apprehensive that pending the hearing and determination of the suit, the interested party is likely to pay the 4th defendant Ksh.166,295,500 being the balance of the contractual sum, hence, rendering the possibility of recovering the said funds extremely difficult, should its case succeed.
12. The applicant contends that the 4th defendant did not meet the mandatory requirement of the Tender and ought not to have been considered for the award of the said Tender, as the same was fraudulent, illegal, unlawful and therefore null and void.
13. The 4th defendant has opposed the application vide a replying affidavit sworn by Bernard Theuri, who is the 1st defendant and also the Director of the 4th Defendant. He has averred that by dint of an advertisement on 30th March, 2023, in the Daily Nation, for the said tender, it submitted its bid for the open tender and the 4th defendant was the only entity that applied for the said tender.
14. That subsequently, the 4th defendant and the interested Party entered into an agreement dated the 28th April, 2023 as regards the ERP system and in discharge of its obligations under the contract it deployed an ERP System designed to meet and exceed the standards required by the interested party. That the system has enabled the interested party to register a Ksh.3 Billion increase in revenue translating to a 47X return on their investment which means the public has not lost any money with respect to the ERP system and the 4th defendant has not benefited unlawfully from public funds.
15. The 4th defendant avers that all payments have been made for the actual work done, and at present, it has an outstanding invoice of Ksh. 20,938, 056.56 and as it stands now, the 4th defendant has been funding the operations of ERP system out of its pocket which is not sustainable as its resources are finite and as such, the system will shut down anytime if the exparte Orders are not set aside. It has denied that it falsified any documents so as to win the tender for the ERP system from the interested party.
16. The 4th defendant avers that the plaintiff has not established a prima-facie case, in that, the application and the pleadings the plaintiff has filed evinces the plaintiff’s uncertainty as to whether there has been loss of monies by the interested party on account of deployment of the 4th defendant. Further, that contrary to the plaintiff’s portrayal of an alleged fraudulent contract, the 4th defendant has diligently executed the contract, delivering tangible and verifiable value in light of the process of the tender, and owing to the excellent performance of the contract by the 4th defendant, the interested party has reported a KES 3 Billion increase in its own revenue.
17. That additionally, the system has streamlined operations, reducing revenue leakages that previously plagued the interested party prior to the installation of the system and granting of the orders would disrupt and paralyze public service delivery to the people residing within the interested party. Further, that the plaintiff has not demonstrated the prejudice that it will suffer, and which harm cannot be compensated for by award of damages.
18. That the 4th defendant has placed the interested party on notice that it will not accept any liability for any damage or loss occasioned by a shutdown of the system which damage may include a general collapse of the County systems and revenue loss.
19. The 3rd defendant who has been sued as a shareholder of the 4th defendant reiterated and adopted the response filed on behalf of the 4th defendant. She has denied that any funds have been corruptly, fraudulently and illegally acquired in respect of the subject tender and no culpability has been established against the 4th defendant or any of its officials.
20. She avers that although the plaintiff attempted to press charges on the basis of the same allegations set out in this matter, the Director of Public prosecutions took the position that the plaintiff’s investigations had critical evidential gaps.
21. That regarding the allegations touching on the contents of the documents submitted by the 4th defendant as part of its bid during the tender process and the merits of the award, the 3rd defendant contends that there are prescribed avenues through which all such questions can be exhaustively interrogated either as part of the legislated recourse mechanisms, to tender processes or in the context of criminal trials where charges have been preferred and evidence taken. That the application does not disclose any cause of action against any of the Directors or Shareholders of the 4th defendant in a personal capacity.
22. The applicant filed a further affidavit sworn by Everlyne Wachira in response to the defendants replying affidavits. She avers that the basis of the plaintiff’s suit and the application for injunction, is the fact that the contract at the heart of this matter stands on pertinent bid documents which were forged and therefore, if the basis upon which the contract was awarded to the 4th defendant is fraudulent, then the contract and its continued performance is a nullity and goes against public policy in the war on graft. That the 4th defendant did not meet the mandatory requirements of the tender and ought not to have been considered for the award of the said tender.
23. She avers that any threatened shut down of the ERP system as alleged by the interested party and the 4th defendant would be in breach of Article 7.2.4 of the contract dated the 28th April, 2023 which states that “Justifiable delay in payment by the County Government of Kiambu shall not necessitate the developer to suspend/withhold access and/or operation of the ERP’’.
24. That a court order issued by a competent court prohibiting effecting of payments under the impugned contract pending the determination of the suit would constitute a justifiable delay within the meaning of Article 7.2.4 of the contract between the interested party and the 4th defendant. Further, that the interested party and the 4th defendant have not demonstrated, by way of evidence, the existence of a contract between them capable of being enforced by the 4th defendant to shut down the ERP system.
25. She has stated that in line with the common law principle that no one should be allowed to benefit from her own illegal and wrongful acts, all the monies received by the 4th defendant should be forfeited to the state being proceeds of corruption and/or related to corruption. That in Anti- corruption litigation, undertaken by the plaintiff, the criminal and civil processes are parallel with civil recovery proceedings being non conviction based.
26. The applicant reiterates that the bank statements for USD bank account number 8069940029 held at NCBA bank provided in the 4th defendant’s bid documents were fraudulently and illegally edited to depict a purportedly healthy cash flow and profitability and that the 4th defendant’s financial statements for 2022 , 2021 and 2020 were never audited by the firm of MSM Chris & Associates.
27. That the applicant is reasonably apprehensive that if the orders sought are not granted, it shall be impossible to recover the funds the subject of the application from the 4th defendant, should the plaintiff’s suit succeed, thereby rendering the suit an academic exercise.
28. The interested party opposed the application vide a replying affidavit sworn by Max Muturi Chege, the Director, Legal Services in the County Government of Kiambu, on the 11th November, 2025.
29. He avers that sometime in 2022 following the conclusion of the 2022 General Elections, the interested Party, led by the Governor set out on a mission to improve the then prevailing structures within the County including, but not limited to healthcare, education and critically; revenue collection in the County. That from the onset, it was clear that the interested Party’s revenue system was seriously lacking in efficiency and transparency, an issue that is a matter of public record as captured in numerous reports by the Office of the Auditor General.
30. That desirous of altering the said status quo, on the 30th March, 2023, the interested Party advertised a National Tender Number 1223215 for the supply, Delivery, Installation, Testing, Training, Commissioning & Support Services of an Enterprise resource Planning (ERP) for the County Government of Kiambu and received one bid as at the closing date of 6th April, 2023.
31. The interested party states that a letter of award of the tender was issued on the 21st April, 2023 to the 4th defendant, and on the 28th April, 2023, the interested Party entered into a contract Agreement with the 4th respondent particularly for the development of an ERP system which included installation of all modules which were to be Geographic Information System (GIS) based.
32. That the ERP system was to be developed with the following listed modules as per the system specifications;
a) Revenue management and reporting
b) Hospital Management Information
c) Human resources Management
d) Fleet management
e) Land Management.
f) Case management module
g) Electronic Records management module
33. The award of tender included delivery of hardware components to support the ERP system which included Point of Sale (POS) Machines for revenue collection, servers to host the ERP System, UPS power back up machines, data centre air conditioning machines, CCTV sets, main servers, small servers, sinology servers, data centre firewalls, to which, the 4th defendant has since delivered the hardware component.
34. The interested party avers that the payment under the contract is milestone based meaning that any payment made by the interested party to the 4th defendant is tied to Actual work done and that explains why despite the contract being for a total of Ksh. 230 Million, only Ks. 63 Million has been paid out. That the ERP system is functional and continues to be used across all county Government’s Departments, enabling the collection of significant revenue for Kiambu County, and any decision whose effect is to interrupt the running of the ERP system must then be carefully arrived at, considering the Public harm sought to be prevented by the issuance of such injunctive orders compared to the public harm as a result of the issuance of the orders.
35. That the ERP system has generated numerous benefits, chief amongst them the creation of an efficient and synchronized administrative structure in the interested party and a massive increment in revenue collection which has increased by more than Ksh. 3 Billion in just two years of the system as the system has sealed loopholes that enabled revenue leakage.
36. The interested party contends that the system itself has not been impugned and as such, the court cannot grant an injunction whose effect is to stop the running and development of the system, as to do so would be to issue an open ended injunction which instead of addressing the sole grievance of forged documents it would invite consequences such as stopping the development of a system that is not under challenge. That it would prevent the public from having a system that the public not only needed, but is actually reaping the benefits, and it would be self-defeating and contrary to the Public interest.
37. That contrary to the applicant’s assertion that the public has lost and will loose money, there cannot arise a loss where there is a benefit which, if quantified, far exceeds the quantum of the alleged loss of Ksh.63 Million and the same interested party has as a result of the system increased its revenue collection by Ksh 3 Billion.
38. The interested party further avers that the system is still ongoing and an interruption at the present moment means that the remaining modules will not be completed, leading to an incomplete system that covers certain functions and others which have no way of being on boarded, at least not at this point.
39. That as a result of the initial temporary injunction issued by this court, the 4th respondent communicated that it shall not continue with the development of the system because they will not be paid for the work done and in their view, under the contract, execution of the works is contingent of a promise to pay at the completion of the works. Further, that an interruption in the running of the system will lead to services offered by the interested party including healthcare, waste management, disaster management and ECDE programmes grinding to a halt as no other system supports the said functions, and the interested party cannot revert to the old system as it no longer exists.
40. The interested party contends that the claims by the applicant are majorly anchored on the fact that the 4th respondent uttered false documents or forged documents used to bid for the tender. That the same are criminal in nature and indeed, decisive pronouncement cannot be made by this court until the said criminal-centric claims have been prosecuted and which prosecution will not be by this court sitting as a civil court over the matter.
41. Further, that this court cannot thus procedurally issue an injunction where the demonstration of a prima facie case is anchored on claims that are purely criminal in nature when this court lacks the subject matter jurisdiction to pronounce itself on criminal matters when the matter before it has been filed as a civil suit. The court has been asked to strike a balance between the public interest asserted by the applicant and the one asserted by the interested party and in so doing, the court is urged to adopt proportionate and pragmatic approach balancing accountability and public service continuity.
42. In his replying affidavit, the 5th defendant, who is the head of Supply Chain Management at the interested party avers that on the 30th March, 2023, the interested party advertised an invitation for bids for tender number 1223215 for the development, installation, testing, training, commissioning and support services of Enterprise Resource Planning System (ERP). That the standard tender documents for procurement contained all that was required of the bidders and the tender evaluation criteria.
43. That the bids were procedurally and lawfully opened and evaluated by the ad-hoc tender opening committees and he reviewed the tender evaluation report as provided for and required of him under Section 84 of the Public Procurement and Asset Disposal Act and recommended approval of the award as proposed by the ad hoc evaluation committee.
44. That there was nothing in the entire process thus far that would have constrained him to give an adverse opinion and any revelation that could only be known by in-depth investigation as is alleged by the plaintiff, were neither within the ambit of the evaluation criteria set out in the tender document nor reasonably known to him. Further, that Public Procurement and Disposal Act 2015 Section 83 (1) provides that on post qualification, due diligence MAY be conducted by the evaluation Committee and hence the Act does not provide anywhere that the due diligence shall or must be conducted by the head of the supply Chain.
45. That on his part, he acted diligently and honestly in the performance of his duties to the County Government of Kiambu and the particulars of breach of fiduciary duty are in his honest view, baseless and not founded on the known and verifiable facts of the subject tender from the inception upto and including rendering of his professional opinion.
46. On his part, the 6th defendant who is the Chief Revenue Officer, ICT, Supply Chain Management& Internal Audit at the interested Party, avers that he is aware the 4th defendant applied for the said tender and after the extensive and rigorous procurement process in line with The Public Procurement and Assets Disposal Act, the 4th defendant was successful and thereafter, entered into a contract agreement with the interested Party for the development of ERP system.
47. That the said contract was executed on the 28th April, 2023 and was to last for six (6) months with five clear milestones as follows:-
a) Milestone 1 (delivered June 19th, 2023): Submission of an inception report.
b) Milestone 2: Delivery, installation and operationalization of hardware equipment, revenue management & reporting module and hospital management module.
c) Milestone 3: Operationalization of development, building construction, land management, housing, estates and premises and surveying & Geoinformatics modules.
d) Milestone 4: Full operationalization of Human Resource, fleet management, case management and electronic records management modules.
e) Final module: Successful installation, operationalization and Commissioning of the entire ERP system.
48. He avers that the interested party only authorizes payments for deliverables that have been completed and verified thereby ensuring value for money, and what has been paid so far relate to works performed and approved. That after the end of the six (6) months the 4th defendant had not completed the performance of the contract for the reason that inception report had proposed the upgrading of the existing Cisco routers to the Catalyst 9000 series, a change that affected the initial implementation plan necessitating adjustments to the ERP rollout.
49. That it was indeed necessary, reasonable and in public interest that an extension be considered, and all the requisite processes were adhered to leading to the execution of the extension contract by which time the interested party had already paid a total of Ksh.23,000,000 upon submission of an inception report and therefore, liquidating the performance bond of Ksh. 11,500,000 would have meant that the interested party would loose Ksh.11,500,000
50. Further, that the critical hardware and software the 4th defendant was dealing with were at an advanced stage and that lack of extension would have meant that all these functions that the ERP system was to handle would have suffered, thus, effectively landing the operations of the interested party somewhere between the ICU and the mortician. That all the decisions were made in good faith and the extension is allowed under the Public procurement and Asset Disposal Act.
51. He contends that no money was lost and that adequate measures, steps and safeguards were taken within the contract to not only ensure value for each coin paid but also ensure proper audit and evaluation of revenue allocation. Further, that the documents that the plaintiff has complained about are not part of mandatory requirement and they have not affected in any manner whatsoever the performance and/or execution of the contract.
52. That the ERP system has been successfully rolled out, is fully operational and its actively being used across all departments within the County Government and it has greatly enhanced efficiency and contributes significantly to the County’s revenue collection as evidenced by system -generated reports from various revenue streams.
53. In the 2nd application, the supporting affidavit by Max Muturi Chege has reproduced the contents of the replying affidavit to the 1st application and it would not be prudent use of judicial time to reproduce it here, save for the critical segments of the same. The applicant avers that following the conclusion of the 2022 General Elections, the applicant led by the Governor set out on a mission to review the then prevailing structures within the County including healthcare, education and critically; revenue collection in the County.
54. That desirous of altering the said status quo, the applicant sought to procure a system that would not only cure the leakage of revenue, but also ensure the County operated within the scope of Article 10 of the Constitution. That the tender was advertised and was awarded to the 4th defendant and the 1st respondent has not challenged the procurement process but asserted that some of the documents used by the 4th respondent to win the tender were questionable.
55. That the ERP system covers basically all functions and powers exercisable by the applicant under the 4th schedule to the Constitution and as such, the ERP forms the cornerstone of the applicant’s operations, and any decision whose effect is to interrupt the running of the ERP system must be carefully arrived at, considering the public harm sought to be prevented by issuance of such injunctive orders compared to the public harm as a result of the issuance of the orders.
56. That the system has led to efficient collection of county revenue which has in turn led to increased county revenue collection by more than Ksh.3 Billion in just 2 years of the system as the system has sealed all the loopholes that enabled revenue leakage. Further, that service delivery has been greatly improved as every resident of Kiambu regardless of where they are can use the system.
57. The applicant avers that payment under the contract is milestone based meaning that any payment made by the applicant is tied to the actual work done and that explains why despite the contract being for a total of Ksh. 230 Million, only Ksh. 63 Million has been paid out.
58. That the system itself has not been impugned and as such, the court cannot maintain an injunction whose effect is to stop the running and development of the system that would prevent the public from having a system that the public not only needed, but is actually reaping benefits of, and the court cannot issue an injunction that hurts the public in a case where to obtain the said injunction, the 1st respondent invoked public interest.
59. That the impugned system has generated tangible benefits, and has in fact cured previously identified areas of loss of public funds prior to the procurement of the said system. As such, there cannot arise a loss where there is a benefit which if quantified far exceeds the quantum of the alleged loss. That, in the present case, public interest favours the continued running of the system that is not only conferring great benefits to it, but whose interruption would actually result in substantial losses running into billions.
60. That an interruption in the running of the system will lead to the service offered by the applicant including health care, waste management, disaster management and ECDE programmes grinding to a halt as no other system supports the said functions as the old system no longer exists.
61. The applicant contends that this court cannot issue an injunction where the demonstration of a prima facie case is anchored on claims that are purely criminal in nature when this court lacks the subject matter jurisdiction to pronounce itself on criminal matters when the matter before it has been filed as a civil matter. That even in the event that the 5th respondent is found liable, there are prescribed sanctions under ACECA and which cannot be extinguished and/or rendered nugatory by mere fact that the interested Party has been allowed by this court to make payments to the 5th respondent for actual work done.
62. The plaintiff/1st respondent filed a replying affidavit sworn by Everlyne Wachira, on the 14th November,2025. She has reiterated all the averments as set out in the supporting affidavit sworn by Juliet Kavala dated the 30th October, 2025 in support of the plaintiff’s application for injunction. In addition, she stated that the plaintiff’s suit and consequent application for injunction, is the fact that the contract at the heart of this matter stands on pertinent bid documents which were forged.
63. That if the basis upon which the contract was awarded to the 4th defendant is fraudulent, then the contract and its continued performance is a nullity and goes against public policy in the war against graft. That this court ought to decline the invitation to exercise discretion in favour of a contract founded on forged documents.
64. She contends that any threatened shut down of the ERP system as alleged by the interested party and the 4th defendant, would be in breach of Article 7.2.4 of the contract dated the 28th April, 2023 and that, a court order issued by a competent court prohibiting effecting of payments under the impugned contract pending the determination of the suit would constitute a justifiable delay within the meaning of Article 7.2.4 of the contract between the 4th defendant and the inte
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1. This ruling relates to two applications, one is dated the 30th October, 2025 and the other one dated the 10th November, 2025 (herein the 1st and the 2nd applications respectively).
2. The 1st application is brought under Sections 1A,1B, 3, 3A and 63 of the Civil Procedure Act, Order 40 Rules 1, 2, 3, 4 and 51 of the Civil Procedure Rules, Sections 2 ,66 (1) (3b) (4) of the Public Procurement and Asset Disposal Act, 2015; Section 11 (1) (j) of the Ethics and Anti-Corruption Commission Act,2011; Sections 2, 23, 45, 51, 52, 53 & 56C of the Anti -Corruption and Economic Crimes Act and all the enabling provisions of the law.
3. The application is premised on the grounds set out on the body of the same, and it is supported by the annexed affidavit sworn by Juliet Kavala, on the even date. Through the application, the plaintiff/applicant has sought the following Orders;
1) Spent.
2) Pending the hearing and determination of this application, this Honourable Court be pleased to issue an interim order of injunction to restrain the Interested Party herein from paying the 4th Defendant Kshs. 166,295,500.00 being the balance of the contract price in respect of Tender No. 1223215 for the development, installation, testing, training, commissioning and support services of an enterprise resource planning system. (ERP)
3) Pending the hearing and determination of the plaintiff’s suit, this honourable court be pleased to issue an interim order of injunction to restrain the Interested Party herein from paying the 4th Defendant Kshs. 166,295,500.00 being the balance of the contract price in respect Tender No.1223215 for the development, installation, testing, training, commissioning and support services of an enterprise resource planning system (ERP).
4) In the alternative to prayers 2 and 3 above, pending hearing and determination of the plaintiff’s suit, this Honourable court be pleased to issue an interim order of prohibition to prohibit the Interested Party herein from paying he 4th Defendant Kshs.166,295,500.00 being the balance of the contract price in respect of Tender No. 1223215 for the development, installation, testing, training, commissioning and support services of an enterprise resource planning system (ERP)
5) Costs of the application be provided for.
4. The 2nd application is brought under Order 40 Rules 5 and 7 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act. It is premised on the grounds set out on the body of the same, and it is supported by the annexed affidavit sworn by Max Muturi Chege on the 10th November, 2025. Through the application, the applicant has sought the following Orders;
a. Spent.
b. This court be pleased to determine this application on a priority basis owing to the impeding paralysis of the Applicant’s functions.
c. This Honourable Court be pleased to vary and/or set aside its temporary injunctive orders issued on the31st October 2025.
d. Costs be provided for.
5. In the 1st application, the applicant avers that on or about the 30th March,2023, the interested Party advertised an invitation for bids for tender which indicated the closing date for submission of bids as 6th April, 2023, by which date the interested Party had received one bid from the 4th Defendant.
6. The applicants states that one of the mandatory technical requirements set out in the Tender document was the provision of Audited Financial Statements for the last three years (2022, 2021 and 2020) demonstrating: -
i) Three years’ average turnover of 400 million and above
ii) Profitability of at least 100 Million per year
iii) Positive cash flow
iv) Asset base of not less than 500 Million
7. That in its bid for the tender, the 4th defendant provided financial statement for 2022, 2021 and 2020 purportedly audited by the firm of MSM Chris & Associates, and contrary to the representations by the 1st, 2nd and 3rd defendants in the 4th defendant’s bid document, the plaintiff’s investigations established that the 4th defendant’s financial statements for 2022, 2021 and 2020 were never audited by the said firm. That additionally, the 4th defendant provided bank statements for USD bank account number 8069940029 held at NCBA Bank purportedly depicting a positive cash flow, which according to the applicant, were fraudulently and illegally edited to depict a purportedly healthy cash flow and profitability.
8. Further, that in its bid document, the 4th defendant represented that, one, Evah Mukami and Kennedy Gitara are among its employees and provided their purported curriculum vitae but to the contrary, the said Evah Mukami and Kennedy Gitara were not employees of the 4th defendant as alleged.
9. The applicant also averred that the contract agreement between the interested party and the 4th defendant was executed on the 24th April, 2023 and it stipulated the contract sum as Ksh. 230,000,000 with the contract period of 6 months which was to commence not later than 14 days from the date of execution.
10. It was also the applicant’s contention that the award of the tender to the 4th defendant, and the extension of the contract between the interested Party and the 4th defendant was illegal, fraudulent and a conspiracy by the defendants to confer a benefit and/or public funds to the 4th defendant and a breach of fiduciary duty and/or trust on the part of the 5th and 6th defendants.
11. That the 4th defendant has already received a total of Ksh. 63,704,500 being public funds that it fraudulently acquired in respect of the Tender and the applicant is apprehensive that pending the hearing and determination of the suit, the interested party is likely to pay the 4th defendant Ksh.166,295,500 being the balance of the contractual sum, hence, rendering the possibility of recovering the said funds extremely difficult, should its case succeed.
12. The applicant contends that the 4th defendant did not meet the mandatory requirement of the Tender and ought not to have been considered for the award of the said Tender, as the same was fraudulent, illegal, unlawful and therefore null and void.
13. The 4th defendant has opposed the application vide a replying affidavit sworn by Bernard Theuri, who is the 1st defendant and also the Director of the 4th Defendant. He has averred that by dint of an advertisement on 30th March, 2023, in the Daily Nation, for the said tender, it submitted its bid for the open tender and the 4th defendant was the only entity that applied for the said tender.
14. That subsequently, the 4th defendant and the interested Party entered into an agreement dated the 28th April, 2023 as regards the ERP system and in discharge of its obligations under the contract it deployed an ERP System designed to meet and exceed the standards required by the interested party. That the system has enabled the interested party to register a Ksh.3 Billion increase in revenue translating to a 47X return on their investment which means the public has not lost any money with respect to the ERP system and the 4th defendant has not benefited unlawfully from public funds.
15. The 4th defendant avers that all payments have been made for the actual work done, and at present, it has an outstanding invoice of Ksh. 20,938, 056.56 and as it stands now, the 4th defendant has been funding the operations of ERP system out of its pocket which is not sustainable as its resources are finite and as such, the system will shut down anytime if the exparte Orders are not set aside. It has denied that it falsified any documents so as to win the tender for the ERP system from the interested party.
16. The 4th defendant avers that the plaintiff has not established a prima-facie case, in that, the application and the pleadings the plaintiff has filed evinces the plaintiff’s uncertainty as to whether there has been loss of monies by the interested party on account of deployment of the 4th defendant. Further, that contrary to the plaintiff’s portrayal of an alleged fraudulent contract, the 4th defendant has diligently executed the contract, delivering tangible and verifiable value in light of the process of the tender, and owing to the excellent performance of the contract by the 4th defendant, the interested party has reported a KES 3 Billion increase in its own revenue.
17. That additionally, the system has streamlined operations, reducing revenue leakages that previously plagued the interested party prior to the installation of the system and granting of the orders would disrupt and paralyze public service delivery to the people residing within the interested party. Further, that the plaintiff has not demonstrated the prejudice that it will suffer, and which harm cannot be compensated for by award of damages.
18. That the 4th defendant has placed the interested party on notice that it will not accept any liability for any damage or loss occasioned by a shutdown of the system which damage may include a general collapse of the County systems and revenue loss.
19. The 3rd defendant who has been sued as a shareholder of the 4th defendant reiterated and adopted the response filed on behalf of the 4th defendant. She has denied that any funds have been corruptly, fraudulently and illegally acquired in respect of the subject tender and no culpability has been established against the 4th defendant or any of its officials.
20. She avers that although the plaintiff attempted to press charges on the basis of the same allegations set out in this matter, the Director of Public prosecutions took the position that the plaintiff’s investigations had critical evidential gaps.
21. That regarding the allegations touching on the contents of the documents submitted by the 4th defendant as part of its bid during the tender process and the merits of the award, the 3rd defendant contends that there are prescribed avenues through which all such questions can be exhaustively interrogated either as part of the legislated recourse mechanisms, to tender processes or in the context of criminal trials where charges have been preferred and evidence taken. That the application does not disclose any cause of action against any of the Directors or Shareholders of the 4th defendant in a personal capacity.
22. The applicant filed a further affidavit sworn by Everlyne Wachira in response to the defendants replying affidavits. She avers that the basis of the plaintiff’s suit and the application for injunction, is the fact that the contract at the heart of this matter stands on pertinent bid documents which were forged and therefore, if the basis upon which the contract was awarded to the 4th defendant is fraudulent, then the contract and its continued performance is a nullity and goes against public policy in the war on graft. That the 4th defendant did not meet the mandatory requirements of the tender and ought not to have been considered for the award of the said tender.
23. She avers that any threatened shut down of the ERP system as alleged by the interested party and the 4th defendant would be in breach of Article 7.2.4 of the contract dated the 28th April, 2023 which states that “Justifiable delay in payment by the County Government of Kiambu shall not necessitate the developer to suspend/withhold access and/or operation of the ERP’’.
24. That a court order issued by a competent court prohibiting effecting of payments under the impugned contract pending the determination of the suit would constitute a justifiable delay within the meaning of Article 7.2.4 of the contract between the interested party and the 4th defendant. Further, that the interested party and the 4th defendant have not demonstrated, by way of evidence, the existence of a contract between them capable of being enforced by the 4th defendant to shut down the ERP system.
25. She has stated that in line with the common law principle that no one should be allowed to benefit from her own illegal and wrongful acts, all the monies received by the 4th defendant should be forfeited to the state being proceeds of corruption and/or related to corruption. That in Anti- corruption litigation, undertaken by the plaintiff, the criminal and civil processes are parallel with civil recovery proceedings being non conviction based.
26. The applicant reiterates that the bank statements for USD bank account number 8069940029 held at NCBA bank provided in the 4th defendant’s bid documents were fraudulently and illegally edited to depict a purportedly healthy cash flow and profitability and that the 4th defendant’s financial statements for 2022 , 2021 and 2020 were never audited by the firm of MSM Chris & Associates.
27. That the applicant is reasonably apprehensive that if the orders sought are not granted, it shall be impossible to recover the funds the subject of the application from the 4th defendant, should the plaintiff’s suit succeed, thereby rendering the suit an academic exercise.
28. The interested party opposed the application vide a replying affidavit sworn by Max Muturi Chege, the Director, Legal Services in the County Government of Kiambu, on the 11th November, 2025.
29. He avers that sometime in 2022 following the conclusion of the 2022 General Elections, the interested Party, led by the Governor set out on a mission to improve the then prevailing structures within the County including, but not limited to healthcare, education and critically; revenue collection in the County. That from the onset, it was clear that the interested Party’s revenue system was seriously lacking in efficiency and transparency, an issue that is a matter of public record as captured in numerous reports by the Office of the Auditor General.
30. That desirous of altering the said status quo, on the 30th March, 2023, the interested Party advertised a National Tender Number 1223215 for the supply, Delivery, Installation, Testing, Training, Commissioning & Support Services of an Enterprise resource Planning (ERP) for the County Government of Kiambu and received one bid as at the closing date of 6th April, 2023.
31. The interested party states that a letter of award of the tender was issued on the 21st April, 2023 to the 4th defendant, and on the 28th April, 2023, the interested Party entered into a contract Agreement with the 4th respondent particularly for the development of an ERP system which included installation of all modules which were to be Geographic Information System (GIS) based.
32. That the ERP system was to be developed with the following listed modules as per the system specifications;
a) Revenue management and reporting
b) Hospital Management Information
c) Human resources Management
d) Fleet management
e) Land Management.
f) Case management module
g) Electronic Records management module
33. The award of tender included delivery of hardware components to support the ERP system which included Point of Sale (POS) Machines for revenue collection, servers to host the ERP System, UPS power back up machines, data centre air conditioning machines, CCTV sets, main servers, small servers, sinology servers, data centre firewalls, to which, the 4th defendant has since delivered the hardware component.
34. The interested party avers that the payment under the contract is milestone based meaning that any payment made by the interested party to the 4th defendant is tied to Actual work done and that explains why despite the contract being for a total of Ksh. 230 Million, only Ks. 63 Million has been paid out. That the ERP system is functional and continues to be used across all county Government’s Departments, enabling the collection of significant revenue for Kiambu County, and any decision whose effect is to interrupt the running of the ERP system must then be carefully arrived at, considering the Public harm sought to be prevented by the issuance of such injunctive orders compared to the public harm as a result of the issuance of the orders.
35. That the ERP system has generated numerous benefits, chief amongst them the creation of an efficient and synchronized administrative structure in the interested party and a massive increment in revenue collection which has increased by more than Ksh. 3 Billion in just two years of the system as the system has sealed loopholes that enabled revenue leakage.
36. The interested party contends that the system itself has not been impugned and as such, the court cannot grant an injunction whose effect is to stop the running and development of the system, as to do so would be to issue an open ended injunction which instead of addressing the sole grievance of forged documents it would invite consequences such as stopping the development of a system that is not under challenge. That it would prevent the public from having a system that the public not only needed, but is actually reaping the benefits, and it would be self-defeating and contrary to the Public interest.
37. That contrary to the applicant’s assertion that the public has lost and will loose money, there cannot arise a loss where there is a benefit which, if quantified, far exceeds the quantum of the alleged loss of Ksh.63 Million and the same interested party has as a result of the system increased its revenue collection by Ksh 3 Billion.
38. The interested party further avers that the system is still ongoing and an interruption at the present moment means that the remaining modules will not be completed, leading to an incomplete system that covers certain functions and others which have no way of being on boarded, at least not at this point.
39. That as a result of the initial temporary injunction issued by this court, the 4th respondent communicated that it shall not continue with the development of the system because they will not be paid for the work done and in their view, under the contract, execution of the works is contingent of a promise to pay at the completion of the works. Further, that an interruption in the running of the system will lead to services offered by the interested party including healthcare, waste management, disaster management and ECDE programmes grinding to a halt as no other system supports the said functions, and the interested party cannot revert to the old system as it no longer exists.
40. The interested party contends that the claims by the applicant are majorly anchored on the fact that the 4th respondent uttered false documents or forged documents used to bid for the tender. That the same are criminal in nature and indeed, decisive pronouncement cannot be made by this court until the said criminal-centric claims have been prosecuted and which prosecution will not be by this court sitting as a civil court over the matter.
41. Further, that this court cannot thus procedurally issue an injunction where the demonstration of a prima facie case is anchored on claims that are purely criminal in nature when this court lacks the subject matter jurisdiction to pronounce itself on criminal matters when the matter before it has been filed as a civil suit. The court has been asked to strike a balance between the public interest asserted by the applicant and the one asserted by the interested party and in so doing, the court is urged to adopt proportionate and pragmatic approach balancing accountability and public service continuity.
42. In his replying affidavit, the 5th defendant, who is the head of Supply Chain Management at the interested party avers that on the 30th March, 2023, the interested party advertised an invitation for bids for tender number 1223215 for the development, installation, testing, training, commissioning and support services of Enterprise Resource Planning System (ERP). That the standard tender documents for procurement contained all that was required of the bidders and the tender evaluation criteria.
43. That the bids were procedurally and lawfully opened and evaluated by the ad-hoc tender opening committees and he reviewed the tender evaluation report as provided for and required of him under Section 84 of the Public Procurement and Asset Disposal Act and recommended approval of the award as proposed by the ad hoc evaluation committee.
44. That there was nothing in the entire process thus far that would have constrained him to give an adverse opinion and any revelation that could only be known by in-depth investigation as is alleged by the plaintiff, were neither within the ambit of the evaluation criteria set out in the tender document nor reasonably known to him. Further, that Public Procurement and Disposal Act 2015 Section 83 (1) provides that on post qualification, due diligence MAY be conducted by the evaluation Committee and hence the Act does not provide anywhere that the due diligence shall or must be conducted by the head of the supply Chain.
45. That on his part, he acted diligently and honestly in the performance of his duties to the County Government of Kiambu and the particulars of breach of fiduciary duty are in his honest view, baseless and not founded on the known and verifiable facts of the subject tender from the inception upto and including rendering of his professional opinion.
46. On his part, the 6th defendant who is the Chief Revenue Officer, ICT, Supply Chain Management& Internal Audit at the interested Party, avers that he is aware the 4th defendant applied for the said tender and after the extensive and rigorous procurement process in line with The Public Procurement and Assets Disposal Act, the 4th defendant was successful and thereafter, entered into a contract agreement with the interested Party for the development of ERP system.
47. That the said contract was executed on the 28th April, 2023 and was to last for six (6) months with five clear milestones as follows:-
a) Milestone 1 (delivered June 19th, 2023): Submission of an inception report.
b) Milestone 2: Delivery, installation and operationalization of hardware equipment, revenue management & reporting module and hospital management module.
c) Milestone 3: Operationalization of development, building construction, land management, housing, estates and premises and surveying & Geoinformatics modules.
d) Milestone 4: Full operationalization of Human Resource, fleet management, case management and electronic records management modules.
e) Final module: Successful installation, operationalization and Commissioning of the entire ERP system.
48. He avers that the interested party only authorizes payments for deliverables that have been completed and verified thereby ensuring value for money, and what has been paid so far relate to works performed and approved. That after the end of the six (6) months the 4th defendant had not completed the performance of the contract for the reason that inception report had proposed the upgrading of the existing Cisco routers to the Catalyst 9000 series, a change that affected the initial implementation plan necessitating adjustments to the ERP rollout.
49. That it was indeed necessary, reasonable and in public interest that an extension be considered, and all the requisite processes were adhered to leading to the execution of the extension contract by which time the interested party had already paid a total of Ksh.23,000,000 upon submission of an inception report and therefore, liquidating the performance bond of Ksh. 11,500,000 would have meant that the interested party would loose Ksh.11,500,000
50. Further, that the critical hardware and software the 4th defendant was dealing with were at an advanced stage and that lack of extension would have meant that all these functions that the ERP system was to handle would have suffered, thus, effectively landing the operations of the interested party somewhere between the ICU and the mortician. That all the decisions were made in good faith and the extension is allowed under the Public procurement and Asset Disposal Act.
51. He contends that no money was lost and that adequate measures, steps and safeguards were taken within the contract to not only ensure value for each coin paid but also ensure proper audit and evaluation of revenue allocation. Further, that the documents that the plaintiff has complained about are not part of mandatory requirement and they have not affected in any manner whatsoever the performance and/or execution of the contract.
52. That the ERP system has been successfully rolled out, is fully operational and its actively being used across all departments within the County Government and it has greatly enhanced efficiency and contributes significantly to the County’s revenue collection as evidenced by system -generated reports from various revenue streams.
53. In the 2nd application, the supporting affidavit by Max Muturi Chege has reproduced the contents of the replying affidavit to the 1st application and it would not be prudent use of judicial time to reproduce it here, save for the critical segments of the same. The applicant avers that following the conclusion of the 2022 General Elections, the applicant led by the Governor set out on a mission to review the then prevailing structures within the County including healthcare, education and critically; revenue collection in the County.
54. That desirous of altering the said status quo, the applicant sought to procure a system that would not only cure the leakage of revenue, but also ensure the County operated within the scope of Article 10 of the Constitution. That the tender was advertised and was awarded to the 4th defendant and the 1st respondent has not challenged the procurement process but asserted that some of the documents used by the 4th respondent to win the tender were questionable.
55. That the ERP system covers basically all functions and powers exercisable by the applicant under the 4th schedule to the Constitution and as such, the ERP forms the cornerstone of the applicant’s operations, and any decision whose effect is to interrupt the running of the ERP system must be carefully arrived at, considering the public harm sought to be prevented by issuance of such injunctive orders compared to the public harm as a result of the issuance of the orders.
56. That the system has led to efficient collection of county revenue which has in turn led to increased county revenue collection by more than Ksh.3 Billion in just 2 years of the system as the system has sealed all the loopholes that enabled revenue leakage. Further, that service delivery has been greatly improved as every resident of Kiambu regardless of where they are can use the system.
57. The applicant avers that payment under the contract is milestone based meaning that any payment made by the applicant is tied to the actual work done and that explains why despite the contract being for a total of Ksh. 230 Million, only Ksh. 63 Million has been paid out.
58. That the system itself has not been impugned and as such, the court cannot maintain an injunction whose effect is to stop the running and development of the system that would prevent the public from having a system that the public not only needed, but is actually reaping benefits of, and the court cannot issue an injunction that hurts the public in a case where to obtain the said injunction, the 1st respondent invoked public interest.
59. That the impugned system has generated tangible benefits, and has in fact cured previously identified areas of loss of public funds prior to the procurement of the said system. As such, there cannot arise a loss where there is a benefit which if quantified far exceeds the quantum of the alleged loss. That, in the present case, public interest favours the continued running of the system that is not only conferring great benefits to it, but whose interruption would actually result in substantial losses running into billions.
60. That an interruption in the running of the system will lead to the service offered by the applicant including health care, waste management, disaster management and ECDE programmes grinding to a halt as no other system supports the said functions as the old system no longer exists.
61. The applicant contends that this court cannot issue an injunction where the demonstration of a prima facie case is anchored on claims that are purely criminal in nature when this court lacks the subject matter jurisdiction to pronounce itself on criminal matters when the matter before it has been filed as a civil matter. That even in the event that the 5th respondent is found liable, there are prescribed sanctions under ACECA and which cannot be extinguished and/or rendered nugatory by mere fact that the interested Party has been allowed by this court to make payments to the 5th respondent for actual work done.
62. The plaintiff/1st respondent filed a replying affidavit sworn by Everlyne Wachira, on the 14th November,2025. She has reiterated all the averments as set out in the supporting affidavit sworn by Juliet Kavala dated the 30th October, 2025 in support of the plaintiff’s application for injunction. In addition, she stated that the plaintiff’s suit and consequent application for injunction, is the fact that the contract at the heart of this matter stands on pertinent bid documents which were forged.
63. That if the basis upon which the contract was awarded to the 4th defendant is fraudulent, then the contract and its continued performance is a nullity and goes against public policy in the war against graft. That this court ought to decline the invitation to exercise discretion in favour of a contract founded on forged documents.
64. She contends that any threatened shut down of the ERP system as alleged by the interested party and the 4th defendant, would be in breach of Article 7.2.4 of the contract dated the 28th April, 2023 and that, a court order issued by a competent court prohibiting effecting of payments under the impugned contract pending the determination of the suit would constitute a justifiable delay within the meaning of Article 7.2.4 of the contract between the 4th defendant and the inte
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