The High Court will Wednesday morning determine whether Thirdway Alliance presidential candidate Ekuru Aukot’s name will be included on the repeat ballot.
Dr Aukot moved to court after the Independent Electoral and Boundaries Commission gazetted two presidential candidates — Uhuru Kenyatta and Raila Odinga and their running mates — as the only people eligible for the repeat poll.
He moved to court seeking an interpretation of “fresh elections” as ordered by the court under article 140(3).
He had first moved to the Supreme Court but Chief Justice David Maraga directed him to file the case before the High Court.
According to Dr Aukot, with the Supreme Court invalidating the August 8 presidential vote, anyone who contested the poll is eligible to vie in the repeat election.
“The simple meaning of the Supreme Court decision is that there was no election and anyone who participated in the August 8 presidential election has a right to vie,” he said.
Through his lawyer, Mr Elias Mutuma, Dr Aukot argued before Justice John Mativo that the electoral body can only limit the number of candidates in a presidential election where no candidate garners 50 per cent plus one votes.
In that case, a fresh poll is to be held within 30 days in a run-off.
During the hearing, President Kenyatta opposed the inclusion of Dr Aukot while Mr Odinga supported the Thirdway Alliance leader.
The Supreme Court nullified President Kenyatta’s win, citing irregularities and illegalities in the transmission of results.
The court, in a majority decision, directed IEBC to conduct fresh elections within 60 days, as per the Constitution.
In his submission, Dr Aukot said he had a direct, legitimate and inalienable constitutional right to participate in the fresh presidential election, having been a contender in the last polls.
He said the gazette notice published by IEBC announcing the fresh election date and the candidates, was discriminatory and unconstitutional.
“My political right and that of my constituents as enshrined in the Constitution are threatened, violated and infringed [on] by the decision of IEBC and its leader, Mr Wafula Chebukati, to exclude me from the fresh election without lawful justification,” Dr Aukot added.
Jubilee Party’s chief agent Davis Chirchir said Dr Aukot does not qualify as a candidate because the Supreme Court did not deal with any of the grievances he raised.
And Mr Chebukati, in his response, said the matter was dealt with by the Supreme Court in 2013, and that the bench, in the 2017 election petition, did not overturn the decision.
He added that the decision in 2013 is consistent with international best practice as accepted and applied by the court.
If it takes the Nasa view as correct, then the contention by Mr Odinga may prevail.