President Uhuru Kenyatta wants the case in which businessman John Harun Mwau is seeking to have the October 26 poll suspended because there were no fresh nominations undertaken to be dismissed.
According to the president, it is not in the public interest to grant orders sought in the case since ballot papers for the Thursday poll have already been delivered from Dubai besides other preparations.
Through lawyer Tom Macharia, President Kenyatta argues that there is no basis for fresh nominations of candidates for the repeat electoral contest.
“The suspension of presidential election is not contemplated by the Constitution and the Elections Act. This court should therefore decline an invitation to subvert the law,” said Mr Macharia.
In his response to the case, Mr Kenyatta insists that the Constitution will be violated if orders sought are granted since it would mean the poll will not be held within the already stipulated timeline.
He therefore said that fresh nominations are not necessary for an election under the Constitution and that the coming poll is built on the foundation of an invalidated one in which candidates had been validly nominated as per the Elections Act.
He further says the issues raised in the case are matters which the High Court has no jurisdiction to deal with or determine.
Through lawyer Benjamin Musyoki, the former Kilome MP sued the Independent Electoral and Boundaries Commission (IEBC) and its chairman Wafula Chebukati.
Mr Mwau has faulted the IEBC for publishing a gazette notice on September 5 regarding the October 26 repeat presidential poll which he said violates the law.
The said gazette notice is the one which indicated that only President Kenyatta and Mr Raila Odinga will contest in the repeat presidential election.
But this position has since changed following a court ruling in favour of adding Dr Ekuru Aukot of Thirdway Alliance as well as other fringe presidential candidates to the ballot.
Mr Mwau said he wants the High Court to determine whether fresh elections can be held without nominations.
He also wants a determination on whether fresh elections can legitimately be held based on a nomination (whose subsequent election) has been nullified.
Mr Mwau wants it declared that the Supreme Court, while nullifying the August 8 presidential poll results, meant that there must be a new election which has to comply with all election requirements (including nominations).