, NAIROBI, Kenya, Sep 21 – Chief Justice David Maraga has directed Thirdway Alliance party leader, Ekuru Aukot, to move to the High Court after declining to hear an application in which he sought to be allowed to run in the fresh presidential election slated for October 17.
The directions were issued on Thursday when parties to the application had been ordered to appear before a five-judge Supreme Court bench for hearing.
Aukot’s lawyer Elias Mutuma however faulted Justice Maraga’s move saying the applicant was not seeking an interpretation of the Constitution but rather orders of the Supreme Court as to what a fresh presidential election entails.
“The CJ had in fact certified our application as urgent and ordered us to appear in court today but in a change of mind he summoned us at his chambers and told us to go to the High Court to seek the interpretation of Articles 138 (5) and 140 (3),” Mutuma contested.
Aukot told the press following the order that the Supreme Court had failed to provide clarity in its judgment of September 1 in which it nullified the August 8 presidential election, saying all candidates who participated in the annulled poll were at liberty to contest in the fresh poll.
According to Aukot, the Supreme Court’s decision specifically invoking Article 140 (3) of the Constitution meant that the Independent Electoral and Boundaries Commission (IEBC) was to gazette all the eight aspirants who took part in the annulled poll as candidates in the October 17 election.
“The Supreme Court has shot itself in the foot because their determination was based on the fact that the August 8 poll was not done in accordance with the Constitution and therefore all of us who contested in the original election ought to have been in the Gazette Notice,” he explained.
He further contested the 2013 presidential petition precedence IEBC cited in its Gazette Notice of September 5 as the reason other candidates had been locked out saying the 2013 petition was principally different from the 2017 petition.
“The nature of the petition in 2013 is that which is predicated upon a runoff where nobody meets the Constitutional threshold of being declared a winner in an election,” he argued.
Aukot said the 2017 petition was based on the fact that the election was not conducted in accordance with the Constitution and therefore the nullification of the election could not have precipitated a runoff.