President Uhuru Kenyatta has opposed the inclusion of Dr Ekuru Aukot in the October 17 repeat presidential election.
In papers filed at the Supreme Court registry on Friday, President Kenyatta said the only eligible contestants are him and National Super Alliance flagbearer Raila Odinga.
The Supreme Court nullified President Kenyatta’s victory in the August 8 poll, citing irregularities and illegalities in the transmission of results.
The court directed the Independent Electoral and Boundaries Commission (IEBC) to conduct a fresh presidential election within 60 days.
The electoral agency announced that President Kenyatta, the Jubilee Party leader, and Mr Odinga are the only candidates who will participate in the election.
The announcement prompted Dr Aukot, the Thirdway Alliance presidential candidate, to move to court, seeking a clarification on whether he can contest the fresh election.
In the petition, Dr Aukot argues that it was wrong for the IEBC to limit the number of candidates who can contest the fresh polls.
He argues that he has a constitutional right to take part in the poll.
He further says failure to include him in the election is a violation of his rights and those of his supporters.
But in a sworn statement, Mr Davis Chirchir, the Jubilee Party’s chief agent, argues that Dr Aukot does not qualify as a candidate.
Mr Chirchir said the Supreme Court did not deal with any of the grievances raised by Dr Aukot.
He said the court cannot be asked to adjudicate on a matter that was not brought before the judges.
He added that the matter was dealt with by the Supreme Court in 2013 and the current Bench did not reverse the decision.
Mr Chirchir argued that Dr Aukot is asking the court to hear afresh a matter that was determined in 2013.
In the petition, Dr Aukot however argues that the IEBC can only limit the number of candidates for a presidential election, where no contestant garners 50 plus one votes, and in that case, a run-off is held within 30 days.
Through his lawyer Elias Mutuma, Dr Aukot wants the court to clarify what it meant when it ordered the IEBC to conduct fresh polls within 60 days.
Although the IEBC has set the date for the repeat poll, Mr Odinga has rejected it.
He has demanded a number of changes before the election is held.
They include a complete review of the national voters register, gazetting of all polling stations and appointment of returning officers in consultation with parties and candidates.
The case will be mentioned on Monday before the Registrar of the Supreme Court, Ms Esther Nyaiyaki.