The Supreme Court Thursday struck out a petition by Dr.Ekuru Aukot of Thirdway Alliance seeking to have his name included in the October 17 presidential elections.
The court says it has no jurisdiction to hear and determine the matter.
The judges argued that the Supreme cannot be the first and last court to interpret the constitution and instead ordered that the petition be filed at the high court.
Chief Justice David Maraga has promised that the matter will be expedited.
Dr.Ekuru Aukot says he will obey the orders and file the petition at the High Court Friday.
He however says he will be seeking orders stopping implementation of gazette notice that President Uhuru Kenyatta and Raila Odinga will be the only candidates in the October 17 presidential elections.
In the petition, Dr Aukot has faulted the Independent Electoral and Boundaries Commission-IEBC-for limiting the number of candidates who will participate in the fresh election to two.
Aukot who took the fourth position in the nullified elections argues that the Supreme Court the August 8th election was invalid, null and Void and therefore a fresh election ought to involve all the eight Presidential candidates.
He says he has a direct, legitimate and inalienable constitutional right to participate in the fresh poll and the failure to include him in the ballot is a violation of his rights and those of his supporters.
IEBC relied on the Supreme Court ruling of 2013 that defined the term fresh election as follows.” If the petitioner was only one of the candidates, and who had taken the second position in vote-tally to the President-elect, then the “fresh election” will, in law, be confined to the petitioner and the President-elect”.
All the remaining candidates who did not contest the election of the President-elect, will be assumed to have either conceded defeat, or acquiesced in the results as declared by IEBC; and such candidates may not participate in the “fresh election.”
As this was the situation in this case, if the Court were to invalidate the election of Uhuru Kenyatta and William Ruto, only Raila Odinga would participate as a contestant in the “fresh election” against the President-elect and the candidate who received the most votes in the fresh election would be declared elected as President.