The High Court has ordered the electoral agency to include Thirdway Alliance presidential candidate Ekuru Aukot in the October 26 repeat election.
Justice John Mativo directed the Independent Electoral and Boundaries Commission to amend a gazette notice it had issued on presidential candidates to contest in the repeat election to include Mr Aukot’s name.
In his judgment, the judge ruled that Mr Aukot was party to the petition challenging President Uhuru Kenyatta’s election, as an interested party.
The judge said he sees no reason why the petitioner should not be included in the election.
“Having participated and supported the petition that nullified the elections, I still find nothing to bar Dr Aukot from contesting in the fresh elections,” said Justice Mativo.
According to the judge, the right to participate in the electoral process which includes voting and standing for elections is part of the basic structure of a democratic state.
He said the election is not a run off but a fresh election, saying the former refers to competition between two leading candidates.
The judge ruled that excluding Mr Aukot from the repeat election is a violation of his rights.
The judge rejected an application by the IEBC to suspend the ruling.
Dr Aukot’s lawyer objected to the request saying it would further prejudice his client’s candidature.
Addressing journalists after the ruling, the Thirdway Alliance presidential candidate lauded the court decision, saying it was wrong for the electoral agency to leave him out.
He said there were still concerns on some issues on the repeat election that the IEBC needs to address before conducting the fresh election.
In his ruling, Justice Mativo said that any action that specifically bars Dr Aukot from participating in the democratic process is unconstitutional unless that is strongly justified.
He also said equality is one of the philosophical foundations of human rights and is intimately connected to the concept of justice.
Dr Aukot had challenged the exclusion of his name in the gazette notice that announced President Uhuru Kenyatta and Mr Raila Odinga as the only contestants in the repeat presidential polls.
Through lawyer Elias Mutuma, he sued the IEBC, its chair Wafula Chebukati, Jubilee Party and ODM.
As soon as the judgment was issued, IEBC asked the court to temporarily suspend its decision.
But as if changing their minds, they also told court that they would not over emphasise that request.
However, the judge declined to heed to their request altogether.
Speaking on his next move, Dr Aukot said he intends to have talks with his party and its National Executive Council on the way forward.
He also said that he intends to have talks with IEBC following the court’s decision considering that he has been excluded from the electoral commission’s discussions with other political parties.
He however said he will issue a comprehensive statement later while saying that it is time for him to celebrate his victory since he is sure of being in the ballot in the fresh polls.