A voter is seeking to reverse the High Court decision that allowed the other six presidential candidates to vie again on October 26.
In a memorandum of appeal filed on Friday, petitioner Abraham Kiplangat said justice John Mativo erred in law when he made his ruling on Wednesday.
Mativo ruled that Ekuru Aukot of Thirdway Alliance party is an eligible candidate for the fresh election. He said IEBC's decision to lock him out violated his rights.
The judge further said it would be in the interest of the public for all candidates who participated in the invalidated August 8 election to take part.
After the ruling, IEBC said all eight candidates will take part in the election. The primary candidates are President Uhuru Kenyatta and NASA principal Raila Odinga.
But Kiplangat, through lawyer Nelson Havi, argues the judge made an error in law in departing from the decision of the Supreme Court that defined what a fresh election means.
Mutai said the judge disregarded decisions by the top court on grounds of obiter dictum and relied solely on foreign decisions.
"The learned judge of the High Court erred in law, in holding that the second respondent's exclusion of the first respondent from participation...was discriminatory and unconstitutional.
The respondents are IEBC and Aukot respectively.
More on election: What does it mean? Obiter dictum and the Kenyan election
Kiplangat further says: "The...judge...erred in law in holding that the Supreme Court's interpretation of the meaning of 'fresh election', under Article 140 (3) of the constitution, was not binding upon him and was a mere ad hoc observation."
He also says Mativo contravened Section 14 (1) (b) of the Elections Act in ordering the electoral agency to gazette Aukot's name as a candidate for the election beyond the stipulated time period.
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