The Orange Democratic Party (ODM) yesterday moved to the Court of Appeal in a renewed attempt to block Thursday’s repeat presidential polls.
In a new twist, the party, through lawyer Nelson Havi, sought to overturn a high court decision that allowed Thirdway Alliance presidential candidate Ekuru Aukot and six others to participate in the fresh polls slated for October 26.
The move by the Raila Odinga's party came barely three days after a similar case filed by Havi who then was representing blogger Abraham Mutai, was withdrawn after the applicant said he no longer wished to pursue the matter.
It is also interesting because NASA supported Aukot’s petition before justice John Mativo who agreed with them denying him a right to participate in the fresh poll was a violation of his right.
The judge, in his decision, was of the view that it would be in the interest of the public to allow all candidates who participated in the last elections contest again.
Following that decision and despite a declaration by Raila that he has withdrawn, IEBC said all eight candidates who participated in the August 8 polls are on the ballot.
In the appeal ODM, Just like Mutai had stated in the case withdrawn on Thursday, says the judge made an error in law by allowing Aukot to participate in the fresh polls.
Similarly, ODM also says the judge erred in law by departing from the decision of the Supreme Court defining a fresh election under Article 140.
"The judge erred in law, in holding Aukot seclusion from participation in the ordered fresh election was discriminatory and unconstitutional."
"The learned judge disregard decisions by the supreme court of Kenya on the effect of obiter dictum and erred in relying solely upon foreign decisions in arriving at his decision," reads documents filed in court.
The party also argues that it was wrong for the court to find that Aukot's was an eligible candidate in the fresh elections directed to be conducted by the majority decision following the nullification of the August 8 polls.
The case will now be heard on October 25.