As a seven-judge bench led by Court of Appeal president Daniel Musinga began hearing the cases challenging the nullification of BBI on Tuesday, lawyer Elias Mutuma wanted the court to strike out two affidavits filed by IEBC and the BBI Secretariat.
However, the bench dismissed the application by Mutuma to strike out the two affidavits.
The judges ruled that the issue of the affidavits will be determined in the final judgement.
Mutuma - representing Thirdway Alliance - had claimed that the two want to sneak in new evidence that is not related to the JLAC report.
In response, lawyer Otiende Amollo for BBI, said they were producing the JLAC report on the referendum bill which Mutuma did not include in their report.
Lawyer Eric Gumbo for IEBC asked the court not to strike out their affidavit because they are only producing a gazette notice showing that there has been continuous voter registration.
High Court judges on May 17 declared the process illegal and unconstitutional and censured the electoral agency for plans to hold a referendum without proper public participation.
President Uhuru Kenyatta and ODM boss Raila Odinga, key proponents of the push to change the Constitution, are seeking to convince the Court of Appeal judges to clear the road for a referendum.
