Lawyer Kiprono Matagei has moved to court to get an order compelling Chief Justice Willy Mutunga to swear in William Ruto as President for the remaining three years of the Jubilee coalition's term.
Mr Matagei, in his court papers, argues that Uhuru Kenyatta's surrender of the instruments of power and the presidential motorcade is construed as resignation within the meaning of Article 146 (1) (b).
The Article states: "The office of President shall become vacant if the holder of the office — resigns, in writing, addressed to the Speaker of the National Assembly."
Mr Matagei filed the application at the High Court in Nairobi.
“The President’s acts and omissions of openly surrendering instruments of power to the deputy president and his written speech addressed to the two houses should be construed as having resigned,” he said in the application.
“Since the Speaker of the National Assembly was present, and because the message he read was in writing, then it beats the substratum test of resignation as enshrined by article 146(1)(c) of the constitution.”
President Uhuru Kenyatta on Monday surrendered power to Deputy President William Ruto to allow him to attend court on Wednesday at The Hague.
He said he was temporarily surrendering power because of his determination to end his case at The Hague without dragging the “sovereignty of Kenya (or) 40 million Kenyans” with him in the crimes against humanity charges, which stemmed from the 2007/8 post-election violence.
“To protect the sovereignty of the Republic of Kenya, I will shortly sign a legal notice appointing Hon William Ruto as acting President while I attend the status conference,” he told a special sitting of Parliament