Deputy President William Ruto's United Democratic Alliance (UDA) party has asked court to strike out a case filed by activists questioning eligibility of Mr Rigathi Gachagua and 12 other election candidates.
In an application filed at the High Court in Milimani yesterday, UDA says the petition is bad in law and an outright abuse of the process of court.
"The petition is a sham and does not disclose any justiciable issues. The issues sought to be canvassed through the instant petition have also been presented to the Supreme Court by the same petitioners. They are engaging in a horrendous forum shopping venture," UDA says through lawyer Adrian Kamotho Njenga.
In the lawsuit, the petitioners want a declaration that the legal principle of presumption of innocence does not apply to criminal suspects seeking public seats.
Their case against election of Mr Gachagua is the recent decision by the High Court to allow the State-owned Asset Recovery Agency (ARA) to seize his Sh202 million alleged to be dirty cash.
“Kenya is facing a real spectre that a government, which is non-compliant with the Constitution particularly Chapter Six of Leadership and Integrity, might be established after the coming General Election in the event that the UDA’s presidential candidates emerge victorious,” said the petitioners.
But UDA states that the petition is "absurdly and unjustly oppressing the politicians by unjustly dragging them to court."
"This court has a constitutional duty to ensure that no injustice, prejudice or smear campaign is visited on an innocent citizen at the wanton impunity of another," says Mr Njenga.
"The petitioners lodged a petition at the Supreme Court presenting the same issues raised before this court but with insignificant modifications. Remarkably, the petitioners did not disclose to this court that they had filed a similar matter before the Supreme Court," he states.
In his view, the petitioners having filed the matter at the Supreme Court the High Court cannot deal with the same.
He adds that the High Court does not have powers to deal with disputes relating to the Presidential elections.
Failed to kick off
"It is scandalous for the petitioners to recklessly allege in generic terms as evident in their pleadings, that the UDA has subverted Chapter Six of the Constitution and promoted the establishment of an unlawful government or a felonious state in Kenya," argues the lawyer.
The hearing of the case failed to kick off yesterday after court learnt that the petitioners had not furnished all the respondents, such as Kirinyaga Governor Anne Waiguru, with the documents.
Mr Gachagua's lawyer also told court that he was not ready proceed and needed time to file an affidavit in response to the issues raised by the petitioners against him.
Other election candidates whose eligibility is contested in the suit are NairobiSsenator Johnson Sakaja, who is vying for the city governorship, and governor candidates Aisha Jumwa (Kilifi) and Muthomi Njuki (Tharaka-Nithi).
Also in the list is governor candidate Mohamud Ali Mohamed (Marsabit), Evans Kidero (Homa Bay), Ali Korane (Garissa) and Dhadho Godana (Tana River).
Migori governor Okoth Obado is also in the list and named as a respondent. MP aspirants listed include John Waluke (Sirisia), Samuel Arama (Nakuru Town West), Oscar Sudi (Kapseret).
Among the orders sought by the petitioners is an injuction restraining the above-named candidates from being sworn-in should they be elected.
They also want the case to be forwarded to the Chief Justice for appointment of at least three judges to interpret the Constitution on whether persons with integrity issues are eligible to hold public offices.
Judge Mugure Thande directed the parties to exchange all the documents and appear in court on August 12 for hearing.