Chief Justice David Maraga has directed Dr Ekuru Aukot of Thirdway Alliance to go back to the High Court for an interpretation on whether he can run in the repeat presidential election.
Dr Aukot is seeking to be included in the repeat presidential race.
Dr Aukot filed the case after the Independent Electoral and Boundaries Commission (IEBC) announced that the repeat poll, which is scheduled for October 17, will only be a contest between President Uhuru Kenyatta and National Super Alliance (Nasa) leader Raila Odinga.
In his response, Mr Odinga has supported the inclusion of Dr Aukot in the repeat poll saying it is discriminatory to lock him out yet he participated in the August 8 presidential poll.
Both President Uhuru Kenyatta and IEBC are opposed to the suit arguing that the court has already determined who should run in a repeat poll.
Dr Aukot says he has a direct, legitimate and inalienable constitutional right to participate in the fresh presidential election, having been a contender in the last poll and that the gazette notice which announced the race is discriminatory and unconstitutional.
But IEBC Chairman Wafula Chebukati says Dr Aukot is not eligible to contest the fresh poll, having conceded defeat in a press conference immediately after the August 8 election.
Dr Aukot says the electoral agency can only limit the number of candidates in a presidential election when the court orders a re-run.
"I believe that my political right and that of my constituents as enshrined in the Constitution are threatened, violated and infringed [on] by the decision of IEBC and Chebukati to exclude me in the fresh election without lawful justification," adds Dr Aukot.