President Uhuru Kenyatta's lawyers have attacked the character of the petitioners, saying that because they had not voted, they should not be allowed to challenge the outcome of a process they refused to participate in.
In their reply to claims made by the three petitioners, the lawyers dismissed the move by Njonjo Mue and Khelef Khalifa as one which is motivated by the desire to attract donor funding and that the alleged low turnout cannot be used to challenge the legitimacy of the President because voting is not compulsory.
Lawyer Ahmednasir Abdulahi characterised the case as part of a bid by the petitioners, who are members of civil society groups under the banner of Kura Yangu, Sauti Yangu, for foreign financing.
"This petition has nothing to do with public interest litigation. It is a powerful and innovative proposal for donor funding," Mr Abdullahi said.
He also argued that the petitioners do not constitute a "person" in the sense outlined in the Constitution and their refusal to participate in the repeat polls meant they should not have challenged the outcome.
"You must litigate over a grievance that has arisen over your rights under Article 38 (political rights). You must have a cause of action under Article 38 (2) (right to free, fair and regular elections). Then, you must be aggrieved as to how your rights were aggrieved by IEBC," he added.
Mr Abdullahi asked the judges not to see themselves as needing to make a transformative decision.
RIGHT TO VOTE
"This is a political court that interprets the Constitution. Political in the sense that you interpret important political questions of the day. You exercise the highest political power," he said.
Asked by Justice Njoki Ndung'u whether the right to vote included the right not to vote, he said that is not the case.
"When you elect not to vote, you are just invalidating your right to vote. There is no distinct right called 'The right not to vote.' You can't say that 'I will not participate in this election and then say 'This election was bad because of A, B, C, D.' You did not participate in the process," said Mr Abdullahi.
The same argument was buttressed by lawyer Kimani Kiragu who urged the court to examine who the petitioners were, because to him, they cannot be allowed to question a process in which they were not part of.
Mr Fred Ngatia, who is President Kenyatta lead lawyer, dismissed assertions by the petitioners that fresh nominations were a prerequisite for the October 26 elections, arguing that the legal regime which operationalised the poll does not call for nominations.
He cited Article 140 (3) and Section 14 of the Elections Act which, he said, contain no provisions for fresh nominations other than where the Office of the President is vacant and during a general election because in both circumstances there are no candidates.
In his submission, the first petitioner Haroun Mwau, had said the IEBC violated the law by failing to allow political parties to conduct fresh nominations and IEBC to receive such nominations.
On Thursday, Mr Ngatia defended IEBC in the way it conducted the process, saying in carrying out the elections it obeyed the law and complied with the Supreme Court order on fresh election delivered on September 1.
He argued that the 60 days window given by the Supreme Court would not have allowed room to hold fresh nominations and declared that Mr Raila Odinga's boycott of the poll was an "abandonment" and not a withdrawal.
Mr Ngatia told justices David Maraga, Philemona Mwilu, Smokin Wanjala, Isaac Lenaola, Njoki Ndungu and Boma Ojwang' that the manner in which Mr Odinga withdrew from the race did not meet the legal test and thus, the best definition of it was an abandonment.
He noted that the turnout on October 26 could not be used to question President Kenyatta's legitimacy because voting in Kenya is not compulsory.