This prolongs the suspense over the presidency that has dragged since September 1, when the Supreme Court led by Chief Justice David Maraga nullified President Uhuru's win in the August 8 presidential election.
Following the successful petition by Opposition leader Raila Odinga, the court ordered the fresh election but the National Super Alliance presidential candidate boycotted the poll that Uhuru won by 7.4 million votes (98 per cent).
Mr Mwau’s election petition means that preparations for President Kenyatta’s swearing-in for a second term in office will be put on hold for the next 14 days to await the petition’s outcome. And were the judges to nullify the vote again the political crisis would stretch to January next year, when a repeat vote would be expected.
His main argument is that Mr Kenyatta was not validly and legally elected and cannot be sworn in given that he was not properly nominated to contest in the fresh polls.
Should the Supreme Court allow the former MP’s claims of illegalities in conducting the repeat presidential poll, it would be the second time in less than three months that Uhuru’s win is nullified.
Through lawyer Nicholas Musyoki, Mr Mwau claimed the Independent Electoral and Boundaries Commission failed to follow the correct procedure in conducting the fresh presidential election, adding that the outcome was unconstitutional.
“At the time of going for the election, IEBC knew they had violated the Constitution and were bent on doing an illegal exercise. They slept on the job, only to wake up when it was too late to conduct the election in accordance with the Constitution as had been ordered by the Supreme Court,” said Mr Musyoki.
He wants the court to declare that IEBC's failure to properly gazette presidential candidates for the repeat elections was unconstitutional and the outcome therefore cannot be legally binding.
The former legislator has listed IEBC as the first respondent and the commission’s chairman, Wafula Chebukati, and President Kenyatta as the second and third respondents respectively.
Unlike the petition by Raila which was based on electoral illegalities committed during the election, Mwau has based his claim on constitutional questions regarding how a fresh presidential election should be conducted.
He has cited articles 138 and 140 of the Constitution and several provisions in the Elections Act, which he claims the IEBC did not follow in conducting the fresh elections. He wants the commission cited for contempt of court.
“When the Supreme Court invalidated the August 8 election, it ordered that the fresh elections must be done in accordance with the Constitution and election laws but IEBC has not complied with that order,” Musyoki said.
He argues that IEBC did not conduct nominations before the October 26 election and that none of the candidates paid the mandatory Sh200,000 nomination fees.
“As a matter of fact, there was no legally recognised presidential candidate for the fresh presidential election. There was no nomination at least 21 days before the election, and none of them paid the mandatory nomination fees to qualify them as presidential candidates,” he said.
He submitted that when the Supreme Court invalidated the August 8 poll, it meant that whatever had happened was invalid, including the nomination exercise, and that IEBC could not use that as a basis for conducting the fresh polls.
Mwau raised questions of validity of the conduct of the repeat presidential election and wants the Supreme Court to declare that IEBC failed to conduct the election in accordance with the Constitution and election laws.
“It is clear that the manner and violations including irregularities and illegalities deeply affected the results of the presidential elections held on October 26. It demonstrates that the election was unconstitutional and the results cannot be legally recognised,” Musyoki said.
His next question touches on Uhuru's nomination, where he argues that the president-elect did not deliver his nomination certificate from Jubilee Party to enable him be cleared to vie.
He argued that IEBC made a mistake in relying on Uhuru’s nomination certificate presented for the August 8 election.
“Mr Kenyatta was a stranger to the election. He was not a qualified candidate, the commission could not legally declare someone who was not validly nominated as the winner of the repeat polls,” said Musyoki.
Another issue Mwau wants determined is the disqualification of Cyrus Jirongo from the race, only to be re-admitted and his name printed in the ballot paper.
According to him, the gazette notice issued by the commission to disqualify Jirongo from the race over bankruptcy was still in force at the time the elections were held which meant that he was illegally allowed to contest.
“The gazette notice of disqualification was still in force when the commission secretly went to print the ballot papers and included his name. They only realised their mistake a day to the polls and attempted to correct the mistake when they had already put an illegal candidate in the ballot,” said Musyoki.
He also argued that none of the candidates delivered a list of at least 2,000 voters registered in a majority of constituencies to support their candidature.
He also accused IEBC of discriminating other candidates by failing to give them equal opportunity to campaign.
He wants to know whether only the candidates who participate in an election are entitled to contest once the election is declared invalid.
Mwau is also asking the court to determine whether there should have been fresh nomination of candidates, whether candidates who did not comply with election regulations can be validly elected and whether Mr Kenyatta was validly re-elected.